                                                 NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 11-3950
                               _____________

                        UNITED STATES OF AMERICA

                                      v.

                            PAUL SEAN JONES,
                                        Appellant
                              ____________

               On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                      District Court No. 5-10-cr-00475-001
              District Judge: The Honorable James Knoll Gardner


              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              March 22, 2013

        Before: McKEE, Chief Judge, SMITH, and GREENAWAY, JR.,
                               Circuit Judges


                             (Filed: April 4, 2013)
                           _____________________

                                  OPINION
                           _____________________

SMITH, Circuit Judge.

     Paul Sean Jones pleaded guilty pursuant to a written plea agreement to being

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a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The plea

agreement contained a provision ensuring that Jones would be able to challenge at

sentencing the applicability of the Armed Career Criminal Act (ACCA) and the

mandatory minimum sentence of fifteen years. The plea agreement also contained

a broad appellate waiver of his right to file either a direct appeal or to seek

collateral relief.

       During the guilty plea colloquy, the United States District Court for the

Eastern District of Pennsylvania explained at length the difference between

entering an open guilty plea to the offense charged and pleading guilty pursuant to

a written plea agreement containing an appellate waiver. Jones decided to sign the

plea agreement with its appellate waiver and entered his guilty plea. The District

Court accepted Jones‟s guilty plea.

       Thereafter, the presentence report prepared by probation determined that

Jones had three previous controlled substance convictions and thereby qualified as

an armed career criminal. As a result, the mandatory minimum sentence of fifteen

years applied. See 18 U.S.C. §§ 922(g)(1), 924(e).

       Jones objected, arguing that two of the predicate offenses were disposed of

in the same judicial proceeding and that he had received concurrent sentences. As

a result, Jones asserted that he did not have the requisite number of predicate

convictions required for the fifteen year mandatory minimum. The government

                                        2
did not dispute that two of his convictions were resolved at the same time or that

his sentences were concurrent.      Nonetheless, it asserted that each of the two

convictions qualified as a predicate conviction under § 924(e) because the

convictions were based on conduct that occurred nine days apart. The District

Court agreed and sentenced Jones to the mandatory minimum fifteen year

sentence. This timely appeal followed.1

      Jones challenges the District Court‟s determination that he qualified as an

armed career criminal. In addition, he asserts, for the first time, that the mandatory

minimum sentence of fifteen years is grossly disproportionate to the offense of

conviction and thereby constitutes cruel and unusual punishment in violation of the

Eighth Amendment to the Constitution.

      In responding to Jones‟s challenge to his armed career criminal status, the

government did not invoke the appellate waiver. Nonetheless, it contends that the

District Court‟s ruling was not erroneous. Whether a conviction qualifies as a

controlled substance offense for purposes of the ACCA is a legal determination

subject to plenary review. United States v. Trala, 386 F.3d 536, 547 n.15 (3d Cir.

2004) vacated on other grounds by Trala v. United States, 546 U.S. 1086 (2006).

      The sentencing enhancement in the ACCA, 18 U.S.C. § 924(e), specifies


1
  The District Court exercised jurisdiction under 18 U.S.C. § 3231. We exercise
final order jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §3742(a).
                                          3
that if the person who violates §922(g) has three previous convictions for a serious

drug offense “committed on occasions different from one another,” then a sentence

of “not less than fifteen years” must be imposed. Jones contends that he does not

have the requisite three convictions. We disagree.

      In United States v. Schoolcraft, 879 F.2d 64, 73-74 (3d Cir. 1989), we

concluded that the predicate offenses must arise from separate criminal episodes.

This “separate episode[s]” test focuses on the circumstances to determine if the

offenses were distinguishable from one another. Id. at 73 (citing cases involving

crimes committed at distinct times, in different places, and affecting different

victims); see also United States v. Cardenas, 217 F.3d 491, 492 (7th Cir. 2000)

(noting that, in deciding whether a defendant has the requisite predicate

convictions under the ACCA, the sentencing court should “„look to the nature of

the crime, the identities of the victims, and the locations,‟” as well as whether there

was an opportunity to stop engaging in the criminal activity) (quoting United

States v. Hudspeth, 42 F.3d 1015, 1019 (7th Cir. 1994) (en banc), abrogated on

other grounds by Shepard v. United States, 544 U.S. 13 (2005)). Here, the two

predicate convictions for distributing cocaine, though disposed of in the same

judicial proceedings and the subject of concurrent sentences, occurred nine days

apart. This establishes that the convictions were separate and distinct. Schoolcraft,

879 F.2d at 73-74 (agreeing with other federal courts of appeals that the episodes

                                          4
approach “simply require[s] that the criminal episodes be distinct in time”)

(quoting United States v. Towne, 870 F.2d 880, 889-90 (2d Cir. 1989) (internal

quotation marks omitted)). Accordingly, we conclude that the District Court did

not err by imposing the mandatory minimum fifteen year sentence set forth in the

ACCA.

         Jones‟s assertion that his sentence violates the Cruel and Unusual

Punishment Clause of the Eighth Amendment is not an issue excepted by the terms

of the broad appellate waiver. The government has invoked the waiver on this

issue and contends that it should be enforced.2 After review of the record, we

conclude that the waiver was knowing and voluntary. Because respecting the

terms of this knowing and voluntary appellate waiver will not result in a

miscarriage of justice, we conclude that the waiver is enforceable with respect to

Jones‟s Eighth Amendment claim and we decline to address it. United States v.

Khattak, 273 F.3d 557, 563 (3d Cir. 2001).

         For the reasons set forth above, we will affirm the judgment of the District

Court.

2
  The government‟s decision not to invoke the appellate waiver with respect to the
applicability of the ACCA does not render the appellate waiver inoperative with
respect to other issues within its scope. See United States v. Castro, 704 F.3d 125,
141-42 (3d Cir. 2013) (concluding that, even though knowing and voluntary
appellate waiver was unenforceable with respect to one issue because it would
result in a miscarriage of justice, the appellate waiver remained enforceable as to a
second issue).
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