United States v. Thomas

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0151P (6th Cir.) File Name: 00a0151p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA  Plaintiff-Appellee,   No. 98-6740 v.  > LONNIE ALLEN THOMAS,  Defendant-Appellant.  1 Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 98-20072—Julia S. Gibbons, Chief District Judge. Argued: February 2, 2000 Decided and Filed: April 27, 2000 Before: COLE and CLAY, Circuit Judges; BELL*, District Judge.

* The Honorable Robert Holmes Bell, United States District Judge for the Western District of Michigan, sitting by designation.

1 2 United States v. Thomas No. 98-6740

_________________ COUNSEL ARGUED: Stephen B. Shankman, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. Stuart J. Canale, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF: Stephen B. Shankman, T. Clifton Harviel, Jr., OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. Stuart J. Canale, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. BELL, D. J., delivered the opinion of the court, in which COLE, J., joined. CLAY, J. (pp. 11-14), delivered a separate concurring opinion. _________________ OPINION _________________ BELL, District Judge. Defendant Lonnie Allen Thomas was indicted on one count of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g). On September 11, 1998, Defendant entered a plea of guilty to Count 2, felon in possession of a firearm, with Count 1 to be dismissed at sentencing. Defendant was sentenced as an Armed Career Criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), and § 4B1.4 of the United States Sentencing Guidelines to 200 months imprisonment, to be followed by a term of three years supervised release. Count 1 was dismissed upon motion of the United States. On appeal Defendant contends that the district court erred in sentencing him as an armed career criminal under § 924(e). 14 United States v. Thomas No. 98-6740 No. 98-6740 United States v. Thomas 3

Although the issue was not raised by the parties, were it not Congress has provided in 18 U.S.C. § 924(e) that if a for the rule of lenity, it is possible that this thoroughly person who violates § 922(g) has three previous convictions ambiguous statute could be declared unconstitutional on the for a violent felony or a serious drug offense, or both, ground that it is void for vagueness. “[T]he "committed on occasions different from one another," that void-for-vagueness doctrine requires that a [criminal] statute person shall be imprisoned not less than fifteen years. [be] define[d] . . . with sufficient definiteness [so] that ordinary people can understand . . . .” Kolender v. Lawson, In making its determination that Defendant was an armed 461 U.S. 352, 357 (1983); see also Grayned v. Rockford, 408 career criminal, the district court relied on evidence of three U.S. 104, 108-109 (1972) (vague sentencing provisions which prior convictions: 1) attempt to commit a felony: burglary are not clear can raise constitutional questions). However, it third degree August 13, 1982; 2) rape July 10, 1986; and is unnecessary under the circumstances of this case to express 3) rape July 10, 1986. an opinion as to the constitutionality of the statute, and I expressly refrain from doing so. Because we must save a There is no dispute that the three prior convictions were for statute from its constitutional infirmity, and any doubt on the violent offenses within the meaning of the ACCA. Defendant issue of statutory construction should thus be resolved in contends, however, that his July 10, 1986 convictions for rape favor of avoiding the void for vagueness question, under the do not constitute two separate predicate offenses under the rule that, “where a statute is susceptible of two constructions, statute because they arose out of one criminal episode. by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, Because there were no objections to the facts contained in [this Court’s] duty is to adopt the latter.” United States ex rel. the presentence report, the district court adopted the Attorney General v. Delaware & Hudson Co., 213 U.S. 366, presentence report as its findings of fact concerning the the 408 (1909). facts underlying the rape convictions.2 In the early morning hours of January 1, 1986, two women in a car asked Thomas In this case, where the facts do not lend themselves to a and his companion, Roosevelt T. McKinney ("Bucky") for determination of whether the crimes were “committed on directions to the Arkansas Bridge. The men agreed to show occasions different from one another,” the rule of lenity them the way and asked for a ride. The men got in the back should be deemed to control. Indeed, although there were two different victims who were each raped multiple times in one another’s presence during a continuous episode, the record 1 Although the indictment listed a fourth conviction for convicted does not remotely provide us with a clear and definitive felon in possession of a handgun, the government conceded that this was answer to the question of whether the acts were “committed not a crime of violence, and the district court did not consider it as a on occasions different from one another.” Therefore, because qualifying predicate offense for purposes of applying the ACCA. we are confronted with an ambiguous criminal statute and a 2 choice must be made between sentencing Defendant to the To the extent Thomas is now suggesting that the presentence report harsher mandatory minimum under the ACCA and the more was incorrect, that argument has been waived. A failure to object to the lenient punishment under the sentencing guidelines, the rule presentence report waives any future objections. See United States v. of lenity dictates that Defendant be sentenced to the less harsh Ward, 190 F.3d 483, 492 (6th Cir. 1999) (citing United States v. Duranseau, 19 F.3d 1117, 1123 (6th Cir. 1994)), cert. denied sub nom. punishment under the sentencing guidelines. Morris v. United States, 120 S.Ct. 940 (2000). See also United States v. Cullens, 67 F.3d 123, 124 (6th Cir. 1995) (per curiam) (defendant who fails to object to an error at sentencing waives his right to assert the error on appeal). 4 United States v. Thomas No. 98-6740 No. 98-6740 United States v. Thomas 13

seat of the car. The details of3 what occurred next are quoted (6th Cir. 1997) (holding two convictions for armed robberies from the presentence report: of two residences in a duplex were not crimes committed on occasions different from one another); United States v. Thomas came over the front seat and started beating [the Graves, 60 F.3d 1183, 1186-87 (6th Cir. 1995) (holding the passenger] about the face. Bucky grabbed [the driver] defendant’s burglary of a home and his assault on a police around the neck and told her Thomas would kill [the officer in the woods just outside of the home were not crimes passenger] if she did not drive where they told her. committed on occasions different from one another even though the assault upon the officer was at the same location Bucky tried to get the keys out of the ignition but he and within moments of the burglary) with United States v. could not because there is a button that has to be pushed Schieman, 894 F.2d 909, 910-13 (7th Cir. 1990) (finding that for the keys to come out. He made [the driver] stop the a defendant who committed a burglary and several minutes car. Thomas started raping [the passenger] and Bucky later assaulted an officer pursuing him down the street took [the driver] out and raped her on the ground. committed crimes on occasions different from one another). Thomas beat [the passenger’s] head against the window Compare United States v. McElyea, 158 F.3d 1016 (9th Cir. of the car. 1998) (finding two burglary convictions that took place in adjoining stores within a short period of time were not Thomas then made [the driver] drive to another place. committed on occasions different from one another) with Thomas took [the passenger] out of the car and knocked United States v. Washington, 898 F.2d 439, 440-42 (5th Cir. her to the concrete and beat her head on a car that was 1990) (finding that defendant who robbed same clerk at all- parked there. Thomas raped [the passenger] repeatedly night convenience store twice within a few hours committed and Bucky finally persuaded Thomas to get back in the crimes on occasions different from one another). car. They then changed partners and Bucky raped [the passenger] twice vaginally and anally. Thomas raped There is no precise test that courts may use in determining [the driver] vaginally and made her perform oral sex on whether crimes have been “committed on occasions different him. from one another.” See United States v. Hudspeth, 42 F.3d 1015, 1021 (7th Cir. 1994) (holding that “crimes [] committed sequentially, against different victims, at different times and different locations” were on occasions different from one 3 Defendant contends that the district court erred in looking at the another); United States v. Tisdale, 921 F.2d 1095, 1099 (10th underlying facts of the predicate convictions. Defendant’s reliance on Cir. 1990) (“The defendant had committed crimes on different United States v. Arnold, 58 F.3d 1117, 1121-24 (6th Cir. 1995), and occasions because [a]fter the defendant ‘successfully United States v. Seaton, 45 F.3d 108, 111-112 (6th Cir. 1995), in support completed’ burglarizing one business, he was free to leave. of this contention is misplaced. Arnold and Seaton stand for the proposition that a court should not consider the underlying facts of the The fact that he chose, instead to burglarize another business predicate conviction in determining whether a predicate offense is a crime is evidence of his intent to engage in a separate criminal of violence for purposes of the Armed Career Criminal Act. They do not episode.”); see also United States v. Balascsak, 873 F.2d speak to what the court should consider in determining whether the 673, 681 (3d Cir. 1989) (en banc) (where plurality concluded predicate offenses were "committed on occasions different from one that a defendant must have been convicted twice before he another." All of our opinions on this issue have involved consideration of the specific facts underlying the prior convictions. Indeed, we cannot committed his third predicate offense in order to be eligible imagine how such a determination could be made without reference to the for the enhancement under the ACCA). underlying facts of the predicate offenses. 12 United States v. Thomas No. 98-6740 No. 98-6740 United States v. Thomas 5

common world will understand, of what the law intends Eventually, Bucky told Thomas he thought he saw a police to do if a certain line is passed. To make the warning car. The two men exited the car and the women drove away. fair, so far as possible the line should be clear.’ Second, because of the seriousness of criminal penalties, and Thomas was indicted in two separate indictments for the because criminal punishment usually represents the rape of the two women. He was convicted and sentenced to moral condemnation of the community, legislatures and 5 years imprisonment on each indictment, to run concurrently. not courts should define criminal activity. This policy embodies ‘the instinctive distaste against men The district court determined that the rapes of the two languishing in prison unless the lawmaker has clearly victims constituted two separate crimes for purposes of the said they should.’ ACCA:

Id. at 348. (citations omitted). Accordingly, the “policy of What we have here is, in the language of Brady [United lenity means that the Court will not interpret a federal statute States v. Brady, 988 F.2d 664 (6th Cir. 1993) (en banc)], so as to increase the penalty it places on an individual when an incident that is part of a series but forms a separate such an interpretation can be no more than a guess as to what unit within the whole. Although related to the entire Congress intended.” Bifulco v. United States, 447 U.S. 381, course of events, an episode is a punctuated occurrence 387 (1979) (quoting Ladner v. United States, 358 U.S. 169, with a limited duration. Here we have the rape of the 178 (1958)). See United States v. Weekley, 24 F.3d 1125 (9th first victim, which forms one episode. We then have an Cir. 1994) (affirming the district court’s application of the opportunity for Mr. Thomas to have ceased and desisted rule of lenity in interpreting the ACCA); United States v. from further criminal conduct. Instead he made a Blake, 59 F.3d 138, 140 (10th Cir. 1995) (stating that rule of decision at that point to commit a separate act of lenity may be applied in interpreting Sentencing Guidelines). aggression against a second victim, and he raped the4 victim of the second rape that occurred in point in time. In my view, neither the plain language of the statute nor the legislative history is instructive in interpreting the pertinent "Since determining whether the conduct was a single ambiguous language. In fact, when the language “committed occasion or multiple occasions presents a legal question on occasions different from another” was added to § 924(e), concerning the interpretation of a statute, we review the both the House and the Senate refrained from submitting a district court’s decision de novo." United States v. Murphy, Report with the amendment. See 1988 U.S.C.C.A.N. 5937. 107 F.3d 1199, 1208 (6th Cir. 1997). Moreover, the case law fails to provide the requisite guidance to resolve the case and permit us to determine the outcome. Whether two prior offenses can be treated as predicate In attempting to remove the ambiguity, case law interpreting crimes under the ACCA does not depend on the number of the language “committed on occasions different from one convictions or the number of victims. United States v. Brady, another” has led to inconsistent outcomes in our Court as well 988 F.2d 664, 668 n. 5 (6th Cir. 1993) (citing United States v. as other Circuits. Compare United States v. Brady, 988 F.2d 664, 666, 669 (6th Cir. 1993) (holding that two robberies committed at different times and places and against different 4 The trial court found it somewhat significant, although possibly not victims although committed within less than one hour of each determinative, that the vehicle was stopped and moved to a different other were crimes committed on occasions different from one location. The court mentioned this fact in order to clarify that this was not another) with United States v. Murphy, 107 F.3d 1199, 1208 a case where the two victims and the two men were riding around in the car the entire time that these incidents occurred. 6 United States v. Thomas No. 98-6740 No. 98-6740 United States v. Thomas 11

Petty, 828 F.2d 2, 3 (8th Cir. 1987) (a defendant’s six _________________ convictions for six armed robberies committed simultaneously could count as only one predicate offense for CONCURRENCE purposes of the enhanced penalty of 18 U.S.C. § 1202(a) _________________ (repealed 1986), the predecessor statute of 18 U.S.C. § 924(e)). In Brady we observed that "§ 924(e) enhanced CLAY, Circuit Judge, concurring. Although I concur in the punishment for multiple criminal episodes that were distinct outcome reached by the majority, I do so based upon the rule in time." Id. at 668 (quoting United States v. Hughes, 924 of lenity. I believe the language of the statute “committed on F.2d 1354, 1361 (6th Cir. 1991)). occasions different from one another” is ambiguous in that though it provides for an enhanced punishment, when the An episode is an incident that is part of a series, but punishment is to be applied cannot be determined by the forms a separate unit within the whole. Although related statute’s plain language. Armed Career Criminal Act to the entire course of events, an episode is a punctuated (“ACCA”), 18 U.S.C. § 924(e). In such a case, the well- occurrence with a limited duration. established judicial doctrine of “the rule of lenity” applies, “resolv[ing] the ambiguity in favor of the more lenient Brady, 988 F.2d at 668 (quoting Hughes, 924 F.2d at 1361). punishment.” BLACK’S LAW DICTIONARY 1332-33 (7th ed. 1999). In Brady the defendant committed an armed robbery at the Mack Avenue Beauty Shop. Thirty minutes later he It is a well settled canon of statutory construction that when committed a second armed robbery at the Club Continental interpreting statutes, “[t]he language of the statute is the Bar. Id. at 666. He argued that the two robberies should starting point for interpretation, and it should also be the count as only one predicate offense for purposes of the ending point if the plain meaning of that language is clear.” ACCA, 18 U.S.C. § 924(e)(1), because they represented a United States v. Choice, 201 F.3d 837, 840 (6th Cir. 2000) single, continuous crime spree rather than two separate (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, offenses. This court, sitting en banc, rejected his argument, 241 (1989)). However, if the language in the statute is not and held that "[c]onsistent with the holdings of our sister clear, we may resort to the legislative history to ascertain the circuits, we believe that offenses committed by a defendant at meaning of the language. See In re Comshare, Inc. Sec. different times and places and against different victims, Litig., 183 F.3d 542, 549 (6th Cir. 1999); see also United although committed within less than an hour of each other, States v. Kassouf, 144 F.3d 952, 955 (6th Cir. 1998). If the are separate and distinct criminal episodes and that statute remains ambiguous after consideration of its plain convictions for those crimes should be counted as separate meaning, structure and legislative history, the rule of lenity is predicate convictions under § 924(e)(1)." Id. at 669. applied in favor of criminal defendants. See United States v. Hill, 55 F.3d 1197, 1206 (6th Cir. 1995). In arriving at our conclusion that the robberies constituted two separate episodes, we considered three cases from other In United States v. Bass, 404 U.S. 336, 347-48 (1971) the circuits that had found two separate episodes where there had Supreme Court enunciated the policies behind the time been a successful completion of the first crime before the honored axiom of lenity: second crime was embarked upon. We observed that in United States v. Schieman, 894 F.2d 909, 913 (7th Cir. 1990), This principle [rule of lenity] is founded on two policies the Seventh Circuit emphasized that "the defendant had that have long been part of our tradition. First, ‘a fair successfully completed his burglary and had safely escaped warning should be given to the world in language that the 10 United States v. Thomas No. 98-6740 No. 98-6740 United States v. Thomas 7

Conclusion from the premises, thus concluding the burglary episode before he undertook an assault on the officer investigating the Accordingly, we hold that Defendant-Appellant Thomas’ case." Brady, 988 F.2d at 668. In United States v. Tisdale, 1986 convictions for the rapes of the two women constituted 921 F.2d 1095, 1099 (10th Cir. 1990), the Tenth Circuit held a single criminal episode for purposes of defining predicate that three burglaries committed "successfully" at different offenses for an enhanced sentence as an Armed Career stores within the same shopping mall during the same evening Criminal under 18 U.S.C. § 924(e). As a result, Defendant were separate criminal episodes. We observed that the Tenth has been convicted of only two predicate felonies under Circuit had noted that "[a]fter each burglary, the defendant § 924(e). His sentence was therefore improperly enhanced was free to desist and leave." Brady, 988 F.2d at 668. under § 924(e) and U.S.S.G. § 4B1.4. For the foregoing Finally, we noted that in United States v. Washington, 898 reasons, we hereby REMAND for resentencing. F.2d 439, 441-42 (5th Cir. 1990), "[b]ecause 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." Brady, 988 F.2d at 669. Consistent with the analyses in the cases from the Seventh, Tenth and Fifth Circuits, we noted in Brady that "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." 988 F.2d at 669. We built on this theme of conclusion of the first offense in United States v. Wilson, 27 F.3d 1126, 1131 (6th Cir. 1994). In Wilson the defendant was convicted of two criminal sexual conduct offenses on the same date and in the same house, but against separate victims, and on different floors and locations within the house. Id. at 1131. We found no error in the district court’s determination that these were separate offenses for purposes of § 924(e): "Defendant could have halted his criminal rampage at any time. Yet, he chose to continue selecting different victims in separate places." Id. In United States v. Graves, 60 F.3d 1183 (6th Cir. 1995), noting that the Brady court had "considered whether or not the defendant safely escaped from one crime scene before he committed the second crime," we held that the defendant’s burglary of a home and his assault on a police officer in the woods just outside of the home constituted a single episode of criminal conduct because the assault upon the officer was at 8 United States v. Thomas No. 98-6740 No. 98-6740 United States v. Thomas 9

the same location and within moments of the burglary. Id. at considered a "repetition of criminal conduct." If the first 1186-87. crime is concluded we can safely infer that the defendant entered into the second crime with a fresh purpose. As noted The question of single or multiple episodes was most in United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998), recently addressed in United States v. Murphy, 107 F.3d 1199 the courts of appeals are "virtually unanimous" in stating that (6th Cir. 1997). After Murphy and two accomplices robbed "the ‘successful’ completion of one crime plus a subsequent the occupant of the first residence of a duplex, Murphy conscious decision to commit another crime makes that remained in the first residence to prevent the occupant from second crime distinct from the first for the purposes of the calling the police, while his accomplices robbed the adjoining ACCA." Id. residence. Although Murphy was convicted of both robberies, we held that his convictions for robberies of two In the case before us today, it is the absence of a completion sides of the duplex constituted a single criminal episode for or definable endpoint of the first crime before the second purposes of § 924(e). We reasoned that because "Murphy crime was begun that distinguishes this case from Brady and never left his original location, he never ceased his original Wilson, and brings it more in line with our opinions in conduct and he never successfully escaped the site of the first Murphy and Graves. "The defendant in Wilson completed crime until the second was complete." 107 F.3d at 1210. one sexual assault and then elected to seek out another victim in another location after completing the first crime and Our reasoning in these cases is guided by the purpose of the leaving the first location." Murphy, 107 F.3d at 1210. By ACCA, which is to target recidivism. As we noted in contrast, in this case the sexual assault started when both men Hughes, entered the women’s vehicle and did not end until both men exited the vehicle when they thought they had seen a police The propriety of inflicting severer punishment upon car. It is not sufficient to argue, as the government has argued [repeat] offenders has long been recognized in this in this case, that the rapes were necessarily sequential because country and in England. They are not punished the it was physically impossible for Thomas to rape two women second time for the earlier offense, but the repetition of at one time. We cannot ignore the fact that the crime criminal conduct aggravates their guilt and justifies encompassed more than sexual penetration. Thomas and heavier penalties when they are again convicted. Bucky asserted dominion and control over both women at the same time. They kept both women under their control 924 F.2d at 1361 (quoting Graham v. West Virginia, 224 U.S. throughout the duration of this incident. There was no 616, 623 (1912)). "Because Congress intended to punish conclusion of Thomas’ criminal activity against the first recidivists, the predicate conduct must amount to separate and woman when he began raping the second woman. With the distinct transactions in some definable sense." Murphy, 107 assistance of his accomplice, Thomas carried out his F.3d at 1210. There must be some "reasoned basis" for aggressions against the two women simultaneously. considering criminal conduct to be a definable event. Id. As we cautioned in Graves, "[i]t should not be necessary to reach Thomas’ rapes of the two women cannot be deemed to have to apply this statute; instead, the statute should be applied been "committed on occasions different from one another." where the facts demand its application." 60 F.3d at 1187. Both rapes were part of one continuous episode. Each rape was not a "punctuated occurrence with a limited duration." Considering whether the first crime was concluded provides See Brady, 988 F.2d at 668. Rather, the rapes of both women a reasoned basis for determining whether the conduct were part of a single, ongoing criminal episode. constitutes more than one episode such that it can be