United States v. Barr

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

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No. 97-60108
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MAURICE BARR,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Mississippi
December 8, 1997

Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Maurice Barr appeals from his sentence of life imprisonment,

imposed pursuant to 21 U.S.C. § 841(b)(1)(A), which provides that

“any person [who] commits a violation of this subparagraph . . .

after two or more prior convictions for a felony drug offense . .

. shall be sentenced to a mandatory term of life imprisonment
without release.” On appeal, Barr does not challenge his

conviction on the underlying charges——namely, possession of cocaine

base with intent to distribute, in violation of 18 U.S.C. § 2 and

21 U.S.C. § 841 and attempt to possess marijuana with intent to

distribute, in violation of 21 U.S.C. §§ 841, 846.1 Instead, Barr

1
Indeed, it appears from the record that Barr pled guilty to
these offenses in exchange for the government dropping its case
against his wife, Pearl Barr.
claims only that the district court erred in failing to treat two

prior state convictions for possession of a controlled substance

with intent to distribute as a “single act of criminality” for the

purposes of § 841(b)(1)(A). See United States v. Blackwood, 913

F.2d 139, 145 (4th Cir. 1990) (vacating sentence of life

imprisonment under § 841(b)(1)(A) because although defendant had

two prior convictions for possession of marijuana with intent to

distribute, “these two convictions [were] no more than two

components of a single act of criminality——‘defendant’s possession

with intent to sell marijuana within a limited geographical area

and period of time’”) (internal quotation attributed to State v.

Blackwood, 298 S.E.2d 196, 199 (N.C.App. 1982)); United States v.

Rice, 43 F.3d 601, 605-606 (11th Cir. 1995)(“While on its face,

section 841(b)(1)(A) does not require that a court evaluate the

relationship of prior convictions, we agree with our sister

circuits that if the prior convictions resulted from acts forming

a single criminal episode, then they should be treated as a single

conviction for sentence enhancement under section 841(b)(1)(A).”)

(citing similar holdings from the Fourth, Sixth, Ninth and Tenth

Circuits).

The question of when, if ever, we should treat two separate

convictions as a “single act of criminality” for the purposes of 28

U.S.C. § 841(b)(1)(A) is a matter of first impression in this

court. Nevertheless, we have addressed the similar question of

when separate convictions constitute one offense for purposes of 18

U.S.C. § 924(e), known as the Armed Career Criminals Act. Under

this statute, we have adopted the reasoning of United States v.
Hudspeth, 42 F.3d 1015 (7th Cir. 1994), and determined that

separate convictions constitute one offense when the violations

occur simultaneously, as opposed to sequentially. See United

States v. Ressler, 54 F.3d 257, 260 (5th Cir. 1995) (“Applying the

Seventh Circuit's holding [in Hudspeth] to the instant case,

Ressler’s convictions were properly treated as separate offenses

under § 924(e) because the offenses occurred sequentially.”).

Adopting that same test in this context, we see that here

Barr’s state convictions resulted from two, separate criminal acts.

On March 18, 1991, Barr sold a quantity of crack cocaine to Todd

Dahlen. The following day, Barr and Dahlen conducted another

transaction, again involving a quantity of cocaine. Barr has

presented no evidence that these transactions were related, other

than pointing to the fact that the identity of the buyer remained

the same. Even so, however, the fact that identical parties were

involved in the two sales cannot merge these acts into one,

continuous offense. See United States v. Washington, 898 F.2d 439,

442 (5th Cir.), cert. denied, 498 U.S. 842 (1990) (treating two

separate robberies of the same store clerk at the same store

committed within several hours of each other as different “criminal

episodes” because the defendant “committed the first [robbery],

completed it, and escaped; then, after a few hours of no criminal

activity, [the defendant] returned to commit the second crime.”).

Accordingly, we AFFIRM Barr’s sentence of life imprisonment.