           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0151P (6th Cir.)
                    File Name: 00a0151p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                 ;
                                  
 UNITED STATES OF AMERICA
                                  
           Plaintiff-Appellee,
                                  
                                  
                                     No. 98-6740
           v.
                                  
                                   >
 LONNIE ALLEN THOMAS,             
         Defendant-Appellant. 
                                 1
       Appeal from the United States District Court
   for the Western District of Tennessee at Memphis.
  No. 98-20072—Julia S. Gibbons, Chief District Judge.
                   Argued: February 2, 2000
               Decided and Filed: April 27, 2000
Before: COLE and CLAY, Circuit Judges; BELL*, District
                     Judge.




    *
     The Honorable Robert Holmes Bell, United States District Judge for
the Western District of Michigan, sitting by designation.

                                  1
2    United States v. Thomas                      No. 98-6740

                    _________________
                         COUNSEL
ARGUED: Stephen B. Shankman, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for
Appellant. Stuart J. Canale, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Stephen B. Shankman, T. Clifton Harviel, Jr.,
OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Memphis, Tennessee, for Appellant. Stuart J. Canale,
ASSISTANT UNITED STATES ATTORNEY, Memphis,
Tennessee, for Appellee.
  BELL, D. J., delivered the opinion of the court, in which
COLE, J., joined. CLAY, J. (pp. 11-14), delivered a separate
concurring opinion.
                    _________________
                        OPINION
                    _________________
   BELL, District Judge. Defendant Lonnie Allen Thomas
was indicted on one count of possession of marijuana with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and
one count of felon in possession of a firearm in violation of
18 U.S.C. § 922(g). On September 11, 1998, Defendant
entered a plea of guilty to Count 2, felon in possession of a
firearm, with Count 1 to be dismissed at sentencing.
Defendant was sentenced as an Armed Career Criminal under
the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(1), and § 4B1.4 of the United States Sentencing
Guidelines to 200 months imprisonment, to be followed by a
term of three years supervised release. Count 1 was
dismissed upon motion of the United States.
   On appeal Defendant contends that the district court erred
in sentencing him as an armed career criminal under § 924(e).
14    United States v. Thomas                       No. 98-6740      No. 98-6740                            United States v. Thomas              3

   Although the issue was not raised by the parties, were it not       Congress has provided in 18 U.S.C. § 924(e) that if a
for the rule of lenity, it is possible that this thoroughly          person who violates § 922(g) has three previous convictions
ambiguous statute could be declared unconstitutional on the          for a violent felony or a serious drug offense, or both,
ground that it is void for vagueness.                     “[T]he     "committed on occasions different from one another," that
void-for-vagueness doctrine requires that a [criminal] statute       person shall be imprisoned not less than fifteen years.
[be] define[d] . . . with sufficient definiteness [so] that
ordinary people can understand . . . .” Kolender v. Lawson,            In making its determination that Defendant was an armed
461 U.S. 352, 357 (1983); see also Grayned v. Rockford, 408          career criminal, the district court relied on evidence of three
U.S. 104, 108-109 (1972) (vague sentencing provisions which          prior convictions: 1) attempt to commit a felony: burglary
are not clear can raise constitutional questions). However, it       third degree August 13, 1982; 2) rape July 10, 1986; and
is unnecessary under the circumstances of this case to express       3) rape July 10, 1986.
an opinion as to the constitutionality of the statute, and I
expressly refrain from doing so. Because we must save a                 There is no dispute that the three prior convictions were for
statute from its constitutional infirmity, and any doubt on the      violent offenses within the meaning of the ACCA. Defendant
issue of statutory construction should thus be resolved in           contends, however, that his July 10, 1986 convictions for rape
favor of avoiding the void for vagueness question, under the         do not constitute two separate predicate offenses under the
rule that, “where a statute is susceptible of two constructions,     statute because they arose out of one criminal episode.
by one of which grave and doubtful constitutional questions
arise and by the other of which such questions are avoided,            Because there were no objections to the facts contained in
[this Court’s] duty is to adopt the latter.” United States ex rel.   the presentence report, the district court adopted the
Attorney General v. Delaware & Hudson Co., 213 U.S. 366,             presentence report as its findings of fact concerning the the
408 (1909).                                                          facts underlying the rape convictions.2 In the early morning
                                                                     hours of January 1, 1986, two women in a car asked Thomas
  In this case, where the facts do not lend themselves to a          and his companion, Roosevelt T. McKinney ("Bucky") for
determination of whether the crimes were “committed on               directions to the Arkansas Bridge. The men agreed to show
occasions different from one another,” the rule of lenity            them the way and asked for a ride. The men got in the back
should be deemed to control. Indeed, although there were two
different victims who were each raped multiple times in one
another’s presence during a continuous episode, the record               1
                                                                           Although the indictment listed a fourth conviction for convicted
does not remotely provide us with a clear and definitive             felon in possession of a handgun, the government conceded that this was
answer to the question of whether the acts were “committed           not a crime of violence, and the district court did not consider it as a
on occasions different from one another.” Therefore, because         qualifying predicate offense for purposes of applying the ACCA.
we are confronted with an ambiguous criminal statute and a
                                                                         2
choice must be made between sentencing Defendant to the                     To the extent Thomas is now suggesting that the presentence report
harsher mandatory minimum under the ACCA and the more                was incorrect, that argument has been waived. A failure to object to the
lenient punishment under the sentencing guidelines, the rule         presentence report waives any future objections. See United States v.
of lenity dictates that Defendant be sentenced to the less harsh     Ward, 190 F.3d 483, 492 (6th Cir. 1999) (citing United States v.
                                                                     Duranseau, 19 F.3d 1117, 1123 (6th Cir. 1994)), cert. denied sub nom.
punishment under the sentencing guidelines.                          Morris v. United States, 120 S.Ct. 940 (2000). See also United States v.
                                                                     Cullens, 67 F.3d 123, 124 (6th Cir. 1995) (per curiam) (defendant who
                                                                     fails to object to an error at sentencing waives his right to assert the error
                                                                     on appeal).
4        United States v. Thomas                          No. 98-6740        No. 98-6740                    United States v. Thomas      13

seat of the car. The details of3 what occurred next are quoted               (6th Cir. 1997) (holding two convictions for armed robberies
from the presentence report:                                                 of two residences in a duplex were not crimes committed on
                                                                             occasions different from one another); United States v.
    Thomas came over the front seat and started beating [the                 Graves, 60 F.3d 1183, 1186-87 (6th Cir. 1995) (holding the
    passenger] about the face. Bucky grabbed [the driver]                    defendant’s burglary of a home and his assault on a police
    around the neck and told her Thomas would kill [the                      officer in the woods just outside of the home were not crimes
    passenger] if she did not drive where they told her.                     committed on occasions different from one another even
                                                                             though the assault upon the officer was at the same location
    Bucky tried to get the keys out of the ignition but he                   and within moments of the burglary) with United States v.
    could not because there is a button that has to be pushed                Schieman, 894 F.2d 909, 910-13 (7th Cir. 1990) (finding that
    for the keys to come out. He made [the driver] stop the                  a defendant who committed a burglary and several minutes
    car. Thomas started raping [the passenger] and Bucky                     later assaulted an officer pursuing him down the street
    took [the driver] out and raped her on the ground.                       committed crimes on occasions different from one another).
    Thomas beat [the passenger’s] head against the window                    Compare United States v. McElyea, 158 F.3d 1016 (9th Cir.
    of the car.                                                              1998) (finding two burglary convictions that took place in
                                                                             adjoining stores within a short period of time were not
    Thomas then made [the driver] drive to another place.                    committed on occasions different from one another) with
    Thomas took [the passenger] out of the car and knocked                   United States v. Washington, 898 F.2d 439, 440-42 (5th Cir.
    her to the concrete and beat her head on a car that was                  1990) (finding that defendant who robbed same clerk at all-
    parked there. Thomas raped [the passenger] repeatedly                    night convenience store twice within a few hours committed
    and Bucky finally persuaded Thomas to get back in the                    crimes on occasions different from one another).
    car. They then changed partners and Bucky raped [the
    passenger] twice vaginally and anally. Thomas raped                         There is no precise test that courts may use in determining
    [the driver] vaginally and made her perform oral sex on                  whether crimes have been “committed on occasions different
    him.                                                                     from one another.” See United States v. Hudspeth, 42 F.3d
                                                                             1015, 1021 (7th Cir. 1994) (holding that “crimes [] committed
                                                                             sequentially, against different victims, at different times and
                                                                             different locations” were on occasions different from one
     3
      Defendant contends that the district court erred in looking at the     another); United States v. Tisdale, 921 F.2d 1095, 1099 (10th
underlying facts of the predicate convictions. Defendant’s reliance on       Cir. 1990) (“The defendant had committed crimes on different
United States v. Arnold, 58 F.3d 1117, 1121-24 (6th Cir. 1995), and          occasions because [a]fter the defendant ‘successfully
United States v. Seaton, 45 F.3d 108, 111-112 (6th Cir. 1995), in support    completed’ burglarizing one business, he was free to leave.
of this contention is misplaced. Arnold and Seaton stand for the
proposition that a court should not consider the underlying facts of the     The fact that he chose, instead to burglarize another business
predicate conviction in determining whether a predicate offense is a crime   is evidence of his intent to engage in a separate criminal
of violence for purposes of the Armed Career Criminal Act. They do not       episode.”); see also United States v. Balascsak, 873 F.2d
speak to what the court should consider in determining whether the           673, 681 (3d Cir. 1989) (en banc) (where plurality concluded
predicate offenses were "committed on occasions different from one           that a defendant must have been convicted twice before he
another." All of our opinions on this issue have involved consideration
of the specific facts underlying the prior convictions. Indeed, we cannot    committed his third predicate offense in order to be eligible
imagine how such a determination could be made without reference to the      for the enhancement under the ACCA).
underlying facts of the predicate offenses.
12   United States v. Thomas                      No. 98-6740      No. 98-6740                           United States v. Thomas              5

  common world will understand, of what the law intends              Eventually, Bucky told Thomas he thought he saw a police
  to do if a certain line is passed. To make the warning           car. The two men exited the car and the women drove away.
  fair, so far as possible the line should be clear.’ Second,
  because of the seriousness of criminal penalties, and               Thomas was indicted in two separate indictments for the
  because criminal punishment usually represents the               rape of the two women. He was convicted and sentenced to
  moral condemnation of the community, legislatures and            5 years imprisonment on each indictment, to run concurrently.
  not courts should define criminal activity. This policy
  embodies ‘the instinctive distaste against men                     The district court determined that the rapes of the two
  languishing in prison unless the lawmaker has clearly            victims constituted two separate crimes for purposes of the
  said they should.’                                               ACCA:

Id. at 348. (citations omitted). Accordingly, the “policy of         What we have here is, in the language of Brady [United
lenity means that the Court will not interpret a federal statute     States v. Brady, 988 F.2d 664 (6th Cir. 1993) (en banc)],
so as to increase the penalty it places on an individual when        an incident that is part of a series but forms a separate
such an interpretation can be no more than a guess as to what        unit within the whole. Although related to the entire
Congress intended.” Bifulco v. United States, 447 U.S. 381,          course of events, an episode is a punctuated occurrence
387 (1979) (quoting Ladner v. United States, 358 U.S. 169,           with a limited duration. Here we have the rape of the
178 (1958)). See United States v. Weekley, 24 F.3d 1125 (9th         first victim, which forms one episode. We then have an
Cir. 1994) (affirming the district court’s application of the        opportunity for Mr. Thomas to have ceased and desisted
rule of lenity in interpreting the ACCA); United States v.           from further criminal conduct. Instead he made a
Blake, 59 F.3d 138, 140 (10th Cir. 1995) (stating that rule of       decision at that point to commit a separate act of
lenity may be applied in interpreting Sentencing Guidelines).        aggression against a second victim, and he raped the4
                                                                     victim of the second rape that occurred in point in time.
  In my view, neither the plain language of the statute nor the
legislative history is instructive in interpreting the pertinent     "Since determining whether the conduct was a single
ambiguous language. In fact, when the language “committed          occasion or multiple occasions presents a legal question
on occasions different from another” was added to § 924(e),        concerning the interpretation of a statute, we review the
both the House and the Senate refrained from submitting a          district court’s decision de novo." United States v. Murphy,
Report with the amendment. See 1988 U.S.C.C.A.N. 5937.             107 F.3d 1199, 1208 (6th Cir. 1997).
Moreover, the case law fails to provide the requisite guidance
to resolve the case and permit us to determine the outcome.          Whether two prior offenses can be treated as predicate
In attempting to remove the ambiguity, case law interpreting       crimes under the ACCA does not depend on the number of
the language “committed on occasions different from one            convictions or the number of victims. United States v. Brady,
another” has led to inconsistent outcomes in our Court as well     988 F.2d 664, 668 n. 5 (6th Cir. 1993) (citing United States v.
as other Circuits. Compare United States v. Brady, 988 F.2d
664, 666, 669 (6th Cir. 1993) (holding that two robberies
committed at different times and places and against different          4
                                                                         The trial court found it somewhat significant, although possibly not
victims although committed within less than one hour of each       determinative, that the vehicle was stopped and moved to a different
other were crimes committed on occasions different from one        location. The court mentioned this fact in order to clarify that this was not
another) with United States v. Murphy, 107 F.3d 1199, 1208         a case where the two victims and the two men were riding around in the
                                                                   car the entire time that these incidents occurred.
6      United States v. Thomas                     No. 98-6740    No. 98-6740                     United States v. Thomas       11

Petty, 828 F.2d 2, 3 (8th Cir. 1987) (a defendant’s six                               _________________
convictions for six armed robberies committed
simultaneously could count as only one predicate offense for                           CONCURRENCE
purposes of the enhanced penalty of 18 U.S.C. § 1202(a)                               _________________
(repealed 1986), the predecessor statute of 18 U.S.C.
§ 924(e)). In Brady we observed that "§ 924(e) enhanced              CLAY, Circuit Judge, concurring. Although I concur in the
punishment for multiple criminal episodes that were distinct      outcome reached by the majority, I do so based upon the rule
in time." Id. at 668 (quoting United States v. Hughes, 924        of lenity. I believe the language of the statute “committed on
F.2d 1354, 1361 (6th Cir. 1991)).                                 occasions different from one another” is ambiguous in that
                                                                  though it provides for an enhanced punishment, when the
    An episode is an incident that is part of a series, but       punishment is to be applied cannot be determined by the
    forms a separate unit within the whole. Although related      statute’s plain language. Armed Career Criminal Act
    to the entire course of events, an episode is a punctuated    (“ACCA”), 18 U.S.C. § 924(e). In such a case, the well-
    occurrence with a limited duration.                           established judicial doctrine of “the rule of lenity” applies,
                                                                  “resolv[ing] the ambiguity in favor of the more lenient
Brady, 988 F.2d at 668 (quoting Hughes, 924 F.2d at 1361).        punishment.” BLACK’S LAW DICTIONARY 1332-33 (7th ed.
                                                                  1999).
   In Brady the defendant committed an armed robbery at the
Mack Avenue Beauty Shop. Thirty minutes later he                     It is a well settled canon of statutory construction that when
committed a second armed robbery at the Club Continental          interpreting statutes, “[t]he language of the statute is the
Bar. Id. at 666. He argued that the two robberies should          starting point for interpretation, and it should also be the
count as only one predicate offense for purposes of the           ending point if the plain meaning of that language is clear.”
ACCA, 18 U.S.C. § 924(e)(1), because they represented a           United States v. Choice, 201 F.3d 837, 840 (6th Cir. 2000)
single, continuous crime spree rather than two separate           (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235,
offenses. This court, sitting en banc, rejected his argument,     241 (1989)). However, if the language in the statute is not
and held that "[c]onsistent with the holdings of our sister       clear, we may resort to the legislative history to ascertain the
circuits, we believe that offenses committed by a defendant at    meaning of the language. See In re Comshare, Inc. Sec.
different times and places and against different victims,         Litig., 183 F.3d 542, 549 (6th Cir. 1999); see also United
although committed within less than an hour of each other,        States v. Kassouf, 144 F.3d 952, 955 (6th Cir. 1998). If the
are separate and distinct criminal episodes and that              statute remains ambiguous after consideration of its plain
convictions for those crimes should be counted as separate        meaning, structure and legislative history, the rule of lenity is
predicate convictions under § 924(e)(1)." Id. at 669.             applied in favor of criminal defendants. See United States v.
                                                                  Hill, 55 F.3d 1197, 1206 (6th Cir. 1995).
   In arriving at our conclusion that the robberies constituted
two separate episodes, we considered three cases from other         In United States v. Bass, 404 U.S. 336, 347-48 (1971) the
circuits that had found two separate episodes where there had     Supreme Court enunciated the policies behind the time
been a successful completion of the first crime before the        honored axiom of lenity:
second crime was embarked upon. We observed that in
United States v. Schieman, 894 F.2d 909, 913 (7th Cir. 1990),       This principle [rule of lenity] is founded on two policies
the Seventh Circuit emphasized that "the defendant had              that have long been part of our tradition. First, ‘a fair
successfully completed his burglary and had safely escaped          warning should be given to the world in language that the
10   United States v. Thomas                   No. 98-6740     No. 98-6740                     United States v. Thomas       7

                        Conclusion                             from the premises, thus concluding the burglary episode
                                                               before he undertook an assault on the officer investigating the
  Accordingly, we hold that Defendant-Appellant Thomas’        case." Brady, 988 F.2d at 668. In United States v. Tisdale,
1986 convictions for the rapes of the two women constituted    921 F.2d 1095, 1099 (10th Cir. 1990), the Tenth Circuit held
a single criminal episode for purposes of defining predicate   that three burglaries committed "successfully" at different
offenses for an enhanced sentence as an Armed Career           stores within the same shopping mall during the same evening
Criminal under 18 U.S.C. § 924(e). As a result, Defendant      were separate criminal episodes. We observed that the Tenth
has been convicted of only two predicate felonies under        Circuit had noted that "[a]fter each burglary, the defendant
§ 924(e). His sentence was therefore improperly enhanced       was free to desist and leave." Brady, 988 F.2d at 668.
under § 924(e) and U.S.S.G. § 4B1.4. For the foregoing         Finally, we noted that in United States v. Washington, 898
reasons, we hereby REMAND for resentencing.                    F.2d 439, 441-42 (5th Cir. 1990), "[b]ecause the defendant
                                                               had completed the first offense and safely escaped, the court
                                                               refused to consider the second offense a part of a single crime
                                                               spree." Brady, 988 F.2d at 669.
                                                                 Consistent with the analyses in the cases from the Seventh,
                                                               Tenth and Fifth Circuits, we noted in Brady that "while
                                                               defendant Brady sat at the Club Continental Bar with his
                                                               concealed shotgun, he could have decided that the one
                                                               robbery he had committed was enough for the evening.
                                                               Instead, he decided to rob again." 988 F.2d at 669.
                                                                 We built on this theme of conclusion of the first offense in
                                                               United States v. Wilson, 27 F.3d 1126, 1131 (6th Cir. 1994).
                                                               In Wilson the defendant was convicted of two criminal sexual
                                                               conduct offenses on the same date and in the same house, but
                                                               against separate victims, and on different floors and locations
                                                               within the house. Id. at 1131. We found no error in the
                                                               district court’s determination that these were separate offenses
                                                               for purposes of § 924(e): "Defendant could have halted his
                                                               criminal rampage at any time. Yet, he chose to continue
                                                               selecting different victims in separate places." Id.
                                                                 In United States v. Graves, 60 F.3d 1183 (6th Cir. 1995),
                                                               noting that the Brady court had "considered whether or not
                                                               the defendant safely escaped from one crime scene before he
                                                               committed the second crime," we held that the defendant’s
                                                               burglary of a home and his assault on a police officer in the
                                                               woods just outside of the home constituted a single episode of
                                                               criminal conduct because the assault upon the officer was at
8      United States v. Thomas                     No. 98-6740    No. 98-6740                     United States v. Thomas        9

the same location and within moments of the burglary. Id. at      considered a "repetition of criminal conduct." If the first
1186-87.                                                          crime is concluded we can safely infer that the defendant
                                                                  entered into the second crime with a fresh purpose. As noted
  The question of single or multiple episodes was most            in United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998),
recently addressed in United States v. Murphy, 107 F.3d 1199      the courts of appeals are "virtually unanimous" in stating that
(6th Cir. 1997). After Murphy and two accomplices robbed          "the ‘successful’ completion of one crime plus a subsequent
the occupant of the first residence of a duplex, Murphy           conscious decision to commit another crime makes that
remained in the first residence to prevent the occupant from      second crime distinct from the first for the purposes of the
calling the police, while his accomplices robbed the adjoining    ACCA." Id.
residence. Although Murphy was convicted of both
robberies, we held that his convictions for robberies of two         In the case before us today, it is the absence of a completion
sides of the duplex constituted a single criminal episode for     or definable endpoint of the first crime before the second
purposes of § 924(e). We reasoned that because "Murphy            crime was begun that distinguishes this case from Brady and
never left his original location, he never ceased his original    Wilson, and brings it more in line with our opinions in
conduct and he never successfully escaped the site of the first   Murphy and Graves. "The defendant in Wilson completed
crime until the second was complete." 107 F.3d at 1210.           one sexual assault and then elected to seek out another victim
                                                                  in another location after completing the first crime and
 Our reasoning in these cases is guided by the purpose of the     leaving the first location." Murphy, 107 F.3d at 1210. By
ACCA, which is to target recidivism. As we noted in               contrast, in this case the sexual assault started when both men
Hughes,                                                           entered the women’s vehicle and did not end until both men
                                                                  exited the vehicle when they thought they had seen a police
    The propriety of inflicting severer punishment upon           car. It is not sufficient to argue, as the government has argued
    [repeat] offenders has long been recognized in this           in this case, that the rapes were necessarily sequential because
    country and in England. They are not punished the             it was physically impossible for Thomas to rape two women
    second time for the earlier offense, but the repetition of    at one time. We cannot ignore the fact that the crime
    criminal conduct aggravates their guilt and justifies         encompassed more than sexual penetration. Thomas and
    heavier penalties when they are again convicted.              Bucky asserted dominion and control over both women at the
                                                                  same time. They kept both women under their control
924 F.2d at 1361 (quoting Graham v. West Virginia, 224 U.S.       throughout the duration of this incident. There was no
616, 623 (1912)). "Because Congress intended to punish            conclusion of Thomas’ criminal activity against the first
recidivists, the predicate conduct must amount to separate and    woman when he began raping the second woman. With the
distinct transactions in some definable sense." Murphy, 107       assistance of his accomplice, Thomas carried out his
F.3d at 1210. There must be some "reasoned basis" for             aggressions against the two women simultaneously.
considering criminal conduct to be a definable event. Id. As
we cautioned in Graves, "[i]t should not be necessary to reach      Thomas’ rapes of the two women cannot be deemed to have
to apply this statute; instead, the statute should be applied     been "committed on occasions different from one another."
where the facts demand its application." 60 F.3d at 1187.         Both rapes were part of one continuous episode. Each rape
                                                                  was not a "punctuated occurrence with a limited duration."
  Considering whether the first crime was concluded provides      See Brady, 988 F.2d at 668. Rather, the rapes of both women
a reasoned basis for determining whether the conduct              were part of a single, ongoing criminal episode.
constitutes more than one episode such that it can be
