U.S. v. Belton, 89-1649

• Decision Date: 20 November 1989
• Docket Number: No. 89-1649,89-1649
• Citation: 890 F.2d 9
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Bruce BELTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 9

890 F.2d 9

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Bruce BELTON, Defendant-Appellant.

No. 89-1649.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 20, 1989.

Decided Nov. 20, 1989.

R. Jeffrey Wagner, Asst. U.S. Atty., Office of the U.S. Atty., Milwaukee, Wis., Stephen J. Liccione, for plaintiff-appellee.

Peter O. Bockhorst, Bockhorst & Bockhorst, Milwaukee, Wis., on appeal, Roosevelt Thomas, Martin & Thomas, Chicago, Ill., at trial, for defendant-appellant.

Before WOOD, Jr., POSNER, and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

A jury convicted the defendant of conspiracy to possess more than five kilograms of cocaine, intending to distribute it in the Milwaukee area, and the judge sentenced him to thirty years in prison as a "career offender." The appeal is from the sentence and raises a novel interpretive question under the sentencing guidelines.

So far as is relevant to this case, a "career offender" is a convicted defendant who "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." Sec. 4B1.1. The guidelines define "two prior convictions" to mean that "(A) the defendant committed the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense ... and (B) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of Part A" of Chapter 4 of the guidelines. Sec. 4B1.2(3). There is no doubt that Belton had one prior conviction, so defined; the question is whether he had a second.

The conspiracy that forms the basis for his current conviction was alleged to have lasted from November 1, 1987, to September 13, 1988. On November 12, 1987--which is to say a few days after the conspiracy is alleged to have begun--Belton was arrested in a California airport on a charge of possessing cocaine, which had been found in his luggage on his arrival. On July 29, 1988--well before the conspiracy is alleged to have ended--a California state court convicted him on this charge of possession. Doubt whether this was a "prior conviction" within the meaning of the guidelines arises from the fact that although the conviction preceded his current conviction, it punished conduct that took place after the offense underlying the current conviction (the Milwaukee conspiracy) had begun and that indeed was part of that offense. California was where Belton got the cocaine that he sold in Milwaukee. When arrested at the airport he had just returned from Milwaukee with a load of cocaine that he had been unable to sell.

Nothing in the guidelines' definition of a career offender requires, however, that every act constitutive of the offense underlying his current conviction have been committed after the prior conviction, and we can think of no reason for such a requirement. A career criminal is incorrigible, undeterrable, recidivating, unresponsive to the "specific deterrence" of having been previously convicted--and that is a good description of a man who continues trafficking in narcotics after having been arrested and convicted of a similar crime. If Belton had joined the conspiracy to sell cocaine in Milwaukee after his conviction in California, he would have no argument at all, yet it can hardly be thought that by entering the conspiracy earlier rather than later he showed himself to be less incorrigible, more deterrable, less likely to commit further crimes upon release from prison. The guidelines should not be interpreted to give criminals an incentive to enter conspiracies at the earliest possible opportunity.

It is true that if the conduct giving rise to...