                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0784n.06

                                           No. 09-5207                                  FILED
                                                                                     Dec 22, 2010
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )   ON APPEAL FROM THE
                                                        )   UNITED STATES DISTRICT
BENJI WAYNE DAVIS,                                      )   COURT FOR THE EASTERN
      Defendant-Appellant.                              )   DISTRICT OF TENNESSEE
                                                        )
                                                        )


Before:        BATCHELDER, Chief Judge; KEITH and ROGERS, Circuit Judges.

       PER CURIAM. Benji Wayne Davis pled guilty to having been a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g). At sentencing, the district court judge found that Davis

had three prior qualifying convictions such that the Armed Career Criminal Act’s mandatory

minimum term of imprisonment of fifteen years applied. The district court judge found, over

Davis’s objection, that his two prior drug offenses committed within one month of each other

constituted separate, qualifying convictions pursuant to the Armed Career Criminal Act, 18 U.S.C.

§ 924(e)(1). Davis now timely appeals his sentence, asserting that he was incorrectly classified as

an armed career criminal with three prior qualifying convictions instead of two prior qualifying

convictions; and, accordingly, that his sentence must be vacated. For the following reasons, we

AFFIRM the district court’s decision and imposition of sentence.
                                                  I.

       Davis pled guilty, without a plea agreement, to being a felon in possession of a firearm and

was sentenced to 180 months. He admitted to prior convictions for aggravated burglary and drug

offenses. He was convicted of one aggravated burglary in 1994, for which he received a sentence

of imprisonment of three years, and cocaine distribution in 1999. Davis sold 1.7 grams of cocaine

on April 21, 1998 and 2 grams of cocaine on May 12, 1998. The two cocaine distribution counts

were consolidated in a single plea. Davis was sentenced to concurrent terms of imprisonment of

eight years for the two cocaine distribution counts.

       At sentencing for the instant felon in possession of a firearm offense, the district court relied

upon the Presentence Investigation Report (“PSR”) in determining Davis’s Guidelines sentencing

range. With an initial base offense level of 20 for violation of § 922(g), analysis of criminal history

resulted in Davis’s accumulation of points for classification as an armed career criminal, with a base

offense level of 33 and a criminal history category of VI. Thus, Davis’s advisory sentencing

guidelines term of imprisonment range was 168 to 210 months. Application of the statutory

mandatory minimum, pursuant to the Armed Career Criminal Act (“ACCA”), raised the applicable

range from 180 to 210 months’ imprisonment.

       Davis objected to the PSR’s calculations and asserted that since the two cocaine distribution

counts were charged in the same indictment and adjudicated in a single plea, the two offenses should

have counted as a single, qualifying predicate conviction pursuant to the ACCA. The district court

overruled Davis’s objection and adopted the applicable Guideline sentencing range pursuant to the

PSR’s recommendation under the ACCA.




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                                                 II.

       This Court reviews de novo legal questions regarding determinations of qualifying Armed

Career Criminal Act prior convictions. United States v. McCauley, 548 F.3d 440, 447 (6th Cir.

2008). The Armed Career Criminal Act mandates that any person who violates § 922(g) and has

three previous convictions which are serious drug offenses, “committed on occasions different from

one another,” be subjected to a term of imprisonment not less than fifteen years. 18 U.S.C. § 924(e).

       Over the span of three weeks, Davis committed two drug offenses. Davis acknowledges the

status of the law classifying his prior convictions as separate predicate felonies, but contends that

the law should change on appeal, that the ACCA should be interpreted to provide for “related cases”

under the federal Sentencing Guidelines such that only true recidivists are severely punished and not

drug addicts like Davis who commit relatively minor crimes to fuel their addictions.

       It is well settled that offenses committed at separate times are separate offenses. See, e.g.,

United States v. Brady, 988 F.2d 664, 668-69 (6th Cir. 1993) (en banc); United States v. Roach, 958

F.2d 679, 684 (6th Cir. 1992) (explaining that “if the predicate offenses occurred on occasions

different from one another, Congress intended that they not be regarded as a single criminal

episode.”). In Brady, the appellant committed two armed robberies in less than one hour. 988 F.2d

at 668. However, this Court rejected the appellant’s argument that the two criminal offenses

constituted a single criminal episode. Id. at 668-70. In Roach, this Court held that the appellant’s

three drug offenses committed on March 11, March 12, and March 26 “[did] not constitute a single

criminal episode, and the district court properly enhanced [his] sentence pursuant to … § 924(e)(1).”

958 F.2d at 684. Further, “[t]he word ‘committed’ in § 924(e) indicates that the criminal acts must

have occurred on separate occasions, not that their resulting convictions must take place on separate


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dates.” McCauley, 548 F.3d at 448. This Court cannot overrule its prior decisions which are

controlling authority, unless subsequent en banc decisions overruled the prior panel decisions or the

prior decisions were issued in contravention of a Supreme Court decision. See United States v.

Smith, 73 F.3d 1414, 1418 (6th Cir. 1996). Here, McCauley, Brady, and Roach are controlling

authority.

       In addition to his felony conviction for aggravated burglary, Davis’s two drug offenses were

each committed “on occasions different from one another” as provided at § 924(e)(1), and plainly

warranted Davis’s classification as an armed career criminal. Accordingly, the district court’s

sentence was properly imposed and, notwithstanding Davis’s appeal requesting that the law be

changed, this Court lacks any basis to afford him relief.

                                                 III.

       For the foregoing reasons, the district court did not err in classifying Davis as an armed career

criminal subject to a mandatory minimum term of imprisonment of fifteen years. The judgment of

the district court is AFFIRMED.




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