United States v. Willie Baxter ( 2022 )

USCA4 Appeal: 21-4627 Doc: 26 Filed: 11/07/2022 Pg: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4627
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIE LUMARRIS BAXTER,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Frank D. Whitney, District Judge. (3:20-cr-00308-FDW-DSC-1)
Submitted: October 28, 2022 Decided: November 7, 2022
Before NIEMEYER and HARRIS, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Joseph L. Ledford, JOSEPH L. LEDFORD, ATTORNEY AT LAW,
Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, Amy E.
Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Willie Lumarris Baxter pleaded guilty, pursuant to a written plea agreement, to
being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1).
At sentencing, Baxter objected to his classification as an armed career offender under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The district court overruled
Baxter’s objection and sentenced him to the statutory minimum ACCA sentence of 180
months’ imprisonment. On appeal, Baxter challenges the district court’s determination
that his conviction in 2010 for five counts of possession with intent to distribute cocaine
base counted as separate ACCA predicates because the offenses were committed on
separate occasions from one another. We affirm.
We review de novo the district court’s determination that a defendant committed
ACCA predicate offenses on different occasions, but “review for clear error the district
court’s factual findings made incident to this ultimate ruling.” United States v. Linney, 819
F.3d 747, 751 (4th Cir. 2016). The Government bears the burden to establish by a
preponderance of the evidence that prior offenses were committed on separate occasions.
Id. We may find clear error only if “on the entire evidence, [we are] left with the definite
and firm conviction that a mistake has been committed.” United States v. Span, 789 F.3d
320, 325 (4th Cir. 2015) (internal quotation marks omitted). Such error occurs when the
court’s “factual determinations are not supported by substantial evidence” or “are against
the clear weight of the evidence considered as a whole.” Id. (internal quotation marks
omitted).
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A defendant convicted of violating § 922(g)(1) is subject to an enhanced, 15-year
mandatory minimum sentence if he has three prior convictions for serious drug offenses
that were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).
For ACCA purposes, “offenses occur on occasions different from one another when each
offense arose out of a separate and distinct criminal episode.” United States v. Tucker, 603
F.3d 260, 263 (4th Cir. 2010) (internal quotation marks omitted). “That is, each predicate
offense must have a beginning and an end, such that they each constitute an occurrence
unto themselves.” Linney, 819 F.3d at 751 (internal quotation marks omitted). Simply put,
offenses occur on different occasions when they involve a separate “event, occurrence,
happening, or episode.” Wooden v. United States, 142 S. Ct. 1063, 1069 (2022).
To determine whether offenses occurred on different occasions, we consider (1)
whether the offenses were “committed close in time, in an uninterrupted course of
conduct,” or whether they were “separated by substantial gaps in time or significant
intervening events”; (2) whether the offenses occurred in physical proximity to one
another; and (3) “the character and relationship of the offenses”—whether “they share a
common scheme or purpose” or are otherwise intertwined or similar. Id. at 1071; see also
United States v. Carr, 592 F.3d 636, 644 (4th Cir. 2010) (enumerating similar factors);
United States v. Letterlough, 63 F.3d 332, 335-37 (4th Cir. 1995). “In many cases, a single
factor—especially of time or place—can decisively differentiate occasions.” Wooden, 142
S. Ct. at 1071. Courts “have nearly always treated offenses as occurring on separate
occasions if a person committed them a day or more apart, or at a significant distance.” Id.
(internal quotation marks omitted).
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We conclude that the district court did not err in finding that each of Baxter’s 2010
counts of possession with intent to distribute cocaine base constituted a separate predicate
offense. In this case, the fact that Baxter’s drug sales were separated by substantial, weeks-
long gaps in time is outcome determinative. Baxter had ample opportunity to consciously
and knowingly decide that he wanted to engage in another sale of cocaine base on each
occasion. Simply put, each sale matches the ordinary definition of an individual
“occasion.” See id. at 1069.
Accordingly, we affirm Baxter’s criminal judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
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