                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2626
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                              Devonte Darnell Holston

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                              Submitted: May 14, 2018
                               Filed: August 24, 2018
                                   [Unpublished]
                                   ____________

Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
                          ____________

PER CURIAM.

       Devonte Holston pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district court1 sentenced Holston


      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
to 180 months imprisonment, finding that he qualified for the mandatory-minimum
sentence imposed by the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e),
based on three prior convictions in Wisconsin state court for burglary of a building
or dwelling in violation of Wis. Stat. § 943.10(1m)(a). Holston appeals, and we
affirm.

       “We review de novo the district court’s determination of whether [Holston’s]
criminal record qualified him as an Armed Career Criminal.” United States v.
Willoughby, 653 F.3d 738, 741 (8th Cir. 2011). The ACCA mandatory-minimum
sentence applies to an individual convicted of a violation of 18 U.S.C. § 922(g) who
“has three previous convictions . . . for a violent felony or a serious drug offense, or
both, committed on occasions different from one another.” § 924(e)(1). Unlike the
bulk of our precedent interpreting this section, the thrust of this appeal concerns the
question of whether the conduct underlying two of Holston’s prior convictions was
committed on different occasions.2 In 2013, Holston pled guilty in Wisconsin state
court to a criminal complaint charging him with 2 counts of burglary. The complaint
indicates that Holston and two codefendants burgled residences at two separate
addresses, and the associated judgment shows restitution owed to two different
victims. Holston insists that this was a single criminal episode and that these two
incidents therefore count only as one previous conviction for the purpose of
qualifying him as an armed career criminal.




      2
          Holston briefly argues that the burglary statute under which he was convicted
does not meet the definition of “violent felony” found in § 924(e)(2)(B), but he
concedes that we held to the contrary in United States v. Lamb, 847 F.3d 928, 932,
934 (8th Cir. 2017), cert. denied, 138 S. Ct. 1438 (2018). Given our “cardinal rule
. . . that one panel is bound by the decision of a prior panel,” Mader v. United States,
654 F.3d 794, 800 (8th Cir. 2011) (en banc) (internal quotation marks omitted), we
reject this argument.

                                          -2-
       Holston argues that, to resolve this inquiry, the district court is limited to
investigating the documents approved of by the Supreme Court in Shepard v. United
States, 544 U.S. 13 (2005), and that the complaint is not included in those documents.
However, in the context of Sixth Amendment challenges, we have expressly rejected
this argument and held that Shepard is inapplicable when determining whether the
conduct underlying prior convictions was committed on different occasions.3 See
United States v. Evans, 738 F.3d 935, 936-37 (8th Cir. 2014); United States v.
Richardson, 483 F. App’x 302, 304-05 & n.3 (8th Cir. 2012).4 Accordingly, we may
view both the complaint and the unobjected-to portions of Holston’s presentence
investigation report (“PSR”) to determine whether these burglaries were committed
on different occasions.5

      “Prior convictions must be separate and distinct criminal episodes [t]o qualify
as predicate offenses under the statute.” Pledge, 821 F.3d at 1038 (alteration in
original) (internal quotation marks omitted). “Crimes occurring even minutes apart
can qualify, however, if they have different victims and are committed in different


      3
       We note that, even if Shepard applied so as to preclude consideration of
certain documents in determining whether the conduct underlying Holston’s prior
convictions was committed on separate occasions, we conclude that the complaint,
as redacted, would be reviewable under Shepard.
      4
       To the extent there is any conflict between Evans and our decision in United
States v. Pledge, 821 F.3d 1035, 1038 (8th Cir.), cert. denied, 137 S. Ct. 258 (2016),
Evans controls under the first-in-time rule. See Mader, 654 F.3d at 800.
      5
        Holston vigorously contested the PSR’s recommendation that he be sentenced
as an armed career criminal, but he did not dispute any of the underlying factual
matters contained in the PSR. As such, we may accept those facts as true. See United
States v. Douglas, 646 F.3d 1134, 1137 (8th Cir. 2011) (“If a defendant objects only
to the PSR’s recommendation, but not to the facts themselves, the court may accept
the facts as true and rely on the unobjected-to facts in determining whether to impose
an enhancement.”).

                                         -3-
locations.” United States v. Deroo, 304 F.3d 824, 828 (8th Cir. 2002). In the past,
we have looked to the following three factors “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, a factor
that is often demonstrated in the violent-felony context by different victims or
different aggressions.” Willoughby, 653 F.3d at 742-43.

       We conclude that the district court properly counted Holston’s conviction for
two counts of burglary as two prior convictions. First, although the complaint
indicates that both offenses occurred at 2:00 in the afternoon, this is not dispositive.
See id. at 743 (“[T]o 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.”). Second, Holston pled
guilty to burgling two separate residences. See Pledge, 821 F.3d at 1037. Finally,
and perhaps most importantly in this case, there were two different victims, as
evidenced by Holston owing different amounts of restitution to each recipient. See
Deroo, 304 F.3d at 828. Thus, looking only at the complaint and judgment, we
believe that these two incidents were “sufficiently separate and distinct” to qualify as
separate criminal episodes. Willoughby, 653 F.3d at 742.6

      Because he “has three previous convictions . . . for a violent felony . . .
committed on occasions different from one another,” § 924(e)(1), the district court
properly sentenced Holston as an armed career criminal. Accordingly, we affirm.
                     ______________________________


      6
       This conclusion is confirmed by a glance at the unobjected-to facts in the PSR,
which indicate that Holston, accompanied by other individuals, actually entered both
residences and stole an 18-inch television from one residence and a 73-inch
projection television from the other.

                                          -4-
