PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-5037
DARYL STEVEN CARR,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Louise W. Flanagan, Chief District Judge.
(2:06-cr-00014-FL-1)
Argued: December 3, 2009
Decided: January 26, 2010
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the opin-
ion, in which Judge Wilkinson and Judge Agee joined.
COUNSEL
ARGUED: Joseph Edward Zeszotarski, Jr., POYNER
SPRUILL, LLP, Raleigh, North Carolina, for Appellant. John
Stuart Bruce, OFFICE OF THE UNITED STATES ATTOR-
NEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
George E. B. Holding, United States Attorney, Anne M.
2 UNITED STATES v. CARR
Hayes, Assistant United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
OPINION
SHEDD, Circuit Judge:
The Armed Career Criminal Act ("ACCA") imposes a 15-
year mandatory prison term on an individual convicted of
being a felon in possession of a firearm if that individual has
"three previous convictions . . . for a violent felony or a seri-
ous drug offense, or both, committed on occasions different
from one another." 18 U.S.C. § 924(e)(1). Daryl Steven Carr
pled guilty to being a felon in possession of a firearm and was
sentenced as an armed career criminal to 262 months of
imprisonment. The district court applied the ACCA enhance-
ment because Carr has four prior state convictions encom-
passing 13 counts of felony breaking or entering under N.C.
Gen. Stat. § 14-54(a). In this appeal, Carr acknowledges that
he has more than three previous convictions for a violent felony,1
but he argues that the violent felonies were not "committed on
occasions different from one another" and, therefore, the
ACCA does not apply. For the following reasons, we reject
his contention and affirm.
I
In September 1996, a Washington County, North Carolina,
grand jury issued 13 separate indictments charging Carr with
felony breaking or entering in violation of § 14-54(a). Each
indictment (1) alleges that on May 21, 2006, Carr broke into
1
We recently reaffirmed circuit precedent that breaking or entering
under § 14-54(a) is an ACCA violent felony. See United States v. Thomp-
son, 588 F.3d 197 (4th Cir. 2009).
UNITED STATES v. CARR 3
a building used as a storage unit located at "N.C. 32 South"
with the intent to commit felony larceny; (2) identifies a dif-
ferent storage unit (units #C-15, #C-16, #D-5, #D-6, #D-7,
#D-8, #D-10, #D-11, #D-12, #D-22, #F-8, #F-9, and #F-13);
and (3) lists the occupant of each storage unit (totaling 10 dif-
ferent occupants). J.A. 23-35. Nine of the indictments list
items that were stolen from the particular storage units. Carr
pled guilty to all of the indictments in November 1996.2
In 2007, Carr was indicted on two counts of possessing a
stolen firearm and one count of being a felon in possession of
a firearm. According to the presentence investigative report
("PSR"), Carr’s federal offense conduct involves his theft of
firearms and ammunition from several law enforcement patrol
cars and his subsequent act of shooting a firearm at law
enforcement officers (and wounding one officer) as they
attempted to stop him. He pled guilty to the felon-in-
possession count.
In his PSR, a probation officer designated Carr as an armed
career criminal based on the aforementioned breaking or
entering convictions.3 With this designation, Carr’s sentencing
guideline range was calculated to be 210 to 262 months. Carr
2
We note that the indictments actually charge Carr with breaking and
entering, but (as we explain later) the judgments correctly specify that the
crime for which he was convicted is breaking or entering. We further note
that the nine indictments listing stolen items also charge Carr with feloni-
ous larceny and felonious possession of stolen goods. Although he pled
guilty to some of those charges, the parties do not argue that those crimes
are relevant to our analysis. Finally, we note that 12 of the indictments list
"N.C. 32, South" as being in Plymouth, North Carolina, while one indict-
ment lists that address as being in Washington, North Carolina.
3
In addition to the four 1996 convictions addressed herein, Carr also has
state convictions for assault by pointing a gun (1995); simple assault
(1995); second degree trespass (1996); shoplifting (2001); injury to real
property (two separate convictions in 2002); carrying a concealed weapon,
second degree trespass, and resisting a police officer (2005); larceny
(2005); possession of marijuana and second degree trespass (2005); and
possession of marijuana (2006). J.A. 120-23.
4 UNITED STATES v. CARR
objected to application of the ACCA, arguing that the break-
ing or entering crimes were not committed on different occa-
sions. The district court overruled the objection and sentenced
him to 262 months. This appeal followed.
II
Resolution of this appeal involves a determination of
whether the record establishes that Carr committed the 13 fel-
ony breaking or entering crimes "on occasions different from
one another." If it does, then the district court correctly
applied the ACCA in sentencing Carr.4 On this point, the dis-
trict court surveyed our precedent, as well as several cases
from other circuits, and concluded:
The question of whether breaking and entering mul-
tiple subunits at a single complex constitutes sepa-
rate occasions for purposes of the ACCA does not
appear to have been squarely addressed by the
Fourth Circuit. Based on persuasive authority, and
the circumstances presented, the court finds that the
physical and temporal proximity of the offenses at
issue do not indicate that they occurred on a single
occasion for ACCA purposes. To hold breaking and
entering into separate storage units is a single crimi-
nal "occasion" would be to ignore the available
record and the reality of the situation.
4
Generally, we review a sentence in two parts: first, we review for sig-
nificant procedural error, such as improperly calculating the advisory sen-
tencing guidelines range; second, absent significant procedural error, we
review for substantive reasonableness. See Gall v. United States, 552 U.S.
38, 51 (2007). Although our determination of whether the ACCA enhance-
ment applies involves review for significant procedural error, United
States v. Walker, 555 F.3d 716, 722 (8th Cir. 2009), it involves only a
"question of statutory interpretation" that we consider de novo, United
States v. Letterlough, 63 F.3d 332, 334 (4th Cir. 1995). Carr does not oth-
erwise challenge his sentence.
UNITED STATES v. CARR 5
United States v. Carr, 2008 Westlaw 4641346, *3 (E.D.N.C.
Oct. 16, 2008). For the reasons that follow, we agree with the
court’s conclusion.
A.
As the district court noted, we have not decided the appli-
cability of the ACCA in a case involving facts similar to this
one. However, in several published opinions we have consid-
ered whether potential ACCA predicate offenses that were
close in time or proximity were committed on different occa-
sions for sentencing purposes.
For example, in Letterlough, the defendant challenged the
applicability of the ACCA to his sentence, arguing that two
of his three predicate offenses were not committed on differ-
ent occasions. Those offenses were two separate sales of a
single dose of crack cocaine to the same undercover officer on
the same day; the first sale occurred at 8:35 p.m., and the sec-
ond sale occurred at 10:15 p.m. Examining the operative lan-
guage of the ACCA, we stated that "Congress intended to
include within the scope of the ACCA only those predicate
offenses that can be isolated with a beginning and an end —
ones that constitute an occurrence unto themselves." 63 F.3d
at 335. With this in mind, we adopted the following definition
to determine whether the ACCA applies to a defendant’s
closely related prior crimes: "Convictions occur on occasions
different from one another ‘if each of the prior convictions
arose out of a separate and distinct criminal episode.’" Id.
(quoting United States v. Hudspeth, 42 F.3d 1015, 1019 (7th
Cir. 1994) (en banc) (emphasis in original) (internal punctua-
tion marks omitted)).
Continuing, we noted that "although this definition may be
clear, the factual permutations surrounding the ACCA tend to
create havoc. As a result, courts have applied a multiplicity of
factors to determine when more than one conviction consti-
tutes a separate and distinct criminal episode." Id. We listed
6 UNITED STATES v. CARR
these factors as including whether the offenses arose in differ-
ent geographic locations, whether the nature of the offenses
was substantively different, and whether the offenses involved
multiple victims or multiple criminal objectives, and we
explained the fluid nature of the analysis:
Courts have applied these factors independently, or
in conjunction, to decide that a defendant’s similar
offenses are actually separate and distinct from one
another. In essence, if any one of the factors has a
strong presence, it can dispositively segregate an
extended criminal enterprise into a series of separate
and distinct episodes.
Id. at 336 (footnote omitted).
Applying these principles to the facts of the case, we
affirmed the application of the ACCA. In doing so, we
rejected the defendant’s contention that the two drug sales
were part of a continuous drug transaction. We held instead
that each drug transaction "was a complete and final transac-
tion, and therefore, an independent offense." Id. at 337.
We next considered this issue in United States v. Hobbs,
136 F.3d 384 (4th Cir. 1998), in which the district court
declined to apply the ACCA enhancement because it found
that three of the defendant’s four predicate burglary offenses
(each involving a small, unoccupied country grocery store)
occurred within the space of one hour and, consequently, did
not occur "on occasions different from one another." Analyz-
ing the case under Letterlough, we disagreed and remanded
for resentencing under the ACCA.
We first found that the three burglaries occurred at least a
mile apart from one another, and this fact suggested that they
were separate and distinct criminal episodes. However, we
then found that the nature of the burglaries was not substan-
tively different because "each involved a break-in of a small,
UNITED STATES v. CARR 7
unoccupied country store from which [the defendant] stole
food, cash, and/or dry goods." Id. at 389. We noted that this
fact "while not enough on its own to suggest that the offenses
occurred on the same occasion, would bolster such a conclu-
sion, if that conclusion were also supported by other facts."
Id. We then examined whether there were multiple victims
and criminal objectives, and we found that although the objec-
tives of the burglaries appeared similar, there were multiple
victims because each store was under separate ownership. We
concluded that "the fact that there were multiple victims deci-
sively tips the scales in favor of concluding that each burglary
was a ‘separate and distinct criminal episode.’" Id. (quoting
Letterlough, 63 F.3d at 335).
We again considered the issue in United States v. Williams,
187 F.3d 429 (4th Cir. 1999). The defendant in that case had
four prior felony offenses, three of which stemmed from his
flight from law enforcement officers at a traffic checkpoint.
During the flight, which lasted 10-15 minutes and spanned
over three blocks, the defendant shot at one officer (leading
to a conviction for assault with a firearm on a government
officer) and later pointed his firearm at two other officers
(leading to two convictions for assault with a deadly weapon
with intent to kill).
On his appeal from his ACCA-enhanced sentence, the
defendant argued that the three assault offenses should be
considered as having occurred on the same occasion for pur-
poses of the ACCA. We disagreed, concluding under Letter-
lough and Hobbs that there were "two complete and discrete
criminal transactions": the initial shooting at one officer and
the subsequent pointing of a firearm at the other two officers.
Id. at 431. We noted that the fact "that the events occurred
within a short period of time does not dictate a result that the
offenses occurred on one occasion." Id. We instead based our
decision on the fact that the defendant had an interval of time
between the two incidents that "provided him with the oppor-
8 UNITED STATES v. CARR
tunity to reflect and desist," and that there were different vic-
tims. Id.
In United States v. James, 337 F.3d 387 (4th Cir. 2003), we
affirmed an ACCA-enhanced sentence, rejecting the defen-
dant’s argument that his two prior convictions for burglary
were improperly counted for ACCA purposes because the
burglaries occurred on the same day at two different stores
that were across the street from one another. We concluded:
Even though James committed the two burglaries on
the same day, his two convictions clearly arose out
of separate and distinct criminal episodes. The first
burglary was completed before the second started,
each burglary occurred at a different location, and
each involved a different victim. Thus, the district
court properly applied the armed career criminal
enhancement to James’s sentence.
Id. at 391 (citation omitted).
Finally, in United States v. Leeson, 453 F.3d 631 (4th Cir.
2006), the defendant contended that the district court erred by
counting his prior convictions for aggravated robbery and
attempted capital murder separately for ACCA purposes
because they were committed on the same occasion. The facts
of that case established that while the defendant was commit-
ting an aggravated robbery of an individual in a grocery store
(the first conviction), an off-duty police officer who was out-
side the store observed what was happening and, upon the
defendant’s exit, ordered him to stop. The defendant then
fired his weapon at the officer (the second conviction).
Applying the Letterlough factors, we concluded that one
factor – geography – suggested that the crimes were commit-
ted in one criminal episode because they occurred on the
store’s premises. However, we concluded that the other fac-
tors all pointed toward two separate and distinct criminal epi-
UNITED STATES v. CARR 9
sodes. Specifically, we found that the crimes were distinctly
different in nature, had different victims, and had different
criminal objectives. Additionally, we found that the defendant
"had the opportunity to make a conscious and knowing deci-
sion to cease and desist his criminal behavior or engage in yet
another crime." Id. at 641. We concluded by rejecting the
notion that because the defendant’s conduct fit the description
of a crime spree, the crimes were part of a single criminal epi-
sode:
[O]ur holding today that these two offenses consti-
tute crimes committed on occasions different from
one another for purposes of increasing Leeson’s sen-
tence under the ACCA is consistent with our case
law which recognizes that, 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[,] com-
mit crimes on occasions different from one another.
Id. at 642-43 (citations and internal punctuation omitted).
B.
Although we have not decided a factually similar case,
other circuits have. Because we cited or discussed it favorably
in Letterlough, Hobbs, Williams, and Leeson, the most notable
of these cases is United States v. Hudspeth, 42 F.3d 1015 (7th
Cir. 1994) (en banc). In Hudspeth, the district court sentenced
the defendant as an armed career criminal, relying on his three
prior burglary convictions. Those burglaries occurred in a
strip mall during a 35-minute period, when the defendant and
his accomplices broke into a doughnut shop, a dry cleaning
store, and an insurance company. From the record of that
case, it appears that the burglars first broke into a door to the
dry cleaning store, then used a sledgehammer to break
through the shared wall between the dry cleaner and the
10 UNITED STATES v. CARR
doughnut shop, and subsequently forced open a door between
the doughnut shop and the insurance company. On appeal, the
defendant unsuccessfully argued that these burglaries were
not committed on different occasions for ACCA purposes.
The Seventh Circuit began its analysis by noting that "a
defendant is subject to the [ACCA] sentence enhancement if
each of the prior convictions arose out of a ‘separate and dis-
tinct criminal episode,’" and it listed "the nature of the crimes,
the identities of the victims, and the locations" as being perti-
nent to the analysis of whether multiple convictions arose out
of separate and distinct criminal episodes. Id. at 1019 (citation
omitted, emphasis in original). Surveying several circuit
cases, the court then explained:
Cases interpreting the ACCA clearly uphold the
minimum fifteen-year sentence enhancement for
criminals who commit separate crimes against differ-
ent 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. . . .
Under the ACCA, the relevant inquiry as to the tim-
ing of multiple crimes is simple: were the crimes
simultaneous or were they sequential?
Id. at 1020-21 (emphasis in original).
Turning to the specific facts before it, the Seventh Circuit
concluded that the sentence was proper because the defendant
had committed "three distinct burglaries against three separate
victims (the owners of three distinct business enterprises), in
three separate locations over the course of more than thirty
minutes. . . ." Id. at 1021 (footnotes omitted). Continuing, the
court explained that the defendant’s three burglaries "were
sequential (committed in succession), and not simultaneous;
it is physically impossible for one person to commit three bur-
UNITED STATES v. CARR 11
glaries simultaneously at three different locations." Id.
(emphasis in original).
Without attempting to catalogue all of the analogous cases,
we note that other courts have reached differing results under
similar facts. For example, in United States v. Tisdale, 921
F.2d 1095 (10th Cir. 1990), the Tenth Circuit held (consistent
with Hudspeth) that the ACCA enhancement applied based on
the defendant’s three prior burglaries of separate businesses in
a shopping mall. The court concluded:
After the defendant "successfully completed" bur-
glarizing 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 crim-
inal episode. Moreover, . . . the defendant’s burgla-
ries did not occur at the same location. The record
shows that although defendant entered one shopping
mall he had to physically break and enter three sepa-
rate structures. The fact each incident occurred
inside one enclosed structure does not alter our con-
clusion that the crimes were committed at different
locations.
Id. at 1099; see also United States v. Phillips, 149 F.3d 1026
(9th Cir. 1998) (holding that the defendant’s two prior convic-
tions for burglarizing two adjacent businesses on the same
night constituted separate episodes for ACCA purposes).
On the other hand, the Ninth Circuit held that the ACCA
enhancement did not apply in United States v. McElyea, 158
F.3d 1016 (9th Cir. 1998), which involved prior burglaries of
two separate stores in a strip mall. As in Hudspeth, the defen-
dant and his accomplice broke into the first business and,
once inside, broke through a wall into an adjoining business.
The court concluded:
The record before us does not contain any informa-
tion regarding the amount of time McElyea spent in
12 UNITED STATES v. CARR
each store or whether he stayed in one store while
his accomplice entered the other store. Conse-
quently, we cannot say that the burglaries committed
by McElyea were "separate and distinct criminal epi-
sodes". Rather, we hold McElyea’s acts were part of
one criminal episode.
McElyea committed two identical crimes in basically
the same location within a short time period. He does
not meet the profile of a career criminal envisioned
by Congress. Consequently, we find that McElyea’s
1980 burglaries were not "committed on occasions
different from one another" and the district court
erred in enhancing McElyea’s sentence.
Id. at 1021.5
C.
We now turn to the specific facts before us. In sum, the
record reveals that on May 21, 1996, at "N.C. 32 South," Carr
feloniously broke or entered into 13 different buildings that
were used by 10 different occupants as storage units. What
the record does not reveal, according to Carr, is whether he
broke or entered into each unit "one after another, rather than
at the same time through [him] going back and forth among
the units to steal items after having broken into all of the
units." Brief of Appellant, at 5. As he explains:
5
In United States v. Fuller, 453 F.3d 274 (5th Cir. 2006), the court
found that the defendant’s prior convictions for burglarizing two buildings
in a short period of time could not count for ACCA purposes. The court
based its decision on the fact that the record was unclear whether the
defendant entered one building at the same time that his accomplice
entered the other building. Under the state burglary law, the defendant
could have been found criminally liable if, in fact, the burglaries were
committed in that manner. Fuller is inapplicable here because Carr acted
alone.
UNITED STATES v. CARR 13
[F]actually, it is possible for Carr to have committed
the 13 B&Es on May 21, 1996 "simultaneously"—he
could have "broken" into each storage unit first, by
cutting a lock or breaking a door on each of the 13
units without entering them, and then "entered" the
storage units later, going back and forth among the
units and committing larceny from those units in a
haphazard fashion. In this scenario, the breaking and
entering of any one unit is not completed prior to
institution of the next breaking and entering, and
Carr would in fact be breaking and entering all of the
storage units during the same period of time. Thus,
factually, it is not impossible to "simultaneously"
break and enter a number of storage units.
Id. at 15. For that reason, Carr argues that the district court
erred in counting his four prior felony convictions for ACCA
purposes. We disagree.
As an initial matter, we believe that Carr’s argument rests
on a faulty premise. Throughout his briefs, Carr refers to the
13 crimes as "breaking and entering" and, as set forth above,
he contends that it is factually possible for the crimes to have
occurred simultaneously. However, as we have noted, Carr
was actually convicted under § 14-54(a) of felonious breaking
or entering. This is an important distinction because "[t]he
essential elements of felonious breaking or entering are (1)
the breaking or entering (2) of any building (3) with the intent
to commit any felony or larceny therein." State v. Williams,
411 S.E.2d 814, 818 (N.C. 1992) (emphasis added). Thus,
"the crime described in § 14-54 allows conviction on a show-
ing of ‘breaking or entering,’ not breaking and entering,"
United States v. Bowden, 975 F.2d 1080, 1084 (4th Cir. 1992)
(emphasis in original); and it is therefore complete upon
either a breaking or an entry, State v. Myrick, 291 S.E.2d 577,
579 (N.C. 1982).6 Moreover, it is immaterial whether the
6
Section 14-54, titled "Breaking or entering buildings generally," pro-
vides in subsection (a): "Any person who breaks or enters any building
14 UNITED STATES v. CARR
defendant actually completed the crime of larceny. State v.
Smith, 312 S.E.2d 222, 225 (N.C. App. 1984); see also State
v. Jones, 157 S.E.2d 610, 611 (N.C. 1967) ("The breaking of
the store window with the requisite intent to commit a felony
therein completes the offense even though the defendant is
interrupted or otherwise abandons his purpose without actu-
ally entering the building."). Thus, when Carr either broke
into or entered each storage unit, his crime related to that unit
was complete at that point regardless of whether he later
returned to that unit.
With this in mind, we must determine if each of Carr’s
prior convictions arose out of a separate and distinct criminal
episode. Letterlough, 63 F.3d at 335. In doing so, we consider
(1) whether the offenses arose in different geographic loca-
tions; (2) whether the nature of each offense was substan-
tively different; (3) whether each offense involved different
victims; (4) whether each offense involved different criminal
objectives; and (5) whether the defendant had the opportunity
after committing the first-in-time offense to make a conscious
and knowing decision to engage in the next-in-time offense.
Leeson, 453 F.3d at 640. We can consider these factors
together or independently, and "if any one of the factors has
with intent to commit any felony or larceny therein shall be punished as
a Class H felon." The "statutory offense of felonious breaking or entering
is a lesser included offense of burglary in the first and second degree,"
State v. Jolly, 254 S.E.2d 1, 5 (N.C. 1979), which "includes both a break-
ing element and an entering element," State v. Brown, 626 S.E.2d 307, 312
(N.C. App. 2006). The fact that the indictments charged Carr with feloni-
ous breaking and entering is immaterial. See State v. Reagan, 240 S.E.2d
805, 808 (N.C. App. 1978) ("It has long been the law in this State in pros-
ecutions under this statute (G.S. 14-54) and its similar predecessors that
where the indictment charges the defendant with breaking and entering,
proof by the State of either a breaking or an entering is sufficient; and
instructions allowing juries to convict on the alternative propositions are
proper.") (citation and quotation marks omitted); see also State v. Arms-
tead, 562 S.E.2d 450, 452 (N.C. App. 2002) (noting that statutory offenses
that are listed in the disjunctive are properly charged in the conjunctive).
UNITED STATES v. CARR 15
a strong presence, it can dispositively segregate an extended
criminal enterprise into a series of separate and distinct epi-
sodes." Letterlough, 63 F.3d at 336.
Carr’s crimes are substantively the same and arguably had
the same criminal objective. However, we are most persuaded
that these crimes were separate and distinct criminal episodes
by the fact that (1) the crimes were committed in 13 different
locations (i.e., the separate storage units), see, e.g., Tisdale,
921 F.2d at 1099 ("The fact each incident occurred inside one
enclosed structure does not alter our conclusion that the
crimes were committed at different locations");7 (2) the
crimes had 10 different victims, see, e.g., Hobbs, 136 F.3d at
389 ("the fact that there were multiple victims decisively tips
the scales in favor of concluding that each burglary was a sep-
arate and distinct criminal episode" (internal quotation marks
omitted)); and (3) as he committed each of the 13 crimes, Carr
"had the opportunity to make a conscious and knowing deci-
sion to cease and desist his criminal behavior or engage in yet
another crime." Leeson, 453 F.3d at 641.8 We believe that the
combination of these factors establishes that Carr’s prior felo-
nies were separate and distinct criminal episodes for purposes
of the ACCA.
7
The record in this case is unclear whether the 13 separate storage units
were actually located within one structure.
8
Once Carr broke or entered into one storage unit, that crime was com-
plete, and he then had the opportunity to stop his criminal conduct or con-
tinue it by breaking or entering into another storage unit. As we noted in
Hobbs, "it is physically impossible for one person to commit three burgla-
ries simultaneously at three different locations." 136 F.3d at 390 n.10
(quoting Hudspeth, 42 F.3d at 1021). Notwithstanding the difference
between burglary and felonious breaking or entering, we agree with the
district court that this observation applies with equal force to the facts of
this case: Carr simply could not have broken into or entered the 13 sepa-
rate storage units simultaneously.
16 UNITED STATES v. CARR
III
The district court correctly determined that Carr should be
sentenced as an armed career criminal under § 924(e).
Accordingly, we affirm the sentence.
AFFIRMED