United States v. Riddle

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-2087

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

GEORGE A. RIDDLE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Cyr, Circuit Judge,

Bownes, Senior Circuit Judge,

and Boudin, Circuit Judge.

Robert A. Levine, by Appointment of the Court, for appellant.

Michael M. DuBose, Assistant United States Attorney, with whom

Jay P. McCloskey, United States Attorney, was on brief for the United

States.

February 16, 1995

Per Curiam. On April 22, 1994, defendant George A.

Riddle pled guilty to a single count charging him with the

offense of possession of a firearm by a convicted felon. 18

U.S.C. 922(g)(1), 924(e). A second count was later

dismissed. The presentence report revealed that Riddle, who

had turned eighteen in 1990, had in the following year

embarked on a small crime spree of burglaries; he had

committed such burglaries on March 17, May 9, May 28 (two

separate incidents) and June 12, 1991, and had been sentenced

for all of them at the same time on November 8, 1991.

After serving concurrent sentences, Riddle continued on

his course of crime, by committing burglary and arson in a

commercial building on November 22, 1993. Two days later,

Riddle engaged in an armed robbery. It was in the

investigation of the November 22 offense that the police

obtained evidence linking Riddle with it and with the

November 24 armed robbery. The investigation also revealed

Riddle's possession of two handguns, leading to the felon in

possession conviction in the present case.

Because of the five separate burglaries and the

resulting convictions in 1991, the district court sentenced

Riddle on the felon in possession charge under the Armed

Career Criminal Act, 18 U.S.C. 924(e). The statute requires

that a defendant who violates the felon in possession

statute, 18 U.S.C. 922(g), be given a 15-year mandatory

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minimum sentence if the defendant has three previous

convictions for violent felonies "committed on occasions

different from one another." 18 U.S.C. 924(e)(1). A

violent felony is defined to include burglary punishable by

imprisonment for more than one year. 18 U.S.C.

924(e)(2)(B)(ii).

The Sentencing Guidelines contain a separate provision

applicable to anyone who meets the statutory definition of an

armed career criminal under 18 U.S.C. 924(e). U.S.S.G.

4B1.4. In this case, it is undisputed that if Riddle falls

within the armed career criminal definition, the implementing

guideline provides a sentencing range with a minimum of 188

months' imprisonment. This resulted from his possession of a

firearm in connection with the November 24, 1993, robbery and

a three-level downward adjustment for acceptance of

responsibility. The district court sentenced Riddle to 188

months' imprisonment.

On appeal, the only question posed is whether Riddle

does fit the definition of armed career criminal. Riddle

does not dispute that prior to his present conviction he

committed burglaries on five different occasions on four

different dates, and was ultimately convicted for all five.

Rather, focusing on the requirement that there be three

previous convictions for violent felonies "committed on

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occasions different from one another," 18 U.S.C. 924(e)(1),

Riddle makes three different arguments.

First, he points to the general sentencing guideline

used for computing criminal history, U.S.S.G. 4A1.2, which

provides in commentary that prior sentences are considered

related and counted as only one sentence where inter alia the

offenses were consolidated for trial or sentencing. Id.

comment (n.3). This relatedness restriction has also been

incorporated in the separate guideline that determines

whether an individual has at least two prior violent felony

convictions and may therefore be subject to an enhanced

sentence as a "career offender." U.S.S.G. 4B1.1, 4B1.2(3)

& comment (n.4).

The relatedness requirement is a rule of thumb device

employed by the Commission which enhances the discretion of

district courts in administering the criminal history

provisions, see United States v. Elwell, 984 F.2d 1289 (1st

Cir.), cert. denied, 113 S. Ct. 2429 (1993), and is also

available to them in applying the career offender guideline.

The Commission did not purport to adopt this relatedness

requirement in the armed career criminal guideline, and there

is no reason to think that it had any intention to do so.

United States v. Maxey, 989 F.2d 303, 307-08 (9th Cir. 1993).

Indeed, there might be a serious question whether the

Commission would be entitled to do so. The ordinary criminal

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history calculations and, to a large extent, the career

offender guideline are products of the Commission's own

devising, with some very general guidance from Congress; by

contrast, the armed career criminal provision results from

rather precise statutory language, which the Commission

simply adopts in its armed career criminal guideline. In all

events, this difference in origin certainly reenforces the

view that the armed career criminal guideline was not

intended to incorporate the relatedness requirement. Cf.

U.S.S.G. 4B1.4 comment. (n.1) (noting difference between

statutory definition and U.S.S.G. 4A1.2 and 4B1.1).

Riddle's next argument is that the five burglaries,

although literally committed on separate occasions, were

manifestations of a single youthful crime spree and ought to

be considered a single violent felony under the statute. The

difficulty is that Congress has spoken with reasonable

precision in specifying that the felonies be ones "committed

on occasions different from one another." Riddle's five

convictions embraced five different incidents on four

different dates involving five different locations and

victims.

Whatever elastic there may be in the statutory language,

it is not a reasonable stretch of language to describe five

burglaries at five different locations on four different

dates as occurring on the same occasion. The case law in

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this circuit, e.g., United States v. Lewis, 40 F.3d 1325,

1346 (1st Cir. 1994) (citing other First Circuit cases), and

in practically all other circuits, has rejected contentions

of this kind, sometimes in much closer cases. E.g., United

States v. Godinez, 998 F.2d 471 (7th Cir. 1993). While there

may be crimes so closely related as to pose difficult issues

under the statute, this case is not a difficult one.

Finally, Riddle argues that it does not make sense to

describe as an armed career criminal someone whose "career"

of crime occurred in a couple of spurts within a year or so

of his eighteenth birthday. The district court thoughtfully

considered and addressed the argument, and there is not a

great deal more to say. Congress, thinking primarily about

the protection of the public, adopted a definition of armed

career criminal that ignores the duration of the career or

the youthfulness of the adult offender or the lack of lengthy

intervals or arrests between the crimes.

Congress' approach produces very severe results in

certain cases. Whether the result is severe or something

worse in Riddle's case is a matter of dispute (our opinion

has not completely recounted his criminal involvements).

What we have no reason to doubt is that Congress intended its

statute to work in accordance with its defining terms rather

than through the impressionistic evaluation of judges as to

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whether a defendant was or was not "an armed career criminal"

in the lay sense of those words.

Affirmed.

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