                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-8-2004

USA v. Mora-Zapata
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3072




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                                               NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ____________

                     No. 03-3072
                    ____________

          UNITED STATES OF AMERICA

                           v.

         ELMER DEJESUS MORA-ZAPATA
                    a/k/a CARLOS
                a/k/a PEDRO COTTO
           a/k/a HELMER JESUS MORA
                a/k/a ELMER MORA

              Elmer DeJesus Mora-Zapata,

                              Appellant
                    ____________

    On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
                (D.C. No. 02-cr-00580-1)
    District Judge: Honorable Michael M. Baylson
                     ____________

      Submitted Under Third Circuit LAR 34.1(a)
                  March 30, 2004

Before: ALITO, FISHER and ALDISERT , Circuit Judges.

                 (Filed: April 8, 2004)
                    ____________

             OPINION OF THE COURT
                  ____________
FISHER, Circuit Judge.

       On February 19, 2003, Appellant Elmer Dejesus Mora-Zapata pled guilty to six

drug-related offenses. In calculating Mora-Zapata’s sentence, the United States District

Court for the Eastern District of Pennsylvania deemed Mora-Zapata to be a “career

offender” under U.S.S.G. § 4B1.1 because of Mora-Zapata’s two prior felony drug

convictions. Mora-Zapata challenges the district court’s “career offender” decision on

grounds that the two prior felony drug convictions were “related cases” under U.S.S.G. §

4A1.2 that cannot support a “career offender” designation. Because the two prior felony

drug convictions were not “related cases,” we affirm Mora-Zapata’s sentence.

                                             I.

       Section 4B1.1 of the Sentencing Guidelines, the “career offender” provision,

mandates an enhancement where a defendant convicted of a crime of violence or a

controlled substance offense “has at least two prior felony convictions of either a crime of

violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). Whether prior felony

convictions actually constitute “two prior felony convictions” for purposes of § 4B1.1(a)

turns on whether “the sentences for ... [those] felony convictions are counted separately

under the provisions of § 4A1.1(a), (b), or (c).” U.S.S.G. § 4B1.2(c). Section

4A1.2(a)(2) provides that “[p]rior sentences imposed in related cases are to be treated as

one sentence for purposes of § 4A1.1(a), (b), or (c).” U.S.S.G. § 4A1.2(a)(2).




                                             2
       Application Note 3 to § 4A1.1 explains when prior sentences are considered to

have been “imposed in related cases” for purposes of § 4B1.1:

              Prior sentences are not considered related if they were for
              offenses that were separated by an intervening arrest (i.e., the
              defendant is arrested for the first offense prior to committing
              the second offense). Otherwise prior sentences are considered
              related if they resulted from offenses that (A) occurred on the
              same occasion, (B) were part of a single common scheme or
              plan, or (C) were consolidated for trial or sentencing.

U.S.S.G. § 4A1.1 appl. note 3.

       The district court designated Mora-Zapata as a “career offender” under § 4B1.1(a)

because of Mora-Zapata’s two prior felony drug convictions in the United States District

Court for the Middle District of Pennsylvania – Criminal No. 84-00159, a conviction for

drug distribution-related offenses based on conduct that occurred on or about

September 25, October 2 and October 25, 1984 (the “159 offense” or “159 conviction”);

and Criminal No. 85-00193, a conviction for drug distribution-related offenses based on

conduct that occurred between early 1983 and the summer of 1984, though distinct from

the conduct underlying the 159 offense (the “193 offense” or “193 conviction”). Mora-

Zapata contends that the 159 and 193 convictions were not separate “prior felony

convictions” because (a) they “occurred on the same occasion” or (b) “were part of a

single common scheme or plan” within the meaning of Application Note 3 to § 4A1.1.1


   1
   As Mora-Zapata correctly points out, his prior drug-related offenses were not
separated by an intervening arrest and are therefore not disqualified from being “related”
under the “intervening arrest” prong of Application Note 3 to U.S.S.G. § 4A1.1.

                                             3
                                            II.

       The district court’s determination that Mora-Zapata’s 159 and 193 convictions

were not “related cases” was not erroneous under any standard of review.2 The 159 and

193 convictions were not “related cases” because the offenses underlying them did not

occur on the “same occasion.” Mora-Zapata submits that an “occasion” can be months,

or even years; that the conduct underlying the 193 conviction, alleged in the indictment to

have occurred during the period from early 1983 through December 1984, defines an

“occasion”; and that because the conduct underlying the 159 conviction occurred between

early 1983 and December 1984, it occurred on the “same occasion” as the conduct

underlying the 193 conviction.3

       Mora-Zapata’s delineation of “occasion” obliterates the concept and recognizes no

discernible limits to its scope. If an “occasion” can be a period of almost two years, why

   2
    We have not yet specifically decided what standard of review governs a district
court’s determination that prior felony offenses occurred on the “same occasion,” though
we have determined that a district court’s determination that a defendant’s prior drug
convictions were part of a “single common scheme or plan” must be reviewed only for
“clear error.” See United States v. Beckett, 208 F.3d 140, 147 (3d Cir. 2000). We need
not decide whether the clearly erroneous standard also applies to “same occasion”
determinations because the district court’s decision at issue here survives even the most
searching scrutiny.
   3
    We assume arguendo that the conduct underlying the 193 conviction extended
beyond the summer of 1984 until December of 1984. As the presentence report reflects,
however, the government’s intended proofs in the 193 matter would only have supported
conduct occurring from early 1983 through the summer of 1984, thus concluding prior to
the conduct underlying the 159 conviction. We need not consider this factual issue
further because even Mora-Zapata’s description of the timing of his conduct does not
support a finding of “same occasion” under our interpretation of the concept.

                                             4
not five years, ten years or twenty years? Perhaps if the conduct at issue is closely

connected in terms of the identities of the offenses, victims and accomplices, an

expansive interpretation of “occasion” might be permissible. But then, these forms of

relatedness are already covered by § 4A1.2's “single common scheme or plan” provision.

       Courts tend to regard temporal concerns as controlling in assessing whether

conduct occurred on the “same occasion.” See United States v. Moreno-Arredondo, 255

F.3d 198, 207 (5 th Cir.), cert. denied, 122 S.Ct. 491 (2001).4 For example, in United

States v. Paden, 330 F.3d 1066 (8 th Cir. 2003), the Eighth Circuit found that defendant’s

offenses on January 1, 1990 and January 5, 1990 did not occur on the “same occasion”

because they were separated by four days. Paden, 330 F.3d at 1067. While we decline to

say precisely how close together in time offenses must have occurred in order to have

taken place on the “same occasion,” it is clear that where, as here, offenses occurred on




   4
    The Fifth Circuit in Moreno-Arredondo did recognize that non-temporal elements
such as the similarity and geographical proximity of the prior offenses could be
considered, but that “[o]nly the extent of the temporal separation between commissions
can be controlling for purposes of the same-occurrence prong[.]” Moreno-Arredondo,
255 F.3d at 207. Mora-Zapata relies heavily on Moreno-Arredondo because it involved
one of the rare instances where a court found that prior offenses had occurred on the
“same occasion.” But Moreno-Arredondo is highly distinguishable from this case: the
offenses underlying the defendant’s prior convictions there (indecency with a child)
occurred within minutes of each other without interruption at precisely the same location
– the same seat on the couch in the living room of the home in which defendant, the
victims, and the victims’ mother resided. The Fifth Circuit only examined the nature and
location of the offenses because the temporal separation between the offenses (mere
minutes) was de minimis.

                                              5
multiple different days over a span of more than one year, they cannot be said to have

occurred on the “same occasion.”

         Mora-Zapata’s attempt alternatively to fit his 159 and 193 convictions into the

“single common scheme or plan” prong of § 4A1.2 similarly fails. Mora-Zapata argues

that his prior convictions were part of a “single common scheme or plan” because they

involved “alleged cocaine sales during the same continuous period of time in the Pocono-

area of the Middle District of Pennsylvania.” In other words, Mora-Zapata would have us

find that repeated commissions of the same crime in the same general geographic area

over a span of more than one year suffices to establish a “single common scheme or

plan.”

         Mora-Zapata bears the burden of establishing that the prior convictions were part

of a common scheme or plan. Beckett, 208 F.3d at 147 (citation omitted). We noted in

Beckett “that the terms ‘scheme’ and ‘plan’ are words of intention, implying that [the two

offenses] have been jointly planned, or at least that it would have been evident that the

commission of one would entail the commission of the other as well.” Id. at 147 (quoting

United States v. Ali, 951 F.2d 827, 828 (7 th Cir. 1992)) (internal quotation marks

omitted).

         Mora-Zapata offered nothing at his sentencing hearing to demonstrate that the 159

and 193 offenses had been jointly planned, and does not even attempt to do so in his brief

to this Court. Nor has Mora-Zapata offered any evidence or argument showing that the



                                              6
commission of one of the offenses underlying one of the convictions “entail[ed] the

commission of the other[s] as well.” Indeed, the conduct underlying the 159 and 193

convictions is marked by its distinctiveness. While the 159 conviction involved four

distributions of cocaine to the same undercover state trooper and informant in two

Pennsylvania towns over the span of one month (September 1984 - October 1984), the

193 conviction involved more than sixty different distributions of varying amounts of

cocaine to seven different buyers in multiple locations in central Pennsylvania over a span

of approximately eighteen months preceding September 1984.

       Moreover, accepting Mora-Zapata’s bare assertion that repeated commissions of

similar crimes over a span of more than one year suffices to establish that those crimes

were part of a single common scheme or plan would, as the Fifth Circuit has recognized,

“lead to the illogical result that a defendant who is repeatedly convicted of the same

offense on different occasions could never be considered a career offender under the

guidelines.” United States v. Garcia, 962 F.2d 479, 482 (5 th Cir. 1992). Accordingly, the

district court did not err in concluding that the 159 and 193 offenses were not part of

“single common scheme or plan” for purposes of § 4A1.2 of the Guidelines.

       For the foregoing reasons, we affirm the district court’s judgment.

________________________




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