U.S. v. Godinez

Citation998 F.2d 471
Decision Date02 July 1993
Docket NumberNo. 91-3243,91-3243
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ricardo A. GODINEZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Patrick J. Chesley, Asst. U.S. Atty., Springfield, IL (argued), for plaintiff-appellee.

Daniel G. O'Day (argued), Timothy J. Cusack, Cusack & Fleming, Peoria, IL, for defendant-appellant.

Before EASTERBROOK, MANION, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Felons may not possess firearms. 18 U.S.C. § 922(g). Persons who have accumulated three convictions for crimes of violence by the time they violate § 922(g) are armed career criminals, subject to severe penalties. 18 U.S.C. § 924(e). United States v. Lowe, 860 F.2d 1370, 1375-81 (7th Cir.1988), holds that § 924(e) enhances the penalty for a violation of § 922(g) and does not create an independent offense; we decline the invitation to reconsider that decision. See also United States v. Henry, 933 F.2d 553, 558 (7th Cir.1991). The only remaining question is whether Ricardo Godinez committed his three prior violent felonies "on occasions different from one another", as § 924(e)(1) requires. Godinez contends that two of his crimes were committed on the same "occasion."

At 8:45 one evening Godinez kidnapped Ethel Randle to commandeer her car for use in a robbery. He took Randle to his apartment in East Peoria, Illinois, where he left her, tied up, under the supervision of an accomplice. At 10:00 that evening Godinez robbed a convenience store in Peoria. On his way back home, Godinez was arrested; the police freed Randle. Godinez insists that the kidnapping and robbery were committed on a single "occasion": he stole Randle's car for use in a robbery and held her captive so that she could not tip off the police. Events that develop according to a single plan, in which one crime is ongoing while the others occur, cannot be multiple "occasions", he submits, no matter how many crimes transpire along the way.

"[O]n occasions different from one another" distinguishes different criminal episodes from the multiple crimes that may occur in a flash. United States v. Schieman, 894 F.2d 909, 911-13 (7th Cir.1990). Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), provides a good example of multiple offenses on a single occasion: Ashe robbed six players at a poker game, committing at least six crimes with the same "stick 'em up." Congress deemed a sequence of robberies worse than one robbery of several people. See United States v. Herbert, 860 F.2d 620, 622 (5th Cir.1988). When one court of appeals treated robberies of several victims at the same time as distinct "occasions" for purposes of a forerunner to § 924(e), the Solicitor General confessed error and the court retreated. See 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 sentence reduced on remand, 828 F.2d 2 (1987). Godinez contends that abduction followed by robbery must be treated the same as robberies of several persons at the same time.

We have held that a different "occasion" means a "separate and distinct criminal episode". Schieman, 894 F.2d at 913. 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. Ibid. 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. Several other courts similarly have concluded that offenses in rapid succession can be separate "occasions". E.g., United States v. Brady, 988 F.2d 664, 668-69 (6th Cir.1993) (in banc) (robberies of different victims 45 minutes apart); United States v. Washington, 898 F.2d 439 (5th Cir.1990) (two robberies of same clerk at a convenience store separated by several hours); United States v. Wickes, 833 F.2d 192 (9th Cir.1987) (burglaries of different places on the same evening).

Schieman observed that the robbery had been completed before the assault on the officer began. Godinez reminds us that a kidnapping does not end until the victim is free; thus one of his crimes was in progress while he committed the second. Kidnapping is treated as a single offense in order to define the unit of prosecution: one kidnapping is a single crime, rather...

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26 cases
  • U.S. v. Hudspeth, 93-1352
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 28, 1994
    ...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 vict......
  • U.S. v. Moody, Criminal Action No. 06-204.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • March 6, 2009
    ...criminal activity" but instead chose to "initiate a new course of action and commit a separate offense"). Compare United States v. Godinez, 998 F.2d 471, 472 (7th Cir.1993) ("Ordering six poker players at the same game to empty their pockets is one criminal episode."); United States v. Pett......
  • United States v. Elliott, 11–2766.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 20, 2012
    ...Entry into each successive business reflected a clear and deliberate choice to commit a “distinct aggression,” [United States v.] Godinez, 998 F.2d [471] at 473 [ (7th Cir.1993) ]. At any given point in time during his crime spree, Hudspeth was free to cease and desist from further criminal......
  • United States v. Perry, 17-3236
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 15, 2018
    ...they ‘reflect distinct aggressions.’ "), vacated in part on other grounds , 551 F.3d 807 (8th Cir. 2008), quoting United States v. Godinez , 998 F.2d 471, 473 (7th Cir. 1993). Having different victims and involving different aggressions can demonstrate that even "substantially simultaneous ......
  • Request a trial to view additional results
1 books & journal articles
  • Stretching venue beyond constitutional recognition.
    • United States
    • Journal of Criminal Law and Criminology Vol. 90 No. 3, March 2000
    • March 22, 2000
    ...130 F.3d 451, 461-62 (D.C. Cir. 1997); United States v. Denny-Shaffer, 2 F.3d 999, 1018-19 (10th Cir. 1993); United States v. Godinez, 998 F.2d 471, 473 (7th Cir. 1993); and United States v. Garcia, 854 F.2d 340, 343-44 (9th Cir. 1988)). (180) See id at 1244. (181) See id. (182) United Stat......

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