United States v. Thomas L. Hudspeth

42 F.3d 1015, 1994 U.S. App. LEXIS 30123, 1994 WL 592706

• Court: Court of Appeals for the Seventh Circuit
• Decided: October 28, 1994
• Docket: 93-1352
• Status: Published

Opinions

COFFEY, Circuit Judge.

Thomas L. Hudspeth pled guilty to one count of unlawful possession of a firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). The sentencing judge found that Hudspeth qualified for an enhancement of his sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), based on his criminal record. The ACCA mandates a sentence of not less than fifteen years for a defendant with three prior convictions for violent felonies who is subsequently convicted for the unlawful possession of a firearm. The court imposed a fifteen year sentence, which Hudspeth appeals on two grounds: first, that he was improperly sentenced as an “armed career criminal” under the ACCA, and second, that the district court’s recalculation of his sentence violated the Double Jeopardy Clause. We affirm.

I.

BACKGROUND

On August 1, 1991, Hudspeth pled guilty to one count of unlawful possession of a firearm by a convicted felon.¹ Prior to Hudspeth’s plea, the government advised him that it intended to seek the minimum fifteen year sentence enhancement² authorized by the ACCA, 18 U.S.C. § 924(e)(1), which states:

“In the case of a person who violates section 922(g) of this title and has three previous convictions by any court ... 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.”

Hudspeth had three prior burglary convictions for crimes committed in Sangamon County, Illinois. The district court reviewed the police reports from Hudspeth’s three pri- or burglaries,³ which described the following facts concerning Hudspeth’s 1983 state burglary convictions.⁴ On March 27, 1983, at about 7:15 p.m., Hudspeth and two others were observed at the Laketown Shopping Center, a strip mall in Springfield, Illinois. Hudspeth was carrying a large canvas bag, which was later discovered to contain a sledge hammer, pry bars, chisels, a screwdriver, a pipe wrench, two police scanners, and a CB radio. In approximately thirty-five minutes, the three men broke into and ransacked a doughnut shop, a dry cleaners, and an insurance company. The burglars were apprehended during their attempt to enter a fourth business.⁵

The district court found that Hudspeth’s three 1983 convictions for burglary were three “separate crimes against separate victims in separate locations.” Thus the court concluded that Hudspeth’s burglaries were crimes “committed on occasions different from one another” and thus qualified Hud-speth for the minimum fifteen year sentence enhancement set by § 924(e)(1).

II.

DISCUSSION

A. Sentence Enhancement Under the Armed Career Criminal Act

1. Crimes “Committed on Occasions Different From One Another’’

Under the ACCA, a thrice convicted felon, who is subsequently convicted for the unlawful possession of a firearm, is subject to a mandatory sentence of not less than fifteen years provided that the three prior convictions resulted from acts “committed on occasions different from one another....” 18 U.S.C. § 924(e)(1).⁶ This Circuit and other Circuits have had numerous opportunities to interpret the phrase “committed on occasions different from one another ” in situations like the present case where several crimes were committed in rapid succession. This Circuit has joined nine other Circuits, including the First, Second, Third, Fifth, Sixth, Eighth, Ninth, Tenth and Eleventh, in holding that a defendant is subject to the sentence enhancement if each of the prior convictions arose out of a “separate and distinct criminal episode.” United States v. Schieman, 894 F.2d 909, 911 (7th Cir.), cert. denied, 498 U.S. 856, 111 S.Ct. 155, 112 L.Ed.2d 121 (1990) (emphasis added); see United States v. Pedigo, 879 F.2d 1315 (6th Cir.1989); United States v. Towne, 870 F.2d 880 (2d Cir.), cert. denied, 490 U.S. 1101, 109 S.Ct. 2456, 104 L.Ed.2d 1010 (1989); United States v. Schoolcraft, 879 F.2d 64, 74 (3d Cir.), cert. denied, 493 U.S. 995, 110 S.Ct. 546, 107 L.Ed.2d 543 (1989); United States v. Herbert, 860 F.2d 620 (5th Cir.1988), cert. denied, 490 U.S. 1070, 109 S.Ct. 2074, 104 L.Ed.2d 639 (1989); United States v. Gillies, 851 F.2d 492 (1st Cir.), cert. denied, 488 U.S. 857, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988); United States v. Rush, 840 F.2d 580 (8th Cir.1988); United States v. Antonie, 953 F.2d 496, 498-99 (9th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 138, 121 L.Ed.2d 91 (1992); United States v. Green, 967 F.2d 459, 462 (10th Cir.), cert. denied, — U.S.-, 113 S.Ct. 435, 121 L.Ed.2d 355 (1992); United States v. Greene, 810 F.2d 999 (11th Cir.1986).

This Circuit, when considering whether multiple convictions arose out of “separate and distinct criminal episodes,” has consistently looked to the nature of the crimes, the identities of the victims, and the locations. In Schieman, the defendant committed a burglary; three blocks away and ten minutes later he attacked and injured a police officer. Schieman, 894 F.2d at 913. Judge Bauer, writing for the court, ruled that Schieman’s actions constituted two separate “occasions” under the ACCA because he “ ‘committed separate crimes against separate victims in separate locations.’” Id. (quoting Towne, 870 F.2d at 881 (emphasis added).

We followed the same reasoning in United States v. Godinez, 998 F.2d 471 (7th Cir.1993). In Godinez, the defendant kidnapped a woman at 8:45 p.m. in order that he might use her car in a robbery. He took the victim to his apartment where an accomplice kept watch over her. The defendant then drove the victim’s car to a convenience store where he committed the robbery at 10:00 p.m. He was arrested on the way back to his aparta ment. Id. at 472. In Godinez we held that even though the defendant admitted that he kidnapped the woman in order to use her car in the robbery, the kidnapping and robbery were two separate criminal aggressions against separate victims. Id. at 472-73.

In Godinez, we distinguished Schieman from Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), in which the defendant (Ashe) committed multiple offenses on a single occasion (in the same location and at the same time) by “robbing] six players at a poker game, committing at least six [simultaneous] crimes with the same [command of] ‘stick ’em up’.” Godinez, 998 F.2d at 472. Judge Easterbrook explained that

“[ordering six poker players at the same game to empty their pockets is one criminal episode. But one crime hard on the heels of another can be a ‘separate and distinct criminal episode’, as Schieman itself shows. Schieman committed a burglary. Three blocks away he attacked and wounded a police officer. This was a distinct transaction, we held, because the burglary was over.... Schieman could have committed either crime without the other; a person willing to commit both is more dangerous than a person who confines himself to one. That the two crimes were close in time did not matter, we concluded.”

Id. (emphasis added) (citations omitted). Go-dinez concluded that “the question is not whether one crime overlaps another but whether the crimes reflect distinct aggressions.” Id. at 473 (emphasis added); see also 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) (successive robberies of the same store clerk at the same convenience store by the same defendant within two hours held to be separate criminal episodes); Antonie, 953 F.2d at 499 (two armed robberies committed on the same evening approximately forty minutes apart held to be two separate predicate offenses).

In United States v. Tisdale, 921 F.2d 1095 (10th Cir.1990), cert. denied, — U.S.-, 112 S.Ct. 596, 116 L.Ed.2d 619 (1991), a case factually indistinguishable from the one before us, the Tenth Circuit held that a burglar who broke into three stores in a mall had committed the crimes on three separate “occasions” under the ACCA:

“After the defendant ‘successfully completed’ burglarizing one business, he was free to leave. The fact that he chose, instead, to burglarize another business is evidence of his intent to engage in a separate criminal episode. Moreover, unlike [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) ], the defendant’s burglaries did not occur at the same location. The record shows that although defendant entered one shopping mall he had to physically break [into] and enter three separate structures. The fact each incident occurred inside one enclosed structure does not alter our conclusion that the crimes were committed at different locations. Thus we find that the trial court properly enhanced the defendant’s penalty under § 924(e)(1).”

Id. at 1099 (emphasis added).

Cases interpreting the ACCA clearly uphold the minimum fifteen-year sentence enhancement for criminals who commit separate crimes against different individuals while on a spree, within a short period of time, provided that the perpetrator had the opportunity to cease and desist from his criminal actions at any time. For instance, in United States v. Brady, 988 F.2d 664, 668-669 (6th Cir.) (en banc), cert. denied, — U.S. -, 114 S.Ct. 166, 126 L.Ed.2d 126 (1993), the Sixth Circuit held that two armed robberies committed against different victims at different locations within the span of forty-five minutes were separate criminal episodes. The court in Brady defined a criminal 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. (citing United States v. Hughes, 924 F.2d 1354, 1361 (6th Cir.1991)). Under the ACCA, the relevant inquiry as to the timing of multiple crimes is simple: were the crimes simultaneous or were they sequential?

Hudspeth’s criminal history clearly makes him a proper subject for the sentence enhancement provision of the ACCA.⁷ Hudspeth committed three distinct burglaries against three separate victims (the owners of three distinct business enterprises), in three separate locations⁸ over the course of more than thirty minutes⁹ — a greater period of time than the two crimes committed in Schieman (ten minutes). Hudspeth’s three burglaries were sequential (committed in succession), and not simultaneous; it is physically impossible for one person to commit three burglaries simultaneously at three different locations. Because Hudspeth’s crimes were committed sequentially, against different victims, at different times, and at different locations, they were clearly crimes “committed on occasions different from one another” as required under the ACCA. See Tisdale, 921 F.2d at 1099.

The ACCA is directed at criminals who make a career out of criminal activity. A defendant who has the opportunity to cease and desist or withdraw from his criminal activity at any time, but who chooses to commit additional crimes, deserves harsher punishment than the criminal who commits multiple crimes simultaneously. An individual who commits simultaneous crimes (one single criminal action directed against a number of individuals), as did the defendant in Petty, has no opportunity to turn back and abandon his criminal conduct — the crime is completed with the single utterance of “stick ’em up.” See Godinez, 998 F.2d at 472. The same is true of an individual who violates multiple criminal statutes by a single act.¹⁰ In contrast, a defendant who commits sequential crimes has the opportunity at each and every turn to withdraw from his criminal activity.

Hudspeth, a professional burglar, came to the Laketown Shopping Center armed for each and every eventuality that might arise. Hudspeth was observed carrying a bag, later found to contain a sledge hammer, pry bars, chisels, a screwdriver, a pipe wrench, two police scanners, and a CB radio. Obviously he had cased the premises in advance for he knew precisely which tools were necessary to break into the individual business locations. The record implies that the burglars first unlawfully pried open the rear door of the dry cleaners.¹¹ At that point, the three men could have terminated their criminal endeav- or, but they chose instead to commit a second burglary. The burglars then used a sledge hammer to bust a hole through the shared wall between the dry cleaners and the doughnut shop. Once again, Hudspeth could have aborted the criminal activity, but he decided instead to commit a third burglary. One of the burglars then forced open the door connecting the doughnut shop and the insurance company. Following this entry, the burglars attempted to enter a fourth business, but they were apprehended during their attempt.

Entry into each successive business reflected a clear and deliberate choice to commit a “distinct aggression,” Godinez, 998 F.2d at 473. At any given point in time during Ms crime spree, Hudspeth was free to cease and desist from further criminal activity. He instead chose to continue. Because of his three decisions to enter each successive business, it is evident that he intended “to engage in a separate criminal episode.” Tisdale, 921 F.2d at 1099; see also Godinez 998 F.2d at 472 (“one crime hard on the heels of another can be a ‘separate and distinct criminal episode’, as Schieman itself shows”).¹²

2. The Legislative History of § 92J/.(e)(l)

As an initial matter, we must state our disagreement with the use of legislative history to interpret unambiguous statutory language. As a court of appeal, we may turn to the legislative history to interpret a statute only when the statute is ambiguous. United States v. Shriver, 989 F.2d 898, 901 (7th Cir.1992); see also United States v. Real Estate Known as 916 Douglas Ave., 903 F.2d 490, 492 (7th Cir.1990) (“we will look beyond the express language of a statute only where that statutory language is ambiguous or where a literal interpretation would lead to an absurd result or thwart the purpose of the overall statutory scheme”).¹³ We are of the opinion that the phrase “committed on occasions different from one another” is unambiguous.¹⁴ Other members of this court, however, believe the phrase “committed on occasions different from one another” is ambiguous, and have looked to the legislative history for guidance. For this reason, a brief review of the legislative history becomes necessary.

In 1988, Senator Joseph Biden proposed amending § 924(e)(1) of the ACCA to require sentence enhancement for multiple convictions only when those convictions resulted from crimes “committed on occasions different from one another.” This new language was proposed after the Eighth Circuit’s original decision in Petty, in which the court held that the ACCA’s fifteen year minimum sentence could be imposed on a defendant with six prior convictions for armed robbery stemming from an incident in which the defendant robbed six different people in a restaurant simultaneously. United States v. Petty, 798 F.2d 1157, 1159-60 (8th Cir.1986), vacated, 481 U.S. 1034, 107 S.Ct. 1968, 95 L.Ed.2d 810 (1987).¹⁵ Although neither the statute nor the legislative history defines exactly what Congress meant by “occasions different from one another,”¹⁶ the legislative history does more than merely imply that Congress intended only to preclude the classification of simultaneous offenses as separate offenses for the purposes of sentence enhancement under the ACCA. Senator Biden explained that the amendment would serve to punish career offenders, even for multiple offenses committed on the same night, so long as the crimes are not simultaneous in nature.

“Under the amendment, the three previous convictions would have to be for offenses ‘committed [on] occasions different from one another.’ Thus a single multieount conviction could still qualify where the counts related to crimes committed on different occasions, but a robbery of multiple victims simultaneously (as in Petty) would count as only one conviction.”

134 Cong.Rec. S17,370 (daily ed. Nov. 10, 1988) (remarks of Sen. Biden). Congress added the phrase “committed on occasions different from one another” to address situations similar to Petty, where a defendant’s single action results in the commission of multiple, simultaneous crimes. The amendment would also preclude the separate consideration of multiple convictions arising from a single criminal act that violates several different criminal statutes. See supra n. 10. Neither of these situations is presented by the case before us.

As made clear earlier in this opinion, Hud-speth did not commit three simultaneous crimes against multiple victims as the defendant did in Petty where, at one time, with one single command, and in one location, Petty robbed six people. Nor did Hudspeth violate several statutes with a single criminal act. Hudspeth committed three separate crimes, at three separate times, against three separate victims, in three separate locations. Under the plain language of § 924(e)(1) as well as the legislative history, Hudspeth committed his crimes on three “occasions different from one another.”

B. Double Jeopardy

The Double Jeopardy Clause states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. The Clause prohibits multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984). A sentencing court may not sentence a defendant to multiple punishments for the same offense in excess of the total punishment authorized by the legislature. United States v. Halper, 490 U.S. 435, 450-51, 109 S.Ct. 1892, 1902-03, 104 L.Ed.2d 487 (1989).

In an unpublished order, a panel of this court initially vacated Hudspeth’s original sentence and remanded the case to the district court, with instructions to “hold a hearing, enter findings of fact, and determine whether a proper basis exists for applying the § 924(e) enhancement.” United States v. Hudspeth, No. 91-3786, 1992 WL 205666, at *2, 1992 U.S.App. LEXIS 20581, at *5 (7th Cir. Aug. 20, 1992). The district court had based Hudspeth’s original sentence on Hud-speth’s 1975 adjudication of juvenile delinquency for burglary, 1980 conviction for burglary, and 1983 convictions for three burglaries. On remand, the government abandoned its reliance on Hudspeth’s juvenile burglary, and focused on his three 1983 state convictions for burglary. After the resen-tencing hearing, the district court concluded that Hudspeth had committed three prior burglaries “on occasions different from one another” and imposed the fifteen year minimum sentence required by the ACCA.

Hudspeth argues that the district court’s recalculation of his sentence after his resentencing hearing placed him in jeopardy twice for the same offense.¹⁷ He argues that the government improperly premised its request for an enhanced sentence on a version of Hudspeth’s criminal conviction history different than the version presented at the original sentencing hearing. This argument does not justify reversal.

Hudspeth’s argument is based on the government’s reliance at resentencing on Hud-speth’s three 1983 burglaries. Hudspeth contends that the Double Jeopardy Clause prohibits the approach the government took here — initially premising its request for sentence enhancement on one version of Hud-speth’s criminal conviction history and, at resentencing, premising its request for sentence enhancement on a second version.

Sentencing matters do not ordinarily have the “qualities of constitutional finality that attend an acquittal.” United States v. DiFrancesco, 449 U.S. 117, 134, 101 S.Ct. 426, 436, 66 L.Ed.2d 328 (1980). As a result, recidivist statutes that impose enhanced sentences on repeat offenders generally do not violate the Double Jeopardy Clause. See, e.g., Denton v. Duckworth, 873 F.2d 144, 147 (7th Cir.), cert. denied, 493 U.S. 941, 110 S.Ct. 341, 107 L.Ed.2d 330 (1989) (holding that the Double Jeopardy Clause was not violated by an Indiana recidivist statute that did not impose additional punishment for a past crime, but rather imposed additional punishment for the later crime). The same reasoning upholds the constitutionality of sentence enhancement under the United States Sentencing Guidelines. See, e.g., United States v. Duarte, 28 F.3d 47 (7th Cir.1994) (sentence enhancement for obstruction of justice under U.S.S.G. § 3C1.1 did not raise double jeopardy concerns); United States v. Shaw, 26 F.3d 700 (7th Cir.1994) (“[A] sentence enhanced by reference to a prior conviction is not a ‘second punishment for the first crime.’ It is a punishment for the new crime, tailored to the offender’s circumstances in light of knowledge that higher penalties are needed to deter persons who have not responded to lesser sanctions”).

Sentence enhancement for “career criminals” under the ACC A implicates no greater double jeopardy concerns than sentence enhancement under other recidivist statutes or the United States Sentencing Guidelines. Enhanced sentences based on valid prior convictions that are within the appropriate sentencing range, as were both of Hudspeth’s sentences, result in no double jeopardy violations.

The government’s change in tactics at Hudspeth’s resentencing hearing, from reliance on Hudspeth’s 1975, 1980 and 1983 offenses to reliance on only the 1983 convictions, does not alter our conclusion. The Double Jeopardy Clause bars retrial of a defendant when the defendant’s conviction is reversed because the government’s evidence was insufficient to sustain the jury’s verdict. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In contrast, the Double Jeopardy Clause does not bar retrial of a defendant when the defendant’s conviction is set aside for trial error, such as erroneously admitted evidence. Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 290, 102 L.Ed.2d 265 (1988) (finding no double jeopardy violation where a defendant was resentenced based on an additional felony conviction not offered or admitted at original sentencing).

The procedural error committed by the sentencing court at Hudspeth’s initial sentencing hearing was simple trial error. We remanded simply to ask the sentencing court to expand the record on evidence that had already been received. A sentencing court’s erroneous reliance on an insufficient record in imposing an enhanced sentence does not preclude correction of that sentence by a further review of the record. We hold that the Double Jeopardy Clause does not preclude the recalculation of a defendant’s sentence enhancement initially vacated for an insufficient record.

III.

CONCLUSION

We hold that Hudspeth’s 1983 convictions for three counts of burglary resulted from crimes “committed on occasions different from one another” and conclude that the district court’s enhancement of Hudspeth’s sentence pursuant to 18 U.S.C. § 924(e)(1) was proper. We also hold that the district court’s recalculation of Hudspeth’s sentence resulted in no double jeopardy violation.

The defendant’s sentence is

AFFIRMED.

1 . It is a federal crime for any person "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year; ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(1).

2 . The penalty for violation of 18 U.S.C. § 922(g) in the absence of three prior violent felony convictions is imprisonment for not more than ten years. See 18 U.S.C. § 924(a)(2).

3 . In Taylor v. United States, 495 U.S. 575, 600-01, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d 607 (1990), the Supreme Court limited sentencing courts in deciding whether an offense is a "violent felony” under the ACCA, to looking only at the statutoiy definition of the prior offense and not to the particular facts underlying the conviction. However, Taylor does not preclude a sentencing court from examining the factual underpinnings of a defendant's prior convictions in order that it might properly apply the ACCA and determine if multiple offenses occurred on one or more "occasions." As a practical matter, a district court frequently must look beyond the charging papers and judgment of conviction for these documents alone rarely provide the district court with the detailed information necessary (i.e., time, victim, location) to determine whether multiple offenses occurred on one or more "occasions.” A district court's examination of the factual basis for a defendant's prior convictions does not amount to a retrial of those crimes as prohibited in Custis v. United States, — U.S. -, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). The sentencing court is not being called upon to second-guess valid state court convictions, rather, it is merely determining whether the three valid convictions resulted from one occasion or more than one occasion. Thus, the district court and this court have examined the police reports to accurately determine the facts of the three burglaries.

4 .Federal courts must give credence to state court convictions. See Custis, - U.S. at-, 114 S.Ct. at 1736 ("prior convictions used for sentence enhancement purposes under § 924(e) are not subject to collateral attack in the sentence proceeding").

5 . Hudspeth was arrested in the doughnut shop.

6 . According to United States v. Gallman, 907 F.2d 639, 643 (7th Cir.1990), cert. denied, 499 U.S. 908, 111 S.Ct. 1110, 113 L.Ed.2d 219 (1991) and United States v. Redding, 16 F.3d 298, 302 (8th Cir.1994), under § 924(e)(1), the government must establish that a defendant has three prior violent felony convictions. A certified record of conviction or a presentence investigation report, if not challenged, will normally satisfy this showing. Redding, 16 F.3d at 302; United States v. Ruo, 943 F.2d 1274, 1276 (11th Cir.1991). The burden then shifts to the defendant to establish by a preponderance of the evidence that the prior convictions occurred on a single "occasion,” and thus cannot be the basis for sentence enhancement under § 924(e)(1). See Redding, 16 F.3d at 302 (defendant bears the burden of proving that prior convictions cannot be used for sentence enhancement).

7 .While we realize that the issue in this appeal is whether the three burglaries occurred on one “occasion” or more than one "occasion,” it is interesting to note that these three burglaries are not the only offenses for which Hudspeth has been convicted. The Presentence Report reveals that as a juvenile in 1975, Hudspeth was adjudicated delinquent on two counts of burglary, one count of theft and one count of using an intoxicant. In 1979 as an adult, Hudspeth pled guilty to one count of theft and was sentenced to 60 days in jail and 30 months probation. In 1980, while on probation from the 1979 conviction, he was charged with and pled guilty to one count of burglary and was sentenced to four years of incarceration. In 1982, Hudspeth pled guilty to one count of trespassing and one count of resisting arrest. He was fined $250. Later in 1982, he was charged with and pled guilly to another count of resisting a peace officer and was sentenced to 30 days in jail. In 1983, Hudspeth pled guilty to the three burglaries of the strip mall and was sentenced to four years of confinement. Finally, in 1986, he was sentenced to two years of incarceration after pleading guilty to two counts of unlawful use of a firearm by a felon.

It is quite evident that Hudspeth is precisely the type of career criminal at whom the ACCA is directed. Nonetheless, the mandatory fifteen-year minimum sentence applies only if Hud-speth's three burglaries in 1983 are determined to have been “committed on occasions different from one another” because, other than his 1980 burglary conviction, his other prior offense was an adjudication of juvenile delinquency, which does not count under the ACCA unless it involved a violent felony. See 18 U.S.C. § 924(e)(2)(C).

8 . The three burglaries on March 27, 1983, occurred at three separate addresses: Farmers Insurance Company was at 1810 Stevenson Drive, Melo Creme Doughnut was located at 1814 Stevenson Drive, and Homestyle Cleaners was at 1816 Stevenson Drive. Presumably each business owner paid separate rent and taxes and filed separate insurance claims for the damage Hud-speth caused. See Tisdale, 921 F.2d at 1099 ("[t]he fact each incident occurred inside one enclosed structure [a mall] does not alter our conclusion that the crimes were committed at different locations ”) (emphasis added).

9 . The police reports reveal that Hudspeth and his two accomplices entered the first'business establishment at approximately 7:20 p.m. and the police officers apprehended the burglars at approximately 7:55 p.m. while they were in the process of burglarizing a fourth business.

10 . For instance a single drug sale may result in a multiple count indictment charging a defendant with (1) conspiracy to possess with intent to distribute narcotics (21 U.S.C. § 846); (2) possession with intent to distribute narcotics (21 U.S.C. § 841); (3) possession of a firearm during commission of a drug offense (18 U.S.C. § 924(c)(1)); (4) sale of narcotics within 1000 feet of a school (21 U.S.C. § 860); and (5) involving a person under 18 years of age in a drug transaction (21 U.S.C. § 861).

11 . The police reports do not establish with any certainty the sequence of the burglaries or the precise means of entry. However, for the purposes of this appeal, the order of and methods used to effect each entry are immaterial; regardless of order, the second and third burglaries were committed sequentially to one another.

12 . Chief Judge Posner asked at oral argument whether the court should impose different sentences for the burglar who breaks into three houses that are separated by six inches of airspace and the burglar who breaks into three row houses that share a wall. Clearly, enhancing the sentence of one of these burglars and not the other would lead to an absurd result. The true inquiry is whether the crimes were committed in succession to one another. A defendant who commits three crimes sequentially will have made three distinct and deliberate choices to commit a crime. Hudspeth clearly committed three sequential crimes against three separate victims in three separate locations.

Judge Bauer presented another hypothetical at oral argument to clarify the Schieman standard. He inquired of the Assistant U.S. Attorney ("AUSA”) if a gunman entered a room and murdered seven people in the room whether that was one occasion or seven occasions. The AUSA, relying on United States v. Petty, 828 F.2d 2 (8th Cir.1987), responded that it would probably be one occasion. Judge Bauer inquired further if the gunman entered seven different rooms and murdered one person in each room whether that constituted one occasion or seven occasions for purposes of the ACCA. The AUSA argued that situation constituted seven occasions because the intervening time as the gunman marched from room to room permitted him to determine whether to cease or continue with his murderous spree.

13 .Resort to legislative history is usually selective and thus of little value if any when interpreting a statute. See Holder v. Hall — U.S. -, -, 114 S.Ct. 2581, 2612, 129 L.Ed.2d 687 (1994) (legislative history "is read selectively to support the result the Court intends to achieve”) (Thomas, J., concurring); see also Conroy v. Aniskoff, - U.S. -, -, 113 S.Ct. 1562, 1567, 123 L.Ed.2d 229 (1993) ("The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators .... If one were to search for an interpretive technique that, on the whole, was more likely to confuse than to clarify, one could hardly find a more promising candidate than legislative history.”) (Scalia, J., concurring in the judgment) (emphasis added).

14 . A number of circuit courts have held that the language of § 924(e)(1) is unambiguous in that a defendant's conviction for one predicate offense need not precede the commission of the next predicate offense to trigger sentence enhancement under the ACCA. See United States v. Anderson, 921 F.2d 335, 339-40 (1st Cir.1990) ("we view the plain language of the statute ... as dispositive”); United States v. Mason, 954 F.2d 219, 221-22 (4th Cir.1991) ("[w]e do not agree that the statute is ambiguous”), cert. denied,U.S. -, 112 S.Ct. 1979, 118 L.Ed.2d 578 (1992); United States v. Mitchell, 932 F.2d 1027, 1028 (2d Cir.1991) (per curiam) ("this language unambiguously requires that a defendant's three convictions stem from three, separate criminal episodes ... [and] does not require that a defendant's three criminal acts be punctuated by intervening convictions”).

15 . The Eighth Circuit subsequently reconsidered its decision in Petty, and concluded that Petty's six convictions for robbery occurred on a single “occasion” under the ACCA. United States v. Petty, 828 F.2d 2, 3 (8th Cir.1987), cert. denied, 486 U.S. 1057, 108 S.Ct. 2827, 100 L.Ed.2d 928 (1988).

16 .The plain meaning of the term “occasion” incorporates a temporal distinction, i.e., one occasion cannot be simultaneous with another occasion. Black’s Law Dictionary defines an occasion as a "particular time.” Webster’s Third NeW International Dictionary defines an occasion as “a particular time at which something takes place: a time marked by some happening.” See also Tisdale, 921 F.2d at 1099 (“[a] plain reading of the statutory language of § 924(e)(1), 'occasions different from one another', supports the conclusion that Congress intended the three predicate offenses to be distinct in time").

17 . Hudspeth also argues that the government violated his right to due process in that he received inadequate notice of the offenses on which his enhanced sentence was based. The Supreme Court has held that a defendant must “receive reasonable notice and an opportunity to be heard relative to [any] recidivist charge.” Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 504, 7 L.Ed.2d 446 (1962). Hudspeth’s contention that the notice he received was not "reasonable” is unsupported by the record. The Information Charging Prior Offenses, which was filed eighteen days after the return of the indictment and twenty-three days before Hudspeth signed the plea agreement, gave Hudspeth adequate notice of the prior convictions on which the government based its request for an enhanced sentence. Hudspeth's argument that he received inadequate notice is altogether without merit.