U.S. v. Carr

Citation592 F.3d 636
Decision Date26 January 2010
Docket NumberNo. 08-5037.,08-5037.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Daryl Steven CARR, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Carolina, for Appellant. John Stuart Bruce, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: George E.B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge WILKINSON and Judge AGEE joined.

OPINION

SHEDD, Circuit Judge:

The Armed Career Criminal Act ("ACCA") imposes a 15-year mandatory prison term on an individual convicted of being a felon in possession of a firearm if that individual has "three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1). Daryl Steven Carr pled guilty to being a felon in possession of a firearm and was sentenced as an armed career criminal to 262 months of imprisonment. The district court applied the ACCA enhancement because Carr has four prior state convictions encompassing 13 counts of felony breaking or entering under N.C. Gen.Stat. § 14-54(a). In this appeal, Carr acknowledges that he has more than three previous convictions for a violent felony,1 but he argues that the violent felonies were not "committed on occasions different from one another" and, therefore, the ACCA does not apply. For the following reasons, we reject his contention and affirm.

I

In September 1996, a Washington County, North Carolina, grand jury issued 13 separate indictments charging Carr with felony breaking or entering in violation of § 14-54(a). Each indictment (1) alleges that on May 21, 2006, Carr broke into a building used as a storage unit located at "N.C. 32 South" with the intent to commit felony larceny; (2) identifies a different storage unit (units # C-15, # C-16, # D-5, # D-6, # D-7, # D-8, # D-10, # D-11, # D-12, # D-22, # F-8, # F-9, and # F-13); and (3) lists the occupant of each storage unit (totaling 10 different occupants). J.A. 23-35. Nine of the indictments list items that were stolen from the particular storage units. Carr pled guilty to all of the indictments in November 1996.2

In 2007, Carr was indicted on two counts of possessing a stolen firearm and one count of being a felon in possession of a firearm. According to the presentence investigative report ("PSR"), Carr's federal offense conduct involves his theft of firearms and ammunition from several law enforcement patrol cars and his subsequent act of shooting a firearm at law enforcement officers (and wounding one officer) as they attempted to stop him. He pled guilty to the felon-in-possession count.

In his PSR, a probation officer designated Carr as an armed career criminal based on the aforementioned breaking or entering convictions.3 With this designation, Carr's sentencing guideline range was calculated to be 210 to 262 months. Carr objected to application of the ACCA, arguing that the breaking or entering crimes were not committed on different occasions. The district court overruled the objection and sentenced him to 262 months. This appeal followed.

II

Resolution of this appeal involves a determination of whether the record establishes that Carr committed the 13 felony breaking or entering crimes "on occasions different from one another." If it does, then the district court correctly applied the ACCA in sentencing Carr.4 On this point, the district court surveyed our precedent, as well as several cases from other circuits, and concluded:

The question of whether breaking and entering multiple subunits at a single complex constitutes separate occasions for purposes of the ACCA does not appear to have been squarely addressed by the Fourth Circuit. Based on persuasive authority, and the circumstances presented, the court finds that the physical and temporal proximity of the offenses at issue do not indicate that they occurred on a single occasion for ACCA purposes. To hold breaking and entering into separate storage units is a single criminal "occasion" would be to ignore the available record and the reality of the situation. United States v. Carr, 2008 WL 4641346, *3 (E.D.N.C. Oct. 16, 2008). For the reasons that follow, we agree with the court's conclusion.

A.

As the district court noted, we have not decided the applicability of the ACCA in a case involving facts similar to this one. However, in several published opinions we have considered whether potential ACCA predicate offenses that were close in time or proximity were committed on different occasions for sentencing purposes.

For example, in Letterlough, the defendant challenged the applicability of the ACCA to his sentence, arguing that two of his three predicate offenses were not committed on different occasions. Those offenses were two separate sales of a single dose of crack cocaine to the same undercover officer on the same day; the first sale occurred at 8:35 p.m., and the second sale occurred at 10:15 p.m. Examining the operative language of the ACCA, we stated that "Congress intended to include within the scope of the ACCA only those predicate offenses that can be isolated with a beginning and an end—ones that constitute an occurrence unto themselves." 63 F.3d at 335. With this in mind, we adopted the following definition to determine whether the ACCA applies to a defendant's closely related prior crimes: "Convictions occur on occasions different from one another `if each of the prior convictions arose out of a separate and distinct criminal episode.'" Id. (quoting United States v. Hudspeth, 42 F.3d 1015, 1019 (7th Cir.1994) (en banc) (emphasis in original) (internal punctuation marks omitted)).

Continuing, we noted that "although this definition may be clear, the factual permutations surrounding the ACCA tend to create havoc. As a result, courts have applied a multiplicity of factors to determine when more than one conviction constitutes a separate and distinct criminal episode." Id. We listed these factors as including whether the offenses arose in different geographic locations, whether the nature of the offenses was substantively different, and whether the offenses involved multiple victims or multiple criminal objectives, and we explained the fluid nature of the analysis:

Courts have applied these factors independently, or in conjunction, to decide that a defendant's similar offenses are actually separate and distinct from one another. In essence, if any one of the factors has a strong presence, it can dispositively segregate an extended criminal enterprise into a series of separate and distinct episodes.

Id. at 336 (footnote omitted).

Applying these principles to the facts of the case, we affirmed the application of the ACCA. In doing so, we rejected the defendant's contention that the two drug sales were part of a continuous drug transaction. We held instead that each drug transaction "was a complete and final transaction, and therefore, an independent offense." Id. at 337.

We next considered this issue in United States v. Hobbs, 136 F.3d 384 (4th Cir.1998), in which the district court declined to apply the ACCA enhancement because it found that three of the defendant's four predicate burglary offenses (each involving a small, unoccupied country grocery store) occurred within the space of one hour and, consequently, did not occur "on occasions different from one another." Analyzing the case under Letterlough, we disagreed and remanded for resentencing under the ACCA.

We first found that the three burglaries occurred at least a mile apart from one another, and this fact suggested that they were separate and distinct criminal episodes. However, we then found that the nature of the burglaries was not substantively different because "each involved a break-in of a small, unoccupied country store from which [the defendant] stole food, cash, and/or dry goods." Id. at 389. We noted that this fact "while not enough on its own to suggest that the offenses occurred on the same occasion, would bolster such a conclusion, if that conclusion were also supported by other facts." Id. We then examined whether there were multiple victims and criminal objectives, and we found that although the objectives of the burglaries appeared similar, there were multiple victims because each store was under separate ownership. We concluded that "the fact that there were multiple victims decisively tips the scales in favor of concluding that each burglary was a `separate and distinct criminal episode.'" Id. (quoting Letterlough, 63 F.3d at 335).

We again considered the issue in United States v. Williams, 187 F.3d 429 (4th Cir.1999). The defendant in that case had four prior felony offenses, three of which stemmed from his flight from law enforcement officers at a traffic checkpoint. During the flight, which lasted 10-15 minutes and spanned over three blocks, the defendant shot at one officer (leading to a conviction for assault with a firearm on a government officer) and later pointed his firearm at two other officers (leading to two convictions for assault with a deadly weapon with intent to kill).

On his appeal from his ACCA-enhanced sentence, the defendant argued that the three assault offenses should be considered as having occurred on the same occasion for purposes of the ACCA. We disagreed, concluding under Letterlough and Hobbs that there were "two complete and discrete criminal transactions": the initial shooting at one officer and the subsequent pointing of a firearm at the other two officers. Id. at 431. We noted that the fact "that the...

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