Eighth Circuit Finds That Two Nearly Simultaneous Drug Sales Are One Offense for Sentencing Purposes

In United States v. Willoughby, 653 F.3d 738 (8th. Cir. 2011), Defendant Willoughby appealed from the United States District Court for the Western District of Missouri, which designated him an armed career criminal under the Armed Career Criminals Act (ACCA), 18 U.S.C.S. § 924(e) and sentenced him to the ACCA’s mandatory minimum sentence of 15 years’ imprisonment.

The presentence report (PSR) prepared in advance of Willoughby’s sentencing recommended that defendant be classified as an armed career criminal, pursuant to the ACCA. Defendant objected to this finding by the PSR, specifically challenging whether his selling marijuana to two different people during one drug deal constituted two offenses that were committed on different occasions as the ACCA required. Reversing, the court rejected the government’s argument that defendant’s sale to an undercover officer and, seconds later, to a confidential informant, constituted “separate and distinct criminal episodes,” instead finding that the sale was, in actuality, one continuous course of conduct.

The court noted that it had never held two convictions to be sufficiently separate and distinct to serve as predicate ACCA convictions where those convictions were for drug offenses that the defendant committed, in essence, simultaneously. The insignificant disparity between the amounts of marijuana that the officer and the confidential informant purchased was insufficient to demonstrate a substantive discontinuity. The court reversed and remanded for resentencing.

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