U.S. v. Hobbs

• Decision Date: 18 February 1998
• Docket Number: Nos. 97-4393,97-4440,s. 97-4393
• Citation: 136 F.3d 384
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Joseph Randall HOBBS, Jr., Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Joseph Randall HOBBS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 384

136 F.3d 384

UNITED STATES of America, Plaintiff-Appellant, v. Joseph Randall HOBBS, Jr., Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Randall HOBBS, Jr., Defendant-Appellant.

Nos. 97-4393, 97-4440.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 5, 1997.

Decided Feb. 18, 1998.

ARGUED: Steven Randall Ramseyer, Asst. U.S. Atty. Roanoke, VA, for Appellant. Nancy C. Dickenson, Lebanon, VA, for Appellee. ON BRIEF: Robert P. Crouch, Jr., U.S. Atty., Roanoke, VA, for Appellant.

Before WILKINSON, Chief Judge, ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation, and MERHIGE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed in part, reversed in part, and vacated and remanded in part by published opinion. Judge ELLIS wrote the opinion, in which Chief Judge WILKINSON and Senior Judge MERHIGE joined.

OPINION

ELLIS, District Judge:

A jury convicted Joseph Randall Hobbs of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court declined to apply the enhanced sentencing provision of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), because it determined that Hobbs's three prior burglaries were not offenses "committed on occasions different from one another." 18 U.S.C. § 924(e)(1). The government appeals this ruling. In his cross-appeal, Hobbs argues that there was insufficient evidence to support the § 922(g)(1) conviction because, according to him, the only inculpatory evidence came from an uncharged accomplice. For the reasons that follow, we affirm the conviction, but remand for sentencing under the ACCA.

I

On October 6, 1994, Hobbs entered the B & W Market in Washington County, Virginia, picked up a carton of Marlboro cigarettes, and walked to the cashier, where he brandished a handgun and demanded all the money in the register. Before the cashier could comply, Hobbs reached into the register, grabbed the money, and fled the store with the cash and the cigarettes. Waiting in a car outside the B & W Market was Greely Ball, who had driven Hobbs to the market in Hobbs's car. Once Hobbs emerged from the store, he and Ball drove to the home of Hobbs's daughter, Marlena Hobbs. On arrival there, Hobbs took a .22 caliber rifle out of his car and hid it under his daughter's bed because, according to Ball, Hobbs "wanted to get[the rifle] out of his car." Hobbs then left his car at his daughter's and had her drive him and Ball to Ball's trailer. From there Ball and Hobbs proceeded to drive to South Carolina in Ball's car. Hobbs took with him the handgun he had used in the robbery of the B & W Market. This handgun was never recovered.

The police subsequently located Hobbs's car in front of Marlena Hobbs's apartment and found several .22 caliber shells in the car. They also obtained Marlena Hobbs's consent to search her apartment and found inside a stack of one-dollar bills, a carton of Marlboro cigarettes, and a .22 caliber rifle under the bed. Marlena Hobbs testified that she had never had a rifle in her bedroom prior to her father's arrival at her apartment.

On August 14, 1996, a grand jury returned a superseding indictment that included two counts, both alleging violations of 18 U.S.C. §§ 922(g)(1) and 924(e). ¹ Count I charged Hobbs with possession of a .22 caliber Winchester semi-automatic rifle, and Count II charged him with possession of the unrecovered handgun used in the October 6, 1994 robbery of the B & W Market. A jury returned a verdict of guilty as to the rifle, and not guilty as to the handgun.

At sentencing, the government noted that Hobbs had been convicted of four prior burglaries. To substantiate this, the government introduced copies of four indictments from Washington County, Virginia. The indictments charged Hobbs with the burglaries of (i) Mongle's Grocery in Greendale, Virginia, on September 12, 1976; (ii) McCroskey's Grocery in Benhams, Virginia, on September 13, 1976; (iii) Vernon Barker's Grocery in Benhams, Virginia, on September 14, 1976; and (iv) Star Market in Damascus, Virginia, on September 19, 1976. The government offered no other evidence to support its contention that these were the dates on which the burglaries occurred. Hobbs disputed the dates, testifying instead at sentencing that the first three burglaries all occurred within one hour of each other on a Sunday, while church services were being held. ²

Based on Hobbs's four prior convictions, the Presentence Investigation Report included a recommendation that Hobbs be classified as a career criminal under the ACCA, which provides that any person who has been convicted of three separate violent felonies is subject to a fifteen-year minimum sentence. See 18 U.S.C. § 924(e). Accordingly, the government argued that Hobbs should receive the enhanced sentence prescribed by that statute. The district court, however, credited Hobbs's testimony to the effect that the burglaries of Mongle's, McCroskey's, and Barker's all occurred within one hour of each other, and hence found that these three burglaries should be deemed a single offense for sentencing purposes. Therefore, the district court concluded that Hobbs had not been convicted of three separate felonies, and thus it declined to sentence him under the ACCA. Instead, the district court imposed a sentence of sixty-three months, to run concurrently with the state sentence for armed robbery imposed for the 1994 robbery of the B & W Market. ³

II

The ACCA provides that a defendant convicted of a weapons offense under § 922(g) shall receive a minimum fifteen-year sentence if the defendant "has three previous convictions by any court ... 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) (emphasis added). ⁴ The district court, based on its factual finding that the three burglaries occurred within the space of an hour, ⁵ reached the legal conclusion that the three offenses did not occur "on occasions different from one another." ⁶ We review this legal conclusion de novo. See United States v. Letterlough, 63 F.3d 332, 334 (4th Cir.1995).

The central issue in this case is whether Hobbs's three prior burglary convictions were part of a single, continuous criminal episode, or instead whether they were offenses "committed on occasions different from one another." Resolution of this question is controlled by Letterlough, in which we announced the proper analysis for addressing such questions under § 924(e). In doing so, we adopted the test that is now applied in every circuit. ⁷ Convictions will be considered as having occurred on occasions different from one another under the ACCA if each "arose out of a separate and distinct criminal episode." Letterlough, 63 F.3d at 335 (emphasis and internal quotation marks omitted). In other words, the predicate ACCA offenses must be those "that can be isolated with a beginning and an end." Id. In engaging in this separate-and-distinct analysis, sentencing courts consider (i) whether the offenses occurred in different geographic locations; (ii) whether the offenses were substantively different; and (iii) "whether the offenses involved multiple victims or multiple criminal objectives." See id. at 335-36 (footnotes omitted). These factors may be considered together or independently, and "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. In other words, it does not matter for sentencing purposes if the several crimes are part of a larger criminal venture, as long as each constitutes, by itself, a "complete and final transaction." See id. at 337.

Worth noting here is that there is a difference between (i) the Letterlough analysis for determining whether prior offenses were committed "on occasions different from one another" for purposes of the ACCA, and (ii) the analysis for determining whether prior offenses were "related" as part of a "common scheme or plan" for purposes of applying the career-offender provision of the Sentencing Guidelines, see U.S.S.G. § 4B1.1 (defendant is career offender if he has two prior felony convictions); § 4B1.2 (felony convictions are counted as provided in § 4A1.1); § 4A1.1 commentary (criminal history computation is governed by definitions in § 4A1.2); § 4A1.2 application note 3 (crimes that are part of a "common scheme or plan" are considered related, and thus constitute, together, only one "conviction" for purposes of the defendant's career-offender status). Prior offenses can be "related" under § 4A1.2 and yet occur on different occasions such that a defendant would not be subject to the enhanced sentence of the ACCA even though he would fall under § 4B1.1. Indeed, the Guidelines provide three routes for determining whether prior sentences should be considered related, two of which do not require that the offenses have occurred on the same occasion. In this regard, convictions will be considered related (i) if the underlying offenses were part of a common scheme or plan, (ii) if they were consolidated for trial or sentencing, or (iii) if the offenses "occurred on the same occasion." See U.S.S.G. § 4A1.2 application note 3. Whether the language of this last criterion and the almost identical factor in the ACCA addressing "occasions different from one another" should be given the same interpretation is a question neither presented nor reached here. What is clear, however, is that the category of cases in which the prior offenses will be considered "related" under the Guidelines is broader than the category of cases in which the prior offenses will be deemed to have occurred on the same occasion for purposes of the ACCA. It thus stands to reason that the test for the application vel non of an...