FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 1, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 17-2219 (D.C. No. 1:16-CR-01424-MV-1) MARC DUTCH, (D.N.M)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, EBEL, and PHILLIPS, Circuit Judges. _________________________________
The government appeals the sentence of Marc Dutch. It contends the district
court erred in refusing to apply the Armed Career Criminal Act (“ACCA”). We
agree with the government that the ACCA governs because Dutch’s prior crimes
were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).
Exercising jurisdiction under 18 U.S.C. § 3742(b), we reverse and remand for
resentencing.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I
In 2016, Dutch was arrested after fleeing the scene of a traffic accident.
Officers discovered a loaded revolver and ammunition in a subsequent search. Dutch
pled guilty to being a felon in possession of a firearm and ammunition in violation of
18 U.S.C. § 922(g)(1), without the benefit of a plea agreement.
Dutch’s Presentence Investigation Report recommended that he be subject to
the ACCA based on three prior bank robbery convictions. In 2006, Dutch pled guilty
to three counts of bank robbery and aiding and abetting in violation of 18 U.S.C.
§§ 2113(a) and 2. The government offered the indictment, Dutch’s plea agreement,
and the judgment from that case. According to the indictment, the bank robberies
occurred on or about: (1) November 12, 2005, at First Financial Credit Union, 2700
San Mateo Boulevard NE, Albuquerque, NM; (2) November 25, 2005, at Ironstone
Bank, 7300 Jefferson NE, Albuquerque, NM; and (3) November 26, 2005, at Sandia
Laboratory Federal Credit Union, 3707 Juan Tabo Blvd., Albuquerque, NM.
The district court concluded that the government had not met its burden to
establish the ACCA applied because the record did not indicate whether Dutch’s
crimes occurred on different occasions or as part of one continuous drug-fueled
enterprise. It noted that Dutch’s long history of substance abuse and mental illness
likely deprived him of a meaningful opportunity to cease his criminal conduct.
Dutch was sentenced to 60 months. The government timely appealed.
2 II
We review the district court’s decision whether to apply the ACCA de novo.
United States v. Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012). A defendant is
subject to an enhanced sentence under the ACCA if he has three prior violent felony
or serious drug offense convictions that were “committed on occasions different from
one another.” § 924(e)(1). The government must prove by a preponderance of the
evidence that prior offenses occurred on different occasions. Delossantos, 680 F.3d
at 1219.
This court has repeatedly held that predicate offenses occurred on different
occasions for the purposes of § 924(e)(1) when the offenses took place at different
times or locations. See United States v. Harris, 447 F.3d 1300, 1305 n.2 (10th Cir.
2006) (“Separateness under the ACCA turns on when and where the crimes were
committed.”); United States v. Michel, 446 F.3d 1122, 1134 (10th Cir. 2006)
(enhancement applied because defendant “committed three successive criminal
incidents at three separate locations against three different victims”); United States v.
Johnson, 130 F.3d 1420, 1431 (10th Cir. 1997) (“[O]ffenses committed at distinct,
different times will be treated as separate predicate offenses for purposes of
§ 924(e)(1).” (quotation omitted)); United States v. Tisdale, 921 F.2d 1095, 1099
(10th Cir. 1990) (considering whether prior offenses were “distinct in time” and
“committed at different locations”). In determining the time and place of prior
offenses, sentencing courts may consult certain records, including charging
documents. See Harris, 447 F.3d at 1305 (citing Shepard v. United States, 544 U.S.
3 13, 20-21 (2005)). “The time, place, and substance of the prior convictions can
ordinarily be ascertained from court records associated with those convictions . . . .”
Id. at 1304.
Dutch’s prior indictment demonstrates that his three bank robberies occurred
at different times and places, and involved different banks. This information satisfies
the government’s burden of proving by a preponderance of the evidence that the
offenses were “committed on occasions different from one another.” § 924(e)(1).
Although two of the robberies occurred within a day of one another, we have held
that even crimes occurring in quick succession qualify as separate. See Michel, 446
F.3d at 1134 (three separate crimes “all occurred within a short period of time”);
Tisdale, 921 F.2d at 1099 (defendant’s three burglaries at three separate businesses in
same shopping mall on same night were separate for the purpose of § 924(e)(1)).
In ruling otherwise, the district court relied heavily on Dutch’s argument that
his drug use rendered him unable to halt his criminal activities. Dutch is correct that
we do sometimes consider whether a defendant had the opportunity to cease his
conduct in applying § 924(e)(1). But we do so to help determine whether the
offenses were in fact distinct in time, rather than as a separate inquiry into the
defendant’s state of mind. See Michel, 446 F.3d at 1134 (considering the fact that
defendant “had the opportunity after assaulting the first officer simply to flee the scene
rather than attempting to rob the convenience store and assaulting the second officer”);
Tisdale, 921 F.2d at 1098-99 (noting that “[a]fter the defendant successfully completed
burglarizing one business, he was free to leave” (quotation omitted)).
4 Moreover, Dutch necessarily admitted that he possessed the requisite mens rea as
to each independent robbery by pleading guilty to three separate counts. His voluntary
intoxication does not mean that he was denied a meaningful opportunity to cease his
conduct. See United States v. Taylor, 454 F.3d 1075, 1081 (10th Cir. 2006) (noting that
§ 2113(a) is a general intent crime); United States v. Williams, 403 F.3d 1188, 1194
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 1, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 17-2219 (D.C. No. 1:16-CR-01424-MV-1) MARC DUTCH, (D.N.M)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, EBEL, and PHILLIPS, Circuit Judges. _________________________________
The government appeals the sentence of Marc Dutch. It contends the district
court erred in refusing to apply the Armed Career Criminal Act (“ACCA”). We
agree with the government that the ACCA governs because Dutch’s prior crimes
were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).
Exercising jurisdiction under 18 U.S.C. § 3742(b), we reverse and remand for
resentencing.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I
In 2016, Dutch was arrested after fleeing the scene of a traffic accident.
Officers discovered a loaded revolver and ammunition in a subsequent search. Dutch
pled guilty to being a felon in possession of a firearm and ammunition in violation of
18 U.S.C. § 922(g)(1), without the benefit of a plea agreement.
Dutch’s Presentence Investigation Report recommended that he be subject to
the ACCA based on three prior bank robbery convictions. In 2006, Dutch pled guilty
to three counts of bank robbery and aiding and abetting in violation of 18 U.S.C.
§§ 2113(a) and 2. The government offered the indictment, Dutch’s plea agreement,
and the judgment from that case. According to the indictment, the bank robberies
occurred on or about: (1) November 12, 2005, at First Financial Credit Union, 2700
San Mateo Boulevard NE, Albuquerque, NM; (2) November 25, 2005, at Ironstone
Bank, 7300 Jefferson NE, Albuquerque, NM; and (3) November 26, 2005, at Sandia
Laboratory Federal Credit Union, 3707 Juan Tabo Blvd., Albuquerque, NM.
The district court concluded that the government had not met its burden to
establish the ACCA applied because the record did not indicate whether Dutch’s
crimes occurred on different occasions or as part of one continuous drug-fueled
enterprise. It noted that Dutch’s long history of substance abuse and mental illness
likely deprived him of a meaningful opportunity to cease his criminal conduct.
Dutch was sentenced to 60 months. The government timely appealed.
2 II
We review the district court’s decision whether to apply the ACCA de novo.
United States v. Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012). A defendant is
subject to an enhanced sentence under the ACCA if he has three prior violent felony
or serious drug offense convictions that were “committed on occasions different from
one another.” § 924(e)(1). The government must prove by a preponderance of the
evidence that prior offenses occurred on different occasions. Delossantos, 680 F.3d
at 1219.
This court has repeatedly held that predicate offenses occurred on different
occasions for the purposes of § 924(e)(1) when the offenses took place at different
times or locations. See United States v. Harris, 447 F.3d 1300, 1305 n.2 (10th Cir.
2006) (“Separateness under the ACCA turns on when and where the crimes were
committed.”); United States v. Michel, 446 F.3d 1122, 1134 (10th Cir. 2006)
(enhancement applied because defendant “committed three successive criminal
incidents at three separate locations against three different victims”); United States v.
Johnson, 130 F.3d 1420, 1431 (10th Cir. 1997) (“[O]ffenses committed at distinct,
different times will be treated as separate predicate offenses for purposes of
§ 924(e)(1).” (quotation omitted)); United States v. Tisdale, 921 F.2d 1095, 1099
(10th Cir. 1990) (considering whether prior offenses were “distinct in time” and
“committed at different locations”). In determining the time and place of prior
offenses, sentencing courts may consult certain records, including charging
documents. See Harris, 447 F.3d at 1305 (citing Shepard v. United States, 544 U.S.
3 13, 20-21 (2005)). “The time, place, and substance of the prior convictions can
ordinarily be ascertained from court records associated with those convictions . . . .”
Id. at 1304.
Dutch’s prior indictment demonstrates that his three bank robberies occurred
at different times and places, and involved different banks. This information satisfies
the government’s burden of proving by a preponderance of the evidence that the
offenses were “committed on occasions different from one another.” § 924(e)(1).
Although two of the robberies occurred within a day of one another, we have held
that even crimes occurring in quick succession qualify as separate. See Michel, 446
F.3d at 1134 (three separate crimes “all occurred within a short period of time”);
Tisdale, 921 F.2d at 1099 (defendant’s three burglaries at three separate businesses in
same shopping mall on same night were separate for the purpose of § 924(e)(1)).
In ruling otherwise, the district court relied heavily on Dutch’s argument that
his drug use rendered him unable to halt his criminal activities. Dutch is correct that
we do sometimes consider whether a defendant had the opportunity to cease his
conduct in applying § 924(e)(1). But we do so to help determine whether the
offenses were in fact distinct in time, rather than as a separate inquiry into the
defendant’s state of mind. See Michel, 446 F.3d at 1134 (considering the fact that
defendant “had the opportunity after assaulting the first officer simply to flee the scene
rather than attempting to rob the convenience store and assaulting the second officer”);
Tisdale, 921 F.2d at 1098-99 (noting that “[a]fter the defendant successfully completed
burglarizing one business, he was free to leave” (quotation omitted)).
4 Moreover, Dutch necessarily admitted that he possessed the requisite mens rea as
to each independent robbery by pleading guilty to three separate counts. His voluntary
intoxication does not mean that he was denied a meaningful opportunity to cease his
conduct. See United States v. Taylor, 454 F.3d 1075, 1081 (10th Cir. 2006) (noting that
§ 2113(a) is a general intent crime); United States v. Williams, 403 F.3d 1188, 1194
(10th Cir. 2005) (voluntary intoxication is not a defense to general intent crimes).
We also reject Dutch’s argument that he did not admit to aiding and abetting
the bank robberies on different occasions. Regardless of the facts underlying Dutch’s
aiding and abetting, the government offered proof that Dutch pled guilty to three
counts of substantive bank robbery in violation of 18 U.S.C. § 2113(a). And as
explained supra, the indictment demonstrates that the three bank robberies occurred
on different dates and at different locations.
Dutch raises two alternative issues that are foreclosed by circuit precedent.
See United States v. White, 782 F.3d 1118, 1126-27 (10th Cir. 2015) (“One panel of
this court cannot overrule the judgment of another panel absent en banc consideration
or an intervening Supreme Court decision that is contrary to or invalidates our
previous analysis.” (quotation omitted)). We have held that judges may find prior
offenses occurred on different occasions without violating the Sixth Amendment.
Harris, 447 F.3d at 1305; Michel, 446 F.3d at 1132-33. Subsequent decisions
addressing how courts may determine the elements of a prior offense, see, e.g.,
Mathis v. United States, 136 S. Ct. 2243 (2016), have not undermined that holding.
5 This court has also already held that bank robbery in violation of § 2113(a) is a
violent felony. United States v. McCranie, 889 F.3d 677, 677-78 (10th Cir. 2018).
III
We REVERSE the district court’s conclusion that the ACCA does not apply
and REMAND with instructions to VACATE Dutch’s sentence and resentence him
consistent with this order and judgment.
Entered for the Court
Carlos F. Lucero Circuit Judge