                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                     No. 08-3040
                                     __________

United States of America,                 *
                                          *
              Appellee,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Minnesota.
                                          *
Leroy Ross,                               *
                                          *
              Appellant.                  *
                                     ___________

                              Submitted: March 13, 2009
                                 Filed: July 6, 2009
                                   ___________


Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

                                    ___________

SHEPHERD, Circuit Judge.

       Leroy Ross pled guilty to one count of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). Ross appeals the district court’s1 ruling that his
prior drug offenses were separate convictions triggering a mandatory minimum
sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1).
We affirm.

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
                                           I.

       On September 20, 2007, while executing a search warrant on Ross’s residence,
officers from the Minneapolis Police Department found a Smith and Wesson, Model
SW9VE, 9mm handgun. Police also found ammunition in his bedroom closet. A
grand jury subsequently indicted Ross on one count of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1), to which Ross pled guilty on January
4, 2008. The Presentence Investigation Report (“PSR”) determined that Ross was
subject to the mandatory minimum sentence of 15 years imposed by 18 U.S.C. §
924(e)(1) as a result of a previous conviction for aggravated assault in Minnesota and
convictions for two counts of first-degree drug trafficking in Kentucky. Ross
conceded that his conviction for aggravated assault was a predicate offense for
purposes of section 924(e), but objected that his convictions for drug trafficking
should be counted as a single offense.

      Ross’s previous drug offenses stem from a conviction for two counts of first-
degree drug trafficking in Kentucky in 2001.2 The two counts were charged in the
same indictment and arose out of sales of crack cocaine to the same police informant
on February 8, 2001, and February 11, 2001. On February 8, 2001, a police informant
conducted a controlled buy of crack cocaine from Ross at the home of a woman
named Sandra Brown in Warsaw, Kentucky. The informant had arranged the
transaction through a man known as “Dre.” Three days later, the same informant


      2
       First-degree drug trafficking is a Class C felony in Kentucky carrying a
maximum ten-year sentence. See Ky. Rev. Stat. §§ 218A.1412(2)(a), 532.060(2)(c).
Thus, a conviction for first-degree drug trafficking in Kentucky meets the definition
of “serious drug offense” in 18 U.S.C. § 924(e)(2)(A)(ii) (defining “serious drug
offense” as “an offense under State law, involving . . . a controlled substance . . . for
which a maximum term of imprisonment of ten years or more is prescribed by law”).


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contacted Dre to arrange another narcotics transaction. Dre directed the informant to
Brown’s mother’s home, where the informant purchased crack cocaine from Ross as
he sat in the passenger’s seat of a car driven by Brown.

      The district court found that the drug offenses constituted two separate
convictions. As a result of these two offenses and his conviction for aggravated
assault, the court found that Ross had three previous violent felony or serious drug
offense convictions. Accordingly, the court determined that Ross was an armed career
criminal under 18 U.S.C. § 924(e) and sentenced him to the mandatory minimum of
180 months imprisonment.

                                         II.

       “We review de novo whether a prior conviction is a predicate offense under the
ACCA.” United States v. Van, 543 F.3d 963, 966 (8th Cir. 2008). Section 924(e)(1)
provides that for a person unlawfully in possession of a firearm who “has three
previous convictions . . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another, such person shall be . . .
imprisoned not less than fifteen years . . . .” Ross contends the separate drug sales
constituted a single offense because they were charged in the same indictment and the
drugs involved “were sold to the same person (the same [informant]), with the same
participants (Mr. Ross and Dre), the same basic location (home and car of Sandra
Brown), the same motive, modus operandi and during the same short time frame of
three days.” (Appellant’s Br. 9-10.)

       We have rejected this argument in virtually identical factual situations. As we
stated in Van, “[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.” 543 F.3d at 966 (holding
that narcotics sales to the same informant seven days apart were separate offenses).

                                         -3-
In addition, “[w]e repeatedly have held criminal episodes underlying convictions
trigger application of the ACCA, not the date of the convictions or the number of trials
or pleas resulting in those convictions.” United States v. Mason, 440 F.3d 1056, 1057
(8th Cir. 2006). Thus, the fact that Ross was charged with two counts of a “serious
drug offense” in the same indictment does not affect the underlying separateness of
the two offenses. Second, the prior drug offenses did not occur at “the same basic
location” as Ross contends—one occurred in Brown’s vehicle in front of her mother’s
residence, and one occurred at Brown’s home. Third, Ross’s claim that his prior drug
offenses should be treated as the same episode because they involved the same motive
and modus operandi is belied by the fact that many of the offenses we have treated as
distinct criminal episodes involved the same motive or modus operandi. See Van, 543
F.3d at 966; Mason, 440 F.3d at 1058; United States v. Turner, 431 F.3d 332, 337-38
(8th Cir. 2005) (holding that two robberies in different cities three days apart were
separate criminal episodes); United States v. Speakman, 330 F.3d 1080, 1081-83 (8th
Cir. 2003) (holding that consolidated proceeding on three drug charges arising from
sales within a one-month period constituted separate convictions).3 Thus, Ross’s prior
convictions for first-degree drug trafficking constitute separate convictions under the
ACCA, and the district court correctly enhanced his sentence under section 924(e).

      3
        Ross’s argument with regard to motive and mode of operation stems from his
passing reference to United States v. Hessman, 493 F.3d 977 (8th Cir. 2007), cert.
denied, 128 S. Ct. 1100 (2008), which outlines the factors relevant to determining
separate offenses for the career offender provision in United States Sentencing
Guidelines, Guidelines Manual, §4B1.1. 493 F.3d at 985 (noting that same motive
and modus operandi of previous offenses are relevant factors for determining whether
someone is a career offender under USSG §4B1.1). However, Ross’s reliance on
Hessman is misplaced because the separateness of prior convictions is evaluated
differently for purposes of determining USSG §4B1.1 career offender and section
924(e) armed career criminal statuses. Compare USSG §4A1.2 (outlining the factors
relevant to separating prior convictions for determining career criminal status under
§4B1.1), with USSG §4B1.4, comment. (n.1) (noting that §4A1.2 is not “applicable
to the determination of whether a defendant is subject to an enhanced sentence under
18 U.S.C. § 924(e)”).

                                          -4-
                               III.

Accordingly, we affirm the judgment below.




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