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


3-14-2002

USA v. Stewart
Precedential or Non-Precedential:

Docket 1-2037




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Recommended Citation
"USA v. Stewart" (2002). 2002 Decisions. Paper 176.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/176


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PRECEDENTIAL

       Filed March 14, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2037

UNITED STATES OF AMERICA

v.

ABDUL LEE STEWART,
a/k/a LEE STEWART

       Abdul Lee Stewart,

       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(Dist. Court No. 99-CR-00751)
District Court Judge: Anita B. Brody

Submitted Under Third Circuit LAR 34.1(a)
January 14, 2002

Before: ALITO, ROTH, Circuit Judges, and
SCHWARZER,* Senior District Judge.

(Opinion Filed: March 14, 2002)
_________________________________________________________________

* The Honorable William W Schwarzer, Senior District Judge for the
Northern District of California, sitting by designation.
       ELAINE DeMASSE
       Assistant Federal Defender
       Senior Appellate Counsel

       DAVID L. McCOLGIN
       Assistant Federal Defender
       Supervising Appellate Attorney

       MAUREEN KEARNEY ROWLEY
       Chief Federal Defender

       Federal Court Division
       Defender Association of Philadelphia
       Suite 800 - Lafayette Building
       437 Chestnut Street
       Philadelphia, PA 19106-2414

       Counsel for Appellant

       PATRICK L. MEEHAN
       United States Attorney

       LAURIE MAGID
       Deputy United States Attorney for
        Policy and Appeals

       ROBERT A. ZAUZMER
       Assistant United States Attorney
       Senior Appellate Counsel

       MARY E. CRAWLEY
       Assistant Untied States Attorney

       615 Chestnut Street
       Suite 1250
       Philadelphia, PA 19106-4476

       Counsel for Appellee

OPINION OF THE COURT

PER CURIAM:

Abdul Lee Stewart confessed to robbing three banks at
gunpoint with his co-defendant, Stephen Shakuur. Stewart

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carried handguns in the first and third robberies. FBI
agents arrested Stewart and Shakuur eleven days after the
third robbery, while they were looking for a fourth bank to
rob. On March 9, 2000, Stewart appeared in the United
States District Court for the Eastern District of
Pennsylvania and pled guilty to charges of conspiracy, in
violation of 18 U.S.C. S 371 (count 1); three counts of
armed bank robbery, in violation of 18 U.S.C. S 2113(d)
(counts 2, 3, and 4); and two counts of using or carrying a
firearm during a crime of violence, in violation of 18 U.S.C.
S 924(c)(1) (counts 6 and 9). He pled guilty pursuant to a
cooperation plea agreement, but later declined to testify in
the trial of his co-defendant, Shakuur. Stewart was
sentenced on April 19, 2001, to a term of 572 months in
prison, consisting of 188 months on counts 1 to 4, 84
months consecutive on count 6, and 300 months
consecutive on count 9. The District Court also imposed
five years of supervised release, a special assessment of
$600.00, and restitution to the victim banks of $16,249.00.

On appeal, Stewart contests the District Court's
imposition of two mandatory consecutive sentences under
18 U.S.C. S 924(c)(1). He argues that when multiple
convictions are entered simultaneously, none of the
convictions may be considered to be "second or
subsequent" convictions for enhanced sentencing purposes
under 18 U.S.C. S 924(c)(1)(C). We disagree.

We review Stewart's challenge to his sentence for plain
error because he failed to raise this objection below. See
Fed. R. Crim. P. 52(b); United States v. Knight , 266 F.3d
203, 206 (3d Cir. 2001) ("[W]here a defendant has failed to
object to a purported error before the sentencing court, our
review on appeal is only to ensure that plain error was not
committed.").

Stewart argues that his sentence was improperly
enhanced by the "second or subsequent conviction"
provision under 18 U.S.C. S 924(c)(1)(C). 18 U.S.C.
S 924(c)(1)(C) provides: "In the case of a second or
subsequent conviction under this subsection, the person
shall-- (i) be sentenced to a term of imprisonment of not
less than 25 years; and (ii) if the firearm involved is a
machinegun or a destructive device, or is equipped with a

                               3
firearm silencer or firearm muffler, be sentenced to
imprisonment for life." Stewart's claim is that the
enhancement for a "second or subsequent conviction"
should not apply to multiple S 924(c) convictions that are
entered simultaneously. Thus, although Stewart was
convicted on multiple counts, he argues that the sentence
enhancement should not apply to him because he was
convicted on all counts at the same time. This fact,
however, is insufficient to remove this case from the direct
control of Supreme Court and Third Circuit precedent.

In Deal v. United States, 508 U.S. 129 (1993), the
Supreme Court rejected an argument similar to Stewart's
and held that "findings of guilt on several counts are
necessarily arrived at successively in time." 508 U.S. at 133
n.1. This conclusion is consistent with this Court's
precedent as well. See United States v. Coates , 178 F.3d
681, 683 n.2 (3d Cir. 1999) ("We agree with counsel that
Coates's first argument is frivolous. Coates contends that
the District Court misapplied 18 U.S.C. S 924(c)(1) by
enhancing Coates's sentence on the second weapons
conviction even though it arose from the same indictment
as his first weapons conviction. Both the Supreme Court
and our court have already rejected this argument.");
United States v. Casiano, 113 F.3d 420, 424-26 (3d Cir.
1997) (finding sentence enhancement under 924(c)(1)(C)
applicable where the second conviction arises from the
same criminal episode and involves the same victim as the
first conviction). Likewise, we hold here that enhanced
sentencing for a "second or subsequent" conviction under
18 U.S.C. S 924(c) applies where the convictions for the first
and subsequent S 924(c) offenses are entered
simultaneously.

Additionally, Stewart claims that the District Court erred
by failing to consider his financial condition and to
schedule restitution payments accordingly. The
Government concedes that the case should be remanded for
the purpose of allowing the District Court to specify the
manner in which and the schedule according to which
Stewart must meet his mandatory restitution obligation.

Accordingly, the sentence imposed by the District Court
is affirmed, but the case is remanded for the purpose of

                                4
specifying how Stewart should meet his mandatory
restitution obligation.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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