Sentencing — ACCA

Listen to this article

United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — ACCA

A possession and a sales offense, occurring a week apart, were properly treated as two separate offenses under the Armed Career Criminal Act.

“[I]n order for us to conclude that his two crimes must be collapsed into one ‘occasion,’ we would at a minimum have to be satisfied that Sims’s possession offense was based on the same drug stash from which he drew the product that he sold. Although it is possible that the drugs found on January 18 were already in his possession as early as January 11, it is at least equally likely that they were not. For all we know, Sims sold the last of his January 11 drug supply to the officer that day and then acquired additional cocaine before his arrest on January 18. Those two offenses would be separate and distinct. Once the government has established by a preponderance of the evidence that Sims has three prior felonies under ACCA, the burden shifts to the defendant to ‘prove by a preponderance of the evidence that a conviction cannot be used under § 924(e)(1).’ United States v. Vitrano, 405 F.3d 506, 509 (7th Cir. 2005). On this record, the district court reasonably concluded that Sims failed to meet that burden. It was therefore appropriate for the court to treat the two as separate offenses.”

Affirmed.

11-3550 U.S. v. Sims

Appeal from the United States District Court for the Northern District of Illinois, Norgle, J., Wood, J.