                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-2919
                                    ___________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the Western
      v.                                 * District of Missouri.
                                         *
Michael Speakman,                        *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: February 11, 2003

                                   Filed: June 10, 2003
                                    ___________

Before HANSEN,1 Chief Judge, LOKEN and SMITH, Circuit Judges.
                              ___________

SMITH, Circuit Judge.

       Michael Speakman pleaded guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. § 924(g)(1). The sole issue on appeal is whether the District
Court2 properly found that Speakman's prior drug convictions constituted separate

      1
        The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
      2
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
and distinct offenses for sentence enhancement purposes under the Armed Career
Criminal Act ("ACCA") 18 U.S.C. § 924(e). We find that the statute was properly
applied and affirm the sentence.

                                          I.
                                        Facts
      In August 2000 Speakman bought a gun for and delivered it to an undercover
informant. The government charged Speakman with–and he pleaded guilty to–one
count of felon in possession of a firearm.3 He expressly reserved the right, however,
to appeal the application of a § 924(e) or other enhancements by the District Court
using the United States Sentencing Guidelines.

       Speakman's criminal history, as reflected in his Presentence Investigation
Report (PSI), included seven felony convictions in Missouri state court. Those
offenses included four counts for the sale of controlled substances including
methamphetamine and marijuana (three of which carried a maximum sentence of at
least ten years).4 The four charges arose from drug sales Speakman made to Earl
Bellamy, a police informant, within a one-month period–the first sale occurred March
23, 1989; the second on April 13, 1989; the last on April 20, 1989. As a result of
these convictions, the United States Probation Officer concluded in the PSI that
Speakman’s Criminal History Category was IV.5


      3
          Two other charged counts were dismissed at sentencing.
      4
         Speakman's criminal history included other convictions for first-degree
tampering, second-degree burglary, and stealing. These convictions are not at issue
in this appeal.
      5
          In making this calculation, the officer treated all of Speakman’s 1989
convictions as related cases, therefore adding only three points to his criminal-history
score. If the officer had not applied the §924(e)(1) enhancement, Speakman’s offense
level would have been at level twenty-two under the Sentencing Guidelines.

                                          -2-
       The PSI concluded that § 924(e)(1) should apply to Speakman’s case. If so, two
possible consequences could apply. First, he is exposed to the statute's mandatory
fifteen-year (180-month) minimum sentence. Second, his Guidelines sentence must
be determined pursuant to U.S.S.G. § 4B1.4. If the Guidelines sentence exceeds the
statutory mandatory minimum, the Guidelines sentence controls; if the Guidelines
sentence comes in below the statutory mandatory minimum, the statutory mandatory
minimum sentence must be imposed. Under the applicable Guideline (§ 4B1.4),
Speakman ended up with an adjusted offense level of 30 and a criminal history
category of IV, which resulted in a Guidelines sentencing range of 135-168 months,
the top of which was twelve months below the statutory mandatory minimum.
Therefore, the statute's mandatory minimum trumped the potential Guidelines
sentence. At sentencing, the District Court determined that the penalty provisions of
§ 924(e) applied and sentenced Speakman to the mandatory minimum fifteen-year
sentence. Speakman timely appealed on July 23, 2002.

                                          II.
                                Standard of Review
       We review a district court's interpretation of a sentence-enhancement statute
de novo. United States v. Stuckey, 220 F.3d 976, 984 (8th Cir. 2000); United States
v. Williams, 136 F.3d 547, 550 (8th Cir.1998).



                                       III.
                                     Analysis
       Speakman argues that the enhancement provisions of § 924(e) should not apply
in his case. He does so while acknowledging his argument is contrary to this circuit's
controlling case law. He contends that the facts in this case are distinguishable.
Should we disagree, Speakman argues that we should apply the rule of lenity because
§ 924(e) is sufficiently ambiguous on these facts to justify abandonment of the
general rule of enhancement under the statute.

                                         -3-
       At the outset, we note that prior to this matter, Speakman had been convicted
of seven felonies. All of these offenses were tried in one criminal proceeding in
Missouri state court. The convictions included three illegal drug sales occurring on
three separate dates. Speakman argues that because the county prosecutor who tried
these charges agreed to a single consolidated sentence, these convictions should be
considered as one offense for purposes of enhancement under § 924(e). Speakman
fails to note, however, that the enhancement applies based upon the number of
“convictions,” not on the number of trials. Speakman was convicted of seven separate
felonies, and received seven separate sentences that ran concurrently. We have noted
that arguments similar to Speakman's have "no merit, for it is the criminal episodes
underlying the convictions, not the dates of conviction, that must be distinct to trigger
the provisions of the ACCA." United States v. Rush, 840 F.2d 580, 581 (8th Cir.
1988).

                                          A.
                                Controlling Case Law
       Speakman attempts to distinguish three controlling cases, United States v.
Boyles, 235 F.3d 1057 (8th Cir. 2000), United States v. Rodriguez, 17 F.3d 225 (8th
Cir. 1994), and United States v. McDile, 914 F.2d 1059 (8th Cir. 1990).6 In each case,
we determined that independent occurrences of criminal activity are "separate and
distinct criminal episodes" under § 924(e) although the defendant was tried at one
time for the multiple episodes. Speakman attempts to distinguish these cases by
arguing this factual distinction–that the episodes of criminal activity occurred on
different days, at different times, and with different individuals. In his case,
Speakman points out that although the drug sales occurred on different days and at
different times, each was made to the same undercover police officer.


      6
         Speakman also argues that we should overrule Boyles, Rodriguez, and
McDile. However, one Court of Appeals panel may not overrule another. United
States v. Reynolds, 116 F.3d 328, 329 (8th Cir. 1997).

                                          -4-
       This argument is without merit. We analogize the facts here to those in United
States v. Gray, 152 F.3d 816 (8th Cir. 1998). In Gray, we addressed 21 U.S.C. § 841
(b)(1)(A),7 which similarly enhances a defendant's sentence based on prior drug
convictions. Although we acknowledged in Gray that multiple convictions for
criminal activity must be counted as only one conviction when the convictions "result
from acts forming a single criminal episode . . . ," Gray, 152 F.3d at 821 (citations
omitted), we went on to find that Gray's prior drug sales, which occurred only one day
apart and to the same undercover informant, constituted two occurrences because they
were not part of a single criminal episode. As such, we upheld the sentence
enhancement under that statute.8 Certainly, although we decided Gray pursuant to a
different enhancement statute, the same reasoning applies here. This is particularly
so because § 924(e) specifically notes that it is the occurrence of the criminal activity,
not the conviction, that dictates the enhancement decision. See also United States v.
Cardenas, 217 F.3d 491 (7th Cir. 2000) (court determined that three drug sales to
confidential informants occurring over two days, with two of those sales occurring
only forty-five minutes apart, constituted three separate "occasions different from one
another" under armed criminal career enhancement statute). As such, under the
controlling case law, Speakman's arguments are unavailing.




      7
        This statute does not specifically include the language "committed on
occasions different from one another," as does 18 U.S.C. § 924(e)(1), although, as
noted in Gray, we have considered the nature of the previous sales in determining
whether the prior episodes comprised single or multiple occurrences for enhancement
purposes.
      8
         In Gray, we determined that because 1) the sales were distinct in time, 2)
occurred on separate days, 3) required separate planning and execution by both Gray
and the informant, 4) each sale was separately arranged, 5) neither was contingent on
the other, 6) payment was made separately, and 7) Gray's supply source for the drugs
was different, the occurrences constituted separate offenses under the statute.
                                         -5-
                                            B.
                                     Rule of Lenity
       Speakman also argues that we should apply the rule of lenity and find that the
three prior drug sales constituted one conviction for enhancement purposes under §
924(e). The rule of lenity states that a court cannot interpret a federal criminal statute
"so as to increase the penalty that it places on an individual when such an
interpretation can be based on no more than a guess as to what Congress intended."
United States v. R.L.C., 915 F.2d 320, 325 (8th Cir.1990), aff'd, 503 U.S. 291 (1992).
The rule of lenity favors the statutory construction yielding the shorter sentence. Id.;
United States v. Lazaro-Guadarrama, 71 F.3d 1419, 1421 (8th Cir. 1995).

             The rule of lenity, however, is not applicable unless there is a
      grievous ambiguity or uncertainty in the language and structure of the
      Act, such that even after a court has seize[d] every thing from which aid
      can be derived, it is still left with an ambiguous statute. The rule [of
      lenity] comes into operation at the end of the process of construing what
      Congress has expressed, not at the beginning as an overriding
      consideration of being lenient to wrongdoers.

Chapman v. United States, 500 U.S. 453, 463 (1991) (internal quotations and
citations omitted).

      Speakman's position is that the rule of lenity applies because his prior
convictions might have been fewer had the charges been filed by a different
prosecutor or had he been convicted in a different county. Speakman argues that
because of this inconsistency in the process leading to his earlier convictions,
applying the rule of lenity would level the playing field when, in certain instances
such as this, his actions might have comprised only one conviction on one charge.

       Speakman's argument is flawed in two respects. First, Speakman does not point
to the ambiguity in the language or structure of the Act, and we find none as it applies
to this case. The phrase "committed on occasions different from one another" in §
                                           -6-
924(e) is unambiguous on these facts, particularly because we have already
interpreted § 924(e)'s language to mean that separate occurrences, on separate days,
resulting in separate underlying convictions satisfy the requirements for enhancement
under § 924(e). See Boyles, Rodriguez, and McDile. Consequently, our interpretation
of § 924(e) as it applies to this case is not subject to the rule of lenity.

       Second, Speakman argues that it was the underlying "process" in state court
resulting in multiple convictions prior to the application of the enhancement statute
that creates the ambiguity. The rule of lenity, however, does not apply to this
challenge. Rather, Speakman's argument is akin to a collateral challenge to the
validity of the underlying convictions used for enhancement, and such a challenge is
not cognizable except in limited circumstances that are inapplicable here. See Daniels
v. United States, 532 U.S. 374 (2001) (a defendant in custody on prior convictions
who fails to pursue or was unsuccessful in pursuing available remedies challenging
prior convictions later used for enhancement cannot challenge prior convictions
through a motion to vacate, set aside, or correct sentence); Custis v. United States,
511 U.S. 485 (1994) (except for convictions obtained in violation of the right to
counsel, a defendant has no right under the ACCA or the Constitution to collaterally
attack prior convictions at his federal sentencing proceeding).

      The sentence is affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -7-
