USA v. Brown

• Decision Date: 07 April 2000
• Docket Number: No. 99-2738,99-2738
• Citation: 209 F.3d 1020
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DENNIS BROWN, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1020

209 F.3d 1020 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DENNIS BROWN, Defendant-Appellant.

No. 99-2738

In the United States Court of Appeals For the Seventh Circuit

Submitted December 14, 1999

Decided April 7, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 372--George M. Marovich, Judge.

Before ESCHBACH, COFFEY and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

Defendant-Appellant Dennis Brown ("Brown") received a 125-month term of imprisonment after pleading guilty to bank robbery by force or violence, in violation of 18 U.S.C. sec. 2113(a). On direct appeal, Brown challenges the district court's computation of his criminal history score, maintaining that his four previous aggravated and armed robbery state convictions¹ should have been treated as one offense because they formed as part of a common scheme or plan and therefore were related under U.S.S.G. sec. 4A1.2(a)(2).

We AFFIRM.

I. BACKGROUND

For approximately 6 weeks in March and April of 1998, Brown was engaged in a crime spree that consisted of five robbery offenses, occurring on March 23, April 16, April 30, May 1 and May 9, 1998. Four of these robberies (March 23, April 16, April 30, and May 9) resulted in three Illinois indictments for aggravated robbery and one Illinois indictment for armed robbery, all of which Brown pled guilty to in the Illinois court system. The fifth robbery, occurring on May 1, 1998, resulted in a federal charge resulting from a grand jury indictment on December 15, 1998, charging Brown with bank robbery by force or violence in violation of 18 U.S.C. sec. 2113(a).

A. Prior State Robbery Convictions

1. March 23, 1998 & April 16, 1998 Robberies

Brown's crime spree began on March 23, 1998, when, according to an arrest report of the Harwood Heights, Illinois police department, he entered the "Genesis Two Hands Down" store and directed the employee to give him all the money from the drawer. Brown then ordered the employee to come to the front of the store and kneel down as he exited. Apparently impressed with his success, Brown struck again on April 16, 1998, when he robbed the Harwood Heights "Life Uniform" store. The arrest report indicates that the defendant entered the store, asked the employee if she was alone, and she replied in the affirmative. He then asked how much money was in the register and displayed a handgun in the waistband of his pants. After the employee handed over the currency in the drawer, he ordered her to get down on the floor as he exited the store.²

2. April 30, 1998 Robbery

Apparently believing that his luck would never end, on April 30, 1998, the defendant held up another location. According to a Morton Grove, Illinois police report, the defendant entered a Shell Station Mini-Mart and ordered one of the employees to open the register. When the employee asked if he was kidding, Brown lifted his shirt and displayed a steel revolver in the waistline of his pants. The employee then opened the register and placed the cash drawer on the counter. Brown took the money from the drawer and told the employee to lie down on the floor for five minutes and if he got up, he would be shot by his accomplice who was watching.³

3. May 9, 1998 Robbery

Proving the old proverb that all "good" things must come to an end, Brown's final act of his crime spree occurred on May 9, 1998, when he entered the "WorldWide Liquor" store at 3500 N. Harlem, Chicago, walked to the counter and demanded money while lifting his shirt and displaying a handgun tucked in his belt. According to the Chicago police arrest report, the employee complied and gave Brown $150. Brown then ordered the employee to lie down on the floor and fled the scene.⁴

B. The Federal Armed Bank Robbery Conviction

Brown went for the jackpot on May 1, 1998, when he entered the Lombard, Illinois branch of the LaSalle Bank, lifted his shirt, displayed the butt end of a revolver and shouted, "I've got a gun and a grenade in my pocket, my partner just gave me the signal, he's got a police scanner in the car, so don't set off any alarms or I'll pull the pin on this and we'll all die." Brown then handed a bag to a bank employee and told the employee to go to the teller counter and have it filled. The defendant continued to terrorize the bank employees and patrons by threatening, "Don't make any mistakes, I don't want any strapped money or I'll pull the pin," and also warned that if anyone called for help, he would come back in, "pull the pin, and we'll all explode." The LaSalle Bank's records reflected that the bank was out $9,248 as a result of the armed bank robbery.

Approximately two weeks later, on May 14, 1998, the Lombard Police Department was advised that an individual recently arrested by the Chicago Police Department for aggravated robbery had signed a written confession in which he admitted to robbing the Lombard, Illinois branch of the LaSalle Bank.⁵ The following day, Brown was identified in a photo lineup by two eyewitnesses as the individual who robbed the LaSalle Bank on May 1, 1998.⁶

On December 15, 1998, Brown was indicted on one-count of bank robbery by force or violence, and on January 27, 1999, pled guilty and his plea was accepted. The Presentence Investigation Report ("PSR") recommended that Brown receive a total of thirteen criminal history points, including ten points for his four previously discussed state convictions for aggravated and armed robbery.⁷ The sentencing judge adopted the recommendation of the PSR and made the following findings with respect to his prior state robbery convictions: the court found that the April 16 robbery was "related" to the March 23 robbery under Application note 3 to U.S.S.G. sec. 4A1.2(a)(2) because the two offenses had been "consolidated for the purposes of sentencing" by the state court, thus resulting in the allocation of just one criminal history point under sec. 4A1.1(f) for the April 16 robbery,⁸ but counted the March 23, April 30, and May 9 robberies separately and allocated three criminal history points for each offense under U.S.S.G. sec. 4A1.1(a), resulting in nine criminal history points.

Before sentencing, Brown filed objections to the PSR, contending that all four state robbery convictions were related under sec. 4A1.2(a)(2) as part of a common scheme or plan and thus should have been counted only once in the criminal history computation. The sentencing judge rejected his challenge and sentenced him to 125 months imprisonment to run concurrently with his state sentences. Brown appeals.

II. DISCUSSION

This Circuit has recently clarified the applicable standard of review, holding that a district court's determination that certain prior sentences are not related is a factual one, and that we review under the clear error standard. See United States v. Buford, 201 F.3d 937, 940-42 (7th Cir. 2000); United States v. Joy, 192 F.3d 761, 770 (7th Cir. 1999). For purposes of calculating a defendant's criminal history, under sec. 4A1.2(a)(2), prior sentences imposed in "unrelated" cases are counted separately, but prior sentences imposed in "related" cases are counted as one sentence. Application note 3 to sec. 4A1.2(a)(2) offers this advice:

Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if they resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.

U.S.S.G. sec. 4A1.2, cmt. (n.3) (emphasis added). Brown relies on this application note in arguing that his four robberies are all related under the common scheme or plan prong because they involved a similar modus operandi and were connected by a common purpose. Specifically, the defendant contends that he was "strung out" on drugs each time, displayed a gun during two of the robberies, and during each incident, demanded currency, took the money, ordered the victims onto the floor and exited the scene, all with the "common purpose" of obtaining money to feed his drug addiction. Before we address the defendant's arguments, we will review the applicable law.

A. "Single Common Scheme or Plan"

Although the sentencing guidelines do not define "single common scheme or plan," we have held that "'scheme' and 'plan' are words of intention, implying that [the offenses] have been jointly planned." United States v. Ali, 951 F.2d 827, 828 (7th Cir. 1992). In other words, for purposes of sec. 4A1.2(a)(2), crimes are part of a single common scheme or plan only if: (1) they were "jointly planned"; or (2) one crime entails the commission of the other. See Joy, 192 F.3d at 771. Under this analysis, Brown must demonstrate that "he either intended from the outset to commit [the] crimes or that he intended to commit one crime which, by necessity, involved the commission of [the others]." United States v. Carroll, 110 F.3d 457, 460 (7th Cir. 1997) (emphasis added). "Because the defendant is in the best position to know whether he jointly planned two or more crimes and is the beneficiary of any reduction in his sentence, he has the burden of showing that his prior offenses were part of a single scheme or plan." Joy, 192 F.3d at 771.

B. Defendant Brown's Arguments

Even though this Court has gone out of its way to define what constitutes a "single common scheme or plan," the defendant in his arguments has ignored the ruling caselaw. Specifically, Brown does not argue that he "intended from the outset" to commit the robberies or that one of the robberies necessarily involved committing the others; instead, he maintains that a similar modus operandi in each of the crimes will support a finding of relatedness. However, as we have previously and...