U.S. v. Adams

• Citation: 509 F.3d 929
• Decision Date: 18 December 2007
• Docket Number: No. 07-1220.,07-1220.
• Parties: UNITED STATES of America, Appellee, v. Jerry ADAMS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

509 F.3d 929

UNITED STATES of America, Appellee, v. Jerry ADAMS, Appellant.

No. 07-1220.

United States Court of Appeals, Eighth Circuit.

Submitted: October 17, 2007.

Filed: December 18, 2007.

Robert G. Kuchar, Asst. Fed. Public Defender, Kansas City, MO, argued (Raymond C. Conrad, Jr., Fed. Public Defender, on the brief), for appellant.

K. Michael Warner, Asst. U.S. Atty., Kansas City, MO, argued (John F. Wood, U.S. Atty., on the brief), for appellee.

Before BYE, BOWMAN, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Jerry Adams pleaded guilty to 11 counts of interference with commerce by robbery, in violation of 18 U.S.C. § 1951(a). At sentencing, the district court¹ determined that Adams qualified as a career offender pursuant to U.S.S.G. § 4B1.1 and sentenced Adams to 188 months' imprisonment. Adams appeals the court's imposition of the career-offender enhancement. We affirm.

I. Background

Between January 22, 2005 and April 10, 2005, Adams robbed several fast food restaurants and convenience stores in the Kansas City metropolitan area. A combination of witness statements, line-up identifications, and business surveillance videos linked Adams to the robberies, and he eventually confessed to the crimes. On July 5, 2006, Adams pleaded guilty to 11 counts of robbery,² in violation of 18 U.S.C. § 1951(a).

The presentence investigation report (PSR) reflected that Adams had five prior convictions for robbery, and provided the following information about those convictions:

1) Jackson County, Missouri, Case No. CR87-4829 On September 15, 1987, Adams robbed a Burger King in Grandview, Missouri, while armed with a deadly weapon. Adams was sentenced on June 9, 1988, to 15 years custody.

2) Jackson County, Missouri, Case No. CR88-0151 On December 20, 1987, Adams entered a Hardee's restaurant in Independence, Missouri, threatened the use of a dangerous weapon and forcibly stole money. Adams was sentenced on June 9, 1988, to 15 years custody to run concurrent with case CR87-4829.

3) Jackson County, Missouri, Case No. 88-0944 On January 10, 1988, Adams robbed a Burger King in Kansas City, Missouri, while armed with a deadly weapon. Adams was sentenced on June 9, 1988, to 15 years of custody concurrent with the above Jackson County cases.

4) Johnson County, Kansas, Case No. K0056385 On February 7, 1988, Adams robbed an individual by force while armed with a BB gun. Adams was sentenced on August 2, 1989, to 5-20 years in custody to run consecutive to the three above mentioned Jackson County, Missouri, cases.

5) Lyon County, Kansas, Case No. 88CR185 On January 5, 1988, Adams robbed a woman, by force, while armed with a deadly weapon. Adams was sentenced on July 30, 1992, to 10-30 years in custody to run concurrent to the Johnson County, Kansas, conviction, but consecutive to the three Jackson County, Missouri, cases.

The PSR concluded that Adams's five previous robbery convictions classified him as a career offender, pursuant to U.S.S.G. § 4B1.1. With the application of the career offender enhancement, Adams had a Category VI criminal history and a total offense level of 29, making his Guidelines range 151-188 months' imprisonment.

Adams objected to the application of the career offender enhancement. In support, he argued that his five prior robbery convictions were related cases as they were not separated by an intervening arrest, the crimes were a part of a common scheme or plan, and the offenses all occurred within about a four-month time frame. Thus, Adams asserted that his prior robbery convictions should not be counted as separate crimes of violence for purposes of § 4B1.1. At Adams's sentencing, the district court overruled Adams's objections and applied the career offender enhancement, sentencing Adams to 188 months' imprisonment on each of the 11 robbery counts, to be served concurrently.

II. Discussion

We review the district court's interpretation and application of the Sentencing Guidelines de novo and its findings of fact for clear error. United States v. Lynch, 477 F.3d 993, 996 (8th Cir.2007). In overruling Adams's objection to his career offender status, the district court determined that the prior robberies were not related. The court noted that Adams's prior crimes did not occur on the same occasion nor were they consolidated for trial or sentencing. The court specifically stated that the prior felonies "were five separate offenses occurring on five separate dates with five separate victims. They all retained their individual case number." The district court also found that the five prior robberies were not part of a common scheme or plan. We review these determinations of the district court as findings of fact and reverse only if clearly erroneous. United States v. McCracken, 487 F.3d 1125, 1127 (8th Cir. 2007).

Under § 4B1.1 of the Guidelines, persons who are convicted of a crime of violence or a controlled substance offense, who have at least two prior felony convictions for either crimes of violence or controlled substance offenses, are to be sentenced as "career offenders."³ U.S.S.G § 4B1.1. Section 4B1.2(c) of the Guidelines states:

The term `two prior felony convictions' means (1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (i.e., two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense), and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of § 4A1.1(a), (b), or (c).

Id. at § 4B1.2(c).

"Prior sentences imposed in `related cases' are to be treated as one sentence for purposes of § 4A 1.1(a), (b), and (c)," while prior sentences imposed in unrelated cases are to be counted separately. Id. at § 4A1.2(a)(2) (2006).⁴ The Guidelines commentary elaborates that where offenses were not separated by an intervening arrest, they are "considered related if they resulted 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." Id. at § 4A1.2, cmt. n. 3.

Reviewing the record in this case, we find no error in the district court's imposition of the career offender enhancement. First, examining Adams's previous robbery convictions, we note that the five offenses occurred over a nearly five month span, with no two of the offenses occurring closer than five days apart. Thus, all five of the previous offenses occurred on different occasions. See Lynch, 477 F.3d at 997 (finding that a defendant's prior violent crimes, committed one day apart, did not occur on the same occasion).

Second, we agree with the district court that Adams's prior robberies were not part of a common scheme or plan. "In assessing whether the offenses were part of a single common scheme or plan, we consider (1) the time period, (2) the participants, (3) the victims, (4) the motive, (5) the modus operandi, (6) the location, (7) the offenses, (8) whether a common investigation uncovered the offenses and (9) whether the defendant jointly planned the offenses." Id. at 996. Here, the five prior robberies occurred over a period of four to five months, with each robbery involving different victims, and each occurring at a different location. See United States v. Mills, 375 F.3d 689, 693 (8th Cir.2004) (finding that a defendant's three prior burglaries, committed over a six-month period and involving a similar modus operandi, were not related as the crimes were committed in different locations, against different victims, and were not all planned at the same time); Lynch, 477 F.3d at 997 ("a single common scheme or plan involves something more than simply a repeated pattern of conduct"). Further, the record does not show that Adams planned the five robberies all at once, rather it appears that Adams simply committed the robberies as his need for money demanded. See McCracken, 487 F.3d at 1127 ("A `common scheme or plan' implies that the crimes were jointly planned, or at least that the offender intended that the...