U.S. v. Brady

• Decision Date: 22 March 1993
• Docket Number: No. 91-1350,91-1350
• Citation: 988 F.2d 664
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael James BRADY, Defendant-Appellant. . Re
• Court: U.S. Court of Appeals — Sixth Circuit

Page 664

988 F.2d 664

UNITED STATES of America, Plaintiff-Appellee, v. Michael James BRADY, Defendant-Appellant.

No. 91-1350.

United States Court of Appeals Sixth Circuit.

Reargued Dec. 9, 1992.

Decided March 22, 1993.

Ross Parker (argued and briefed), Office of the U.S. Attorney, Detroit, MI, Eric M. Straus, Asst. U.S. Atty., U.S. Department oF justice, detroiT, Mi, for plaintiff-appellee.

Jill L. Price (argued and briefed), Jill L. Price, Detroit, MI, for defendant-appellant.

Before MERRITT, Chief Judge; KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, Circuit Judges; and LIVELY, Senior Circuit Judge.

MILBURN, Circuit Judge.

We granted rehearing en banc in this criminal case, thereby vacating the prior decision of a panel of our court, in order to consider the question of whether two armed robberies of different victims at different locations committed approximately thirty minutes apart were "committed on occasions different from one another" within the meaning of the Armed Career Criminal Act ("Act"), 18 U.S.C. § 924(e)(1). ¹ For the reasons that follow, we hold that the robberies in question were committed on different occasions and were separate and distinct criminal episodes. We therefore affirm the judgment of the district court.

I.

The underlying facts are not in dispute and are taken largely from the panel's vacated decision.

On October 31, 1988, Kimberly Thurman reported a rape to the Detroit, Michigan, Police Department, describing the perpetrator and the .22 caliber revolver he was carrying. Later that day, two officers patrolling the area of the alleged assault observed a man who met the description given by Thurman and who was later identified as Michael Brady. As they approached Brady, they saw him take a dark object out of his pocket and toss it away. One officer detained Brady while the other searched the area for the discarded item. The officer's search located a .22 caliber, blue steel revolver, the very type of weapon described in the rape report by Ms. Thurman.

The officers arrested Brady, and he was indicted in state court on charges of sexual assault. The state, however, was unable to prosecute Brady because the complainant did not appear. Federal authorities were then contacted about prosecuting Brady under 18 U.S.C. § 922(g) (1988), which prohibits a convicted felon from possessing a firearm. On February 8, 1989, a grand jury in the Eastern District of Michigan indicted Brady for violating 18 U.S.C. § 922(g).

Brady pled not guilty, and his case proceeded to trial on May 3, 1989. The next day, a jury found him guilty of the charge. On June 1, 1989, upon the government's motion, the district court held a hearing to determine whether Brady should be considered an armed career criminal under 18 U.S.C. § 924(e)(1). ² Section 924(e)(1) increases the penalty for any person who violates § 922(g) and has three previous convictions of violent felonies or drug offenses. Finding that Brady was in this category, the district court sentenced him to 50 years imprisonment.

In a previous appeal, Brady challenged this sentence on the ground that the district court had taken a thirty-five-year upward departure from the fifteen-year maximum statutory enhancement under the erroneous belief that it had sentenced him within the applicable sentencing guideline range. Because the guidelines applicable at that time did not provide a range for the Armed Career Criminal enhancement, the government argued that the court was required by § 2X5.1 of the United States Sentencing Guidelines to apply the most analogous offense guideline. The most analogous offense guideline was § 4B1.1's career offender status. Under this section, the upper limit of Brady's sentencing range would be life imprisonment, in which case the district court's fifty-year sentence would not have been improper. However, this court remanded for the district court to clarify whether the government's argument represented the court's reasoning in imposing the sentence and also to permit Brady to have the chance to argue the issue below, as the record did not reflect that he had been given that opportunity initially. United States v. Brady, 914 F.2d 258 (6th Cir.1990) (unpublished per curiam).

Upon remand, Brady argued that the Act no longer applied to him because the requisite three prior convictions no longer existed. Brady argued that, of the four convictions relied upon by the government, one had been vacated, and two of the remaining convictions counted as one crime for purposes of the Act. Brady based the latter claim on the fact that the two convictions were for two robberies that had occurred on the same night, December 22, 1976, within thirty minutes of each other, and with the same weapon. Brady insisted that because the two crimes and convictions arise from such closely related conduct, they should be counted as only one conviction for sentence-enhancement purposes.

In support of its request that defendant be adjudged an armed career criminal, the government proved three previous convictions for violent felonies, the latter two of which were for armed robberies committed on the night of December 22, 1976. The first armed robbery occurred at approximately 9:30 p.m. at the Mack Avenue Beauty Shop, where Brady, brandishing a sawed-off shotgun and accompanied by a female accomplice, robbed several women. Approximately thirty minutes later, Brady and the same accomplice entered the Club Continental Bar and ordered drinks. About fifteen minutes later, Brady drew his sawed-off shotgun, robbed the patrons of the bar, and shot a female patron in the leg.

The district court agreed that the Act applied to Brady but imposed only the fifteen years required by statute. This appeal followed.

II.

Defendant Brady presents a legal question concerning the interpretation of a statute, a matter we review de novo. See United States v. Brown, 915 F.2d 219, 223 (6th Cir.1990); United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988).

A.

Defendant Brady initially argues that, by virtue of its legislative history, there is implicit in 18 U.S.C. § 924(e)(1) a requirement that a defendant must be convicted of one qualifying crime before he commits the next qualifying crime in order for the second conviction to be counted against him for purposes of the Armed Career Criminal Act. He contends that crimes that do not follow convictions, but instead follow only other crimes, cannot be counted as predicate offenses for the purposes of the Act. Stated another way, Brady argues that the statute is aimed at "three time losers," as distinguished from the perpetrators of three violent felonies, and that the "loser" term implies that the defendant must have lost a case by court conviction before his next crime can be counted as a predicate under the statute. Thus, Brady insists that only qualifying crimes next preceded by a conviction for some other qualifying crime may be counted as predicates under the Act.

The origin of this view is United States v. Balascsak, 873 F.2d 673 (3d Cir.1989) (en banc), a case in which the Third Circuit split evenly on the question, six members of the court holding that 18 U.S.C.App. § 1202(a), ³ a forerunner of 18 U.S.C § 924(e)(1), was ambiguous and that its legislative history required the conclusion that a conviction for a qualifying crime must precede the next offense in the series if the conviction for the subsequent offense was to be considered a predicate for the purposes of § 1202(a). Five dissenters and one separately concurring judge took the position that the statute was not ambiguous and that an objective reading of the statute compelled the opposite conclusion, i.e., that any three convictions for qualifying crimes, regardless of the order in which the offenses and their ensuing convictions occurred, could serve as predicates for the purposes of § 1202(a).

The matter was resolved by the Third Circuit in United States v. Schoolcraft, 879 F.2d 64 (3d Cir.) (per curiam), cert. denied, 493 U.S. 995, 110 S.Ct. 546, 107 L.Ed.2d 543 (1989), decided only two months after Balascsak. In Schoolcraft, a three-judge panel acknowledged the even split between the judges in Balascsak and, siding with the dissent, held that the statute was not ambiguous, that resort to its legislative history was not appropriate, and that "the statute does not require that the three predicate offenses be separated by intervening convictions." Id. at 73-74. The Third Circuit denied rehearing and rehearing en banc on July 18, 1989, and thus allowed Schoolcraft to tip the evenly balanced scales of Balascsak against the defendant's argument.

In addition to the Third Circuit, every other circuit, including this circuit, which has considered the issue, viz., the First through the Eleventh, has rejected defendant Brady's argument. United States v. Anderson, 921 F.2d 335, 339-40 (1st Cir.1990) (statute not ambiguous and does not "require that a defendant ... be convicted of one crime before committing the crime underlying a subsequent conviction"); United States v. Mitchell, 932 F.2d 1027, 1028 (2d Cir.1991) (per curiam) (statute not ambiguous and "does not require that a defendant's three criminal acts be punctuated by intervening convictions"); United States v. Mason, 954 F.2d 219, 221-22 (4th Cir.) (holding § 924(e)(1) not ambiguous and that "the statute does not require a conviction for one predicate crime before the next predicate crime is committed"), cert. denied, --- U.S. ----, 112 S.Ct. 1979, 118 L.Ed.2d 578 (1992); United States v. Herbert, 860 F.2d 620, 622 (5th Cir.1988) (rejecting the argument that "three chronological successive convictions with intervening criminal episodes" are required), cert. denied, 490 U.S. 1070, 109 S.Ct. 2074, 104 L.Ed.2d 639 (1989); United States v. Hayes, 951 F.2d 707, 709 (6th Cir.1991) ("The statute, however, imposes no...