                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 14-3237
                       ___________________________

                            United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                                  Ervin D. Abbott

                     lllllllllllllllllllll Defendant - Appellant
                                     ____________

                    Appeal from United States District Court
               for the Western District of Missouri - Kansas City
                                ____________

                            Submitted: May 11, 2015
                              Filed: July 22, 2015
                                  [Published]
                                ____________

Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
                          ____________

PER CURIAM.

     Ervin Abbott appeals the district court's1 application of the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e), to his sentence. Abbott argues that two

      1
       The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
previous convictions for drug offenses should not be counted as two predicate ACCA
crimes. We affirm.

                                     I. Background
        On May 15, 2013, law enforcement officers stopped Abbott's vehicle because
its license plate had three active arrest warrants associated with it. Officers arrested
Abbott after they confirmed that he had an active arrest warrant. After his arrest,
Abbott orally consented to the search of his vehicle. Officers recovered a pistol
underneath the driver's seat. Thereafter, a canine officer located 11.5 grams of
marijuana hidden in the center console of the vehicle. Later that day, Abbott also
consented to a custodial interview during which he admitted that he had recently
bought the pistol for personal protection and placed it under the driver's seat of the
car.

       The government charged Abbott with one count of being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). Abbott pleaded guilty to the
charge without a written plea agreement.

       At Abbott's sentencing hearing, the district court found that Abbott had the
necessary three predicate "serious drug offense[s]" and applied the ACCA. See 18
U.S.C. § 924(e)(2)(A). Abbott objected, arguing that the court should count two of
his prior drug offenses as one offense for ACCA purposes because they were a part
of the same criminal episode. Specifically, Abbott pleaded guilty to two counts of
selling a controlled substance in 2004. On June 8, 2004, Abbott sold .4 grams of
cocaine base to an undercover detective for $20; the next day on June 9, Abbott sold
.28 grams of cocaine base to the same undercover detective, again for $20.
Nevertheless, the district court ruled that "[i]t makes no difference that they're one
day apart. They're different sales on different days. The Court is going to rule that one
sale is on June the 8th, 2004, and the next sale is on June 9th, 2004. Now, those are
two priors." The district court relied upon our precedent in concluding that "for

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purposes of applying the [ACCA], . . . they're separate sales and we're going to count
them." As a result, the court found that these two predicate convictions, when added
to another uncontested drug conviction, met the necessary threshold of three serious
drug offenses to trigger the ACCA. The district court sentenced Abbott to the
statutory minimum of 180 months' imprisonment.

                                   II. Discussion
       On appeal, Abbott argues that the district court erred by counting both of his
convictions for selling controlled substances on June 8 and 9, 2014, as separate
ACCA predicate crimes. "'We review de novo whether a prior conviction is a
predicate offense under the ACCA.'" United States v. Humphrey, 759 F.3d 909, 911
(8th Cir. 2014) (quoting United States v. Van, 543 F.3d 963, 966 (8th Cir. 2008)).
While Abbott concedes that he made cocaine sales on June 8 and 9, 2004, he argues
that the facts and circumstances of the different sales are so similar that they should
be considered as one offense for ACCA purposes because they constituted a single
criminal episode. Specifically, Abbott highlights that the sales were made to the same
undercover agent for the same amount of money; additionally, he points out that it is
unclear whether the sales took place at the same or different locations.

       We have "considered at least three factors as important considerations in
deciding whether offenses are sufficiently separate and distinct to serve as individual
predicate convictions for ACCA enhancement: (1) the time lapse between offenses,
(2) the physical distance between their occurrence, and (3) their lack of overall
substantive continuity." United States v. Willoughby, 653 F.3d 738, 742–43 (8th Cir.
2011). Nevertheless, the first factor is the most important consideration because "the
ACCA seems to prioritize time lapse given that its plain language stipulates that the
predicate offenses be 'committed on occasions different from one another.'" Id. at 743
(citing 18 U.S.C. § 924(e)(1)).




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       "Accordingly, . . . to prove that two offenses are sufficiently separate and
distinct for ACCA purposes, it is sufficient (although, not necessary) to show that
some time elapsed between the two prospective predicate offenses." Id. (citation
omitted)). "'[W]e have repeatedly held that convictions for separate drug transactions
on separate days are multiple ACCA predicate offenses, even if the transactions were
sales to the same victim or informant.'" United States v. Ross, 569 F.3d 821, 823 (8th
Cir. 2009) (quoting Van, 543 F.3d at 966). In Ross, we held that convictions for drug
sales that happened on separate days—February 8 and 11, 2001—should be treated
as separate drug offenses based on their temporal separation. Id. at 823; see also
United States v. Gray, 152 F.3d 816, 820–21 (8th Cir. 1998) (finding that two sales
of drugs separated by one day—January 26 and 27, 1990—that took place in the same
motel room should be counted as two separate drug offenses for sentencing purposes
under 21 U.S.C. § 841(b)(1)(A)). Thus, we agree with the district court that Abbott's
previous convictions for the June 8 and 9, 2004 drug crimes have sufficient temporal
separateness to be treated as separate ACCA predicates.

        Abbott relies on the holding in Willoughby to argue to the contrary.
Willoughby, however, is factually distinguishable. In Willoughby, the defendant had
been previously convicted of selling drugs to an undercover officer, then seconds
later, to a confidential informant working with the officer. 653 F.3d at 740–41. Thus,
we found that these sales could not be counted as separate ACCA predicates because
the sales occurred "almost simultaneously, and thus the offenses were temporally
proximate." Id. at 744; see also United States v. Petty, 828 F.2d 2, 3 (8th Cir. 1987)
(per curiam) (holding that six convictions for robbery committed by simultaneously
robbing six people in a restaurant could not be counted as separate offenses for
ACCA purposes). In Abbott's case, there is no simultaneity as in Willoughby and
Petty. Abbott's drug sales on different days have a sufficient temporal disconnect to
be counted as separate ACCA predicates. We also reject Abbott's argument that two
counts prosecuted under the same criminal case cannot be counted as separate ACCA
predicates. See Rodriguez v. United States, 17 F.3d 225, 226 (8th Cir. 1994) (per

                                         -4-
curiam) ("Section 924(e) does not require separate prosecutions; it is sufficient that
the offenses occurred at different times." (citations omitted)).2

                                  III. Conclusion
      For the reasons stated herein, we affirm.
                      ______________________________




      2
       Abbott also argues that under the other factors in Willoughby—namely the
physical distance between two crimes' occurrence and their lack of overall substantive
continuity—his June 8 and 9, 2004 drug offenses should not be considered separate
ACCA predicates. While we do consider such factors, the government need only
demonstrate sufficient temporal separateness to count two crimes as separate ACCA
predicates. See Willoughby, 653 F.3d at 743.

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