Submitted: May 17, 2019
from United States District Court for the Western District of
Missouri - Kansas City
COLLOTON, BEAM, and SHEPHERD, Circuit Judges.
Jones pleaded guilty to unlawful possession of a firearm as a
previously convicted felon. See 18 U.S.C. §
922(g)(1). The district court determined that he was subject to
an enhanced sentence under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(1), based on five prior
Missouri convictions for sale of a controlled substance.
See Mo. Rev. Stat. § 195.211 (2003). The court
then sentenced Jones within the advisory guideline range to a
term of 190 months' imprisonment and five years of
ACCA enhancement applies when a defendant has "three
previous convictions . . . for . . . a serious drug offense .
. . committed on occasions different from one another."
18 U.S.C. § 924(e)(1). Jones challenges the district
court's determination that he qualified as an armed
first argues that none of his five Missouri convictions
counts as a "serious drug offense." A "serious
drug offense" includes "an offense under State law,
involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance
(as defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)), for which a maximum term of imprisonment of
ten years or more is prescribed by law." 18 U.S.C.
§ 924(e)(2)(A)(ii). The Missouri statute under which
Jones was convicted made it a crime to "deliver . . . or
attempt to . . . deliver . . . or to possess with intent to .
. . deliver . . . a controlled substance." Mo. Rev.
Stat. § 195.211.1 (2003).
determine whether a state drug conviction qualifies as a
"serious drug offense" under federal law, we apply
a "categorical approach" and compare the elements
of the state offense with the elements set forth in §
924(e)(2)(A)(ii). See United States v. Bynum, 669
F.3d 880, 885 (8th Cir. 2012). Jones argues that the Missouri
statute is broader than a "serious drug offense"
under federal law, because "controlled substance"
in Missouri encompassed some substances that were not
"controlled substances" under federal law. In
Missouri, however, "the identity of the controlled
substance is an element of the offense under §
195.211," so "the statute is divisible based on the
drug involved." Martinez v. Sessions, 893 F.3d
1067, 1073 (8th Cir. 2018). In that circumstance, we may
apply a modified categorical approach and look to judicial
records to determine the Missouri offense of which Jones was
convicted. Mathis v. United States, 136 S.Ct. 2243,
2249 (2016). Here, the records show that Jones was convicted
five times for selling cocaine base-a substance that
qualified as a "controlled substance" under both
state and federal law-so the state offenses match the federal
definition on that score.
also complains that the Missouri statute's definition of
"deliver" criminalized merely an "offer"
to sell drugs, and that the federal statute does not
encompass an offer to sell. We held in United States v.
Hill, 912 F.3d 1135, 1136-37 (8th Cir. 2019) (per
curiam), however, that an offer to sell in Missouri is
categorically an offense "involving" the
distribution of a controlled substance under §
924(e)(2)(A)(ii). So each of Jones's five convictions
under § 195.211 matches the offense defined in §
924(e)(2)(A)(ii) and was properly counted as a "serious
final argument is that the district court impermissibly found
that at least three of his Missouri offenses were
"committed on occasions different from one
another." The judicial records showed that one offense
was committed on or about November 8, 2007, another on or
about November 28, 2007, and a third on or about January 28,
2009. These records adequately support the court's
finding of different occasions. See United States v.
Keith, 638 F.3d 851, 852-53 (8th Cir. 2011); United
States v. Van, 543 F.3d 963, 966 (8th Cir. 2008).
Jones's argument that the Sixth Amendment right to a jury
trial prevented the court from making this finding is
foreclosed by circuit precedent. United States v.
Harris, 794 F.3d 885, 887 (8th Cir. 2015); United
States v. Cole, 778 F.3d 1055, 1056 (8th Cir. 2015) (per
curiam); United States v. Evans, 738 F.3d 935,
936-37 (8th Cir. 2014) (per curiam); accord United States
v. Blair, 734 F.3d 218, 226-28 (3d Cir. 2013);
United States v. Weeks, 711 F.3d 1255, 1259 (11th
Cir. 2013) (per curiam); United States v. Elliott,
703 F.3d 378, 382-83 (7th Cir. 2012); United States v.
Thomas, 572 F.3d 945, 952 n.4 (D.C. Cir. 2009);
United States v. Michel, 446 F.3d 1122, 1133 (10th
Cir. 2006); United States v. Thompson, 421 F.3d 278,
285-86 (4th Cir. 2005); United States v. Burgin, 388
F.3d 177, 186 (6th Cir. 2004); United States v.
Santiago, 268 F.3d 151, 156-57 (2d Cir. 2001).
judgment of the district court is affirmed.
The Honorable Stephen R.
Bough, United States District Judge for the Western District