Shirley Walker v. Arkansas Dept. of Correction

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1413
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
David Eugene Wright, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 19, 2009
Filed: December 14, 2009
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Before MURPHY, SMITH and BENTON, Circuit Judges.
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PER CURIAM.
David Eugene Wright pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Wright had three prior felony convictions. In his
plea agreement, he reserved the right to argue that two of them – aggravated robberies
on the same date – should not be treated as two separate convictions for purposes of
the Armed Career Criminal Act, 18 U.S.C. § 924(e). The ACCA applies when the
defendant has previously been convicted, on different occasions, of three or more
violent felonies or serious drug offenses. Wright argues that his two robbery
convictions should be treated as only one violent felony under the ACCA, because
they were a continuous course of conduct, arising out of one incident, committed ten
minutes apart, and close in proximity.

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1The Honorable Michael J. Davis, Chief United States District Judge for the
District of Minnesota.
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This Court reviews de novo the finding that prior convictions are predicate
offenses under the ACCA. United States v. Ross, 569 F.3d 821, 823 (8th Cir. 2009).
If the ACCA applies, it carries a mandatory minimum sentence of fifteen years (which
Wright received).
Wright drove between the two robberies. The two victims were unrelated. The
district court 1 took judicial notice, based on his familiarity with the area, that there is
a substantial distance between the two locations. The court applied the ACCA.
For convictions to be committed on different occasions for purposes of the
ACCA, they must be separate and distinct criminal episodes that did not result from
a continuous course of conduct. United States v. DeRoo, 304 F.3d 824, 828 (8th Cir.
2002); United States v. Hamell, 3 F.3d 1187, 1191 (8th Cir. 1993). As the facts here
are virtually indistinguishable from DeRoo, the district court correctly determined that
Wright’s two robbery convictions were separate violent felonies, triggering the
ACCA.
Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court
affirms the judgment of the district court.
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