United States v. Elliott, 11–2766.

• Decision Date: 20 December 2012
• Docket Number: No. 11–2766.,11–2766.
• Citation: 703 F.3d 378
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James ELLIOTT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

703 F.3d 378

UNITED STATES of America, Plaintiff–Appellee,

v.James ELLIOTT, Defendant–Appellant.

No. 11–2766.

United States Court of Appeals,Seventh Circuit.

Argued Feb. 24, 2012.

Decided Dec. 20, 2012.

Emily Kathleen Cremeans (argued), Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff–Appellee.

John E. Martin, Viniyanka Prasad (argued), Attorneys, Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant–Appellant.

Before MANION and ROVNER, Circuit Judges, and COLEMAN, District Judge.^*

ROVNER, Circuit Judge.

After he pleaded guilty to a felon-in-possession charge, 18 U.S.C. § 922(g)(1), James Elliott was sentenced as an armed career criminal based on the district court's finding that a series of three robberies he perpetrated in a five-day period when he was eighteen years old were “committed on occasions different from one another,” 18 U.S.C. § 924(e)(1). Elliott challenges that finding, contending that he had a right to have a jury, rather than the judge, assess the nature of his prior crimes, and that our decision in United States v. Hudspeth, 42 F.3d 1015, 1019–22 (7th Cir.1994) (en banc), abrogated on other grounds by Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), should be overruled. We affirm.

I.

On October 22, 2009, police officers in Merrillville, Indiana were dispatched to a residence on complaints about an unwanted person being present. They arrived to discover Elliott sitting on the front porch of the residence with his hands in his pockets. Elliott briefly removed his hands from his pockets when asked to do so, but reinserted them as the officers began to approach him, assuring the officers that he had nothing in them. In fact, he did. When one of the officers grabbed Elliott's right hand, he discovered a loaded .22–caliber revolver in his pocket.

Because Elliott previously had been convicted of six felony offenses—including burglary, theft, and operating a vehicle while intoxicated—federal law made it illegal for him to possess a firearm. 18 U.S.C. § 922(g)(1). A grand jury subsequently indicted him on a felon-in-possession charge. The government then filed a notice indicating that it intended to seek an enhanced penalty based on his criminal history pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). In relevant part, that statute specifies a minimum prison term of fifteen years (and a maximum term of life) for a felon-in-possession who has three previous convictions for violent felonies or serious drug offenses “committed on occasions different from one another.” § 924(e)(1). Burglary qualifies as a violent crime for purposes of the ACCA. § 924(e)(2)(B)(ii). The government contended that Elliott's convictions for three burglaries he committed over a period of five days in 1998 rendered him subject to the enhanced penalty specified by the ACCA. Without that enhancement, he would otherwise have been subject to a maximum prison term of 10 years. § 924(a)(2).

Elliott, although he did not contest the fact of his prior convictions, nonetheless opposed the enhancement. As relevant here, he contended that whether the three burglaries were committed on occasions different from one another constituted a factual question as to which the Fifth and Sixth Amendments, and the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), entitled him to a jury trial. Second, Elliott argued that because the three burglaries took place over a period of several days during what he regarded as a single criminal episode, the court should find that they were not committed on occasions different from one another, and that consequently he was not subject to the enhanced penalty.¹

The district court rejected both arguments in a written opinion. United States v. Elliott, 2011 WL 3273466 (N.D.Ind. Aug. 1, 2011). The court invoked Almendarez–Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), as its authority to make determinations regarding Elliott's criminal history. 2011 WL 3273466, at *4;see also R. 18–2 at 20–22. And, looking to our en banc decision in Hudspeth, the court found that the three 1998 burglaries were committed on occasions different from one another. 2011 WL 3273466, at *2–*3. The court emphasized that the burglaries were committed sequentially rather than simultaneously, and that significantly more time had passed between the burglaries than was the case in Hudspeth, affording Elliott the opportunity after each burglary to cease his criminal conduct. Id., at *3. The court added at sentencing: “[C]learly when somebody commits three burglaries over the course of five days, under the way the Seventh Circuit and for that matter, every other circuit it appears, has interpreted [section] 924[ (e) ], those would all be qualifying convictions.” R. 18–2 at 19.

The court proceeded to sentence Elliott to the minimum term of 180 months specified by the ACCA. That term was eight months below the low end of the sentencing range recommended by the Sentencing Guidelines.

II.

Elliott renews his challenge to the armed career criminal enhancement on appeal.As a threshold matter, he contends that whether the three burglaries for which he previously had been convicted occurred on occasions different from one another was a fact-intensive issue that he was entitled to have a jury resolve. He acknowledges that under Almendarez–Torres, the district judge is authorized to make certain findings regarding a defendant's criminal history, but contends that whether his prior crimes occurred on occasions different from one another represents a distinct type of inquiry that Almendarez–Torres does not authorize the judge to make. As to the substance of the ACCA inquiry, Elliott urges this court to overrule its en banc decision in Hudspeth, a step that he believes would pave the way to recognition that the three burglaries he committed in 1998 were indivisible components of a single, multi-day crime spree and thus were not committed on occasions different from one another. Both arguments present questions of law that we review de novo. Kirkland v. United States, 687 F.3d 878, 882–83 (7th Cir.2012); United States v. Trennell, 290 F.3d 881, 889 (7th Cir.2002).

As to the first issue, the district judge was empowered to determine whether Elliott committed the burglaries on occasions different from one another. The Supreme Court in Almendarez–Torres held that a defendant's recidivism is not an element of the offense which must be found by a jury beyond a reasonable doubt, but rather is a sentencing factor that may be found by the sentencing judge, even when recidivism increases the statutory maximum penalty to which the defendant is exposed. 523 U.S. at 239, 243–46, 118 S.Ct. at 1228–29, 1230–32.Almendarez–Torres has remained good law even as the Court in later decisions has recognized a defendant's right to a jury finding on other factors that expose the defendant to a longer sentence. See Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); Apprendi v. New Jersey, supra, 530 U.S. 466, 120 S.Ct. 2348;Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. O'Brien, ––– U.S. ––––, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010). Indeed, each of these cases has expressly cited the fact of a prior conviction as an exception to the rule it stated. Jones, 526 U.S. at 243 n. 6, 119 S.Ct. at 1224 n. 6;Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362–63;Blakely, 542 U.S. at 301, 124 S.Ct. at 2536;Booker, 543 U.S. at 244, 125 S.Ct. at 756;O'Brien, 130 S.Ct. at 2174.²

Elliott has a point when he stresses that whether a defendant's prior crimes occurred on occasions different from one another is a question that looks beyond “the fact of a prior conviction,” see Blakely, 542 U.S. at 301, 124 S.Ct. at 2536 (quoting Apprendi ), and for that matter beyond the elements essential to that conviction, see Taylor v. United States, 495 U.S. 575, 599, 602, 110 S.Ct. 2143, 2158, 2160, 109 L.Ed.2d 607 (1990); see also Nijhawan v. Holder, 557 U.S. 29, 33–36, 129 S.Ct. 2294, 2298–2300, 174 L.Ed.2d 22 (2009) (distinguishing statutory provisions which call for categorical inquiry into nature of defendant's prior conviction from those which call for circumstance-specific inquiry into facts underlying defendant's prior conviction). The facts that inform the determination of whether prior crimes occurred on different occasions—including the times and dates, places, and victims of those crimes—usually do not constitute essential elements of a conviction. See, e.g., United States v. Cina, 699 F.2d 853, 859 (7th Cir.1983) (“An ‘essential’ or ‘material’ element of the crime is one whose specification with precise accuracy is necessary to establish the very illegality of the behavior and thus the court's jurisdiction. Only in rare cases is time a material element of the offense charged, even where continuing offenses such as conspiracy are alleged.”) (citation omitted); United States v. Muhammad, 928 F.2d 1461, 1470 (7th Cir.1991) (“[T]he location where the offense took place is not an ‘essential’ or ‘material’ element of the crime as that term was defined in Cina.”);cf. United States v. Alhalabi, 443 F.3d 605, 613 (7th Cir.2006) (payment amounts referenced in food stamp fraud charges were not material elements of the offense). On the other hand, because facts of this nature serve to define the scope of a crime, provide notice to the defendant of what precisely he is charged with doing so that he can prepare a defense, and protect him against double jeopardy, see United States v. Castaldi, 547 F.3d 699, 703 (7th Cir.2008); United States v. Blanchard, 542 F.3d 1133, 1140 (7th Cir.2008); United States v. Andrus, 775 F.2d 825, 843–44 (7th Cir.1985); United States v. Horton, 676...