                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0463n.06
                             Filed: June 30, 2006

                                        Case No. 04-6306

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                            )
                                                      )
        Plaintiff-Appellee,                           )
                                                      )        ON APPEAL FROM THE
                v.                                    )        UNITED STATES DISTRICT
                                                      )        COURT FOR THE WESTERN
 RAYMOND CRUMB, JR.,                                  )        DISTRICT OF TENNESSEE
                                                      )
        Defendant-Appellant.                          )
                                                      )
 _______________________________________              )

BEFORE: BATCHELDER, CLAY, and MCKEAGUE, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Raymond Crumb (“Crumb”) appeals his

conviction and sentence on one count of being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g), contending that the evidence presented at trial was insufficient to sustain the

conviction, that the district court erroneously sentenced him as an armed career criminal, and that

the district court erred by treating the U.S. Sentencing Guidelines as mandatory in imposing his

sentence. We find that sufficient evidence supports Crumb’s conviction and find no error in the

district court’s determination that Crumb is an armed career criminal, or in the court’s calculation

of Crumb’s guideline range, but we must remand the case to the district court for re-sentencing

under United States v. Oliver, 397 F.3d 369 (6th Cir. 2005).

                               I. Factual and Procedural History
       On September 1, 2003, Crumb was living with his girlfriend, Jessica Strickland (“Jessica”),

and Jessica’s four children, at Jessica’s parents’ home in Memphis. Jessica’s parents, Willie and

Beatrice Strickland (“Mr. and/or Mrs. Strickland”), are in their 70s, and Mr. Strickland had just

returned from the hospital after a two-and-one-half-week stay. Mr. Strickland was in the yard

working on his lawn mower and Mrs. Strickland was in the house when Crumb and Jessica began

fighting in a back bedroom of the house. Mrs. Strickland attempted to intervene in the fight, and

Crumb began to choke her. When Mr. Strickland, holding a pocketknife/screwdriver that he had

been using to fix the lawn mower, told Crumb to leave Mrs. Strickland alone, Crumb jumped on Mr.

Strickland, began choking him, and seizing a nearby pistol, pistol-whipped Mr. Strickland and

threatened to kill all three of them.

       After Jessica ran across the street to a neighbor’s house and called the police, Crumb called

his father, who agreed to come and get him at the Stricklands’ home. Crumb began packing his

belongings into garbage bags, and Mr. Strickland saw him put the pistol into one of the bags. While

waiting for his father to arrive, Crumb pushed Mr. Strickland off the front porch and hit him. When

Crumb’s father arrived, Crumb got into his father’s van, but before he could leave, the police

arrived. By this time a crowd had gathered to watch the fray. Warned by the crowd that a person

in the van had a gun, the police approached the van with their guns drawn and ordered Crumb and

his father to show their hands. Crumb’s father complied with the demand, but Crumb did not.

Refusing to show his hands as he exited the van, he kept one hand behind him as if he were

concealing a weapon, and shouted “go ahead and kill me, kill me.” Eventually submitting to the

police, Crumb was handcuffed and put in the police car, where he stayed while the officers searched

for the weapon. Because Crumb’s father told the officers that he did not have a gun, they looked


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through the garbage bags containing Crumb’s belongings, and found the gun in one of the bags on

the passenger side of the van. Seeing what the officers were doing, Crumb became agitated and

kicked out the rear windows of the police car and had to be subdued with pepper spray.

       The grand jury indicted Crumb on one count of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g). Crumb went to trial. His timely motions for a judgment of acquittal

were denied, and the jury found him guilty.

       At the sentencing hearing in April of 2004, Crumb’s counsel advised the court that although

he did not object to the facts contained in the Pre-Sentence Investigation Report (“PSR”), he did

object to the PSR’s recommendation that Crumb be sentenced as an Armed Career Criminal under

18 U.S.C. § 924(e). Specifically, Crumb’s counsel argued that four felonies Crumb had committed

within a period of less than 24 hours in 1996 were all part of a single criminal episode and should

not be considered as felonies committed on occasions different from one another for purposes of

applying the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The court held two

evidentiary hearings on the matter and determined that the offenses were in fact separate offenses

within the meaning of the ACCA. The district court therefore adopted the PSR’s calculation and

found the guideline range to be 262-327 months in prison.

       The district court noted that this guideline range yielded a significantly higher sentence than

Crumb deserved, but that the court was bound by the guidelines. Accordingly, it sentenced Crumb

to 262 months in prison and three years of supervised release – the very bottom of the guideline

range. After denying Crumb’s motions to reopen the sentencing hearing and to vacate and stay the

judgment, the district court entered final judgment. Crumb filed a timely notice of appeal.

                                 II. Sufficiency of the Evidence


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         When reviewing a conviction to determine whether it is supported by sufficient evidence,

we view the evidence in the light most favorable to upholding the conviction and ask whether any

rational trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. United States v. Samuel, 308 F.3d 662, 666 (6th Cir. 2002); United States v. Blakeney, 942

F.2d 1001, 1010 (6th Cir. 1991). In assessing the merits of such a challenge, we may not weigh the

evidence, assess the credibility of the witnesses who testified, or substitute our judgment for the

jury’s. United States v. Bartholomew, 310 F.3d 912, 922 (6th Cir. 2002); United States v. Welch,

97 F.3d 142, 148 (6th Cir. 1996). However, there must be substantial evidence in the record to

support the verdict reached; that is, “evidence affording a substantial basis of fact from which the

fact in issue can be reasonably inferred.” United States v. Green, 548 F.2d 1261, 1266 (6th Cir.

1977).

         Crumb argues that his conviction should be overturned because several witnesses who

testified at his trial were not credible. This is not a challenge to the sufficiency of the evidence, but

a claim that he should have been granted a new trial under Federal Rule of Criminal Procedure 33

because the verdict was against the manifest weight of the evidence. When a defendant makes such

a motion, the district court may assess witness credibility and we review for abuse of discretion the

district court’s decision to grant or not grant a new trial. See United States v. Lutz, 154 F.3d 581,

589 (6th Cir. 1998). In Tibbs v. Florida, 457 U.S. 31 (1982), the Supreme Court explained the

differences between the two motions:

         [a] reversal [based on the verdict being against the manifest weight of the evidence],
         unlike a reversal based on insufficient evidence, does not mean that acquittal was the
         only proper verdict. Instead, the appellate court sits as a “thirteenth juror” and
         disagrees with the jury’s resolution of the conflicting testimony. This difference of
         opinion no more signifies acquittal than does a disagreement among the jurors
         themselves. . . . A reversal based on the weight of the evidence, moreover, can only

                                                   4
        occur after the State both has presented sufficient evidence to support conviction and
        has persuaded the jury to convict. The reversal simply affords the defendant a
        second opportunity to seek a favorable judgment.

Id. at 42.

        We reject Crumb’s arguments under either theory. Crumb did not move in the district court

for a new trial based on the verdict’s being against the weight of the evidence, so any challenge

based on the manifest weight of the evidence has been waived. Nor would review for plain error

or to prevent injustice help Crumb, as his only claim is that the witnesses who testified at his trial

were not credible, but he does not point to any testimony that might support that claim. In order to

obtain a conviction on a § 922(g)(1) charge, the government must prove (1) the defendant had been

convicted of a crime punishable by imprisonment for a term exceeding one year; (2) that the

defendant knowingly possessed a firearm thereafter; and (3) that the firearm had traveled in or

affected interstate commerce. United States v. Murphy, 107 F.3d 1199, 1207 (6th Cir. 1997); United

States v. Adkins, 153 Fed. App’x 964, 966 (6th Cir. 2005). The testimony presented at trial

established the necessary elements of the crime, and our review of that testimony yields no basis for

questioning the credibility of the witnesses who provided it.

        Finally, to the extent that Crumb intends by this assignment of error to argue a lack of

substantial evidence, the claim cannot succeed. The evidence presented at trial was more than

sufficient to establish the elements of the offense. Mr. and Mrs. Strickland testified that during the

altercation that led to Crumb’s arrest they saw him holding the pistol, and that they had seen him

with the pistol on earlier occasions; police officers testified that Crumb acknowledged owning the

bags of belongings in which the gun was ultimately found; and Crumb’s father testified that he never

carried a gun in the van and that he did not have a gun in the van on that day. The parties stipulated


                                                  5
to Crumb’s past convictions, and an expert testified that the gun had traveled in interstate commerce.

This claim is without merit.

                                          III. Sentencing

A. Calculation of the Guideline Range

       Crumb challenges the district court’s finding he must be sentenced as an armed career

criminal. This is a question of law that we review de novo, although we defer to the district court’s

findings of fact. Murphy, 107 F.3d at 1208; United States v. Graves, 60 F.3d 1183, 1185 (6th Cir.

1995). 18 U.S.C. § 924(e) provides that a person who violates 18 U.S.C. § 922(g) and has three

previous convictions for “violent felon[ies]” or “serious drug offense[s]” “committed on occasions

different from one another” is an armed career criminal and must be imprisoned for a term of not

less than 15 years. U.S.S.G. § 4B1.4, which applies to § 924(e) offenses, sets the base offense level

for armed career criminals at 33 and increases it to 34 if the weapon was possessed in connection

with a crime of violence, see U.S.S.G. § 4B1.4(b)(3), and sets a minimum criminal history category

of IV. See U.S.S.G. § 4B1.4(c)(2).

       We have held that, in enacting § 924(e), Congress intended to guard against recidivism, so

the statute was meant to apply to defendants who had committed “multiple criminal episodes that

were distinct in time, as opposed to multiple convictions arising out of a single criminal episode.”

Murphy, 107 F.3d at 1208. An “episode” can include “an incident that is part of a series, but forms

a separate unit within the whole. Although related to the entire course of events, an episode is a

punctuated occurrence with a limited duration.” Id. at 1209. See also United States v. Thomas, 211

F.2d 316, 318-19 (6th Cir. 2000). In determining whether there is a “separate unit within the

whole,” we look to whether there is a “principled way of distinguishing between the end” of the first


                                                  6
offense and the beginning of the second, see Murphy, 107 F.3d at 1210, and whether the defendant

completed one crime and then “elected to seek out another victim in another location after

completing the first.” Id. (citing United States v. Wilson, 27 F.3d 1126, 1131 (6th Cir. 1994)).

       Crumb committed five felonies in less than 24 hours in 1996 – three aggravated robberies,

one especially aggravated robbery, and one attempted murder in the second degree. He was charged

and convicted on all five. At the sentencing hearing in the case before us in this appeal, Crumb

testified regarding this string of offenses, explaining that he and two companions decided to go out

one night and steal cars in order to strip them and sell their parts. Crumb said that they targeted

certain cars because of their make and model and that one of his partners-in-crime knew where these

cars would be on the specific night in question. Crumb acknowledged that the cars were occupied

when they were stolen, and that he and his cohorts also stole wallets and valuables from the

occupants.

       During the course of two evidentiary hearings on Crumb’s objections to the PSR’s

recommendation that he be sentenced as an armed career criminal, the court heard the testimony of

Major Michael Fuller of the Memphis Police Department, who testified about the circumstances of

each robbery. According to Fuller, on February 17, at 11:45 p.m., Crumb and two other men stole

a 1989 Toyota Camry, robbing an individual at gunpoint of both his wallet and the car. At about

1:25 the next morning, roughly one hour and 40 minutes after the first robbery, the three men, now

riding in a 1989 Toyota Camry, pulled up next to a 1995 Mazda, and got out of the car. One of the

men pointed a shotgun at the Mazda’s driver, and they robbed him of his wallet and the car.

       At about 3:30 that morning, the three men – now in a 1995 Mazda – pulled up beside a

Chevrolet Camaro convertible occupied by three young women. One of the men got out of the car


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with a shotgun, ordered the women out of the car, and stole it. Finally, at about 9:30 that night,

roughly 18 hours after the last robbery, the three men – driving a Chevrolet Camaro convertible –

pursued a woman who was driving her car through an apartment complex. As they attempted to rob

the woman, one of the men shot her. Crumb was apprehended two days later driving a Chevrolet

Camaro. One of Crumb’s co-defendants later told police that Crumb was the one who decided to

rob the woman. The district court determined that these robberies and the attempted murder were

“crimes of opportunity” and were separate criminal “episodes.”

       The parties stipulated that the last incident – the attempted murder and the especially

aggravated robbery of the Camaro’s driver – were also one criminal “episode” and should be

counted as only one prior felony crime of violence for ACCA purposes. Crumb argued in the district

court and argues here that all four robberies were one criminal “episode” for ACCA purposes

because they were part of a “common scheme or plan.” He contends that they should not count as

separate felonies because all of the robberies occurred within a short period of time, all four

robberies had a common motive of stripping and selling the parts, all four offenses were all tried

together, and the sentences for all four were to run concurrently.

       We are not persuaded, and indeed, we think that the circumstances of this case neatly

illustrate how the “separate criminal episode” principle works. Each of these robberies involved a

different victim and the robberies occurred in different places and at different times. The first,

second, and third robberies have distinct starting and ending points and, at the conclusion of each,

Crumb and his friends could have stopped hijacking cars and decided enough was enough for that

night. Instead, after each of those robberies, they opted to commit a new crime. See United States

v. Brady, 988 F.2d 664, 669-70 (6th Cir. 1993); Wilson, 27 F.3d at 1131. Although the fourth


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robbery similarly has distinct starting and ending points, and is therefore distinct from the other

three, the fourth robbery was accompanied by an attempted murder. The components of these two

offenses are not distinct from each other because there exists no principled way to distinguish

between the beginning and end of the robbery and the beginning and ending of the attempted

murder. See Graves, 60 F.3d at 1183 (where defendant committed a burglary and was fleeing when

he turned and fired three shots at a pursuing police officer, assault and burglary were one criminal

episode); Murphy, 107 F.3d at 1208-10 (where defendant and two accomplices entered one half of

a duplex and robbed the occupant, and defendant stayed behind in that side to keep the occupant

from calling the police while his accomplices robbed the occupant of the other side of the duplex,

the two robberies were considered one episode); Thomas, 211 F.2d at 321 (where two men took

turns raping two women, the rapes were one criminal episode).

       Crumb argues that U.S.S.G. § 4A1.2(a)(2) and its Application Note 3 dictate that these

offenses must be treated as one episode because they had a common motivation and “were part of

a single common scheme or plan.” Again, we are not persuaded. Section 4A1.2 is entitled

“Definitions and Instructions for Computing Criminal History.” That section provides in pertinent

part that “[p]rior sentences imposed in related cases are to be treated as one sentence for purposes

of § 4A1.1(a), (b), and (c)” (emphasis added), and its Application Note 3 states that “[p]rior

sentences are not considered related if they . . . were part of a single common scheme or plan, or .

. . were consolidated for trial or sentencing.” U.S.S.G. §§ 4A1.1(a), (b) and (c) deal only with

calculation of a defendant’s criminal history score, and nothing in the terms of those sub-sections

makes them applicable to the determination of armed career criminal status, which is governed by

U.S.S.G. § 4B1.4. Finally, § 4B1.4(a) provides that “[a] defendant who is subject to an enhanced


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sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal.” Nothing in either

§ 924(e) or § 4B1.4(a) incorporates any definitions from U.S.S.G. § 4A1 or makes reference to

“related cases,” “related sentences,” or offenses that were part of a “common scheme or plan.” And

nothing in § 924(e) or the case law interpreting it suggests that a common motivation for the crimes

is enough to turn otherwise unrelated offenses into related ones for ACCA purposes. The guidelines

calculation was proper.1

B. Remand for Re-Sentencing

         Crumb asserts that he was prejudiced because the district court found the “fact and character”

of his prior offenses, as well as the fact that he possessed the weapon (for which he was convicted

in the instant case) in connection with a crime of violence, by a preponderance of the evidence under

a mandatory guidelines scheme, which violated his Sixth Amendment rights. The district court

explicitly treated the sentencing guidelines as mandatory, citing our decision in United States v.

Koch, 383 F.3d 436 (6th Cir. 2004).

         First, contrary to Crumb’s assertions, the fact and character of his prior offenses is not an

element that must be proven beyond a reasonable doubt or that he must admit, even in the context

of the ACCA, as judges have historically been free to increase a defendant’s sentence based on

recidivism. See United States v. Almendarez-Torres, 523 U.S. 224, 230 (1998); Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000); Blakely v. Washington, 542 U.S. 296, 301 (2004); United States


         1
          Crumb does not challenge the district court’s calculation of his criminal history, and we do not consider it on
appeal. We note for the record, however, that U.S.S.G. § 4B1.4(c) requires that the criminal history category of an armed
career criminal is to be the greatest of (1) his criminal history as calculated under § 4A, (2) Category VI if the defendant
possessed or used the weapon charged in the offense of conviction in connection with a crime of violence or a controlled
substance offense, or (3) Category IV. The PSR concluded – understandably, under the facts of this case – that the
defendant had used the weapon in connection with a crime of violence, and that the criminal history category must be
set at VI. Because this determination is premised on a finding of fact not made by the jury, we will remand for re-
sentencing, as we explain hereinafter in Section III.B.

                                                            10
v. Booker, 543 U.S. 220, 244 (2005). Further, we have held that a finding that a particular felony

was committed on an occasion different from the commission of another felony is within Apprendi’s

exception for the “fact of a prior conviction” and is therefore properly made by the court. See

United States v. Burgin, 388 F.3d 177, 184 (6th Cir. 2004).

       However, in Booker, the Supreme Court determined that where the defendant is sentenced

under a mandatory guidelines regime and the district court finds facts by a preponderance of the

evidence that increase his sentence beyond the statutory maximum, the defendant’s Sixth

Amendment rights are violated. The PSR provided for a base offense level of 34, making an implicit

finding that Crumb possessed the weapon in connection with a crime of violence, and the district

court adopted the PSR’s recommendations. U.S.S.G. § 4B1.4(b)(3)(A). Because Crumb did not

object on Sixth Amendment grounds, we review for plain error, but we have held that imposing the

sentence under these circumstances automatically meets the plain error standard. Oliver, 397 F.3d

at 378-80. We will therefore remand the case to the district court for re-sentencing.

                                         IV. Conclusion

       For the foregoing reasons, we AFFIRM Crumb’s conviction and REMAND the case to the

district court for re-sentencing.




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