[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1380
UNITED STATES,
Appellee,
v.
ROBERT M. BARRY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Stahl, Circuit Judges.
Robert M. Barry on brief pro se.
Donald K. Stern, United States Attorney, and Robert E.
Richardson, Assistant United States Attorney, on brief for appellee.
OCTOBER 16, 1996
Per Curiam. Robert M. Barry appeals his sentence
for bank robbery in violation of 18 U.S.C. 2113(a). He
claims that the district court erred by considering him a
career offender pursuant to U.S.S.G. 4B1.1. We disagree.1
1
Under 4B1.1, a career offender is one who "has at
least two prior felony convictions of either a crime of
violence or a controlled substance offense." These two prior
convictions must be unrelated. U.S.S.G. 4B1.2(3). The
commentary to the guidelines provides, in part, that crimes
are "related" if they are part of a "single common scheme or
plan." Id. 4A1.2, comment. (n.3). Appellant alleges that
his two prior convictions are part of a common plan because
they were motivated by the same goal -- the need for arrest
and punishment.
Both of these prior offenses occurred in 1983, but
the similarity between the crimes ends there. In September
1984, appellant pleaded guilty to two counts of bank robbery;
appellant committed both robberies in Florida in March 1983.
In January 1984, appellant pleaded guilty to charges
including assault and battery, assault with intent to murder,
1Because appellant obviously loses on the merits, we
1
decline to address, and therefore express no opinion
concerning, his arguments (1) that the district court erred
by not ruling on his motion objecting to career offender
status and (2) that the rule requiring the sentencing court
to treat as unrelated two offenses separated by an
intervening arrest is inconsistent with the guideline for
computing a defendant's criminal history score.
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armed robbery, and rape. These crimes took place in
Massachusetts in June 1983. Ordinarily, crimes involving
separate victims and occurring at different places and times
are not related under U.S.S.G. 4A1.2, even where, unlike
here, they are the same type of crime. See United States v.
Yeo, 936 F.2d 628, 629 (1st Cir. 1991)(thefts of rented
machinery which took place during a six-week time period are
not related, when they involved different victims, and took
place on different dates and in different places).
Nor does the allegation of a common goal, or motive
make the two prior felony convictions part of a "single
common scheme or plan." As the Court of Appeals for the
Fourth Circuit has recognized, "[s]hared motivation cannot
transform two crimes committed three months apart, prosecuted
in different jurisdictions, and involving different victims,
into one illicit act." United States v. Sanders, 954 F.2d
227, 232 (4th Cir. 1992)(a robbery of a bank and a murder in
the course of a different robbery are not "related" for
purposes of determining defendant's career offender status,
even though both crimes allegedly were committed to sustain
defendant's heroin addiction). See also United States v.
Gelzer, 50 F.3d 1133, 1143 (2d Cir. 1995) (the allegation
that a crime spree originated with the hostile environment in
which defendant was raised is insufficient to show that the
offenses committed during that spree -- thefts of jewelry --
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were related; the Commission did not intend that criminal
acts "prompted by the same root causes of criminal deviance"
constitute a common plan).
For the foregoing reasons, the judgment of the
district court is affirmed.
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