United States of America v. Shane E. Jones

United States Court of Appeals
For the Eighth Circuit
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No. 18-2489
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Shane E. Jones,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: May 17, 2019
Filed: August 19, 2019
[Published]
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Before COLLOTON, BEAM, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Shane Jones pleaded guilty to unlawful possession of a firearm as a previously
convicted felon. See 18 U.S.C. § 922(g)(1). The district court1 determined that he
1The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.

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was subject to an enhanced sentence under the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e)(1), based on five prior Missouri convictions for sale of a
controlled substance. See Mo. Rev. Stat. § 195.211 (2003). The court then sentenced
Jones within the advisory guideline range to a term of 190 months’ imprisonment and
five years of supervised release.
The ACCA enhancement applies when a defendant has “three previous
convictions . . . for . . . a serious drug offense . . . committed on occasions different
from one another.” 18 U.S.C. § 924(e)(1). Jones challenges the district court’s
determination that he qualified as an armed career criminal.
Jones first argues that none of his five Missouri convictions counts as a
“serious drug offense.” A “serious drug offense” includes “an offense under State
law, involving manufacturing, distributing, or possessing with intent to manufacture
or distribute, a controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten
years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). The Missouri
statute under which Jones was convicted made it a crime to “deliver . . . or attempt
to . . . deliver . . . or to possess with intent to . . . deliver . . . a controlled substance.”
Mo. Rev. Stat. § 195.211.1 (2003).
To determine whether a state drug conviction qualifies as a “serious drug
offense” under federal law, we apply a “categorical approach” and compare the
elements of the state offense with the elements set forth in § 924(e)(2)(A)(ii). See
United States v. Bynum, 669 F.3d 880, 885 (8th Cir. 2012). Jones argues that the
Missouri statute is broader than a “serious drug offense” under federal law, because
“controlled substance” in Missouri encompassed some substances that were not
“controlled substances” under federal law. In Missouri, however, “the identity of the
controlled substance is an element of the offense under § 195.211,” so “the statute is
divisible based on the drug involved.” Martinez v. Sessions, 893 F.3d 1067, 1073
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(8th Cir. 2018). In that circumstance, we may apply a modified categorical approach
and look to judicial records to determine the Missouri offense of which Jones was
convicted. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). Here, the records
show that Jones was convicted five times for selling cocaine base—a substance that
qualified as a “controlled substance” under both state and federal law—so the state
offenses match the federal definition on that score.
Jones also complains that the Missouri statute’s definition of “deliver”
criminalized merely an “offer” to sell drugs, and that the federal statute does not
encompass an offer to sell. We held in United States v. Hill, 912 F.3d 1135, 1136-37
(8th Cir. 2019) (per curiam), however, that an offer to sell in Missouri is categorically
an offense “involving” the distribution of a controlled substance under
§ 924(e)(2)(A)(ii). So each of Jones’s five convictions under § 195.211 matches the
offense defined in § 924(e)(2)(A)(ii) and was properly counted as a “serious drug
offense.”
Jones’s final argument is that the district court impermissibly found that at least
three of his Missouri offenses were “committed on occasions different from one
another.” The judicial records showed that one offense was committed on or about
November 8, 2007, another on or about November 28, 2007, and a third on or about
January 28, 2009. These records adequately support the court’s finding of different
occasions. See United States v. Keith, 638 F.3d 851, 852-53 (8th Cir. 2011); United
States v. Van, 543 F.3d 963, 966 (8th Cir. 2008). Jones’s argument that the Sixth
Amendment right to a jury trial prevented the court from making this finding is
foreclosed by circuit precedent. United States v. Harris, 794 F.3d 885, 887 (8th Cir.
2015); United States v. Cole, 778 F.3d 1055, 1056 (8th Cir. 2015) (per curiam);
United States v. Evans, 738 F.3d 935, 936-37 (8th Cir. 2014) (per curiam); accord
United States v. Blair, 734 F.3d 218, 226-28 (3d Cir. 2013); United States v. Weeks,
711 F.3d 1255, 1259 (11th Cir. 2013) (per curiam); United States v. Elliott, 703 F.3d
378, 382-83 (7th Cir. 2012); United States v. Thomas, 572 F.3d 945, 952 n.4 (D.C.
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Cir. 2009); United States v. Michel, 446 F.3d 1122, 1133 (10th Cir. 2006); United
States v. Thompson, 421 F.3d 278, 285-86 (4th Cir. 2005); United States v. Burgin,
388 F.3d 177, 186 (6th Cir. 2004); United States v. Santiago, 268 F.3d 151, 156-57
(2d Cir. 2001).
The judgment of the district court is affirmed.
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