                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-2007

USA v. Crump
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1269




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT



                                     No. 06-1269



                          UNITED STATES OF AMERICA

                                           v.

                                   JASON CRUMP,

                                                Appellant



                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 05-cr-00242)
                     District Judge: Honorable Gene E.K. Pratter



                   Submitted pursuant to Third Circuit LAR 34.1(a)
                                   April 27, 2007

      Before: SCIRICA, Chief Judge, FUENTES and ALARCÓN,* Circuit Judges.

                                (Filed:   July 11, 2007)




      *
         The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
                              OPINION OF THE COURT



FUENTES, Circuit Judge.

      On April 26, 2005, a grand jury in the Eastern District of Pennsylvania returned an

indictment charging Jason Crump with one count of being a convicted felon in possession

of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) & 924(e). The District Court imposed

a term of 180 months in prison, the mandatory minimum under the Armed Career

Criminal Act (“ACCA”). 18 U.S.C. § 924(e). On appeal, Crump argues that he is not an

“armed career criminal” because two of the three prior convictions attributed to him

should be considered part of the same criminal episode. He also argues that the District

Court improperly relied on Almendarez-Torres v. United States, 523 U.S. 224 (1998) in

setting his sentence. We will affirm.

                                            I.

      On October 15, 2004, Jason Crump was pulled over by police officers in

Philadelphia, Pennsylvania for a traffic violation. The officers found Crump to be in

possession of a loaded semiautomatic handgun, which they later determined to have been

manufactured out of state. Crump subsequently pleaded guilty to being a convicted felon

in possession of a firearm, but challenged whether he had enough convictions to be

deemed an armed career criminal under 18 U.S.C. § 924(e).


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         At his sentencing hearing, the government submitted certified records from

Pennsylvania’s Common Pleas Court indicating that Crump had been convicted of:

(1) possession with intent to deliver crack cocaine and criminal conspiracy on March 16,

1999; (2) possession with intent to deliver crack cocaine on March 25, 1999; and (3)

possession with intent to deliver crack cocaine on January 2, 2001. Crump argued that

the first two convictions arose from a continuous course of conduct in the same location

and should therefore constitute a single occasion. The District Court disagreed,

determining that all three convictions were committed on different occasions within the

meaning of § 924(e).

         At the sentencing hearing Crump also asked that the District Court require the

government to include in the indictment, and prove to a jury beyond a reasonable doubt,

his prior convictions. The District Court denied this request. In accordance with these

determinations, the District Court imposed the mandatory minimum sentence of 180

months in prison. This timely appeal followed.

                                              II.

         We have jurisdiction to review Crump’s sentence pursuant to 18 U.S.C. § 3742(a)

and 28 U.S.C. § 1291. See United States v. Cooper, 437 F.3d 324, 327-28 & n.4 (3d Cir.

2006).

         A.     Armed Career Criminal Act

         Under 18 U.S.C. § 924(e) (1), a person who “violates section 922(g) of this title

and has three previous convictions . . . for a . . . serious drug offense . . . committed on

                                              -3-
occasions different from one another . . . shall be . . . imprisoned not less than fifteen

years . . . .” Having been sentenced under this provision, Crump contends that two of his

three previous drug trafficking offenses were committed on different occasions from one

another. Specifically, he argues that his first two convictions arose from a single criminal

episode because he was arrested for them on the same day and pleaded guilty to them at

the same proceeding. Crump also argues that since the transactions took place only nine

days apart, and within close proximity of one another, they are part of the same offense.

       We conclude that Crump’s offenses were committed on occasions different from

one another under § 924(e). In United States v. Schoolcraft, 879 F.2d 64 (3d Cir. 1989)

we recognized that “individual convictions may be counted for purposes of sentencing

enhancement so long as the criminal episodes underlying the convictions were distinct in

time.” Id. at 73. This approach is consistent with the plain language of the statute which

asks whether the offenses were “committed on occasions different from one another.” 18

U.S.C. § 924 (e)(1) (emphasis added). In this case, although Crump was arrested and

pleaded guilty to the two offenses at the same time, the offenses were distinct in time as

they were actually committed several days apart.

       Moreover, contrary to Crump’s assertion, his offenses were not “a continuous

course of drug selling” amounting to a single criminal episode. (Crump’s Br. at 13.)

Simply because Crump engaged in the same illicit activity twice within a matter of days

does not mean he committed only one offense. In a similar case, for example, the

Seventh Circuit determined that two crack sales made on the same block within 45

                                              -4-
minutes of one another were distinct for the purposes of the ACCA. United States v.

Cardenas, 217 F.3d 491, 492 (7th Cir. 2000). In coming to this conclusion, the court

asked, among other things, whether “the defendant had sufficient time to cease and desist

or withdraw from the criminal activity.” Id.

       In this case, with several days intervening between episodes, Crump clearly had

sufficient time to withdraw from the criminal activity. This result is in accord with other

courts that have found separate offenses when short intervals were involved. See e.g.,

United States v. Letterlough, 63 F.3d 332, 337 (4th Cir. 1995) (drug sales approximately

ninety minutes apart were on occasions different from one another); United States v.

Brady, 988 F.2d 664, 669 (6th Cir. 1993) (two armed robberies thirty minutes apart

counted as separate offenses); United States v. Rideout, 3 F.3d 32, 35 (2d Cir. 1993)

(breaking and entering convictions for two offenses separated by at least twenty to thirty

minutes qualified as separate offenses); United States v. Wicks, 833 F.2d 192, 194 (9th

Cir. 1987) (two burglaries which took place on the same day, yet at different places

counted as individual convictions). With this in mind, the District Court did not err in

determining that Crump had three previous convictions for offenses that were committed

on different occasions.

       B.     Almendarez-Torres

       Crump also argues that the District Court violated his Fifth and Sixth Amendment

rights by finding his prior convictions by a preponderance of the evidence. Crump


                                             -5-
concedes that this issue is controlled by Almendarez-Torres v. United States, 523 U.S.

224 (1998), but argues that this Supreme Court precedent should no longer be followed.

His contention is that Almendarez-Torres has been undermined by subsequent Supreme

Court precedent—specifically Apprendi v. New Jersey, 530 U.S. 466 (2000) and Shepard

v. United States, 544 U.S. 13 (2005). We reject this contention.

       As we have ruled previously, Almendarez-Torres remains binding precedent, in

spite of the recent Supreme Court cases cited by Crump. See United States v. Ordaz, 398

F.3d 236, 241 (3d Cir. 2005) (holding that, in spite of Apprendi, “Almendarez-Torres

remains binding law . . .”); United States v. Coleman, 451 F.3d 154, 161 (3d Cir. 2006)

(stating that “the Supreme Court’s decision in Almendarez-Torres remains good law after

Shepard . . .”). Accordingly, we must decline Crump’s invitation to diverge from binding

precedent.

                                           III.

      For the foregoing reasons, we will affirm the judgment of sentence.




                                           -6-
