                                                           FILED
                                               United States Court of Appeals
                  UNITED STATES COURT OF APPEALS       Tenth Circuit

                        FOR THE TENTH CIRCUIT                     May 2, 2018
                      _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                  No. 17-6228
                                          (D.C. No. 5:16-CR-00239-HE-1)
TIMOTHY EDMUN JOHNSON,                             (W.D. Okla.)
a/k/a Timothy Edmund Johnson,

       Defendant - Appellant.
                    _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
               _________________________________

      This appeal involves a challenge to a sentencing enhancement under

the Armed Career Criminal Act. The sentence enhancement was applied to

Mr. Timothy Johnson after a conviction for possessing a firearm following

a felony conviction. See 18 U.S.C. § 922(g). The Armed Career Criminal

Act created a minimum sentence of fifteen years if Mr. Johnson had three

*
      The parties have not requested oral argument, and we conclude that
oral argument would not materially aid our consideration of the appeal. See
Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided
the appeal based on the briefs.

      Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
prior convictions for “a violent felony or a serious drug offense, or both,

committed on occasions different from one another.” 18 U.S.C.

§ 924(e)(1).

      Mr. Johnson had multiple felony convictions in his past. Two of them

were for distributing cocaine base and possessing cocaine base with intent

to distribute. See Okla. Stat. tit. 63, § 2-401(A)(1). Mr. Johnson argues

that these prior offenses

             did not qualify as serious drug offenses and

             had been committed on the same occasion.

The district court rejected these arguments and sentenced Mr. Johnson to

fifteen years in prison. We affirm.

I.    The prior convictions were for serious drug offenses.

      Mr. Johnson first contends that the two prior offenses did not

constitute “serious drug offense[s]” under the Armed Career Criminal Act.

Classification as a “serious drug offense” involves statutory interpretation,

which we review de novo. United States v. Trent, 884 F.3d 985, 991 (10th

Cir. 2018).

      The parties agree that

             the statute of conviction is divisible and

             the modified categorical approach applies.

Under the modified categorical approach, we identify the crimes of

conviction and compare the elements of those crimes and their generic
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counterparts. United States v. Madkins, 866 F.3d 1136, 1145 (10th Cir.

2017).

      The Oklahoma crimes were set out in a statute prohibiting

individuals from transporting illicit drugs with the intent to distribute

them. Okla. Stat. tit. 63, § 2-401(A)(1). The federal definition of a “serious

drug offense” is “an offense under State law, involving manufacturing,

distributing, or possessing with intent to manufacture or distribute, a

controlled substance . . . .” 18 U.S.C. § 924(e)(2)(A)(ii).

      Mr. Johnson contends that the federal definition of “serious drug

offense” does not encompass the transportation of drugs. We disagree. It is

true that the federal definition does not include the word “transportation.”

But the federal definition does use the term “possessing,” and “the

transportation of drugs necessarily implies their possession.” United States

v. Svacina, 137 F.3d 1179, 1182 n.1 (10th Cir. 1998); see also United

States v. Karam, 496 F.3d 1157, 1167 (10th Cir. 2007) (“Nor can there be

any dispute that . . . [transporting] drugs intended for sale by the defendant

. . . involve[s] possession with intent to distribute . . . .”).

      Mr. Johnson relies on United States v. McKibbon, 878 F.3d 967 (10th

Cir. 2017), and United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017).

In these opinions, we applied the sentencing guidelines’ definition of a

controlled-substance offense, holding that this definition did not cover

offers to sell drugs. McKibbon, 878 F.3d at 972-73; Madkins, 866 F.3d at

                                         3
1145, 1147-48. But the Oklahoma statute does not include offers to sell.

This difference matters: Someone can offer to sell drugs without being

guilty of an attempted sale, 1 but it is impossible to transport drugs without

possessing them. McKibbon and Madkins involved statutes of conviction

broader than their guideline counterparts; here, however, the statute of

conviction is not broader than its counterpart in the Armed Career Criminal

Act. In light of this difference, McKibbon and Madkins lack any bearing on

the present issue.

      We therefore conclude that

           transportation of drugs with intent to distribute is a crime
            “involving . . . possessing with intent to manufacture or
            distribute” and

           the Oklahoma crime does not extend beyond the federal
            definition of a “serious drug offense.”

II.   Mr. Johnson’s prior convictions were for distinct offenses.

      Mr. Johnson also contends that the two prior offenses were

committed on the same occasion. This contention is based on the Armed

Career Criminal Act, which counts prior convictions only if the underlying

crimes were committed on different occasions. 18 U.S.C. § 924(e)(1).

      In reviewing this contention, we engage in de novo review. United

States v. Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012). This review

1
      See Madkins, 866 F.3d at 1147 (“[B]ecause a person can offer a
controlled substance for sale without having the intent to actually complete
the sale, a conviction for an offer to sell can be broader than a conviction
for an attempt to sell.”).
                                       4
calls for us to consider how the two offenses unfolded. One afternoon, at

about 4:20 p.m., an undercover investigator met with Mr. Johnson and

asked to buy an ounce of crack cocaine. Mr. Johnson did not have an

ounce, but he did have three grams and sold them to the investigator. Mr.

Johnson also told the investigator how much an ounce would cost and

agreed to call when a full ounce became available. The sale of three grams

led to Mr. Johnson’s conviction for distributing cocaine base.

      The next day, at 7:15 p.m., officers found thirteen grams of cocaine

base in Mr. Johnson’s vehicle. Discovery of the drugs led to Mr. Johnson’s

conviction for possessing cocaine base with intent to distribute.

      Mr. Johnson argues that these two incidents involved the

“continuation of a single drug deal, negotiated at the same time, between

the same parties.” Appellant’s Opening Br. at 24. The two crimes were

separated by little more than a day and were related in the sense that Mr.

Johnson and the investigator had discussed a future drug purchase during

the initial transaction. Nonetheless, the two offenses were distinct.

      Two offenses are “committed on occasions different from one

another” when they are “committed at distinct, different times.” United

States v. Johnson, 130 F.3d 1420, 1431 (10th Cir. 1997) (internal quotation

marks omitted). If the defendant decided to continue with a criminal course

of conduct after “a meaningful opportunity” to stop, the crimes will be



                                      5
considered distinct. United States v. Delossantos, 680 F.3d 1217, 1220

(10th Cir. 2012).

     The crimes remain distinct even when the incidents take place in a

short time span. For example, in United States v. Delossantos, we approved

of a Fourth Circuit opinion holding that two sales of crack cocaine were

distinct even though they had involved the same buyer at the same location

within a two-hour time span. See id. (discussing United States v.

Letterlough, 63 F.3d 332, 334, 337 (4th Cir. 1995)). And we have

considered the crimes distinct when a defendant successively burgled three

businesses in the same shopping mall on a single night. United States v.

Tisdale, 921 F.2d 1095, 1098-99 (10th Cir. 1990).

     Under these opinions, Mr. Johnson’s two prior offenses were distinct

because

          they took place at “distinct, different times” and

          Mr. Johnson had “a meaningful opportunity” to stop his
           criminal course of conduct after selling three grams to the
           undercover investigator.

Johnson, 130 F.3d at 1431 (internal quotation marks omitted); Delossantos,

680 F.3d at 1220. The crimes remain distinct even though they had been

committed on consecutive days and a future drug sale had been discussed

at the first drug transaction. See United States v. Brown, 706 F. App’x 474,

476 (10th Cir. 2017) (unpublished) (rejecting the argument that

“convictions arising from repeat sales of controlled substances, the
                                     6
subsequent sales of which are the direct result of the first sale, should be

treated as the same offense” (internal quotation marks omitted)).

Therefore, Mr. Johnson’s two prior offenses were “committed on occasions

different from one another” under the Armed Career Criminal Act. 18

U.S.C. § 924(e)(1).

III.   Conclusion

       We conclude that Mr. Johnson’s two prior drug offenses

           were “serious drug offense[s]” and

           took place on different occasions.

18 U.S.C. § 924(e). Accordingly, the district court did not err and we

affirm the sentence.


                                    Entered for the Court




                                    Robert E. Bacharach
                                    Circuit Judge




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