In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3381

United States of America,

Plaintiff-Appellee,

v.

Leon Thomas,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:99-CR-191--James T. Moody, Judge.

Argued April 12, 2001--Decided February 19, 2002



  Before Easterbrook, Ripple, and Williams,
Circuit Judges.

  Williams, Circuit Judge. Leon Thomas was
convicted by a jury of unlawful
possession of a firearm as a convicted
felon and for bartering a stolen firearm.
Although each conviction carried a
maximum sentence of ten years, Thomas was
exposed to a sentence of no less than
fifteen years on the possession
conviction because of three prior felony
convictions. The district court sentenced
Thomas to life imprisonment, in part by
cross-referencing the first degree murder
guideline. Because we find that the
district court’s application of the
homicide cross reference was not based on
sufficient findings, we vacate and remand
for resentencing.

I.   BACKGROUND

  A.   Facts

  On the morning of November 21, 1999,
Thomas, a convicted felon, and Gerald
Blunt went to the home of Michael
Hutcherson. Thomas gave Hutcherson a
semi-automatic pistol in exchange for
thirty dollars’ worth of rock cocaine.
Later that day, police officers stopped
Thomas and Blunt while Thomas was driving
a Dodge automobile and he was arrested.
  Before trial, the government notified
Thomas that if he was convicted of the
unlawful possession of a firearm as a
convicted felon, it would seek to enhance
his sentence for that offense to a term
of imprisonment not less than fifteen
years pursuant to 18 U.S.C. sec.
924(e)(1), based on Thomas’s prior
robbery convictions in Indiana and
Georgia. Thomas stipulated at trial that
he knew that the pistol had been stolen.
The jury convicted him of unlawful
possession of a firearm as a convicted
felon in violation of 18 U.S.C. sec.sec.
922(g)(1), 924(a)(2), receiving a firearm
while under indictment in violation of 18
U.S.C. sec.sec. 922(n), 924(a)(1), and
bartering a stolen firearm under 18
U.S.C. sec.sec. 922(j), 924(a)(2). The
conviction for receiving a firearm while
under indictment was subsequently
vacated.


  B.   Sentencing Hearing

  At sentencing, the government tried to
connect Thomas to the murder of the
firearm’s owner, Armondo Leal. It
presented evidence that the night before
Thomas pawned Leal’s pistol, Leal was
shot to death in the Dodge car that
Thomas was found driving. The gun used in
the murder was never recovered. A bullet
hole was found in the lower-front
passenger door of the car and Leal’s
blood was found on the driver’s seat of
the car. Leal’s blood was also on the
pavement of Thomas’s driveway and on
Thomas’s shirt. The government surmises
that the bloodstains were found in those
locations because Leal was taken out of
the car and laid temporarily in Thomas’s
driveway and Thomas got into the car
after Leal was shot but before the blood
dried.

  The government also presented evidence
through the testimony of Detective Titus
that an unidentified neighbor of Thomas’s
told Detective Jackson that on the night
of the murder, he saw Leal driving the
Dodge car in the vicinity of Thomas’s
home. The neighbor stated that he heard
gun shots and shortly thereafter saw
Thomas driving away in the same car.
Detective Titus further testified that on
the night of Thomas’s arrest, Thomas’s
uncle was murdered and Thomas’s house was
set on fire. These crimes were done, in
his opinion, in retaliation for Leal’s
murder.

  Based on this evidence, the district
court concluded, "Whether [Thomas] pulled
the trigger or not, the Court finds that
it’s pretty clear that he was involved in
the killing of Armondo Leal, and the
theft of Mr. Leal’s gun." The court then
adopted the recommendations of the
Presentence Investigation Report ("PSR"),
and cross-referenced Thomas’s conviction
for possession of a firearm while a felon
with the homicide guideline for first
degree murder, sec. 2A1.1. The court also
considered Thomas’s prior convictions and
determined that Thomas was an armed
career criminal under 18 U.S.C. sec.
924(e)(1). The court then sentenced
Thomas to life imprisonment for his
conviction for unlawful possession of a
firearm as a convicted felon, and to a
concurrent ten-year sentence for
bartering a stolen firearm./1

II.    ANALYSIS

  On appeal, Thomas challenges the
district court’s: 1) admission of hearsay
testimony of an unidentified witness; 2)
cross-referencing of his conviction for
unlawful possession of a firearm as a
convicted felon with the homicide
guideline for first degree murder; 3)
enhancement of his sentence for prior
convictions when he was not indicted or
convicted by the jury under the Armed
Career Criminal Statute, in violation of
Apprendi v. New Jersey, 530 U.S. 466
(2000); and 4) use of the homicide cross-
reference to increase his sentence above
the statutory maximum for the offenses of
conviction without being charged and
proved beyond a reasonable doubt at
trial, also in violation of Apprendi.
Because we prefer to dispose of cases on
factual grounds rather than on
constitutional ones, see United States v.
Westmoreland, 240 F.3d 618, 629 (7th Cir.
2001), we proceed to Thomas’s factual
challenges first.


  A.    Hearsay Objection

  Thomas’s first argument challenges the
admission of hearsay testimony, which was
used to establish Thomas’s involvement in
Leal’s murder. Hearsay is permitted at
sentencing as long as it is reliable and
the defendant is afforded an opportunity
to rebut the evidence. United States v.
Corbin, 998 F.2d 1377, 1385 (7th Cir.
1993); United States v. Beal, 960 F.2d
629, 634 (7th Cir. 1992) (applying same
standard to hearsay within hearsay
testimony). Reliability may be
established by corroborating evidence.
United States v. Morrison, 207 F.3d 962,
968 (7th Cir. 2000).

  Detective Titus testified that an
unidentified neighbor told Detective
Jackson that on the night of Leal’s
murder, the neighbor saw Leal driving a
Dodge car in the vicinity of Thomas’s
home, heard gunshots, and saw Thomas
driving away in the same vehicle. We are
satisfied that both layers of hearsay
(between the detectives, and between
Detective Jackson and the neighbor) are
reliable because the neighbor’s
statements were supported by evidence
linking Thomas to the crime scene.
Significantly, Thomas was found driving
the Dodge car the following day, Leal was
killed by multiple gunshot wounds, and
Leal’s blood was found in the car, on
Thomas’s shirt, and in Thomas’s driveway.
In light of this corroborative evidence
and the fact that Thomas does not argue
that he was denied an opportunity to
rebut the testimony, we cannot say that
the district court abused its discretion
in allowing Detective Titus to so
testify.

  B.    Homicide Cross Reference Issue

  Thomas’s next challenge is to the
district court’s application of the
homicide cross reference for first degree
murder to his conviction for the unlawful
possession of a firearm as a convicted
felon. He argues that there was no
evidence that Leal’s death resulted from
his possession of the pistol for which he
was convicted, and even if there was such
evidence, the court should not have
chosen first degree murder over an
offense with a lesser culpability.
Because we find that the district court
failed to make sufficient findings to
support the application of the homicide
cross reference, we vacate Thomas’s
sentence and remand for further
proceedings.


   1.    Standard of review
  Normally we review a district court’s
application of the murder cross reference
for clear error, and its interpretation
of the Sentencing Guidelines de novo.
Westmoreland, 240 F.3d at 635. The
government argues, however, that our
review should be for plain error because
although Thomas objected below to the
court’s finding that he was involved in
the murder, he never claimed that the
death did not result from the possession
of the pistol charged in his indictment
or that first degree murder was improper.
We will reverse under the plain error
standard only if the defendant
demonstrates that 1) there was error, 2)
the error was plain, 3) the error
affected the defendant’s substantial
rights, and 4) the error seriously
affects the fairness, integrity, or
public reputation of judicial
proceedings. Westmoreland, 240 F.3d at
633.

  During the sentencing hearing, Thomas’s
counsel argued that:

All you can have him guilty of is sitting
in the car where there was bloodstained
seats. That’s all he has and the fact
that the blood was in his driveway--sure
Mr. Leal could have been killed after
this, but there is nothing that indicates
he did the killing. . . . As far as the
murder, I don’t believe there is enough
to tie it into this case, judge, and I
think double jeopardy--or the notion of
jeopardy should protect him in this case.
For that reason I would ask that homicide
be denied.

We agree with the government that this
objection was insufficient to have
alerted the district court and the
government to the specific grounds of
Thomas’s arguments that he now raises on
appeal. See United States v. Hardamon,
188 F.3d 843, 848 (7th Cir. 1999); United
States v. McClellan, 165 F.3d 535, 551
(7th Cir. 1999). Therefore, we will
review Thomas’s challenge for plain
error. With the parameters of our review
established, we proceed to the merits of
Thomas’s argument.


   2.   Homicide Cross Reference Guideline

  Section 2K2.1(c) of the Sentencing
Guidelines states that "[i]f the
defendant used or possessed any firearm
or ammunition in connection with the
commission or attempted commission of
another offense, [and] death resulted,"
the court must cross-reference the "most
analogous offense guideline from" the
Homicide Guidelines. Applying sec.
2K2.1(c), a sentencing court should
proceed in two steps. First, it "must
ascertain whether death resulted from the
defendant’s conduct. If so, [it] must
identify the analogous Homicide Guideline
that most closely resembles the
defendant’s conduct." United States v.
Walls, 80 F.3d 238, 241 (7th Cir. 1996).


    a.   If "death resulted"

  To determine "if death resulted," the
sentencing court must ascertain whether
the defendant’s conduct was "intentional
or reckless" and whether death was "a
foreseeable risk" of that conduct. Id.
Generally, this means that the
defendant’s possession of a weapon during
the commission of another offense "put
into motion a chain of events that ended
in a tragedy." Id. at 242. For example,
in Walls, the evidence introduced at
sentencing demonstrated that the
defendant gathered a group of armed men,
proceeded to a rival’s house where a
gunfight ensued, and fired a shot into a
crowd in which an innocent bystander was
killed. Id. at 240. The district court
cross-referenced Walls’s conviction for
possession of a firearm while a felon
with the homicide guidelines, reasoning
that Walls "put in motion this series of
events that resulted in the taking of a
human life." Id. We affirmed concluding
that irrespective of whether Walls fired
the fatal shot, his conduct resulted in
the bystander’s death. Id. at 242. Accord
United States v. Smith, 5 F.3d 259 (7th
Cir. 1993) (approved application of
homicide cross reference to a defendant
who fired recklessly into a group of New
Year’s Eve partygoers killing one of
them); United States v. White, 979 F.2d
539 (7th Cir. 1992) (affirming
application of the general "death
results" guideline, U.S.S.G. sec. 5K2.1,
to a defendant who transported a minor
across state lines for the purpose of
prostitution who was killed, presumably
by a customer).
  The problem here is that the district
court did not make any findings that
Thomas’s conduct put into motion a series
of events that led to Leal’s death. All
the court found was that Thomas was
"involved" in Leal’s murder and "the
theft of Mr. Leal’s gun." We are unable
to determine if the theft and possession
resulted in Leal’s death or if Leal’s
death precipitated the theft and
possession. And, the evidence that Thomas
was found in possession of Leal’s pistol
the day after the murder, and Detective
Titus’s testimony that the blood on
Thomas’s t-shirt was due to Thomas
getting into the car after Leal had been
shot, could support the conclusion that
Thomas’s involvement occurred after
Leal’s death. Most significantly, because
Leal was not shot with his own gun, we do
not know if Thomas even possessed a
firearm before or at the time of the
murder. This is important because, unlike
the defendant in Smith, the pistol that
Thomas was found in possession of was not
the weapon used to kill Leal. See Smith,
5 F.3d at 260 (defendant used firearm to
shoot and kill partygoer). As far as we
can tell, the pistol that Thomas
possessed was also not used to shoot at
Leal. Cf. Walls, 80 F.3d at 240
(defendant fired shot blindly toward
enemy’s house and an innocent bystander
was killed).

  Because there are insufficient findings
as to the sequence of events and whether
Thomas possessed any firearm before or at
the time of Leal’s death, the district
court’s application of the cross
reference was in error. This error, which
was plain, affected Thomas’s substantial
rights and the outcome and integrity of
the district court proceedings because
without it, Thomas could have received a
sentence less than life imprisonment.
And, without sufficient findings, we
cannot be confident that a miscarriage of
justice did not occur. Because the
district court did not make sufficient
findings to conclude that Leal’s death
resulted from Thomas’s possession of a
firearm during the commission of another
offense, Thomas’s life sentence for the
unlawful possession of a firearm as a
convicted felon is vacated.



    b.   "Most analogous homicide
guideline"

  Even if we were to uphold the court’s
conclusion that Leal’s death resulted
from Thomas’s possession of a firearm in
connection with another offense, the
court’s application of the cross
reference would still be improper because
the court’s selection of first degree
murder as opposed to an offense with a
lesser culpability was also plain error.
After a sentencing court determines that
death resulted from the defendant’s
possession of a firearm, it must choose
the most appropriate homicide guideline:
first or second degree murder, or
voluntary or involuntary manslaughter.
Walls, 80 F.3d at 242. Under the federal
statute, from which we borrow the
definition of first degree murder is the
unlawful killing of a human being with
malice aforethought, done with
premeditation or committed in the
perpetration of certain enumerated
felonies. 18 U.S.C. sec. 1111(a). Here,
again, the district court made
insufficient findings. We recognize that
Leal’s murder did not occur "[w]ithin the
special maritime and territorial
jurisdiction of the United States." 18
U.S.C. sec. 1111. Nevertheless, courts
use the definition set forth in sec. 1111
for simplicity’s sake. See Walls, 80 F.3d
at 242; Smith, 5 F.3d at 262. The parties
here have assumed that federal law, in
particular 18 U.S.C. sec. 1111, supplies
the appropriate substantive definition of
homicide. We accept their shared
assumption for the purpose of this case,
without foreclosing the possibility of
turning to other definitions should that
question be raised in future litigation.


      i.   Premeditation

  The district court did not make any
findings as to Thomas’s state of mind, or
his degree of planning or preparation.
The court relied on the unchallenged
factual findings and conclusions of the
PSR, which does not lay out the elements
of first degree murder or discuss how the
facts relate to those elements. We do not
know if there was an argument between
Leal and Thomas, how much time lapsed
between the time the neighbor saw Leal
drive up and the time the neighbor heard
the gunshots, the nature of the
relationship between Leal and Thomas
before the incident, or if Thomas just
drove away in the car after Leal was
murdered by someone else. Because the
district court made no findings to
support premeditation, the district
court’s selection of first degree murder
as the most appropriate homicide
guideline must be remanded for further
proceedings.

      ii.   Felony Murder

  The government argues that despite the
lack of findings supporting
premeditation, the district court’s
selection of first degree murder can be
sustained under the felony murder
doctrine. Under that doctrine, every
murder "committed in the perpetration of,
or attempt to perpetrate, any arson,
escape, murder, kidnaping, treason,
espionage, sabotage, aggravated sexual
abuse or sexual abuse, burglary or
robbery . . . is murder in the first
degree." 18 U.S.C. sec. 1111(a). Thomas
responds that because his offenses of
conviction--unlawful possession of a
firearm as a convicted felon and
bartering a stolen firearm--are not among
those offenses listed as predicate
felonies, the felony murder doctrine
cannot apply. He relies on a Tenth
Circuit case which holds that in order
for the felony murder to apply, the
defendant’s offense of conviction must
serve as a predicate felony under 18
U.S.C. sec. 1111(a). United States v.
Fortier, 180 F.3d 1217, 1226 (10th Cir.
1999).

  In Fortier, the defendant was convicted
of conspiring to transport stolen
firearms, transporting stolen firearms,
making a materially false statement to
the FBI, and misprision of a felony. Id.
at 1219. The district court found that
the defendant’s sale of the stolen
firearms to Timothy McVeigh and the
deaths that resulted from McVeigh’s
bombing of the federal building in
Oklahoma brought the defendant within the
homicide cross reference for first degree
murder. The Tenth Circuit vacated the
defendant’s sentence reasoning that the
use of the felony murder doctrine at
sentencing should be restricted to
situations in which the defendant’s
offense of conviction is one of the
enumerated felonies in 18 U.S.C. sec.
1111(a), and the defendant’s offenses of
conviction did not "even [come] close to
the predicate felonies described in
section 1111(a)." Id. at 1226.

  Although we have not had occasion to
decide this issue, we have reached a
conclusion consistent with Fortier. In
United States v. Prevatte, 16 F.3d 767
(7th Cir. 1994), aff’d in part, rev’d in
part, dismissed in part, 66 F.3d 840 (7th
Cir. 1995), we affirmed the district
court’s conclusion that a defendant
convicted of maliciously destroying
property by means of explosives could be
sentenced under the first degree murder
guideline for the deaths that resulted
from the explosion. We looked to the
defendant’s offense of conviction and
reasoned that it was sufficiently similar
to arson, one of the offenses enumerated
in the felony murder statute. Because the
defendant’s offense of conviction was
sufficiently similar to one of the
predicate felonies, it supported the
selection of first degree felony murder
as the most analogous offense guideline.
Id. at 780; see also United States v.
Martin, 63 F.3d 1422, 1434-35 (7th Cir.
1995) (remanding to district court to
determine if the defendant, convicted of
arson, should also be sentenced under the
first degree murder guideline for conduct
that led to the death of two
firefighters).

  We do not need to determine in this case
whether, as Fortier stated, a formal
charge on the predicate offense is
essential, or whether it is proper to use
real-offense principles, as United States
v. Greene, 834 F.2d 1067, 1071-72 (D.C.
Cir. 1987), holds./2 Cf. United States
v. Taylor, 272 F.3d 980 (7th Cir. 2001)
(treating enhancement under sec. 2K2.1(a)
as an example of a real-offense component
in the Guidelines). The subject is not
presented by the case in its current
posture, because the district court did
not address the question whether Thomas
committed robbery or any other act that
could be the basis of a felony murder
finding. All the court found was that
Thomas was involved in the theft of
Leal’s gun, and theft is not one of the
predicate offenses listed in 18 U.S.C.
sec.1111(a). Just as a court needs facts
to support a finding of premeditation for
"regular" first degree murder, it needs
facts to support a felony for first
degree felony murder. Additionally, there
is nothing in the record to suggest that
the district court recognized that it had
the option under Application Note 1 to
sec. 2A1.1 to depart downward from life
imprisonment. See Prevatte, 16 F.3d at
784-85 (holding that when felony murder
provides the basis for the sentence
enhancement, a district court’s failure
to make findings as to the defendant’s
mental state to determine if a departure
down from life imprisonment required a
remand). Therefore, the district court’s
selection of first degree murder under a
felony murder theory cannot stand.


      iii.   Plain Error Test

  The incremental error in the court’s
selection of first degree murder over
second degree murder or manslaughter,
although not the worse we have seen, is
enough to satisfy the plain error
standard. With Thomas’s criminal history
category of VI, a second degree murder
finding would have resulted in a
sentencing range of 235-293 months as
opposed to life imprisonment.
Manslaughter would have resulted in
significantly lower sentencing ranges
(from 24 to 137 months), but because of
Thomas’s prior convictions, those ranges
were unavailable. See discussion infra
Part IIC. The district court was not
limited to the sentencing range for
second degree murder, however, because it
could have selected a sentence somewhere
between second degree murder and
voluntary manslaughter in fashioning the
appropriate sentence. See, e.g., Walls,
80 F.3d at 242 (affirming sentence
halfway between second degree murder and
voluntary manslaughter).

  Here, at sentencing, the government was
allowed to come in the back door, where
there is a lower burden of proof and
lower procedural safeguards, to
essentially convict Thomas for Leal’s
murder, when it could not get a murder
conviction at trial due to the lack of
evidence of premeditation and the absence
of a predicate felony. And even under the
lower standards, the district court
failed to make sufficient findings
regarding Thomas’s state of mind or
commission of a predicate felony.
Finally, even if Leal’s "death resulted"
from Thomas’s conduct, Thomas’s sentence
must still be vacated and remanded
because the court committed plain error
in sentencing Thomas to life imprisonment
without making sufficient findings.


  C.   Prior Felony Convictions

  Thomas also challenges the court’s use
of his prior convictions to enhance his
sentence for the unlawful possession of a
firearm as a convicted felon to a minimum
of fifteen years under 18 U.S.C. sec.
924(e)(1). In addition to a due process
challenge that we will address in the
next section, Thomas argues that the
court erred in finding that he committed
three violent felonies on different
occasions. We review questions of law
regarding sec. 924(e) de novo. United
States v. White, 997 F.2d 1213, 1215 (7th
Cir. 1993). Because Thomas committed at
least three violent felonies on occasions
different from one another, we find that
the prerequisites of sec. 924(e) were
satisfied.

  Title 18 U.S.C. sec. 924(e)(1), also
known as the Armed Career Criminal Act,
provides that:

In the case of a person who violates
section 922(g) of this title and has
three previous convictions . . . for a
violent felony . . . committed on
occasions different from one another,
such person shall be . . . imprisoned not
less than fifteen years . . . .

A violent felony is defined as "any crime
punishable by imprisonment for a term
exceeding one year, . . . that . . . has
as an element the use, attempted use, or
threatened use of physical force against
the person of another . . . ." 18 U.S.C.
sec. 924(e)(2)(B). Thomas concedes that
he has one conviction for a violent
felony in Indiana, but argues that his
Georgia conviction for three counts of
robbery by intimidation should not be
included because there were insufficient
facts for the district court to find that
the Georgia conviction involved violent
felonies committed on different
occasions.

  The Georgia Code states that robbery by
intimidation is a lesser included offense
of armed robbery. Ga. Code Ann. sec. 16-8-
41 (2000). A conviction for robbery by
intimidation "’requires proof that the
theft was attended with such
circumstances of terror--such threatening
by word or gesture, as in common
experience, are likely to create an
apprehension of danger, and induce a
[person] to part with his property for
the safety of his person.’" Smith v.
State, 543 S.E.2d 434, 435 (Ga. Ct. App.
2000) (quoting Johnson v. State, 392
S.E.2d 280, 282 (Ga. Ct. App. 1990)).
Based on this definition and the fact
that Thomas does not challenge the PSR’s
finding that he used a handgun to commit
the robberies, we are satisfied that the
Georgia conviction for three counts of
robbery by intimidation meets the Armed
Career Criminal Act’s definition of
violent felony.

  Thomas also argues that the robberies
that constituted the Georgia conviction
were not "committed on occasions
different from one another." See 18
U.S.C. sec. 924(e)(1). We set forth the
parameters of what satisfies this
requirement in United States v. Hudspeth,
42 F.3d 1015 (7th Cir. 1994) (en banc).
In Hudspeth, a majority of this court
held that when a defendant has committed
multiple crimes within a short period of
time, the relevant inquiry is whether the
crimes were simultaneous or sequential.
Id. at 1021. We concluded that crimes
committed sequentially, against different
victims, at different times and different
locations satisfied the requirement that
they must be "committed on occasions
different from one another." Id. Under
this standard, at least two of the three
Georgia robberies that Thomas committed
were on different occasions because they
occurred on different dates and involved
different victims./3 When added to the
Indiana conviction that Thomas does not
challenge, the district court properly
found that Thomas committed at least
three violent felonies on occasions
different from one another, thereby
making him an armed career criminal.


  D.   Due Process Violation

  Finally, Thomas argues that the use of
his prior convictions and the application
of the homicide cross reference to
increase his sentence for the possession
conviction above the statutory maximum
for that offense violates the due process
clause because the facts underlying the
prior convictions and the homicide cross
reference were not submitted to the jury
and proved beyond a reasonable doubt. See
Apprendi v. New Jersey, 530 U.S. 466
(2000). We reject Thomas’s challenge to
the use of the prior convictions to
increase his sentence for the reasons
stated in United States v. Skidmore, 254
F.3d 635, 642 (7th Cir. 2001); United
States v. Jones, 245 F.3d 645, 649 (7th
Cir. 2001); and United States v. Brough,
243 F.3d 1078, 1081 (7th Cir. 2001). And,
as we discussed earlier, because Thomas
was correctly found to be an armed career
criminal, the maximum sentence he faced
was life imprisonment. Therefore, there
was no due process violation in
sentencing him to a term of life
imprisonment because the sentence was
within the statutory cap. Westmoreland,
240 F.3d at 636.

III.   CONCLUSION

  In sum, we uphold the district court’s
decisions to admit hearsay testimony and
enhance Thomas’s sentence to reflect his
status as an armed career criminal.
However, we conclude that the court’s
application of the homicide cross
reference for first degree murder was
based on insufficient findings. We
therefore VACATE Thomas’s sentence
forunlawful possession of a firearm as a
convicted felon and REMAND for proceedings
consistent with this opinion.

FOOTNOTES

/1 Thomas does not challenge on appeal his sentence
for bartering a stolen firearm.

/2 We recognize that Greene was not a Sentencing
Guidelines case, however, its analysis is helpful
here.

/3 It is unclear from the record whether the third
robbery, which was committed on the same day as
one of the others, was also committed on a
different occasion because we do not know the
time of day that the robbery occurred nor do we
have any facts (other than the identity of the
victim and the amount of money taken) surrounding
the robbery.
