U.S. v. Richardson, 99-12328

• Citation: 230 F.3d 1297
• Decision Date: 17 October 2000
• Docket Number: No. 99-12328,99-12328
• Parties: (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee, v. Anthony James RICHARDSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1297

230 F.3d 1297 (11th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellee, v. Anthony James RICHARDSON, Defendant-Appellant.

No. 99-12328.

United States Court of Appeals, Eleventh Circuit.

October 17, 2000.

October 30, 2000

Appeal from the United States District Court for the Southern District of Alabama. (No. 96-00224-CR-1), Charles R. Butler, Jr., Chief Judge.

Before COX, BLACK and FAY, Circuit Judges.

PER CURIAM:

Anthony James Richardson appeals his 180-month sentence for possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g). He argues that he was improperly sentenced as an armed career criminal under 18 U.S.C. 924(e)(1) and U.S.S.G. 4B1.4. For the reasons stated below, we affirm the district court's sentence.

Richardson possessed a firearm as a felon on December 31, 1995. On January 29, 1997, he pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g). On April 29, 1997, the district court concluded that he qualified as an armed career criminal and enhanced his sentence pursuant to 18 U.S.C. 924(e)(1). Richardson appealed. This Court vacated the sentence and remanded for re-sentencing because the district court erroneously relied upon a conviction obtained after Richardson's violation of 922(g) to conclude that he qualified as an armed career criminal. See United States v. Richardson, 166 F.3d 1360, 1361-62 (11th Cir.1999). On remand, the district court again concluded that Richardson qualified as an armed career criminal and enhanced his sentence accordingly, but this time relied upon two 1990 burglary convictions, which were listed as two counts, in the Clarke County, Alabama, Circuit Court. Richardson appeals.

To qualify as an armed career criminal pursuant to 18 U.S.C. 924(e)(1), the defendant must violate 922(g) and have "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). Richardson argues that the court erred in concluding that the Clarke County burglary convictions constitute crimes committed on occasions different from one another and that the court erred in considering evidence relevant to these convictions beyond the indictments and judgments of conviction.¹

We review for clear error a district court's factual findings and review de novo the district court's application of law to those facts. United States v. Cover, 199 F.3d 1270, 1274 (11th Cir.2000). Whether two crimes constitute a single criminal episode or two separate felonies for purposes of 924(e) is an issue of law, which we review de novo. See United States v. Lee, 208 F.3d 1306, 1307 (11th Cir.2000).

"[Section 924(e) ] does not require separate indictments; the final conviction under section 922(g) must merely be preceded by three convictions for crimes that are temporally distinct." United States v. Howard, 918 F.2d 1529, 1538 (11th Cir.1990). In Lee, the Court recently reiterated that " 'so long as predicate crimes are successive rather than simultaneous, they constitute separate criminal episodes for purposes of' " 924(e)(1). 208 F.3d at 1307 (quoting United States v. Pope, 132 F.3d 684, 692 (11th Cir.1998)). The Court stated that "by 'successive,' the Pope panel meant that the crimes were separated by 'a meaningful opportunity to desist ... activity before committing the second offense,' and that the crimes reflected 'distinct aggressions, especially if the defendant committed the crimes in different places.' " Id. Moreover, the Court explained that the crimes may represent one course of criminal conduct but still be considered separate crimes where one crime was completed successfully and then the second "crime was committed in a completely different venue." Id. at 1308.

Richardson concedes that the Clarke County indictments and judgments alone indicate that either he or one of his accomplices burglarized Martin Searcy's building and either Richardson or one of his accomplices burglarized Barry Wiseman's building. He contends, however, that the indictments and judgments do not indicate whether the burglaries occurred simultaneously or successively. As Richardson could not have been in Searcy's building and Wiseman's building simultaneously, he burglarized the buildings successively or while he was burglarizing one, an accomplice was burglarizing the other, or his accomplices burglarized both buildings. If he burglarized the buildings successively, then the crimes are on different occasions and distinct criminal episodes. On the other hand, if he burglarized one while his accomplices burglarized the other or his accomplices burglarized both simultaneously, then the answer is less clear. For example, if Richardson drove his accomplices to the buildings, instructed them to burglarize the buildings and the accomplices complied, the crimes would be simultaneous and temporally indistinct. Thus, the indictments and judgments alone do not indicate whether the crimes were committed on occasions different from one another.

The district court went further, however, and examined records beyond the judgment and indictment. The district court concluded that the burglaries were separate offenses based on police reports and arrest records related to the Clarke County burglaries submitted by the Government. Richardson argues that Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), precludes consideration of these documents. In Taylor, the Supreme Court first concluded that "a person has been convicted of burglary for purposes of a 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id. at 599, 110 S.Ct. at 2158. Next, the Supreme Court held that " 924(e) mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions" to determine if the conviction is such a burglary. Id. at 600, 110 S.Ct. at 2159. In other words, "the only plausible interpretation of 924(e)(2)(B)(ii) is that, like the rest of the enhancement statute, it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense." Id. at 602, 110 S.Ct. at 2160. Such a categorical approach applies, the Court reasoned, because "Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories and not to the facts underlying the prior convictions." Id. at 600, 110 S.Ct. at 2159.² The Court also expressed concerns about the "practical difficulties and potential unfairness of a factual approach," in particular, the problems of attempting to prove through trial transcripts or witnesses, conduct alleged to be a burglary. Id. at 601, 110 S.Ct. at 2159.

In contrast, determining whether crimes were committed on occasions different from one another requires looking at the facts underlying the prior convictions. See e.g., United States v. Sweeting, 933 F.2d 962, 967 (11th Cir.1991)("The underlying incident for Sweeting's prior conviction was the burglarizing of one home, fleeing to another home when the police approached, and hiding in a closet to escape detection by the police. We agree with appellant that this should count as only one conviction for purposes of sentencing, as it constitutes a single episode even though there were separate punishable acts."); Pope, 132 F.3d at 692 ("Because Pope had completed his first burglary when he made the decision to commit the second burglary by breaking into another office 200 yards away, the two crimes were committed on 'occasions different from one another.' "); Lee, 208 F.3d at 1308 ("Lee here successfully completed his first crime. He got away. Only after he was...