                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-2072
                         ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                            Harold William Melbie, Jr.

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                           Submitted: January 17, 2014
                   Filed: May 1, 2014 (Corrected: May 1, 2014)
                                  ____________

Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
                          ____________

MELLOY, Circuit Judge.

       A jury convicted Harold Melbie of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court1 found that prior convictions
qualified Melbie as an armed career criminal and that the fifteen-year mandatory


      1
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
minimum sentence of 18 U.S.C. § 924(e)(1) applied. Melbie appeals, arguing that the
district court erroneously treated a prior drug conspiracy conviction and a prior
possession-with-intent-to-deliver conviction as separate qualifying predicate offenses.
Although the possession conviction was for conduct that occurred during the period
of the conspiracy and was related to the object of the conspiracy, the possession
offense was a discrete episode in a series of events. The district court, therefore,
correctly determined that the two convictions were "committed on occasions different
from one another" as required by § 924(e)(1). We affirm the judgment of the district
court.2

I.    Background

      The applicability of 18 U.S.C. § 924(e)(1) in the present case hinges on whether
Melbie's prior conspiracy conviction and his prior possession conviction may be
counted as two qualifying prior convictions or whether they must be treated as one.3
The conspiracy conviction was a 1999 federal conviction. It appears that no party

      2
       Melbie also preserves the argument that Apprendi v. New Jersey, 530 U.S. 466
(2000), requires that a jury find the fact of each of his prior convictions beyond a
reasonable doubt. Because such an argument is directly counter to the holding in
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998), we necessarily reject
Melbie's argument.
      3
        18 U.S.C. § 924(e)(1) applies if a defendant has three prior felony convictions
for any combination of "violent felon[ies]" or "serious drug offense[s]." Melbie had
two other potential qualifying felony convictions. One of these other convictions
clearly qualified as a predicate conviction. The other was for an "overinclusive" state
offense and would have required application of the modified categorical approach.
See United States v. Dawn, 685 F.3d 790, 794–95 (8th Cir. 2012) (allowing a review
of limited materials only for the purpose of determining which divisible subpart of a
statute the defendant violated). The government concedes on appeal that it did not
present the evidence necessary to apply the modified categorical approach. As such,
the related conviction cannot be used as a § 924(e)(1) predicate conviction, and the
outcome of this case necessarily turns on resolution of the issue described above.

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objects to our review of materials from that case to determine the relevant time frames
involved, and, in fact, Melbie directs our attention to such materials in his brief.4 That
conspiracy ran from October 15, 1995 through September 19, 1996, and involved the
sale of 9.07 kilograms of methamphetamine. The possession conviction was a State
of Iowa conviction and involved seven grams of methamphetamine on September 19,
1996. The 1999 PSR for the federal conspiracy conviction described the timing of
events as follows:

      Melbie was arrested on September 19, 1996, following the execution of
      a search warrant at his residence. He was discovered to be in possession
      of approximately 7 grams of methamphetamine. He was sentenced [by
      the State of Iowa] on December 27, 1996 to a period of imprisonment
      not to exceed 10 years. His active involvement in the [federal
      conspiracy] organization ended at that point.

      Later, Melbie entered into a plea agreement on the federal conspiracy charge
and the government agreed that Melbie's offense conduct for the Iowa possession
conviction was "related to the offense conduct for" the federal conspiracy charge. The
government also agreed that Melbie's federal sentence for the conspiracy charge
should run concurrently with Melbie's Iowa sentence.




      4
        Because Melbie directs us to these materials and the government does not
object to our reliance on these materials, we conclude that both parties have waived
any objections they may have harbored regarding our court looking beyond the facts
of conviction to analyze the underlying details of Melbie's prior offenses. We note
that, unlike a typical review of materials pursuant to Shepard v. United States, 544
U.S. 13, 26 (2005), we do not review these materials to determine whether the
underlying offense is a "violent felony" or "serious drug offense," rather, we review
the materials solely to address the question of separateness. We also note that all facts
we rely upon are undisputed on appeal.

                                           -3-
      The district court in the present case determined that the possession and
conspiracy convictions counted as two qualifying prior felony convictions and
sentenced Melbie accordingly.

II.   Discussion

       18 U.S.C. § 924(e)(1) contains a separateness requirement that demands
predicate felonies be "committed on occasions different from one another." We
review de novo the district court's interpretation of this statutory language and the
determination of "whether a prior conviction is a predicate offense" under § 924(e)(1).
 United States v. Van, 543 F.3d 963, 966 (8th Cir. 2008). In Van, our court relied on
authority under similar provisions, 21 U.S.C. §§ 851 and 841(b), to address the
separateness of prior offenses under § 924(e). Id. (interpreting United States v.
Johnston, 220 F.3d 857, 861–62 (8th Cir. 2000)); see also United States v. Tate, 633
F.3d 624, 632–33 (8th Cir. 2011) (applying Van and holding that § 924(e) applied,
even though the defendant's relevant prior convictions were sufficiently related to
serve as a "pattern of illegal activity" for racketeering purposes). In addressing the
applicability of § 924(e) to Melbie, then, we also look to authority under these other
recidivist provisions.

       In United States v. Gray, 152 F.3d 816 (8th Cir. 1998), we addressed the
question of whether two prior convictions for two separate controlled buys to the same
confidential informant on two sequential days counted as one or two predicate felony
convictions. Id. at 821–22. There we described the material inquiry as whether the
prior convictions were for "separate criminal episodes." Id. at 821. We stated that a
separate criminal episode could be "an incident that is part of a series, but forms a
separate unit within the whole." Id. at 822. We also stated that, "[a]lthough related
to the entire course of events, an episode is a punctuated occurrence with a limited




                                         -4-
duration." Id. We held that the sales on sequential days qualified as separate criminal
episodes. Id. Gray did not involve a conspiracy offense as a prior conviction.

        Later, in United States v. Johnston, 220 F.3d 857 (8th Cir. 2000), we applied
Gray to assess the separateness of a prior conspiracy conviction and a prior
possession-with-intent-to-distribute conviction. Id. at 861–62. In Johnston, the
government asserted that the prior conspiracy conviction and the prior possession
conviction counted as separate qualifying prior convictions under 21 U.S.C. §§ 841(b)
and 851. Id. at 860. It was undisputed that the conduct underlying the earlier
possession conviction in that case occurred as part of the conspiracy. We concluded
that "[t]he conduct which resulted in the [possession] conviction was an incident that
[was] part of a series. Although related to the entire course of events in the ongoing
conspiracy . . . the . . . possession charge formed a separate unit within the whole."
Id. at 862 (internal citations and quotation marks omitted). In Johnston, then, we did
not treat as dispositive the overlapping time frames of the ongoing conspiracy and
possession offenses. Rather, we focused upon the nature of the conduct for the
possession offense which was a "'punctuated occurrence with a limited duration.'" Id.
(quoting Gray, 152 F.3d at 822).

       Because our court later relied upon Johnston when interpreting § 924(e), Van,
543 F.3d at 966, and because we find the facts of Johnston to be materially
indistinguishable from the present case, we hold that Johnston controls. As such, we
must adhere to its application of Gray to the present situation involving an underlying
conspiracy conviction that overlaps with a separate conviction for conduct that
occurred as a punctuated event within that conspiracy.

       Melbie argues that a different case, United States v. Willoughby, 653 F.3d 738
(8th Cir. 2011), controls and leads to the opposite result. In Willoughby we reviewed
cases interpreting the language "committed on occasions different from one another"
and concluded that "[o]ur court has considered at least three factors . . . in deciding

                                         -5-
whether offenses are sufficiently separate and distinct to serve as individual predicate
convictions for [the § 924(e)(1)] enhancement." Id. at 742. We identified those
factors as: "(1) the time lapse between offenses, (2) the physical distance between
their occurrence, and (3) their lack of overall substantive continuity." Id. at 743.
Melbie argues that because his earlier possession offense indisputably related to the
conspiracy and took place during the conspiracy, there was no "time lapse" between
the offenses and the offenses shared a good deal of "overall substantive continuity."
Id.

       Willoughby, like Gray itself, did not involve an underlying conspiracy
conviction and a related conviction as the two allegedly qualifying predicate
convictions. In fact, the ongoing nature and often extended time frames involved with
conspiracy offenses make the Willoughby factor, "time lapse between offenses," a
somewhat awkward fit for analysis in the conspiracy context. Johnston demonstrates
that for application to a conspiracy and a related offense, the "punctuated" nature and
limited duration of the related offense rather than the absence of a "time lapse" defines
whether the offense is sufficiently distinct for the purpose of applying § 924(e)(1).
Further, we note that Johnston preceded Willoughby by ten years, and Willoughby's
synthesis of cases and identification of relevant factors does not displace the
authoritative nature of Johnston as applied in the context of an earlier conspiracy.

       Melbie also argues that a factual distinction exists between the facts of his case
and the facts of Johnston. Specifically, in his own case, the possession offense was
his final act of involvement with the conspiracy. In Johnston, in contrast, the
conspiracy spanned time both before and after the "punctuated" possession offense of
"limited duration." We find this distinction immaterial. Melbie's participation in the
conspiracy spanned a period of over eleven months, and his possession offense was
a "punctuated" event of "limited duration" within that time. It was one event in a
series of events, and nothing about Johnston suggests that its holding only finds
application where the punctuated criminal act is something other than the conspirator's

                                          -6-
final act. See Gray, 152 F.3d at 822 (describing a separate occurrence as conduct that
is a separate event but that may be "part of a series" of actions). Simply put, Johnston
and Gray do not suggest that a different rule should apply based upon whether the
punctuated event is the first event, a middle event, or the last event in the series of
events.

III.   Conclusion

       We affirm the judgment of the district court.
                       ______________________________




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