                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-8-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1060




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Recommended Citation
"USA v. Mucha" (2002). 2002 Decisions. Paper 640.
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                                                  NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT

                    __________

                    No. 02-1060
                    __________


         UNITED STATES OF AMERICA

                          v.

                  RUDY MUCHA,
                                      Appellant




                    __________

On Appeal from the United States District Court
       for the Middle District of Pennsylvania
        (Criminal Action No. 3: CR-00-62)
      District Judge: Judge James M. Munley
                   __________

     Submitted Under Third Circuit LAR 34.1(a)
               September 27, 2002
                  ___________

Before: BARRY, AMBRO and GARTH, Circuit Judges

          (Opinion Filed: October 8, 2002)
                   __________

                     OPINION
                    __________
Garth, Circuit Judge:

        Appellant Rudy Mucha appeals the district court’s sentencing decision, in which the

district court invoked a fifteen-year mandatory minimum sentence pursuant to the Armed

Career Criminal Act (“ACCA”) and declined to grant Mucha a downward departure from the

Sentencing Guidelines.

        We affirm.




                                                        I.

        Because we write solely for the benefit of the parties, we recount the facts and the

procedural history of the case only as they are relevant to the following discussion.

        Agents from the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) arrested Mucha

after local law enforcement officials had notified ATF that they had discovered Mucha was

a convicted felon who had twice been found in possession of firearms. A federal grand jury

indicted Mucha on two counts of violation of 18 U.S.C. § 922(g)(1), possession of

firearms as a convicted felon, and of the ACCA, 18 U.S.C. § 924(e). Mucha entered a plea

of “not guilty” before the district court.

        The grand jury later returned a superseding indictment that contained the same

charges as the initial indictment, but in addition, identified a list of four predicate

convictions for application of the ACCA. The indictment listed three state-law convictions

for three burglaries committed on the same date, May 22, 1989, in three different

localities (Springville, Hop Bottom, and Wilmot Township, Pennsylvania), respectively; as

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well as a state-law conviction for conspiracy to commit a burglary in Thornhurst,

Pennsylvania, on May 25, 1989. On July 20, 2000, after the grand jury returned the

indictment, Mucha signed a plea agreement and pled “guilty” to one count of possession of

a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). As part of the plea

agreement, Mucha acknowledged the convictions listed in the indictment and stated his

understanding that if the district court determined that the ACCA applied to him, he would

be subject to the Act’s mandatory fifteen-year minimum sentence.

        The district court held a sentencing hearing on December 19, 2001. The district

court determined that the ACCA did apply to Mucha, and accordingly sentenced him to a

180-month term (i.e., fifteen years), followed by three years of supervised release. In

denying the motion for downward departure, the district court explicitly recognized that

although it had the discretion to make a downward departure, the court would choose not to

exercise that discretion.

        This timely appeal followed.




                                                     II.

        We have jurisdiction to hear Mucha’s appeal of the application of the ACCA

pursuant to 28 U.S.C. § 1291. We have plenary review of a district court’s sentencing

determination to the extent that it involves the application of legal principles. See

Government of the Virgin Islands v. Martinez, 239 F.3d 293, 297 (3d Cir. 2001); see

also, e.g., United States v. Lee, 208 F.3d 1306 (11th Cir. 2000), cert. denied, 532 U.S.

                                                     -3-
907 (2001) (whether defendant's prior offenses counted as separate under the ACCA was

legal issue subject to de novo review).

        The ACCA provides that:

        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 . . . committed on different occasions from one
        another, such person shall be . . . imprisoned not less than fifteen years.

18 U.S.C. § 924(e)(1). A defendant who is subject to the ACCA is classified as an armed

career criminal, pursuant to section 4B1.4 of the Sentencing Guidelines. U.S.S.G. § 4B1.4.

As we have said, “The ACCA is a sentence enhancement statute and does not create a

separate offense.” United States v. Mack, 229 F.3d 226, 231 (3d Cir. 2000), cert. denied,

532 U.S. 1045 (2001) (citation omitted).

        Appellant Mucha argues that the district court erred in holding that his four

convictions (three burglary convictions and one conviction for conspiracy to commit

burglary), stemming from crimes committed in 1989, satisfied the ACCA’s requirement of

three predicate convictions. Mucha claims that the four convictions should not be counted

as multiple convictions, but rather should be considered as a “common scheme,” because

“[e]ach action was related as part of a burglary ring, and each event was related to the other.”

Appellant’s Br. at 9, 11.

        Mucha’s argument is without merit. In United States v. Schoolcraft, 879 F.2d 64

(3d Cir.) (per curiam), cert. denied, 493 U.S. 995 (1989), we adopted the “separate

episodes” test for purposes of enhanced sentencing under the ACCA:



                                                   -4-
        The issue of enhanced sentencing under the ACCA has frequently arisen in
        cases where the defendant received multiple convictions in a single judicial
        proceeding. In each of these cases, courts have held that the individual
        convictions may be counted for purposes of sentencing enhancement so
        long as the criminal episodes were distinct in time . . . In each case, the
        “separate episode test” was adopted. Recently the Second Circuit stated that
        “it is fairly well-established in other circuits that § 924(e)(1)’s reference to
        “convictions” pertains to single “episodes of felonious criminal activity that
        are distinct in time.”

Id. at 73 (emphasis added) (citing United States v. Towne, 870 F.2d 880, 889 (2d Cir.),

cert. denied, 490 U.S. 1101 (1989)) (other citations omitted). Our adoption of the

separate episode test accords with both the meaning of the unambiguous statutory language

and the legislative intent underlying the ACCA. See id. at 74.

        In Schoolcraft, we did not describe in detail the criteria that should be used to

determine what constitutes a “separate” episode for purposes of the ACCA. 1 Several

circuits, however, have explained that even brief differences in time between crimes suffice

to constitute separate episodes. For example, as the Seventh Circuit has said, “[I]t is

necessary to look to the nature of the crimes, the identities of the victims, and the

locations. Additionally, we must ask whether the defendant had sufficient time to cease and

desist or withdraw from the criminal activity.” United States v. Cardenas, 217 F.3d 491,




        1
           We did not find it necessary to explicate the separate episodes test in Schoolcraft.
The defendant in Schoolcraft had committed and received convictions for five previous
felonies, three of which had occurred on the same date. Even if the three convictions for
crimes committed on the same date were treated as a single criminal episode, the ACCA’s
requirement of three separate convictions would still be met. Accordingly, we declined to
decide whether the defendant had three or five convictions for purposes of the ACCA. See
Schoolcraft, 879 F.2d at 74.

                                                     -5-
492 (7th Cir.), cert. denied, 531 U.S. 998 (2000).2 When applied to Mucha, the separate

episode test makes it clear that each burglary affected a different victim in a different

geographic locale. Though three of the crimes occurred on the same night, they were each

committed in different towns against different victims. As such, Mucha had opportunities

to cease and desist from further criminal activity. Each crime thus must be seen as a

separate and distinct criminal episode; the multiple crimes do not constitute a single

criminal episode, as Mucha contends.

        Mucha relies on our decision in United States v. Balascsak, 873 F.2d 673 (3d Cir.

1989), cert. denied, 498 U.S. 864 (1990), in support of his argument that his convictions

should be considered a single criminal episode, and so the ACCA does not apply to him.

This contention is in error. Balascsak’s holding was based on the predecessor statute to

the current ACCA. See 18 U.S.C.App. § 1202 (1984). As we noted in Schoolcraft, the

1988 amendment to § 924(e)(1) added the requirement that the felonies be “committed on

different occasions from one another.” Schoolcraft, 879 F.2d at 72 n. 7 (quoting 18 U.S.C.


        2
          See also, e.g., United States v. Hobbs, 136 F.3d 384, 389 (4th Cir.), cert. denied,
524 U.S. 945 (1998) (three burglaries committed on the same night within one hour of
each other in different towns one mile apart were three convictions for ACCA purposes);
United States v. Rideout, 3 F.3d 32, 35 (2d Cir.), cert. denied, 510 U.S. 999 (1993) (two
breaking and entering convictions are separate episodes because they involved different
victims, even though they were in the same apartment building one hour apart); United
States v. Tisdale, 921 F.2d 1095, 1099 (10th Cir. 1990), cert. denied, 502 U.S. 986
(1991) (burglary of two businesses and a post office in the same mall on the same night are
three separate episodes); United States v. Wicks, 833 F.2d 192, 193 (9th Cir. 1987), cert.
denied, 488 U.S. 831 (1988) (cited in Schoolcraft, 879 F.2d at 73) (two burglaries which
occurred on the same night, but were committed at two different places at two different
times, could be counted as separate convictions for purposes of sentencing enhancement).

                                                     -6-
§ 924(e)(1) (1988)). Our analysis of the ACCA, as amended, in Schoolcraft supersedes

our earlier decision in Balascsak.

        Accordingly, the district court was correct in determining that Mucha had

committed the requisite three felonies to trigger application of § 924(e)(1), and did not err

in applying the mandatory minimum fifteen-year sentence as mandated by the ACCA.




                                                    III.

        We lack jurisdiction to examine a district court’s denial to grant a downward

departure from the Sentencing Guidelines.. In United States v. Denardi, 892 F.2d 269 (3d

Cir. 1989), we held that 18 U.S.C. § 3742, which permits a defendant to appeal his

sentence, does not allow for appellate jurisdiction to the extent that the appeal is based on

the district court's discretionary refusal to depart downward from the Sentencing

Guidelines. See id. at 272. See also, e.g., United States v. Spinello, 265 F.3d 150, 162

(3d Cir. 2001); United States v. Parker, 902 F.2d 221, 222 (3d Cir. 1990) (“We did not

have jurisdiction to entertain an appeal when the district court refused to exercise its

discretion to depart downward from the guidelines.”).

        Because the district court recognized that it had the authority to make a downward

departure from the Sentencing Guidelines, but elected not to do so,3 we lack jurisdiction to


        3
          At the sentencing hearing, the Assistant U. S. Attorney asked the district court, “I
just want to make one further point for the record. Is the Court recognizing that the Court
would have the ability to depart, but is nonetheless declining to do so?” Tr. of Sentencing
Hr’g at 15, App. 15. The Court replied, “We so recognize.” Id.

                                                    -7-
review the district court’s decision. We therefore lack jurisdiction to review the district

court’s discretion.




                                                    IV.

        We will affirm the district court’s application of the ACCA to Mucha. Because we

lack jurisdiction to review the district court’s decision not to grant a downward departure

from the Sentencing Guidelines, we will dismiss that portion of the appeal.




TO THE CLERK:

        Please file the foregoing opinion.




                                                  /s/ Leonard I. Garth
                                                  Circuit Judge




                                                    -8-
