                                                                                 F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 OCT 20 2004
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 04-6041
 DAVID DEWAYNE DOSHIER,                                  (D.C. No. 03-CR-175-R)
                                                            (W.D. Oklahoma)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before KELLY, BRISCOE, and TYMKOVICH, Circuit Judges.


       Defendant David Dewayne Doshier appeals the sentence imposed after he pled

guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

As a result of his prior criminal record, Doshier was sentenced under the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924, and received the mandatory minimum sentence

of 180 months. On appeal, Doshier contends the ACCA should not apply to him because

two of the three predicate felonies arose from a single criminal episode. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
                                            I.

      On July 23, 2003, Doshier was arrested and later pled guilty to being a felon in

possession of a firearm. The government filed a notice of intent to seek enhanced

penalties under the ACCA based on four of Doshier’s prior convictions:

              1. Case No. CF-88-1666. Police arrested Doshier after methamphetamine
      was found in his car during a traffic stop on March 19, 1988. He received the
      methamphetamine from a dealer on March 16, 1988. Doshier pled guilty on
      September 13, 1988, to possession of a controlled substance with intent to
      distribute, a felony.
              2. Case No. CF-88-2022, count 1. From June 1986 until June 1988,
      Doshier was involved in a drug conspiracy. He pled guilty on January 20, 1989, to
      conspiracy to traffic a controlled dangerous substance, a felony.
              3. Case No. CF-88-2022, count 2. Other members of the conspiracy
      charged in count 1 sold drugs on March 29, 1988, and Doshier was charged as a
      co-conspirator. He pled guilty on January 20, 1989, to trafficking of a controlled
      dangerous substance, a felony.
              4. Case No. CF-94-1222. On September 19, 1994, Doshier was convicted
      of distribution of a controlled dangerous substance, a felony.

      At the sentencing hearing for his 2003 firearm conviction, the district court

overruled his objections to the ACCA penalty enhancement and sentenced Doshier as an

armed career criminal, relying upon the convictions for possession with intent to

distribute (CF-88-1666), conspiracy to traffic (CF-88-2022, Count 1), and distribution

(CF-94-1222) as the three predicate felonies. The district court did not determine whether

the trafficking conviction (CF-88-2022, Count 2) could be considered a fourth conviction,

although the government contended it was. The parties agreed that the 1994 distribution

conviction (CF-94-1222) was a predicate felony for purposes of the ACCA.



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                                             II.

       A sentence enhancement imposed under the ACCA is reviewed de novo. United

States v. Johnson, 130 F.3d 1420, 1430 (10th Cir. 1997). The government bears the

burden of proving by a preponderance of the evidence that the sentence enhancement is

appropriate. Id.

       The ACCA authorizes a mandatory minimum sentence of fifteen years’

imprisonment for a defendant convicted of being a felon in possession of a firearm if the

defendant “has three previous convictions by any court . . . 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). This court has interpreted the phrase “committed on occasions

different from one another” to mean the ACCA “was intended to reach multiple criminal

episodes distinct in time.” United States v. Tisdale, 921 F.2d 1095, 1098-99 (10th Cir.

1990). In Johnson, we counted drug convictions arising out of drug sales occurring on

three different dates as three separate convictions and concluded the drug offenses were

not a single criminal episode for purposes of the ACCA. Johnson, 130 F.3d at 1430.

       Doshier argues his convictions for conspiracy (CF-88-2022, Count 1) and

possession with intent to distribute (CF-88-1666) were the result of a single criminal

episode and therefore should be counted as a single conviction. Specifically, he argues

his only involvement in the conspiracy was his receipt of methamphetamine on March 16,

1988, which, in turn, led to his arrest on March 19, 1988, for possession with intent to


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distribute. On direct examination at his sentencing hearing, Doshier testified that his

girlfriend, who was charged as a co-conspirator, was a drug dealer and that he had helped

her by driving her to pick up drugs. In response to the court’s question about the period

of time Doshier drove his girlfriend to pick up drugs, Doshier replied he had done it a

couple of times before his arrest on March 19, 1988. Additionally, the conspiracy to

which Doshier pled spanned a two-year period. A guilty plea is an admission by the

defendant that he committed the crimes charged in the indictment. See North Carolina v.

Alford, 400 U.S. 25, 32 (1970). Doshier’s plea, along with his description of the activity

underlying his plea, indicate the conspiracy conviction arose from activity distinct in time

from either his receipt of methamphetamine on March 16, 1988, or his possession with

intent to distribute on March 19, 1988.

       Even if we assume, arguendo, that Doshier’s argument concerning his conspiracy

conviction has merit, he has three other predicate felonies which would satisfy the ACCA

requirements. The parties agreed that Doshier’s 1994 distribution conviction (CF-94-

1222) was a predicate felony. His trafficking conviction (CF-88-2022) arose from a sale

of drugs on March 29, 1988, and was clearly distinct in time from his possession with

intent to distribute conviction (CF-88-1666) that arose from activity on March 19, 1988.

In Johnson, we rejected the defendant’s argument that three prior convictions for the sale

of narcotics on March 23, March 26, and August 26, 1993, were all part of a similar plan

or scheme and should be considered a single criminal episode. Here, the criminal activity


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at issue was separated by even a greater span of time.

       AFFIRMED.

                                                         Entered for the Court

                                                         Mary Beck Briscoe
                                                         Circuit Judge




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