U.S. v. Schieman

• Decision Date: 23 April 1990
• Docket Number: No. 89-1782,89-1782
• Citation: 894 F.2d 909
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Thomas SCHIEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 909

894 F.2d 909

UNITED STATES of America, Plaintiff-Appellee, v. David Thomas SCHIEMAN, Defendant-Appellant.

No. 89-1782.

United States Court of Appeals Seventh Circuit.

Argued Sept. 25, 1989.

Decided Jan. 31, 1990.

Rehearing and Rehearing En Banc Denied April 23, 1990.

Timothy M. Morrison (argued), Office of the U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Allan L. Yackey (argued), Rimstidt, Yackey & Ladd, Indianapolis, Ind., for defendant-appellant.

Before BAUER, Chief Judge, RIPPLE, and MANION, Circuit Judges.

BAUER, Chief Judge.

A defendant who is convicted of a violation of 18 U.S.C. Sec. 922(g) and has three previous convictions for a violent felony or serious drug offense or both, committed on occasions different from one another, is subject to the penalty enhancement provisions of the Armed Career Criminal Act (ACCA), 18 U.S.C. Sec. 924(e). Section 924(e) provides that such a person shall be imprisoned for not less than fifteen years. The first issue on appeal is the appropriate standard by which to determine whether the defendant has three previous convictions. The second issue is whether two of David Thomas Schieman's previous felony offenses, a burglary and an aggravated battery which occurred on the same evening, meet this standard. The district court determined that Schieman was subject to Sec. 924(e) sentencing. We affirm.

I.

A federal grand jury sitting in the Southern District of Indiana returned a five count indictment against Schieman. The indictment charged him with being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1) and with being a fugitive in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(2). The indictment also charged him with assault on a federal officer in violation of 18 U.S.C. Sec. 111, possession of an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d), and possession of a firearm with an obliterated serial number in violation of 26 U.S.C. Sec. 5861(h). A superseding indictment was filed later, adding a sixth count, solicitation of a crime of violence in violation of 18 U.S.C. Sec. 373. The government then notified the court and the defendant that it would seek to have Schieman sentenced pursuant to Sec. 924(e).

Thereafter, Schieman and the government entered into a plea agreement. Schieman agreed to plead guilty to counts 3 and 4, charging violations of 18 U.S.C. Secs. 922(g)(1) and (2), and counts 5 and 6, charging violations of 26 U.S.C. Secs. 5861(d) and (h). The government agreed to dismiss the count charging solicitation of a crime of violence. (The government had earlier asked the court to dismiss the count charging assault on a federal officer.) The plea agreement also provided that the government would seek to have Schieman sentenced pursuant to 18 U.S.C. Sec. 924(e).

At the sentencing hearing, the government introduced evidence of four previous convictions in order to satisfy the requirements of Sec. 924(e). The court found that a 1980 conviction for conspiracy to commit escape did not satisfy the "violent felony" requirement, but that a 1980 conviction for bank robbery did. Neither of these determinations are at issue on appeal. The government also introduced evidence of two other convictions for offenses which occurred on May 1, 1974. At approximately 2:00 a.m. on May 1, Schieman broke into Jenny's Cake Fair, located at 1518 S. Main St. in Bloomington, Illinois. He stole money from the cash register and fled the scene. Thereafter, he went to Hicksatomic Gas Station, located at 1201 S. Main St. and used the public telephone to call a taxicab. While making the call, he was observed by Officer Ernest Sandell of the Bloomington Police Department who was investigating the burglary. When Sandell approached to question him, Scheiman knocked Sandell to the ground and escaped on foot. In the phone booth, Sandell found two brown paper sacks containing $30.50, including two rolls of pennies stamped Jenny's Cake Fair. Schieman was subsequently arrested, tried and found guilty of one count of burglary and one count of aggravated battery. At the sentencing hearing, the government contended that these convictions were two separate convictions for violent felonies and that, together with the 1980 conviction for bank robbery, these convictions made Schieman subject to the penalty enhancement provision of Sec. 924(e). The district court agreed and sentenced him to the custody of the Bureau of Prisons for a term of 15 years on counts 3 and 4, to be served concurrently with the term of 36 months on counts 5 and 6. Schieman then brought this appeal. He first argues that the predicate offenses must be the product of "separate and distinct criminal episodes" in order to count towards the three previous convictions required by Sec. 924(e). He next contends that his convictions for burglary and aggravated battery were the product of just one criminal episode and thus that he was improperly sentenced under Sec. 924(e).

II.

In order to be subject to the enhanced penalty provisions of ACCA, a defendant must have three previous convictions for any violent felony or serious drug offense committed on occasions different from one another. 18 U.S.C. Sec. 924(e). ¹ The first issue on appeal is the appropriate standard by which to determine whether the defendant has the three requisite convictions. There are two possibilities. ² Most courts have held that a defendant is subject to the enhanced penalty, regardless of the number of adjudications, as long as each conviction arises out of a separate and distinct criminal episode. See, e.g., United States v. Pedigo, 879 F.2d 1315 (6th Cir.1989), United States v. Towne, 870 F.2d 880 (2nd Cir.1989), United States v. Herbert, 860 F.2d 620 (5th Cir.1988), United States v. Gillies, 851 F.2d 492 (1st Cir.1988), United States v. Rush, 840 F.2d 580 (8th Cir.1988), United States v. Wicks, 833 F.2d 192 (9th Cir.1987), United States v. Greene, 810 F.2d 999 (11th Cir.1986). In adopting this standard, the First Circuit in Herbert stated:

The Supreme Court in Petty, faced with a similar issue, concluded that multiple convictions must be treated as one conviction for Sec. 1202(a) purposes if the convictions arose from a single criminal transaction. The negative implication of this holding is that multiple convictions arising from multiple criminal transactions should be treated as separate convictions, regardless of the number of judicial proceedings involved in the conviction. To hold otherwise would be to create a situation in which the state, by electing to consolidate or not to consolidate charges based on separate transactions, could maneuver a defendant into or out-of the Armed Career Criminal status.

Herbert, 860 F.2d at 622.

The Third Circuit, however, has held that each criminal episode must be adjudicated separately to count towards the three convictions required by the statute. United States v. Balascsak, 873 F.2d 673 (3rd Cir.1989) (en banc). In Balascsak, the district court sentenced the defendant according to Sec. 1202(a) based upon a finding that two burglaries committed one block apart on the night of July 10-11, 1981 (the first occurred at 10:45 p.m., and the second sometime between 11:00 p.m. and 7:00 a.m.) and adjudicated together counted as two convictions. Six members of the en banc court held that the ACCA did not intend that such jointly tried offenses count toward the three predicate offenses. Rather, the statute was aimed at

[Those] people who have demonstrated, by virtue of their definition, that locking them up and letting them go doesn't do any good. They go on again, you lock them up, you let them go, it doesn't do any good, they are back for a third time. At that juncture we should say, 'That's it; time out; it is all over. We, as responsible people, will never give you the opportunity to do this again.'

Id. at 682 (quoting Testimony of Stephen Trott, Assistant Attorney General, Criminal Division, reprinted in Armed Career Criminal Act: Hearing on H.R. 1627 and S. 52 Before the Subcomm. on Crime of the House Comm. on the Judiciary, 98th Cong., 2d Sess. 6, 64 (1984)). To the "separate and distinct criminal episode" test employed by the other circuits, the six judges of the panel thus grafted on the requirement that each criminal episode must be punctuated by its own adjudication in order to count as a separate conviction.

Five judges vigorously disagreed, however, with the majority's assessment of the statute, and argued in dissent that "Congress's concern in enacting the enhanced penalty provision at issue in this case was with those criminals involved in repeated criminal episodes, with or without intervening efforts at rehabilitation." Balascsak, 873 F.2d at 688. The dissent cited the repeated statements in the legislative history that criminals are caught and convicted for fewer crimes than they actually commit, see, e.g., S.Rep. No. 585, 97th Cong., 2d Sess. 3, 21, 72 (1982), S.Rep. No. 190, 98th Cong., 1st Sess. 1, 5 (1983), which suggested that

Congress's overriding concern with the fact that once a person has three previous convictions for the offenses specified in the Act, he or she is quite likely to be a member of that 'small number of repeat offenders [who] commit a highly disproportionate amount of the violent crime plaguing America today,' S.Rep. No. 585 at 20, regardless of any intervening convictions.

Balascsak, 873 F.2d at 688. The dissent thus advocated the adoption of the "separate and distinct criminal episode" test and would have sentenced Balascsak under Sec. 924(e).

Prior to this appeal, this circuit has not had the opportunity to address the appropriate standard under which to determine whether the defendant has three previous convictions for the purposes of Sec. 924(e). We now adopt the reasoning of the dissent in Balascsak and the majority of other circuits which have faced this question. ³ We think that this answer is...