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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