CHICAGO (CN) – Two drug offenses, even if separated by only one week, still count as distinct convictions, the 7th Circuit ruled, imposing a 15-year mandatory minimum to a convicted felon found in possession of a firearm.
Under the Armed Career Criminal Act, a felon in possession of a firearm who has “three previous convictions … for a violent felony or a serious drug offense, or both, committed on occasions different from one another” is subject to the mandatory minimum sentence.
Jermaine Sims was convicted of aggravated discharge of a weapon in 1997. Three years later, he sold four grams of cocaine to an undercover police officer. Rather than arresting him immediately, the officer obtained a search warrant for Sims’s residence where, seven days later, police found four rocks of crack cocaine on his person.
Sims pleaded guilty to one count of selling cocaine and one count of possession with intent to distribute.
U.S. District Judge Charles Norgle invoked mandatory minimum after finding that the two drug offenses were “committed on occasions different from one another.”
On appeal, Sims argued that the Armed Career Criminal Act would not have applied it police arrested him at the moment of the initial drug sale,
A three-judge panel was not persuaded.
“The result should be no different, he concludes, simply because the police waited a week to arrest him,” Judge Diane Wood wrote for the court.
“But in 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,” she added. “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.”
The court also rejected Sims’ claim that police intentionally bait criminals in this way.
“It seems unlikely to us that the police will strategically arrest drug offenders a week or more after their initial offenses, hoping that 12 years hence the same people will face federal gun charges and wind up with a long federal sentence,” Wood wrote.
The panel declined to establish a bright line rule specifying how much time must pass between a sales and a possession offense before the two constitute different occasions.
Wood added, however, that “application of ACCA should turn on choices made by the defendant to commit additional crimes, not choices made by the police about timing of arrests.”