United States Court of Appeals
For the First Circuit
No. 03-2340
UNITED STATES OF AMERICA,
Appellee,
v.
JEFFREY D. STEARNS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, Senior U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Neal K. Stillman for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
November 1, 2004
CYR, Senior Circuit Judge. Jeffrey D. Stearns appeals
from the guidelines sentence imposed upon his conviction for
possession of a firearm by a felon, contending that the district
court erroneously categorized him as an armed career criminal when
it refused to count as one crime his prior convictions for two
burglaries committed against the same victim on consecutive days.
Finding no error, we affirm.
I
BACKGROUND
In October 2001, Stearns was arrested and charged as a
felon in possession of firearms. See 18 U.S.C. § 922(g)(1). After
Stearns pled guilty, the government urged the court to enhance his
sentence under the armed career criminal provision, see U.S.S.G. §
4B1.4; 18 U.S.C. § 924(e)(1) (ACCA), citing his prior convictions
for a robbery in 1975 and three burglaries in 1979. U.S.S.G. §
4B1.4(a) provides that “[a] defendant who is subject to an enhanced
sentence under the provisions of 18 U.S.C. § 924(e) is an armed
career criminal,” and subsection 924(e) provides, in pertinent
part:
In the case of a person who violates section
922(g) of this title and has three previous
convictions by any court referred to in
section 922(g)(1) of this title for a violent
felony or a serious drug offense, or both,
committed on occasions different from one
another, such person shall be fined under this
title and imprisoned not less than fifteen
years, and, notwithstanding any other
provision of law, the court shall not suspend
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the sentence of, or grant a probationary
sentence to, such person with respect to the
conviction under section 922(g).
18 U.S.C. § 924(e)(1) (emphasis added).
Stearns responded that the two burglaries he committed at
the same warehouse on consecutive days in 1979 were not actually
committed “on occasions different from one another” because (i) his
former employer had asked him to remove the inventory from its
warehouse as part of a scheme to defraud the employer’s insurance
company, and thus the individual burglaries were mere steps in the
commission of a single offense; and (ii) the victim of both crimes
was the same (viz., his former employer’s insurer), which should
foreclose any inference that the two burglaries were discrete ACCA
“occurrences.”
The district court declined to conduct an evidentiary
hearing, holding that the two burglaries were to be considered
distinct “occasions” under the ACCA. Then, applying the armed
career criminal enhancement, the district court sentenced Stearns
to 150 months' imprisonment. Stearns appeals.
II
DISCUSSION
First, Stearns contends that the district court erred in
refusing to convene an evidentiary hearing to determine the
particular factual circumstances surrounding the two 1979
robberies, and whether he committed them as part of a single,
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integrated criminal scheme which should be treated as one
“occasion” for purposes of the ACCA. In the alternative, Stearns
argues that the fact that there was but one victim of the
burglaries should preclude their being counted separately.
Following oral argument, Stearns submitted a letter to the court,
contending that the Supreme Court's ruling in Blakely v.
Washington, 124 S. Ct. 2531, 2537 (2004) (holding that a sentence
enhanced under the Washington State sentencing guidelines violated
the Sixth Amendment because the enhancement relied on factual
findings neither admitted by the defendant nor found by the jury),
presented a distinct ground for vacating the sentence. We
permitted the parties to submit supplemental briefs on the Blakely
issue.
Although the Supreme Court has decided to expedite its
review of the issue of Blakely’s impact vel non upon the federal
sentencing guidelines, we need not await its disposition before
rejecting the Blakely argument in the instant case. First, Stearns
did not present a Sixth Amendment-based challenge to the district
court’s § 4B1.4 enhancement, and thus the issue has been forfeited
for purposes of appeal. See United States v. Cordoza-Estrada, ___
F.3d ___, ___ (1st Cir. 2004) [No. 03-2666, 2004 WL 2179594, at *3
(1st Cir. Sept. 29, 2004)] (noting that Blakely objection had been
forfeited for failure to present it to the trial court); United
States v. Savarese, ___ F.3d ___, ___ (1st Cir. 2004)[No. 04-1099,
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2004 WL 2106341, at *5 (1st Cir. Sept. 22, 2004)] (same); United
States v. Morgan, ___ F.3d ___, ___ (1st Cir. 2004) [No. 03-1768,
2004 WL 1949061, at *5 (1st Cir. Sept. 2, 2004)] (same). Normally,
we review forfeited claims for plain error only, and will not
vacate a sentence unless we find (i) error, (ii) which is plain,
and (iii) affects the defendant’s substantial rights. See Morgan,
___ F.3d at ___ [No. 03-1768, 2004 WL 1949061, at *5]. Even then,
however, we will determine whether to exercise our discretion to
notice a forfeited error only where it seriously affected the
fairness, integrity, or public reputation of the trial process.
See id.
Applying these standards, we discern no plain error.
There are but two findings of fact which could conceivably have
triggered the Blakely holding in the instant case: (i) whether the
two burglaries constitute prior convictions for crimes of the type
counted under the ACCA, viz., “a violent felony or a serious drug
offense”; and (ii) whether the particular circumstances in these
two burglaries – his former employer’s alleged insurance fraud
scheme – would suggest that the burglaries were part of a single
“occasion” under the ACCA.
As to the former finding, in the district court Stearns
did not dispute that he was convicted of the two burglaries, nor
that the burglaries were the type of “violent felony” countable
under the ACCA. Moreover, had he posed such a dispute, the Blakely
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decision does not encompass sentencing enhancements based upon “the
fact of prior conviction,” which is not the type of circumstance
which the Sixth Amendment mandates be determined by a jury, rather
than the sentencing court. See Cordoza-Estrada, ___ F.3d at ___
[No. 03-2666, 2004 WL 2179594, at *3 (1st Cir. Sept. 29, 2004)]
(“Blakely did not disturb the distinction between ‘the fact of a
prior conviction’ and other facts that ‘increase the penalty for a
crime beyond a prescribed maximum.’”). In addition, even if “the
fact of prior conviction” were not already beyond the ambit of
Blakely, in the Stearns indictment the government listed the two
prior burglary convictions as ACCA predicate offenses, and the
Stearns guilty plea would constitute an admission of fact which
independently removed his case from the operation of Blakely. See
United States v. Saldivar-Trujillo, 380 F.3d 274, 279 (6th Cir.
2004) (noting that Blakely does not apply to “facts . . . admitted
by the defendant") (citing Blakely, 124 S. Ct. at 2537).
As concerns any alleged “factual” finding relating to
whether the particular circumstances which obtained in the two
Stearns burglaries would demonstrate that they constituted one
“occasion,” we discern no plain error. In denying Stearns’ request
for an evidentiary hearing on this issue, the district court cited
Taylor v. United States, 495 U.S. 575 (1990), for the proposition
that district courts normally should not look beyond the indictment
when determining whether a prior conviction is the type countable
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under the ACCA. Whether or not the district court's Taylor
citation is entirely apposite, an issue upon which we express no
opinion,1 the record demonstrates that Stearns affirmatively
accepted the district court’s ruling, thereby waiving any initial
request for such an evidentiary hearing. Stearns' counsel stated:
“So I agree with the Court, my better argument is not, let’s find
out what happened 13 years ago when this burglary took place. You
can’t do that.” (Emphasis added.). Stearns, through his counsel,
then focused on a different argument that did not require further
factfinding, viz., whether the facts that the burglaries were
committed against the same victim and on consecutive days – both
undisputed historical facts – prevented the court from considering
them as separate “occasions.” Even if we were to accept the
dubious proposition that the evidentiary hearing proposed by
Stearns would have resulted in district court “factfinding” which
somehow implicated Blakely, that issue was affirmatively waived
below.2 Although we can review forfeited error for plain error,
1
Cf. United States v. Hudspeth, 42 F.3d 1015, 1019 (7th Cir.
1994) (noting that Taylor applies to the issue as to whether a
prior offense constituted a “violent felony” under the ACCA, which
is to be decided only by reference to the statutory definition of
the crime, and not the particular facts underlying the conviction,
whereas Taylor does not apply to the question whether multiple
prior offenses occurred on more than one “occasion” under the ACCA,
which frequently necessitates reference not only to the charging
documents but to other evidence, such as police reports).
2
Blakely is based on the proposition that a finding of fact
which supports a sentencing enhancement is to be determined by the
jury. In light of the Stearns waiver, the applicability of Blakely
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arguments which have been affirmatively waived are not normally
reviewable on appeal. See Morgan, ___ F.3d at ___ [No. 03-1768,
2004 WL 1949061, at *3] (“When an argument has been waived, no
[appellate] review is possible, unless the court engages in the
rare exercise of its power to excuse waiver.”). Accordingly, we
reject both the Blakely claim and the Stearns contention that the
district court erred in refusing to permit an evidentiary hearing.
Thus, as presented, the Stearns argument devolves into a
question of law, rather than fact; i.e., whether the undisputed
facts that the burglaries were committed against the same victim
and on consecutive days prevented the district court from treating
them as separate “occasions” as prescribed by the ACCA. Since the
determination as to whether the Stearns burglaries occurred on a
single occasion or on multiple occasions involves statutory
interpretation, appellate review of the legal question is plenary.
See United States v. Phillips, 149 F.3d 1026, 1031 (9th Cir. 1998);
United States v. Hobbs, 136 F.3d 384, 387 (4th Cir. 1998); United
States v. Thomas, 211 F.3d 316, 319 (6th Cir. 2000).
The “occasions” inquiry conceivably may turn upon any
combination of circumstances, including (but not limited to) the
identity of the victim; the type of crime; the time interval
between the crimes; the location of the crimes; the continuity vel
is yet more dubious, inasmuch as the district court’s enhancement
did not rely upon a finding of fact, but upon its refusal to engage
in factfinding.
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non of the defendant’s conduct; and/or the apparent motive for the
crimes. See United States v. Letterlough, 63 F.3d 332, 335-36 (4th
Cir. 1995). Thus, the "occasions" inquiry requires a case-by-case
examination of the totality of the circumstances. See, e.g.,
United States v. Riddle, 47 F.3d 460, 462 (1st Cir. 1995).
Stearns contends that the determinative consideration is
that both burglaries were directed against the same victim and
occurred on consecutive days. His contention flies in the face of
the case law. See, e.g., Letterlough, 63 F.3d at 337 (holding that
defendant’s two sales of cocaine – within 90 minutes of each other
– to same police officer constituted two ACCA “occasions”); United
States v. Washington, 898 F.2d 439, 440-42 (5th Cir. 1990)
(considering two robberies of same store clerk – committed several
hours apart – as separate “occasions” under the ACCA). These cases
make the crucial distinction between (i) a time interval during
which defendant successfully has completed his first crime, safely
escaped, and which affords defendant a “breather,” viz., a period
(however brief) which is devoid of criminal activity and in which
he may contemplate whether or not to commit the second crime; and
(ii) a time lapse which does not mark the endpoint of the first
crime, but merely the natural consequence of a continuous course of
extended criminal conduct. See, e.g., Washington, 898 F.2d at 442.
Thus, the fact that two crimes involve the same victim does not
necessarily prevent those crimes from being considered "separate,"
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even though the time interval between them may have been quite
brief.
Applying these principles to the Stearns burglaries, we
conclude that each represented a distinct ACCA “occurrence.” On
December 19, 1979, Stearns committed the first burglary, escaped
detection, waited overnight, and then returned to the warehouse to
commit the second burglary. The overnight respite precludes any
reasonable inference that Stearns committed the two burglaries as
part of a continuous course of conduct, inasmuch as during the time
lapse Stearns had the opportunity affirmatively to decide whether
to initiate another criminal episode. Under any reasonable view of
these circumstances, Stearns engaged in two distinct burglaries,
albeit against the same victim.
Accordingly, the ACCA enhancement imposed by the district
court is affirmed.
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