United States v. Skelton

25 F. App'x 443
Court of Appeals for the Seventh Circuit·Decided December 17, 2001·No. Nos. 01-1762, 01-2083·Published·Cited by 1 cases

Opinion

ORDER

Fred Skelton and Vickie Duckett pleaded guilty to drug offenses and now challenge their sentences on appeal. We affirm.

On December 17, 1999, police received reports that Skelton and Duckett were using Duckett’s house as a methamphetamine lab. According to the reports, Skelton and Duckett provided another man, Jack Garrett, with supplies to manufacture methamphetamine. Garrett gave them a portion of the finished drug in exchange, which Skelton and Duckett then sold. Based on this information officers went to Duckett’s house and received consent to search it and a truck on the property. In both the house and the truck the officers discovered methamphetamine and materials used in manufacturing methamphetamine.

Skelton and Duckett were charged and eventually pleaded guilty, but not until after the prosecution rested on the fifth day of their joint trial. Each defendant pleaded guilty to one count of conspiracy to manufacture, possess with intent to distribute, and distribute methamphetamine, 21 U.S.C. §§ 846, 841(a)(1), and one count of possession with intent to distribute methamphetamine, id. § 841(a)(1).

At sentencing Skelton objected to the probation officer’s recommendation that he be classified as a career offender under U.S.S.G. § 4B1.1 because within a 3-hour window on the morning of December 19, 1996, Skelton and another man burglarized two houses, one in Madison County, Illinois, and one in Jersey County, Illinois. The houses were 7 miles apart along a rural highway. That same afternoon a state trooper arrested Skelton for the burglaries. Skelton pleaded guilty to the Madison County burglary, and then was transported to Jersey County where the next day he pleaded guilty to the second burglary. Pursuant to an agreement between the counties, Skelton received concurrent sentences. The courts, however, did not issue an order of consolidation. Accepting that these cases qualified Skelton as a career offender, the district court concluded that Skelton had a Criminal History Category of VI and a total offense level of 34, yielding a sentencing range of 262-327 months. Had the court not classified Skelton as a career offender, his sentencing range would have been 120-150 months. The court sentenced Skelton to concurrent terms of 262 months incarceration.

At Duckett’s sentencing the district court accepted the probation officer’s assessment that she had a Criminal History Category of II and a total offense level of 26, yielding a sentencing range of 70-87 months. Duckett argued unsuccessfully that she deserved a 2-level downward adjustment for acceptance of responsibility because she had pleaded guilty and voluntarily surrendered to authorities after being released on bond. The court sentenced Duckett to concurrent terms of 70 months incarceration, 4 years of supervised release, and a $500 fine.

[446] DISCUSSION

I. Skelton’s Appeal

Skelton contends that the district court erred in classifying him as a career offender. According to Skelton, his 1996 burglaries were “related” and therefore should have counted as just one prior crime of violence, not two, under § 4B1.1. For prior convictions to be related under the guidelines, the underlying conduct must not have been separated by an intervening arrest, and the charges must result “from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.” U.S.S.G. § 4A1.2, comment, (n.3). The defendant carries the burden of demonstrating that the sentences are related, and we review a trial court’s factual determination of relatedness deferentially for clear error. See United States v. Brown, 209 F.3d 1020, 1023 (7th Cir.2000).

Skelton first argues that the district court erred in deciding that his 1996 burglaries did not occur on the same occasion. The district court made an analogy to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), a provision that subjects felons possessing firearms to a mandatory minimum prison term if they have three qualifying convictions resulting from acts “committed on occasions different from one another.” The district court cited a case decided under the ACCA., United States v. Hudspeth, 42 F.3d 1015, 1020-21 (7th Cir.1994) (en banc), in which three burglaries in 35 minutes in a strip mall occurred on separate occasions because the perpetrator had the opportunity to stop after each crime and because the crimes were carried out against different victims, at different times, and at different locations. The district court applied this rationale to the sentencing guidelines and determined that Skelton’s two burglaries occurred on separate occasions, because he could have stopped after the first burglary, and he committed his crimes against different victims, at different times, and at different locations.

The analogy between the ACCA’s “different occasions” and the guidelines’ “same occasion” is one we have made before. See United States v. Buford, 201 F.3d 937, 939 (7th Cir.2000), affd, 532 U.S. 59, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001); United States v. Krzeminski 81 F.3d 681 (7th Cir.1996) (citing Hudspeth when holding that crimes committed 7 hours apart did not occur on the “same occasion”). Nonetheless, the result is troubling in Skelton’s case. Although his crimes occurred on separate occasions under the ACCA definition, it seems odd for a person to be labeled a “career offender” subject to 9 additional years imprisonment when the relevant “career” consists of a single morning of crime. Nonetheless, the district court’s analogy to the ACCA was consistent with our precedent and not clearly erroneous.

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United States v. Skelton, 25 F. App'x 443 (7th Cir. 2001).

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