United States Court of Appeals
For the Eighth Circuit
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No. 21-2234
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United States of America
Plaintiff - Appellee
v.
Christopher Stowell
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Ft. Smith
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Submitted: April 15, 2022
Filed: July 25, 2022
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Before LOKEN, KELLY, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Christopher Stowell pleaded guilty to being a felon in possession of a firearm,
18 U.S.C. §§ 922(g)(1), 924(a)(2). At sentencing, the district court 1 found that he
was an armed career criminal, 18 U.S.C. § 924(e)(1). Stowell appeals, arguing that
1
The Honorable P.K. Holmes, III, United States District Judge for the Western
District of Arkansas.
he is not because two of his predicate offenses were committed on the same occasion.
We affirm.
The Presentence Report indicated that Stowell committed three violent state-
law felonies that qualify as predicate offenses under the Armed Career Criminal Act:
a 2004 conviction for residential burglary; a 2006 conviction for battery second
degree; and a 2006 conviction for battery first degree and possession of a firearm by
a certain person. The PSR described the two battery convictions as follows:
According to the felony information filed in this case, on or about
March 8, 2006, Stowell did unlawfully, feloniously and with the
purpose of causing physical injury to [Victim 1], cause serious physical
injury to [Victim 1], by means of a deadly weapon. . . .
According to the felony information filed in this case, on or about
March 11, 2006, Stowell did unlawfully, feloniously and with the
purpose of causing serious physical injury to another person, cause
serious physical injury to [Victim 2], by means of a deadly weapon. On
that same date, Stowell was found to be in possession of a firearm after
having been previously convicted of a felony.
Since the State charged both offenses in the same indictment, the convictions were
on the same date.
Because of the same conviction date, Stowell argued that he committed the
batteries on the same occasion, which would make them a single ACCA predicate
offense. The district court instead relied on the PSR and concluded that he
committed the batteries on different occasions, qualifying them as separate ACCA
predicate offenses. As a result, the court classified Stowell as an armed career
criminal and sentenced him to the statutory minimum of 180 months in prison and
five years of supervised release. Stowell appeals.
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“The Armed Career Criminal Act provides for a minimum term of fifteen
years’ imprisonment for a felon in possession of a firearm, if the defendant has three
previous convictions for a ‘violent felony’ or a ‘serious drug offense,’ committed on
occasions different from one another.” United States v. Harris, 794 F.3d 885, 886
(8th Cir. 2015) (referencing 18 U.S.C. § 924(e)(1)). The issue is whether Stowell’s
two 2006 battery convictions were committed on the same occasion. We review
whether a prior conviction qualifies as an ACCA predicate offense, including a
“different occasions” determination, de novo. United States v. Humphrey, 759 F.3d
909, 911 (8th Cir. 2014) (quotation omitted).
To decide whether multiple offenses were committed on separate occasions,
we use a three-factor analysis, considering: “(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.” United States v. Willoughby,
653 F.3d 738, 743 (8th Cir. 2011). 2 These factors suggest that Stowell committed
the batteries on different occasions. First, the offenses occurred three days apart, a
significant time lapse. See United States v. Hibbler, 295 F. App’x 106, 107 (8th Cir.
2008) (per curiam) (holding that defendant’s arson and terroristic threats
convictions—committed four days apart, at different locations, and against different
2
We have repeatedly designated crimes that occurred a few minutes apart and
in close physical proximity as being committed on separate occasions. See United
States v. Perry, 908 F.3d 1126, 1131–32 (8th Cir. 2018) (holding that defendant,
who robbed a gas station clerk at gunpoint, ran outside, and then shot at a bystander
who tried to pursue him, committed offenses on separate occasions). In closer cases,
the test may be called into question by the Supreme Court’s decision in Wooden v.
United States, 142 S.Ct. 1063, 1069 (2022) (holding that, under the ordinary
meaning of “occasion,” an offender who broke into ten conjoined storage units
committed all ten burglaries on the same occasion). But Wooden didn’t supplant our
three-factor test. In fact, the Court specifically noted that time, proximity, and the
character of or relationship between offenses may be relevant. Id. at 1070–71. And,
the offenses here did not occur close enough in time to implicate Wooden. See id.
at 1071 (“In many cases, a single factor—especially of time or place—can decisively
differentiate occasions.”).
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victims—were committed on separate occasions). Second, the offenses lacked any
substantive continuity—they were directed at two different, unrelated victims with
no indication of a common motivation or plan. See id. at 107–08. Under these facts,
we conclude that Stowell’s two battery offenses were committed on separate
occasions and qualify as separate ACCA predicate offenses.
Stowell nonetheless argues that, because the ACCA raises the statutory
minimum sentence, the facts necessary to establish that he is an armed career
criminal must be submitted to a jury and found beyond a reasonable doubt. See
Alleyne v. United States, 570 U.S. 99, 116 (2013); Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.”). The Supreme Court has held
that the sentencing court is limited to the “fact of conviction,” which includes only
the elements of the offense, when determining whether a prior generic state offense
qualifies as a “violent felony” under the ACCA. Mathis v. United States, 579 U.S.
500, 511–12 (2016). Stowell argues that this limitation applies to the different
occasions analysis as well. If that’s true, then we are left only with the fact that
Stowell was convicted of both offenses, because the date of commission is not an
element of battery. And because the convictions occurred on the same day, the facts
of conviction do not provide enough information to conclude that the offenses were
committed on separate occasions.
The problem is that this argument is foreclosed by our precedent. We have
held that the different occasions analysis involves “recidivism-related facts” that do
not need to be submitted to the jury. United States v. Harris, 794 F.3d 885, 887 (8th
Cir. 2015); see also United States v. Faulkner, 826 F.3d 1139, 1148 n.6 (8th Cir.
2016) (“We can examine the circumstances of these prior offenses instead of just the
fact of conviction, as we are not restricted under Taylor v. United States, [495 U.S.
575 (1990),] or Shepard v. United States, [544 U.S. 13 (2005),] as to what we can
view to determine whether these are separate offenses.”); United States v. Evans,
738 F.3d 935, 936 (8th Cir. 2014) (per curiam), overruled on other grounds by
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Johnson v. United States, 576 U.S. 591, 606 (2015) (“We have previously held the
question of whether prior felonies were committed on separate occasions may be
resolved by a judge. Moreover, we have rejected similar Sixth Amendment
arguments challenging the information the district court considers when determining
the specific dates on which the offenses occurred.” (quotation omitted) (cleaned
up)).
Though the constitutionality of this practice has been recently questioned, see
Wooden v. United States, 142 S.Ct. 1063, 1087 n.7 (2022) (Gorsuch, J. concurring);
United States v. Perry, 908 F.3d 1126, 1136 (8th Cir. 2018) (Stras, J. concurring), it
remains the law of our circuit. And nothing in Wooden changed this. 142 S.Ct. at
1068 n.3. We are bound by prior panels. See Mader v. United States, 654 F.3d 794,
800 (8th Cir. 2011) (en banc) (“It is a cardinal rule in our circuit that one panel is
bound by the decision of a prior panel.” (quotation omitted)). The district court’s
use of the PSR to determine the date on which each offense occurred did not violate
the Sixth Amendment. Because the district court correctly determined that Stowell
committed three ACCA predicate offenses under our precedent, we affirm.
KELLY, Circuit Judge, dissenting.
While Stowell’s appeal was pending, the United States Supreme Court
decided Wooden v. United States, 142 S. Ct. 1063 (2022), which provided lower
courts guidance on how to determine whether a defendant has three prior convictions
“for a violent felony or a serious drug offense, or both, committed on occasions
different from one another” for purposes of § 924(e)(1). I would therefore vacate
and remand for resentencing to allow the district court to resolve Stowell’s objection
to the § 924(e) enhancement, this time with the benefit of Wooden. See United
States v. Williams, No. 19-2235, 2022 WL 1510779, at *1 (8th Cir. May 13, 2022)
(unpublished) (per curiam) (remanding to the district court for a new factual
determination on the issue of whether the defendant had three prior convictions
committed on different occasions in light of Wooden).
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I agree that Wooden did not alter the prevailing law of our circuit that the
Sixth Amendment permits reliance on judge-found facts, including facts set forth in
a PSR, to determine whether a defendant has three predicate convictions that were
committed on separate occasions. That much remains the same. But Wooden did
alter the approach courts in this circuit must use when assessing whether predicate
offenses were committed on different occasions. Wooden resolved a split of
authority between circuits—including the Eighth—that found the ACCA occasions
clause satisfied “whenever crimes take place at different moments in time,” and
those that undertook “a more holistic inquiry.” 142 S. Ct. at 1068 & nn.1–2
(abrogating United States v. Abbott, 794 F.3d 896, 898 (8th Cir. 2015) (per curiam),
which applied the rule that “to 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” (quotation
omitted)). The Supreme Court adopted the latter view, holding that the “occasions”
requirement is multi-factored in nature, taking into account the timing of offenses,
as well as the proximity of the locations, and the character and relationship of the
offenses. Id. at 1071.
Here, in determining whether Stowell had three prior convictions committed
on separate occasions, the district court relied only on the dates of the offenses as
identified in the PSR, explaining that although “[t]he judgment and dates of
conviction are the same date . . . , if you go back and look at the criminal
history . . . you’ll see that the [offenses] were separate offenses. They occurred on
separate dates.” Presumably relying on cases like Abbott, the district court then
found that Stowell qualified as an armed career criminal under 18 U.S.C. § 924(e)
without addressing any other factors.
The district court’s ACCA analysis in Stowell’s case mirrors the district
court’s analysis of the occasions clause in United States v. Williams. In Williams’s
case, as in this one, the district court relied on the PSR to find that the prior offenses
were committed on different dates, without discussing any other factors. Williams
appealed, and we affirmed. United States v. Williams, 976 F.3d 781, 787 (8th Cir.
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2020), vacated, 142 S. Ct. 1439 (2022). But Williams sought certiorari, and the
Supreme Court vacated the judgment of this court and remanded “for further
consideration in light of Wooden v. United States,” Williams, 2022 WL 1510779, at
*1, and this court then remanded to the district court for a new factual determination
of whether Williams had three prior convictions committed on different occasions,
id.
In my view, Stowell’s case should be treated the same way. The district courts
in both cases applied the same pre-Wooden approach, failing to engage in a multi-
factored inquiry or consider the “range of circumstances [that] may be relevant to
identifying episodes of criminal activity.” Wooden, 142 S. Ct. at 1071. Wooden
did recognize that “[i]n many cases, a single factor—especially of time or place—
can decisively differentiate occasions.” Id. But that possibility does not eliminate
the need for a fact-intensive inquiry. Nor does it mean that a sentencing court need
not consider any factors other than “time or place.” Maybe the task on remand will
be “straightforward and intuitive,” id., but neither party had the opportunity to make
their argument under a Wooden analysis. Regardless of what we anticipate the result
may or may not be, it is not for this court to decide whether Wooden’s multi-factored
approach will alter the result in Stowell’s case. That is a question for the sentencing
court to decide in the first instance. I respectfully dissent.
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