United States v. Riddle

• Court: Court of Appeals for the First Circuit
• Decided: February 16, 1995
• Docket: 94-2087
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 94-2087

                              UNITED STATES OF AMERICA,

                                 Plaintiff, Appellee,

                                          v.

                                  GEORGE A. RIDDLE,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                  Cyr, Circuit Judge,
                                       _____________

                            Bownes, Senior Circuit Judge,
                                    ____________________

                              and Boudin, Circuit Judge.
                                          _____________

                                 ____________________

            Robert A. Levine, by Appointment of the Court, for appellant.
            ________________
            Michael M.  DuBose, Assistant  United States  Attorney, with  whom
            __________________
        Jay P.  McCloskey, United States Attorney, was on brief for the United
        _________________
        States.

____________________

                                  February 16, 1995
                                 ____________________



Per  Curiam.   On  April 22,  1994, defendant  George A.
                 ___________

            Riddle  pled guilty to a  single count charging  him with the

            offense of possession of a firearm  by a convicted felon.  18

            U.S.C.     922(g)(1),  924(e).    A  second count  was  later

            dismissed.  The presentence  report revealed that Riddle, who

            had turned  eighteen  in  1990,  had in  the  following  year

            embarked  on  a small  crime  spree  of  burglaries;  he  had

            committed such burglaries  on March  17, May 9,  May 28  (two

            separate incidents) and June 12, 1991, and had been sentenced

            for all of them at the same time on November 8, 1991.  

                 After serving concurrent sentences, Riddle  continued on

            his  course of crime, by  committing burglary and  arson in a

            commercial building on  November 22, 1993.   Two days  later,

            Riddle   engaged  in  an  armed  robbery.    It  was  in  the

            investigation  of the  November  22 offense  that the  police

            obtained  evidence  linking  Riddle  with  it  and  with  the

            November 24  armed robbery.  The  investigation also revealed

            Riddle's possession  of two handguns, leading to the felon in

            possession conviction in the present case.

                 Because  of   the  five  separate  burglaries   and  the

            resulting convictions  in 1991, the district  court sentenced

            Riddle on  the felon  in  possession charge  under the  Armed

            Career Criminal Act, 18 U.S.C.  924(e).  The statute requires

            that  a  defendant  who  violates  the  felon  in  possession

            statute, 18  U.S.C.    922(g), be  given a 15-year  mandatory

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minimum  sentence  if   the  defendant  has  three   previous

            convictions  for  violent  felonies  "committed  on occasions

            different  from  one another."   18  U.S.C.    924(e)(1).   A

            violent felony  is defined to include  burglary punishable by

            imprisonment  for   more  than  one   year.    18   U.S.C.   

            924(e)(2)(B)(ii).  

                 The Sentencing Guidelines  contain a separate  provision

            applicable to anyone who meets the statutory definition of an

            armed career criminal under  18 U.S.C.   924(e).   U.S.S.G.  

            4B1.4.  In this  case, it is undisputed that  if Riddle falls

            within the armed career criminal definition, the implementing

            guideline provides a  sentencing range with a  minimum of 188
                                                           _______

            months' imprisonment.  This resulted from his possession of a

            firearm in connection with the November 24, 1993, robbery and

            a   three-level  downward   adjustment   for  acceptance   of

            responsibility.   The district court sentenced  Riddle to 188

            months' imprisonment.

                 On  appeal, the  only question  posed is  whether Riddle

            does fit the  definition of  armed career  criminal.   Riddle

            does  not dispute  that prior  to  his present  conviction he

            committed  burglaries on  five  different  occasions on  four

            different dates,  and was ultimately convicted  for all five.

            Rather,  focusing  on the  requirement  that  there be  three

            previous  convictions  for  violent  felonies  "committed  on

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occasions different from one another," 18 U.S.C.   924(e)(1),

            Riddle makes three different arguments.

                 First,  he points  to  the general  sentencing guideline

            used for computing criminal  history, U.S.S.G.   4A1.2, which

            provides in  commentary that  prior sentences are  considered

            related and counted as only one sentence where inter alia the
                                                           _____ ____

            offenses  were consolidated  for  trial or  sentencing.   Id.
                                                                      ___

            comment (n.3).   This  relatedness restriction has  also been

            incorporated  in  the   separate  guideline  that  determines

            whether an individual has  at least two prior  violent felony

            convictions  and  may therefore  be  subject  to an  enhanced

            sentence as a "career offender."  U.S.S.G.    4B1.1, 4B1.2(3)

            & comment (n.4).

                 The relatedness  requirement is  a rule of  thumb device

            employed by  the Commission which enhances  the discretion of

            district  courts  in   administering  the  criminal   history

            provisions, see United States v.  Elwell, 984 F.2d 1289  (1st
                        ___ _____________     ______

            Cir.),  cert. denied,  113 S.  Ct. 2429  (1993), and  is also
                    _____ ______

            available to them in  applying the career offender guideline.

            The  Commission did  not  purport to  adopt this  relatedness

            requirement in the armed career criminal guideline, and there

            is no reason  to think that  it had any  intention to do  so.

            United States v. Maxey, 989 F.2d 303, 307-08 (9th Cir. 1993).
            _____________    _____

                 Indeed, there  might be  a serious question  whether the

            Commission would be entitled to do so.  The ordinary criminal

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history  calculations  and, to  a  large  extent, the  career

            offender  guideline  are  products  of  the Commission's  own

            devising, with  some very general guidance  from Congress; by

            contrast,  the armed  career criminal provision  results from

            rather  precise  statutory  language,  which  the  Commission

            simply adopts in its armed career criminal guideline.  In all

            events, this  difference in  origin certainly  reenforces the

            view  that  the  armed  career  criminal  guideline  was  not

            intended to  incorporate  the relatedness  requirement.   Cf.
                                                                      __

            U.S.S.G.    4B1.4 comment. (n.1)  (noting difference  between

            statutory definition and U.S.S.G.    4A1.2 and 4B1.1).

                 Riddle's  next  argument  is that  the  five burglaries,

            although  literally committed  on  separate  occasions,  were

            manifestations of a single youthful  crime spree and ought to

            be considered a single violent felony under the statute.  The

            difficulty  is  that  Congress  has  spoken  with  reasonable

            precision in specifying that  the felonies be ones "committed

            on  occasions different  from  one another."   Riddle's  five

            convictions  embraced  five   different  incidents  on   four

            different  dates  involving  five  different   locations  and

            victims. 

                 Whatever elastic there may be in the statutory language,

            it is not a  reasonable stretch of language to  describe five

            burglaries  at five  different  locations on  four  different

            dates as  occurring on the  same occasion.   The case  law in

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this circuit, e.g.,  United States  v. Lewis,  40 F.3d  1325,
                          ____________________     _____

            1346  (1st Cir. 1994) (citing other First Circuit cases), and

            in practically  all other circuits,  has rejected contentions

            of this kind, sometimes  in much closer cases.   E.g., United
                                                             ____________

            States v. Godinez, 998 F.2d 471 (7th Cir. 1993).  While there
            ______    _______

            may  be crimes so closely related as to pose difficult issues

            under the statute, this case is not a difficult one.

                 Finally,  Riddle argues that  it does not  make sense to

            describe as  an armed career criminal  someone whose "career"

            of  crime occurred in a couple of  spurts within a year or so

            of his eighteenth birthday.   The district court thoughtfully

            considered and  addressed the  argument, and  there is  not a

            great deal  more to say.  Congress,  thinking primarily about

            the protection of  the public, adopted a  definition of armed

            career criminal  that ignores the  duration of the  career or

            the youthfulness of the adult offender or the lack of lengthy

            intervals or arrests between the crimes.

                 Congress'  approach  produces  very  severe  results  in

            certain cases.   Whether the  result is  severe or  something

            worse  in Riddle's case is  a matter of  dispute (our opinion

            has  not  completely  recounted his  criminal  involvements).

            What we have no reason to doubt is that Congress intended its

            statute to work in accordance  with its defining terms rather

            than through  the impressionistic evaluation of  judges as to

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whether a defendant was or was not "an armed career criminal"

            in the lay sense of those words.

                 Affirmed.   
                 ________

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