U.S. v. Hudspeth, No. 93-1352

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before POSNER; COFFEY; BAUER; FLAUM, Circuit Judge, with whom POSNER, Chief Judge, and ROVNER; RIPPLE, Circuit Judge, with whom POSNER, Chief Judge, and FAIRCHILD, FLAUM, and ROVNER
• Citation: 42 F.3d 1015
• Docket Number: No. 93-1352
• Decision Date: 28 October 1994
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas L. HUDSPETH, Defendant-Appellant.

Page 1015

42 F.3d 1015 63 USLW 2351 UNITED STATES of America, Plaintiff-Appellee,
v.
Thomas L. HUDSPETH, Defendant-Appellant. No. 93-1352. United States Court of Appeals,
Seventh Circuit. Argued En Banc June 10, 1994.
Decided Oct. 28, 1994. ^*

Page 1017

Byron G. Cudmore, Asst. U.S. Atty., Rodger Heaton (argued), Office of the United States Attorney, Springfield, IL, for plaintiff-appellee.

Samuel J. Cahnman, Springfield, IL, (argued), for defendant-appellant.

Before POSNER, Chief Judge, FAIRCHILD, ^** CUMMINGS, BAUER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE and ROVNER, Circuit Judges. ^***

Page 1018

COFFEY, Circuit Judge.

Thomas L. Hudspeth pled guilty to one count of unlawful possession of a firearm by a convicted felon. See 18 U.S.C. Sec. 922(g)(1). The sentencing judge found that Hudspeth qualified for an enhancement of his sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. Sec. 924(e)(1), based on his criminal record. The ACCA mandates a sentence of not less than fifteen years for a defendant with three prior convictions for violent felonies who is subsequently convicted for the unlawful possession of a firearm. The court imposed a fifteen year sentence, which Hudspeth appeals on two grounds: first, that he was improperly sentenced as an "armed career criminal" under the ACCA, and second, that the district court's recalculation of his sentence violated the Double Jeopardy Clause. We affirm.

I.

BACKGROUND

On August 1, 1991, Hudspeth pled guilty to one count of unlawful possession of a firearm by a convicted felon. ¹ Prior to Hudspeth's plea, the government advised him that it intended to seek the minimum fifteen year sentence enhancement ² authorized by the ACCA, 18 U.S.C. Sec. 924(e)(1), which states:

"In the case of a person who violates section 922(g) of this title and 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, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years."

Hudspeth had three prior burglary convictions for crimes committed in Sangamon County, Illinois. The district court reviewed the police reports from Hudspeth's three prior burglaries, ³ which described the following facts concerning Hudspeth's 1983 state burglary convictions. ⁴ On March 27, 1983, at about 7:15 p.m., Hudspeth and two others were observed at the Laketown Shopping Center, a strip mall in Springfield, Illinois. Hudspeth was carrying a large canvas bag, which was later discovered to contain a sledge hammer, pry bars, chisels, a screwdriver, a pipe wrench, two police scanners, and a CB radio. In approximately thirty-five minutes, the three men broke into and ransacked a doughnut shop, a dry cleaners, and

Page 1019

an insurance company. The burglars were apprehended during their attempt to enter a fourth business. ⁵

The district court found that Hudspeth's three 1983 convictions for burglary were three "separate crimes against separate victims in separate locations." Thus the court concluded that Hudspeth's burglaries were crimes "committed on occasions different from one another" and thus qualified Hudspeth for the minimum fifteen year sentence enhancement set by Sec. 924(e)(1).

II.

DISCUSSION

A. Sentence Enhancement Under the Armed Career Criminal Act

1. Crimes "Committed on Occasions Different From One Another"

Under the ACCA, a thrice convicted felon, who is subsequently convicted for the unlawful possession of a firearm, is subject to a mandatory sentence of not less than fifteen years provided that the three prior convictions resulted from acts "committed on occasions different from one another...." 18 U.S.C. Sec. 924(e)(1). ⁶ This Circuit and other Circuits have had numerous opportunities to interpret the phrase "committed on occasions different from one another " in situations like the present case where several crimes were committed in rapid succession. This Circuit has joined nine other Circuits, including the First, Second, Third, Fifth, Sixth, Eighth, Ninth, Tenth and Eleventh, in holding that a defendant is subject to the sentence enhancement if each of the prior convictions arose out of a "separate and distinct criminal episode." United States v. Schieman, 894 F.2d 909, 911 (7th Cir.), cert. denied, 498 U.S. 856, 111 S.Ct. 155, 112 L.Ed.2d 121 (1990) (emphasis added); see United States v. Pedigo, 879 F.2d 1315 (6th Cir.1989); United States v. Towne, 870 F.2d 880 (2d Cir.), cert. denied, 490 U.S. 1101, 109 S.Ct. 2456, 104 L.Ed.2d 1010 (1989); United States v. Schoolcraft, 879 F.2d 64, 74 (3d Cir.), cert. denied, 493 U.S. 995, 110 S.Ct. 546, 107 L.Ed.2d 543 (1989); United States v. Herbert, 860 F.2d 620 (5th Cir.1988), cert. denied, 490 U.S. 1070, 109 S.Ct. 2074, 104 L.Ed.2d 639 (1989); United States v. Gillies, 851 F.2d 492 (1st Cir.), cert. denied, 488 U.S. 857, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988); United States v. Rush, 840 F.2d 580 (8th Cir.1988); United States v. Antonie, 953 F.2d 496, 498-99 (9th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 138, 121 L.Ed.2d 91 (1992); United States v. Green, 967 F.2d 459, 462 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 435, 121 L.Ed.2d 355 (1992); United States v. Greene, 810 F.2d 999 (11th Cir.1986).

This Circuit, when considering whether multiple convictions arose out of "separate and distinct criminal episodes," has consistently looked to the nature of the crimes, the identities of the victims, and the locations. In Schieman, the defendant committed a burglary; three blocks away and ten minutes later he attacked and injured a police officer. Schieman, 894 F.2d at 913. Judge Bauer, writing for the court, ruled that Schieman's actions constituted two separate "occasions" under the ACCA because he " 'committed separate crimes against separate victims 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 victim

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to his apartment where an accomplice kept watch over her. The defendant then drove the victim's car to a convenience store where he committed the robbery at 10:00 p.m. He was arrested on the way back to his apartment. Id. at 472. In Godinez we held that even though the defendant admitted that he kidnapped the woman in order to use her car in the robbery, the kidnapping and robbery were two separate criminal aggressions against separate victims. Id. at 472-73.

In Godinez, we distinguished Schieman from Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), in which the defendant (Ashe) committed multiple offenses on a single occasion (in the same location and at the same time) by "robb[ing] six players at a poker game, committing at least six [simultaneous] crimes with the same [command of] 'stick 'em up'." Godinez, 998 F.2d at 472. Judge Easterbrook explained that

"[o]rdering 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.... 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."

Id. (emphasis added) (citations omitted). Godinez concluded that "the question is not whether one crime overlaps another but whether the crimes reflect distinct aggressions." Id. at 473 (emphasis added); see also United States v. Washington, 898 F.2d 439, 441-42 (5th Cir.), cert. denied, 498 U.S. 842, 111 S.Ct. 122, 112 L.Ed.2d 91 (1990) (successive robberies of the same store clerk at the same convenience store by the same defendant within two hours held to be separate criminal episodes); Antonie, 953 F.2d at 499 (two armed robberies committed on the same evening approximately forty minutes apart held to be two separate predicate offenses).

In United States v. Tisdale, 921 F.2d 1095 (10th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 596, 116 L.Ed.2d 619 (1991), a case factually indistinguishable from the one before us, the Tenth Circuit held that a burglar who broke into three stores in a mall had committed the crimes on three separate "occasions" under the ACCA:

"After the defendant 'successfully completed' burglarizing one business, he was free to leave. The fact that he chose, instead, to burglarize another business is evidence of his intent to engage in a separate criminal episode. Moreover, unlike [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], on remand, 828 F.2d 2 (8th Cir.1987) ], the defendant's burglaries did not occur at the same location. The record shows that although defendant entered one shopping mall he had to physically break [into] and enter three separate structures. The fact each incident occurred inside one enclosed structure does not alter our conclusion that the crimes were committed at different locations. Thus we find that the trial court properly enhanced the defendant's penalty under Sec. 924(e)(1)."

Id. at 1099 (emphasis added).

Cases interpreting the ACCA clearly uphold the minimum fifteen-year sentence enhancement for criminals who commit separate crimes against different individuals while on a spree, within a short period of time, provided that the perpetrator had the opportunity to cease and desist from his criminal actions at any time. For instance, in United States v. Brady, 988 F.2d 664, 668-669 (6th Cir.) (en banc), cert. denied, --- U.S. ----,...