United States v. Michael James Brady

988 F.2d 664, 1993 U.S. App. LEXIS 5201, 1993 WL 76932

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 22, 1993
• Docket: 91-1350
• Status: Published

Opinions

MILBURN, Circuit Judge.

We granted rehearing en banc in this criminal case, thereby vacating the prior decision of a panel of our court, in order to consider the question of whether two armed robberies of different victims at different locations committed approximately thirty minutes apart were “committed on occasions different from one another” within the meaning of the Armed Career Criminal Act (“Act”), 18 U.S.C. § 924(e)(1).¹ For the reasons that follow, we hold that the robberies in question were committed on different occasions and were separate and distinct criminal episodes. We therefore affirm the judgment of the district court.

I.

The underlying facts are not in dispute and are taken largely from the panel’s vacated decision.

On October 31, 1988, Kimberly Thurman reported a rape to the Detroit, Michigan, Police Department, describing the perpetrator and the .22 caliber revolver he was carrying. Later that day, two officers patrolling the area of the alleged assault observed a man who met the description given by Thurman and who was later identified as Michael Brady. As they approached Brady, they saw him take a dark object out of his pocket and toss it away. One officer detained Brady while the other searched the area for the discarded item. The officer’s search located a .22 caliber, blue steel revolver, the very type of weapon described in the rape report by Ms. Thurman.

The officers arrested Brady, and he was indicted in state court on charges of sexual assault. The state, however, was unable to prosecute Brady because the complainant did not appear. Federal authorities were then contacted about prosecuting Brady under 18 U.S.C. § 922(g) (1988), which prohibits a convicted felon from possessing a firearm. On February 8, 1989, a grand jury in the Eastern District of Michigan indicted Brady for violating 18 U.S.C. § 922(g).

Brady pled not guilty, and his case proceeded to trial on May 3, 1989. The next day, a jury found him guilty of the charge. On June 1, 1989, upon the government’s motion, the district court held a hearing to determine whether Brady should be considered an armed career criminal under 18 U.S.C. § 924(e)(1).² Section 924(e)(1) increases the penalty for any person who violates § 922(g) and has three previous convictions of violent felonies or drug offenses. Finding that Brady was in this category, the district court sentenced him to 50 years imprisonment.

In a previous appeal, Brady challenged this sentence on the ground that the district court had taken a thirty-five-year upward departure from the fifteen-year maximum statutory enhancement under the erroneous belief that it had sentenced him within the applicable sentencing guideline range. Because the guidelines applicable at that time did not provide a range for the Armed Career Criminal enhancement, the government argued that the court was required by § 2X5.1 of the United States Sentencing Guidelines to apply the most analogous offense guideline. The most analogous offense guideline was § 4Bl.l’s career offender status. Under this section, the upper limit of Brady’s sentencing range would be life imprisonment, in which case the district court’s fifty-year sentence would not have been improper. However, this court remanded for the district court to clarify whether the government’s argument represented the court’s reasoning in imposing the sentence and also to permit Brady to have the chance to argue the issue below, as the record did not reflect that he had been given that opportunity initially. United States v. Brady, 914 F.2d 258 (6th Cir.1990) (unpublished per curiam).

Upon remand, Brady argued that the Act no longer applied to him because the requisite three prior convictions no longer existed. Brady argued that, of the four convictions relied upon by the government, one had been vacated, and two of the remaining convictions counted as one crime for purposes of the Act. Brady based the latter claim on the fact that the two convictions were for two robberies that had occurred on the same night, December 22, 1976, within thirty minutes of each other, and with the same weapon. Brady insisted that because the two crimes and convictions arise from such closely related conduct, they should be counted as only one conviction for sentence-enhancement purposes.

In support of its request that defendant be adjudged an armed career criminal, the government proved three previous convictions for violent felonies, the latter two of which were for armed robberies committed on the night of December 22, 1976. The first armed robbery occurred at approximately 9:30 p.m. at the Mack Avenue Beauty Shop, where Brady, brandishing a sawed-off shotgun and accompanied by a female accomplice, robbed several women. Approximately thirty minutes later, Brady and the same accomplice entered the Club Continental Bar and ordered drinks. About fifteen minutes later, Brady drew his sawed-off shotgun, robbed the patrons of the bar, and shot a female patron in the leg.

The district court agreed that the Act applied to Brady but imposed only the fifteen years required by statute. This appeal followed.

II.

Defendant Brady presents a legal question concerning the interpretation of a statute, a matter we review de novo. See United States v. Brown, 915 F.2d 219, 223 (6th Cir.1990); United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988).

A.

Defendant Brady initially argues that, by virtue of its legislative history, there is implicit in 18 U.S.C. § 924(e)(1) a requirement that a defendant must be convicted of one qualifying crime before he commits the next qualifying crime in order for the second conviction to be counted against him for purposes of the Armed Career Criminal Act. He contends that crimes that do not follow convictions, but instead follow only other crimes, cannot be counted as predicate offenses for the purposes of the Act. Stated another way, Brady argues that the statute is aimed at “three time losers,” as distinguished from the perpetrators of three violent felonies, and that the “loser” term implies that the defendant must have lost a case by court conviction before his next crime can be counted as a predicate under the statute. Thus, Brady insists that only qualifying crimes next preceded by a conviction for some other qualifying crime may be counted as predicates under the Act.

The origin of this view is United States v. Balascsak, 873 F.2d 673 (3d Cir.1989) (en banc), a case in which the Third Circuit split evenly on the question, six members of the court holding that 18 U.S.C.App. § 1202(a),³ a forerunner of 18 U.S.C. (e)(1), was ambiguous and that its legislative history required the conclusion that a conviction for a qualifying crime must precede the next offense in the series if the conviction for the subsequent offense was to be considered a predicate for the purposes of § 1202(a). Five dissenters and one separately concurring judge took the position that the statute was not ambiguous and that an objective reading of the statute compelled the opposite conclusion, i.e., that any three convictions for qualifying crimes, regardless of the order in which the offenses and their ensuing convictions occurred, could serve as predicates for the purposes of § 1202(a).

The matter was resolved by the Third Circuit in United States v. Schoolcraft, 879 F.2d 64 (3d Cir.) (per curiam), cert. denied, 493 U.S. 995, 110 S.Ct. 546, 107 L.Ed.2d 543 (1989), decided only two months after Ba-lascsak. In Schoolcraft, a three-judge panel acknowledged the even split between the judges in Balascsak and, siding with the dissent, held that the statute was not ambiguous, that resort to its legislative history was not appropriate, and that “the statute does not require that the three predicate offenses be separated by intervening convictions.” Id. at 73-74. The Third Circuit denied rehearing and rehearing en banc on July 18, 1989, and thus allowed Schoolcraft to tip the evenly balanced scales of Balascsak against the defendant’s argument.

In addition to the Third Circuit, every other circuit, including this circuit, which has considered the issue, viz., the First through the Eleventh, has rejected defendant Brady’s argument. United States v. Anderson, 921 F.2d 335, 339-40 (1st Cir.1990) (statute not ambiguous and does not “require that a defendant ... be convicted of one crime before committing the crime underlying a subsequent conviction”); United States v. Mitchell, 932 F.2d 1027, 1028 (2d Cir.1991) (per curiam) (statute not ambiguous and “does not require that a defendant’s three criminal acts be punctuated by intervening convictions”); United States v. Mason, 954 F.2d 219, 221-22 (4th Cir.) (holding § 924(e)(1) not ambiguous and that “the statute does not require a conviction for one predicate crime before the next predicate crime is committed”), cert. denied, — U.S. -, 112 S.Ct. 1979, 118 L.Ed.2d 578 (1992); United States v. Herbert, 860 F.2d 620, 622 (5th Cir.1988) (rejecting the argument that “three chronological successive convictions with intervening criminal episodes” are required), cert. denied, 490 U.S. 1070, 109 S.Ct. 2074, 104 L.Ed.2d 639 (1989); United States v. Hayes, 951 F.2d 707, 709 (6th Cir.1991) (“The statute, however, imposes no conditions as to the timing of the convictions.”), cert. denied, — U.S. -, 112 S.Ct. 1694, 118 L.Ed.2d 406 (1992); United States v. Schieman, 894 F.2d 909, 912 (7th Cir.) (adopting the reasoning of the dissent in Balascsak), cert. denied, 498 U.S. 856, 111 S.Ct. 155, 112 L.Ed.2d 121 (1990); United States v. Rush, 840 F.2d 580, 581 (8th Cir.1988) (rejecting the argument that simultaneous convictions cannot qualify as predicates under the predecessor statute, 18 U.S.C.App. § 1202(a)); United States v. Wicks, 833 F.2d 192, 193-94 (9th Cir.1987) (per curiam) (rejecting the argument that simultaneous convictions cannot qualify as predicates under the predecessor statute, 18 U.S.C.App. § 1202(a)), cert. denied, 488 U.S. 831, 109 S.Ct. 87, 102 L.Ed.2d. 63 (1988); United States v. Bolton, 905 F.2d 319, 323 (10th Cir.1990) (rejecting the argument that simultaneous convictions cannot qualify as predicates), cert. denied, 498 U.S. 1029, 111 S.Ct. 683, 112 L.Ed.2d 674 (1991); United States v. Greene, 810 F.2d 999, 1000 (11th Cir.1986) (per curiam) (rejecting the argument that simultaneous convictions cannot qualify as predicates).

Thus, defendant Brady has no authority to support his position on this issue. We agree with our sister circuits that there is no ambiguity⁴ in § 924(e)(1) on the question of the timing of the predicate convictions, and, consistent with our prior holding in United States v. Hayes, we hold that § 924(e)(1) requires only three qualifying prior convictions without regard to the order in which those convictions were obtained.

B.

Defendant Brady also argues that his armed robberies of December 22, 1976, should count only as one predicate offense because they represent a single, continuous crime spree rather than two separate offenses. Brady focuses on the thirty to forty-five minute time period that separated the two offenses and argues that close proximity in time merges otherwise distinct offenses for purposes of determining predicates under § 924(e)(1).

In United States v. Hughes, 924 F.2d 1354, 1361 (6th Cir.1991), we held “that § 924(e) enhanced punishment for multiple criminal episodes that were distinct in time,” and defined an episode as

an incident that is part of a series, but forms a separate unit within the whole. Although related to the entire course of events, an episode is a punctuated occurrence with a limited duration.

Id. Defendant Brady cites no authority in which a court of appeals has held that mere proximity in time between two offenses occurring at different places and involving different victims operated to merge those offenses for purposes of § 924(e)(1).⁵ On the other hand, three circuits have held that distinctions in time, place, and victim compelled the conclusion that the events were separate criminal episodes, and another circuit has held that distinction in time alone was sufficient to separate criminal episodes occurring on the same date, at the same place, and against the same victim.

In United States v. Schieman, 894 F.2d 909, 913 (7th Cir.), cert. denied, 498 U.S. 856, 111 S.Ct. 155, 112 L.Ed.2d 121 (1990), the Seventh Circuit adopted the distinct criminal episode test and held that a defendant who burglarized a shop and shortly thereafter assaulted the police officer who pursued him was guilty of two distinct criminal episodes for the purposes of § 924(e)(1). Rejecting the contention that mere proximity in time should suffice to amalgamate the incidents into a single crime spree, the court concluded that

[o]nce the original crime is complete, there is no principled way to distinguish between an attack in response to an investigation commenced within ten minutes of the burglary and an attack in response to an investigation commenced a day after the burglary.

Id. In so holding, the Seventh Circuit weighed more heavily the facts that the defendant had successfully completed his burglary and had safely escaped from the premises, thus concluding the burglary episode before he undertook an assault on the officer investigating the case.

In United States v. Tisdale, 921 F.2d 1095, 1099 (10th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 596, 116 L.Ed.2d 619 (1991), the Tenth Circuit decided that three burglaries committed “successfully” at different stores within the same shopping mall during the same evening were separate criminal episodes for purposes of § 924(e)(1). After each burglary, the defendant was free to desist and leave. The fact that all three burglaries occurred on the same night was unimportant in the analysis.

An even more striking set of facts arose in United States v. Washington, 898 F.2d 439, 441-42 (5th Cir.), cert. denied, 498 U.S. 842, 111 S.Ct. 122, 112 L.Ed.2d 91 (1990), wherein the Fifth Circuit held that successive robberies of the same clerk at the same convenience store by the same defendant were separate criminal episodes for the purposes of the statute despite the fact that the robberies occurred only two hours apart. Because the defendant had completed the first offense and safely escaped, the court refused to consider the second offense a part of a single crime spree.

The Ninth Circuit has decided two cases in which it held that offenses committed during the same night but at different locations were to be counted as separate criminal episodes for purposes of the statute. In United States v. Wicks, 833 F.2d 192, 193 (9th Cir.1987) (per curiam), cert. denied, 488 U.S. 831, 109 S.Ct. 87, 102 L.Ed.2d 63 (1988), the court counted as separate criminal episodes two burglaries committed on the same night at different locations for the purpose of punishing the defendant under 18 U.S.C.App. § 1202(a), the predecessor statute to 18 U.S.C. § 924(e)(1). In United States v. Antonie, 953 F.2d 496, 499 (9th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 138, 121 L.Ed.2d 91 (1992), the court held that two armed robberies committed on the same evening approximately forty minutes apart should be separately counted as predicate offenses because they occurred at different times, at different places, and involved different victims.

In the present case, defendant Brady committed crimes against different victims at different places and at distinctly different times. Applying the foregoing authorities as well as this court’s definition of an episode in Hughes, we hold that defendant Brady’s two armed robberies were correctly counted as separate predicate offenses for the purpose of sentencing him under the provisions of 18 U.S.C. § 924(e)(1).

Defendant's reliance on United States v. Pedigo, 879 F.2d 1315, 1318 (6th Cir.1989), is misplaced. Brady argues that this court may have remanded that case for further sentencing proceedings because it found that Pedigo’s three predicate burglary convictions arose from only one criminal episode. In fact, we remanded the case because we could not determine from the trial record “whether more than two criminal episodes lay behind the prior convictions of Pedigo listed in the indictment as a matter of substantive proof at trial.” Id. at 1318. Accordingly, we instructed the district court on remand to determine whether the predicate convictions involved three separate criminal episodes. Id. at 1320. Pedi-go is merely a case in which we decided that the trial record needed clarification. We did not decide that Pedigo’s burglaries were a single episode.

Defendant Brady also relies on our decision in United States v. Taylor, 882 F.2d 1018, 1029 (6th Cir.1989), cert. denied, 496 U.S. 907, 110 S.Ct. 2592, 110 L.Ed.2d 273 (1990), in which we held that “a court applying § 924(e) can[not] count as two predicate felony convictions two convictions which, as the record discloses, relate only to a single criminal act.” In Taylor the record showed that the defendant’s four burglary convictions resulted from no more than two actual burglaries. Thus, we merely forbade the “double-counting of multiple convictions arising from a single episode of criminal conduct.” Id. at 1029. We did not, however, establish any rule concerning the merger of separate offenses committed in close proximity to one another.

Consistent with the holdings of our sister circuits, we believe that offenses committed by a defendant at different times and places and against different victims, although committed within less than an hour of each other, are separate and distinct criminal episodes and that convictions for those crimes should be counted as separate predicate convictions under § 924(e)(1). As earlier discussed, while defendant Brady sat at the Club Continental Bar with his concealed shotgun, he could have decided that the one robbery he had committed was enough for the evening. Instead, he decided to rob again, and, after robbing the patrons of the bar, he shot one female patron in the leg. Thus, seen from either an objective or subjective point of view, defendant Brady’s crimes were separate episodes. Therefore, he was properly taxed with both at his sentencing.

C.

Finally, defendant Brady invites us to deviate from the course taken by all the federal circuits that have considered the first issue he has raised in this appeal and to adopt his position because a number of states require that a defendant be either sentenced or convicted for each prior offense before he commits his next qualifying offense in the series leading toward his conviction as a habitual criminal. As Brady concedes in his brief, we are not bound by the decisions of various state courts or legislatures. We are, however, bound by the unambiguous language of the statute, which, as we have previously pointed out, “imposes no conditions as to the timing of the convictions.” United States v. Hayes, 951 F.2d at 709.

III.

Because we reject the argument that a defendant’s convictions must occur in any particular order, and because we hold that offenses committed at different times and places against different victims are separate and distinct criminal episodes and thus qualify as crimes “committed on occasions different from one another” within the meaning of 18 U.S.C. § 924(e)(1), we AFFIRM the judgment of the district court.

1 . The panel decision was reported in the advance sheets at 960 F.2d 35, then withdrawn from publication in the bound edition of Federal Reporter, Second Series.

2 . 18 U.S.C. § 924(e)(1) provides in relevant part: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years....

(Emphasis added).

3 . In relevant part, 18 U.S.C.App. § 1202(a) read: In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court ... for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years....

4 . Absent exceptional circumstances, judicial inquiry ends when the statute is unambiguous. Burlington Northern R.R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1859, 95 L.Ed.2d 404 (1987); Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 n. 29, 98 S.Ct. 2279, 2296 n. 29, 57 L.Ed.2d 117 (1978) (“When confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look to legislative history as a guide to its meaning.”).

5 . United States v. Petty, 798 F.2d 1157 (8th Cir.1986), vacated, 481 U.S. 1034, 107 S.Ct. 1968, 95 L.Ed.2d 810 on remand, 828 F.2d 2 (8th Cir.1987), cert. denied, 486 U.S. 1057, 108 S.Ct. 2827, 100 L.Ed.2d 928 (1988), is not to the contrary. In Petty, the Eighth Circuit held that a defendant’s six convictions for six armed robberies committed simultaneously could count as only one predicate offense for purposes of the enhanced penalty of 18 U.S.C.App. § 1202(a) (repealed 1986), the predecessor statute of 18 U.S.C. § 924(e). "Petty expressly recognized the distinction, however, between convictions for simultaneous robberies and convictions for robberies distinct in time.” United States v. Wicks, 833 F.2d 192, 194 (9th Cir.1987) (per curiam), cert. denied, 488 U.S. 831, 109 S.Ct. 87, 102 L.Ed.2d 63 (1988).