NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 23a0277n.06

                                           No. 22-5603


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                   FILED
                                                                                  Jun 15, 2023
 UNITED STATES OF AMERICA,                                                    DEBORAH S. HUNT, Clerk
          Plaintiff-Appellee,
                                                      ON APPEAL FROM THE UNITED
 v.
                                                      STATES DISTRICT COURT FOR THE
                                                      EASTERN DISTRICT OF TENNESSEE
 CALVIN COGDILL,
          Defendant-Appellant.                                                          OPINION



Before: CLAY, GRIFFIN, and DAVIS, Circuit Judges.

         CLAY, Circuit Judge. Defendant Calvin Cogdill pleaded guilty to being a felon in

possession of a firearm and ammunition, in violation of 

(g)(1). Based on Cogdill’s

three prior drug-trafficking convictions, the district court sentenced Cogdill to a fifteen-year

mandatory-minimum sentence under the Armed Career Criminal Act.               Cogdill appeals this

sentence, arguing that the district court erred in concluding that two of his prior drug-trafficking

offenses occurred on different “occasions.” For the reasons that follow, we AFFIRM the district

court’s judgment.

                                        BACKGROUND

         Cogdill pleaded guilty to being a felon in possession of a firearm and ammunition, in

violation of 

(g)(1). At the time Cogdill committed the offense, the offense carried

a maximum penalty of ten years’ imprisonment. See 

(a)(2) (2018) (amended

2022).
No. 22-5603, United States v. Cogdill


       Relevant to Cogdill’s sentencing, Cogdill had three prior drug-trafficking convictions: (1)

a Georgia conviction for manufacturing methamphetamine, committed on December 18, 2003; (2)

a Tennessee conviction for selling methamphetamine with co-defendant Jason Johns, committed

on June 12, 2014; and (3) a Tennessee conviction for possessing methamphetamine with intent to

sell or deliver, committed on September 15, 2014.

       Based on these three drug-trafficking offenses, the presentence investigation report

determined that the Armed Career Criminal Act’s (“ACCA”) fifteen-year mandatory minimum

sentence applied. See 

(e)(1). Cogdill objected to the presentence investigation

report on the ground that the two Tennessee drug-trafficking convictions did not occur on different

“occasions” and therefore did not trigger the ACCA’s mandatory minimum sentence. See 

 In

the alternative, Cogdill objected that the Fifth and Sixth Amendments to the Constitution bar a

sentencing judge from finding the facts needed to satisfy the occasions-different clause.

       The district court overruled Cogdill’s objections and determined that the ACCA applied.

The district court sentenced Cogdill to 180 months’ imprisonment.

                                         DISCUSSION

       On appeal, Cogdill argues that his Tennessee drug-trafficking offenses do not trigger the

ACCA because they did not occur on “occasions different from one another.” See 

(e)(1). In the alternative, Cogdill argues that the Constitution bars the district court from

finding the facts needed to make the occasions-different inquiry. We review both questions of law

de novo. United States v. Williams, 

 (6th Cir. 2022) (“We review de novo

whether [a defendant’s] previous convictions qualify as predicate offenses under the ACCA.”);

United States v. King, 

 (6th Cir. 2017) (“We review de novo the issue of what




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evidence a court may rely on when deciding whether prior offenses were ‘committed on occasions

different from one another’ as that phrase is used in the ACCA.”).

                                                  I.

       The ACCA’s mandatory minimum applies to a person who violates 

(g) and

has “three previous convictions . . . for a serious drug offense . . . committed on occasions different

from one another.” 

(e)(1). Cogdill does not dispute that he has three previous

convictions for serious drug offenses. Rather, Cogdill contends that the convictions based on the

two Tennessee drug-trafficking offenses qualify as only one ACCA predicate offense because they

were not committed on different occasions.

       The Supreme Court addressed the issue of when the offenses underlying previous

convictions were committed on the same “occasion” in Wooden v. United States, 

,

1069 (2022). In one evening, Wooden burglarized ten units in a storage facility, proceeding from

unit to unit by crushing the interior walls between them. 

. The Supreme Court held that

these burglaries occurred on one occasion, not ten separate occasions. 

. The Court

defined an occasion as a single “event, occurrence, happening, or episode,” and explained that

determining whether offenses occurred on separate occasions is a “multi-factored” inquiry. 

 at

1069–70.    Relevant factors include timing, proximity of location, and “the character and

relationship of the offenses.” 

. To determine whether Cogdill’s Tennessee offenses

occurred on different occasions, we apply the factors from Wooden.

       “Offenses committed close in time, in an uninterrupted course of conduct, will often count

as part of one occasion; not so offenses separated by substantial gaps in time or significant

intervening events.” 

 Cogdill’s two Tennessee drug offenses occurred on two different dates,

separated by more than three months: June 12, 2014, and September 15, 2014. We have held that


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significantly smaller time gaps between offenses supported the conclusion that the offenses

occurred on different occasions. See Williams, 

 (holding that four robberies

occurred on four separate occasions because the robberies were each separated by at least six days);

United States v. Miles, 

, at *4֪–5 (6th Cir. Apr. 25, 2022) (order)

(holding that three illicit drug transactions on three different days over the span of 23 days

constituted three ACCA predicate offenses because the offenses were separated by substantial gaps

in time). Accordingly, this factor weighs in favor of a conclusion that the offenses occurred on

separate occasions.

       As to proximity, “the further away crimes take place, the less likely they are components

of the same criminal event.” Wooden, 142 S. Ct. at 1071. In this case, the record shows that the

Tennessee drug offenses both occurred in Bradley County, Tennessee. Because the exact locations

are unknown, Cogdill argues that they could have been committed in the same location. The

district court correctly determined that it could make no finding on this factor.

       As for the character of the offenses, “[t]he more similar or intertwined the conduct giving

rise to the offenses—the more, for example, they share a common scheme or purpose—the more

apt they are to compose one occasion.” Id. Cogdill argues that the Tennessee offenses shared a

“common purpose” of trafficking in methamphetamine. In support, Cogdill contends that these

offenses meet the test for “relevant conduct” under the sentencing guidelines. See U.S.S.G. §

1B1.3(a)(2). But the inquiry under the sentencing guidelines is distinct from the inquiry under

Wooden. Compare U.S.S.G. § 1B1.3 comment. (n.5(B)(ii)) (noting that offenses may be “relevant

conduct” if they are “part of a single episode, spree, or ongoing series of offenses”), with Wooden,

142 S. Ct. at 1069 (defining an “occasion” to mean an “event, occurrence, happening, or episode”).

While Cogdill’s Tennessee offenses both involved the trafficking of methamphetamine, they do


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No. 22-5603, United States v. Cogdill


not share a common scheme in the same way as in Wooden, wherein the defendant serially

burglarized each storage unit in the exact same manner. We have held that drug transactions

similar to the two at issue in this case may constitute multiple ACCA predicate offenses when

separated by substantial gaps in time. See Miles, 

, at *4֪–5 (holding

that two counts of first-degree trafficking in a controlled substance involving two sales of

oxycodone tablets to the same cooperating witness, fourteen days apart, constituted two ACCA

predicate offenses). Therefore, this factor weighs in favor of a conclusion that the offenses

occurred on separate occasions.

       The Supreme Court has explained that “[i]n many cases, a single factor—especially of time

or place—can decisively differentiate occasions.” Wooden, 142 S. Ct. at 1071. “Courts, for

instance, have nearly always treated offenses as occurring on separate occasions if a person

committed them a day or more apart.” Id. Given the substantial gap in time between Cogdill’s

Tennessee drug offenses and the distinct conduct underlying the offenses, the offenses were

committed on different occasions under the ACCA.

       Resisting this conclusion, Cogdill looks to legislative history to claim that ACCA’s

enhancement was only meant to apply to “recidivists,” and argues that the lack of an arrest or other

significant intervening event between the Tennessee offenses supports a finding that the two

offenses did not occur on different occasions. However, the occasions-different clause does not

reference either recidivism or criminal-justice-system intervention. See 

(e)(1).

Nor does Wooden’s “multi-factor” test include intervening arrests. Rather, Wooden directs courts

to determine whether the convictions satisfy the ordinary meaning of a single “occasion” by

looking to facts underlying the convictions like location, timing, and whether the offenses were




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No. 22-5603, United States v. Cogdill


intertwined. Wooden, 142 S. Ct. at 1070–71. We cannot add a requirement to the statute based

on legislative history.

                                                  II.

       In the alternative, Cogdill argues that the Constitution bars the district court from finding

the facts needed to conduct the occasions-different inquiry.

       Under Apprendi v. New Jersey, 

 (2000), a judge may find the “fact of a

prior conviction,” but all other “fact[s] that increase[] the penalty for a crime beyond the prescribed

statutory maximum” must be included in the indictment and proved to a jury beyond a reasonable

doubt. Cogdill argues that the factual findings necessary to the occasions-different inquiry fall

under the Apprendi general rule, and therefore may only be found by a jury, and not by the

sentencing judge.

       Cogdill acknowledges, however, that circuit precedent forecloses the argument. We have

previously held that the facts governing the occasions-different inquiry are included in “the fact of

a prior conviction,” so they come within the Apprendi exception. United States v. Burgin, 

 (6th Cir. 2004). We have since reaffirmed this rule. Williams, 

; see

also United States v. Belcher, 

 (6th Cir. 2022); United States v. Jackson, No. 22-

5185, 

, at *2 (6th Cir. Mar. 10, 2023); United States v. Hunley, No. 20-6285,

, at *3 (6th Cir. Mar. 10, 2023); United States v. Lovell, No. 20-6287, 

, at *3 (6th Cir. Feb. 10, 2023). The district court correctly applied this settled rule.

       Cogdill challenges this precedent by arguing that those cases either came before or

overlooked two Supreme Court cases that make clear that the occasions-different inquiry is for the

jury: United States v. Hayes, 

 (2009), and Nijhawan v. Holder, 

 (2009).

A panel may overrule a prior binding precedent if the “precedent overlooked earlier Supreme Court


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No. 22-5603, United States v. Cogdill


authority.” Ne. Ohio Coal. for the Homeless v. Husted, 

 (6th Cir. 2016).

However, the cases Cogdill identifies provide no authority to revisit our binding precedent because

neither case involved the ACCA or the occasions-different inquiry. See United States v. Cook,

No. 22-5056, 

, at *2 (6th Cir. Oct. 3, 2022). Nor does Wooden alter this

precedent. See Wooden, 142 S. Ct. at 1068 n.3 (declining to address whether the Sixth Amendment

requires that a jury, rather than a judge, resolve whether prior crimes occurred on a single

occasion).

                                        CONCLUSION

       For the reasons stated above, we AFFIRM the district court’s judgment.




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