
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1380                                    UNITED STATES,                                      Appellee,                                          v.                                   ROBERT M. BARRY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Robert M. Barry on brief pro se.            _______________            Donald  K.   Stern,  United   States  Attorney,   and  Robert   E.            __________________                                     ___________        Richardson, Assistant United States Attorney, on brief for appellee.        __________                                 ____________________                                   OCTOBER 16, 1996                                 ____________________                      Per Curiam.   Robert M. Barry  appeals his sentence                      __________            for  bank robbery  in violation of  18 U.S.C.    2113(a).  He            claims that  the district  court erred  by considering  him a            career offender pursuant to U.S.S.G.   4B1.1.  We disagree.1                                                                       1                      Under   4B1.1, a career offender is one who "has at            least  two prior  felony  convictions of  either  a crime  of            violence or a controlled substance offense."  These two prior            convictions  must be unrelated.   U.S.S.G.    4B1.2(3).   The            commentary to  the guidelines provides, in  part, that crimes            are  "related" if they are part of a "single common scheme or            plan."   Id.   4A1.2, comment. (n.3).  Appellant alleges that                     ___            his two prior convictions  are part of a common  plan because            they were motivated by the  same goal -- the need  for arrest            and punishment.                      Both of these prior  offenses occurred in 1983, but            the  similarity between the crimes  ends there.  In September            1984, appellant pleaded guilty to two counts of bank robbery;            appellant committed both robberies  in Florida in March 1983.            In  January  1984,  appellant   pleaded  guilty  to   charges            including assault and battery, assault with intent to murder,                                            ____________________               1Because  appellant  obviously  loses on  the  merits,  we               1            decline  to  address,   and  therefore  express   no  opinion            concerning, his  arguments (1) that the  district court erred            by  not ruling  on his  motion objecting  to career  offender            status and (2) that  the rule requiring the  sentencing court            to  treat   as  unrelated   two  offenses  separated   by  an            intervening  arrest is  inconsistent  with the  guideline for            computing a defendant's criminal history score.                                          -2-            armed  robbery,  and  rape.    These  crimes  took  place  in            Massachusetts in  June  1983.   Ordinarily, crimes  involving            separate victims and occurring  at different places and times            are not related  under U.S.S.G.    4A1.2, even where,  unlike            here, they  are the same type of crime.  See United States v.                                                     ___ _____________            Yeo,  936 F.2d  628,  629 (1st  Cir.  1991)(thefts of  rented            ___            machinery which took  place during a six-week time period are            not related,  when they involved different  victims, and took            place on different dates and in different places).                      Nor does the allegation of a common goal, or motive            make the  two  prior felony  convictions  part of  a  "single            common scheme  or plan."   As the  Court of  Appeals for  the            Fourth  Circuit has  recognized, "[s]hared  motivation cannot            transform two crimes committed three months apart, prosecuted            in different jurisdictions,  and involving different victims,            into  one illicit act."   United States v.  Sanders, 954 F.2d                                      _____________     _______            227, 232  (4th Cir. 1992)(a robbery of a bank and a murder in            the  course of  a  different robbery  are  not "related"  for            purposes of determining  defendant's career offender  status,            even though  both crimes allegedly were  committed to sustain            defendant's  heroin addiction).   See  also United  States v.                                              _________ ______________            Gelzer,  50 F.3d  1133, 1143 (2d  Cir. 1995)  (the allegation            ______            that a crime spree originated with the hostile environment in            which  defendant was raised is insufficient  to show that the            offenses committed during  that spree -- thefts of jewelry --                                         -3-            were  related; the  Commission did  not intend  that criminal            acts  "prompted by the same root causes of criminal deviance"            constitute a common plan).                      For  the  foregoing reasons,  the  judgment of  the            district court is affirmed.                              ________                                         -4-
