United States of America v. Damon L. Buford

United States Court of Appeals
For the Eighth Circuit
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No. 21-1050
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United States of America
Plaintiff - Appellee
v.
Damon L. Buford
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: October 17, 2022
Filed: December 13, 2022
[Published]
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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PER CURIAM.
Damon Buford pleaded guilty to possession of a firearm by a felon. See 18
U.S.C. § 922(g)(1). The district court1 determined that Buford qualified for the
enhanced statutory minimum sentence under the Armed Career Criminal Act
1 The Honorable Howard F. Sachs, United States District Judge for the
Western District of Missouri.

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(“ACCA”). See 18 U.S.C. § 924(e)(1). Buford appeals the district court’s
application of the ACCA enhancement. We affirm.
Buford’s presentence investigation report (“PSR”) indicated that he was
convicted of four separate “serious drug offense[s].” See § 924(e). One offense was
the sale of a controlled substance on February 21, 2016, a Class B felony. The other
three offenses were also Class B felony sales that occurred on April 27, 2018, April
28, 2018, and May 6, 2018. Buford’s 2018 convictions were each for sales of less
than a gram of cocaine to the same undercover officer. Buford was arrested after the
third 2018 sale and charged in state court with three separate counts of sale of a
controlled substance. The PSR stated that all four of Buford’s convictions constitute
predicate offenses under the ACCA. Buford objected to the applicability of the
ACCA statutory minimum, but the district court overruled his objection. The district
court sentenced him to the ACCA statutory minimum of 180 months’ imprisonment
followed by 5 years of supervised release. Buford appeals his sentence.
We first address Buford’s argument that the district court erred by finding that
his 2018 offenses occurred on the same occasion. We review de novo whether a
prior conviction constitutes an ACCA predicate offense. United States v. Humphrey,
759 F.3d 909, 911 (8th Cir. 2014).
Under the ACCA, a felon who possesses a firearm is subject to a minimum
sentence of fifteen years if he has three prior convictions for violent felonies or
serious drug offenses “committed on occasions different from one another.” 18
U.S.C. § 924(e)(1). “In many cases, a single factor—especially of time or place—
can decisively differentiate occasions.” Wooden v. United States, 595 U.S. ---, 142
S. Ct. 1063, 1071 (2022). “[C]onvictions for separate drug transactions on separate
days are multiple ACCA predicate offenses, even if the transactions were sales to
the same victim or informant.” United States v. McDaniel, 925 F.3d 381, 387 (8th
Cir. 2019), cert. denied, 140 S. Ct. 1272 (2020).

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Buford argues that the record does not establish that his convictions were
based on three sales occurring on three distinct occasions, as opposed to one sale
with three distinct delivery dates. We disagree. The PSR notes that Buford
“admitted to selling drugs to an undercover officer on three separate occasions.”
Although Buford objected to his sentence enhancement, Buford never objected to
this separate-occasions statement in the PSR, so the district court properly accepted
it as true. See United States v. Oaks, 606 F.3d 530, 541-42 (8th Cir. 2010). Buford
also emphasizes that his 2018 offenses entailed selling substantially similar amounts
of cocaine to the same undercover officer during a ten-day period, with two of the
sales on consecutive days. But “convictions for separate drug transactions on
separate days qualify as multiple ACCA predicate offenses, even if the transactions
were sales to the same victim or informant.” McDaniel, 925 F.3d at 387.
We also disagree with Buford that the rule of lenity requires us to construe the
ACCA’s occasions clause in his favor. The rule of lenity states that ambiguities in
criminal statutes should be resolved in favor of the defendant. United States v.
Davis, 588 U.S. ---, 139 S. Ct. 2319, 2333 (2019). However, we consider the rule
of lenity only when, after employing all other tools of construction, “a grievous
ambiguity or uncertainty in the statute” remains. Donnell v. United States, 765 F.3d
817, 820 (8th Cir. 2014). As discussed above, Buford committed at least three (if
not four) qualifying offenses occurring on separate occasions, so there is no
ambiguity in the statute as applied to Buford.2
Buford argues alternatively that remand is required for new fact-finding on
the different-occasions issue. He notes that in United States v. Williams, we
remanded to the district court in light of Wooden “for a new factual determination
on the issue of whether Williams had three prior convictions committed on different
occasions.” See No. 19-2235, 2022 WL 1510779, at *1 (8th Cir. May 13, 2022)
(unpublished) (per curiam). Williams, however, did not offer any general guidance
2 Moreover, even if the April 27 and April 28 sales occurred on one occasion,
Buford would still have three qualifying predicate offenses occurring on separate
occasions.

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as to what district court fact-finding, if any, is needed in light of Wooden. Id. No
further fact-finding is needed in this case, so a remand is not necessary. See United
States v. Robinson, 43 F.4th 892, 895-96 (8th Cir. 2022) (discussing Wooden and
concluding that the defendant’s prior burglary offenses occurred on separate
occasions without remanding for further fact-finding).
Next, we address Buford’s argument that the Sixth Amendment requires facts
related to sentencing under the ACCA to be found by a jury. Buford did not raise
this argument at sentencing, so we review for plain error. See United States v. Pirani,
406 F.3d 543, 549 (8th Cir. 2005). An error is plain only if, at the time of appellate
review, the erroneous nature of the trial court’s decision is obvious. Henderson v.
United States, 568 U.S. 266, 273 (2013). We have held that facts about prior
convictions that are relevant to ACCA sentencing do not need to be submitted to a
jury. Robinson, 43 F.4th at 896; United States v. Harris, 794 F.3d 885, 887 (8th Cir.
2015). Additionally, Wooden is not intervening precedent because the Court
declined to weigh in on the Sixth Amendment question. See 142 S. Ct. at 1068 n.3.
Therefore, any error committed by the district court in failing to submit facts related
to Buford’s ACCA sentencing is not obvious at the time of our review. The district
court thus did not plainly err by not having a jury find facts related to Buford’s
ACCA sentencing.
In sum, we conclude that Buford’s 2018 offenses occurred on different
occasions and that the district court’s ACCA-related fact-finding was not plain error.
For the foregoing reasons, we affirm.
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