                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5267



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellant,

          versus


ALFONZO TAFT,

                                               Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (4:05-cr-00087)


Submitted:   September 14, 2007           Decided:   October 11, 2007


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer May-Parker, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellant. Anthony E. Flanagan, LAW OFFICES OF
ANTHONY E. FLANAGAN, PA, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                Alfonzo Taft pled guilty to possession of a firearm by a

convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was sentenced to

a term of fifty-seven months imprisonment.               The government appeals

the sentence, contending that the district court erred in finding

that Taft was not an armed career criminal pursuant to 18 U.S.C.A.

§ 924(e) (West 2000 & Supp. 2007).               We agree that Taft’s criminal

record makes him an armed career criminal and that the sentence was

imposed in error.

                Under 18 U.S.C.A. § 924(e), a defendant is an armed

career criminal subject to a minimum sentence of 180 months if he

violates 18 U.S.C. § 922(g) and has three prior felony convictions

for a “violent felony” or a “serious drug offense” (a drug offense

with       a   maximum   sentence   of   ten     years   or   more),   which   were

“committed on occasions different from one another.”*                    Taft had

prior convictions for selling cocaine to an undercover officer on

February 9, 1994, February 25, 1994, and September 14, 1994.                   The

district court mistakenly concluded that the two February 1994

offenses should be treated as one offense because a conspiracy

charge was brought at the same time and the court believed that the

conspiracy enveloped the two substantive offenses, making them part


       *
      Guideline section 4B1.4 sets out the procedure for
calculating the offense level and criminal history category for a
defendant who is an armed career criminal under the provisions of
§ 924(e). It went into effect on November 1, 1990; see USSG App.
C, amend. 355.

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of one criminal episode.            We rejected the same argument in United

States v. Letterlough, 63 F.3d 332, 337 (4th Cir. 1995).

              In Letterlough, the defendant had two prior convictions

for selling crack cocaine to an undercover officer twice on the

same day.      The first sale was made at 8:35 p.m. and the second, to

the same undercover officer, was made at 10:15 p.m.                    Letterlough,

63 F.3d at 334.       We held that offenses occur on occasions different

from one another if they arise out of “separate and distinct

criminal episode[s].” Id. at 335 (internal quotation marks and

citation omitted).         We further held that Letterlough’s two sales

were not part of a single criminal episode.                   Instead, each sale

“was    a     complete     and    final    transaction,       and    therefore,   an

independent offense,” because “[t]he time separating the offenses

was ample to give Letterlough the opportunity to make a conscious

and knowing decision to engage in another drug sale.”                   Id. at 337.

Thus,   the     offenses     were    separate     even   if   they   both   occurred

“pursuant to a master plan to sell crack cocaine as a business

venture.”      Id.    Viewed in light of Letterlough, it is clear that

Taft’s two drug sales sixteen days apart were offenses that were

committed on different occasions.

              In Letterlough, and again in United States v. Hobbs, 136

F.3d    384    (4th   Cir.       1998),   we   recognized     that    applying    the

definition of “occasions different from one another” to certain

facts may be difficult, and that courts have considered a number of


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factors in such situations, such as “(i) whether the offenses

occurred    in    different    geographic          locations;         (ii)      whether    the

offenses were substantively different; and (iii) ‘whether the

offenses     involved        multiple        victims          or     multiple        criminal

objectives.’”      Hobbs, 136 F.3d at 388 (citing Letterlough, 63 F.3d

at 335-36).      However, these factors are not dispositive; they are

merely an aid to be used when necessary.                      Letterlough, 63 F.3d at

335.     In such difficult cases, “if any one of the factors has a

strong    presence,     it    can     dispositively           segregate         an   extended

criminal    enterprise       into     a    series        of   separate       and     distinct

episodes.”       Id. at 336.    Taft’s case does not present a difficult

set of facts that would necessitate consideration of these factors.

            Taft    argues     that       his   February       9    and    25    drug   sales

constitute one predicate offense because they took place in the

same geographic location, the nature of the offense was the same,

and the criminal objective was the same in each case.                                He also

argues that each sale was not a complete and final transaction

because both were part of an ongoing conspiracy.                          We are satisfied

that none of these factors establish that the two drug sales were

anything but two separate transactions that occurred on different

occasions.       Therefore, the district court erred in refusing to

sentence Taft as an armed career criminal.

            Accordingly,       we     vacate       the    sentence        imposed     by   the

district court and remand for resentencing.                        We dispense with oral


                                           - 4 -
argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.



                                             VACATED AND REMANDED




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