
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2087                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                  GEORGE A. RIDDLE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Robert A. Levine, by Appointment of the Court, for appellant.            ________________            Michael M.  DuBose, Assistant  United States  Attorney, with  whom            __________________        Jay P.  McCloskey, United States Attorney, was on brief for the United        _________________        States.                                 ____________________                                  February 16, 1995                                 ____________________                 Per  Curiam.   On  April 22,  1994, defendant  George A.                 ___________            Riddle  pled guilty to a  single count charging  him with the            offense of possession of a firearm  by a convicted felon.  18            U.S.C.     922(g)(1),  924(e).    A  second count  was  later            dismissed.  The presentence  report revealed that Riddle, who            had turned  eighteen  in  1990,  had in  the  following  year            embarked  on  a small  crime  spree  of  burglaries;  he  had            committed such burglaries  on March  17, May 9,  May 28  (two            separate incidents) and June 12, 1991, and had been sentenced            for all of them at the same time on November 8, 1991.                   After serving concurrent sentences, Riddle  continued on            his  course of crime, by  committing burglary and  arson in a            commercial building on  November 22, 1993.   Two days  later,            Riddle   engaged  in  an  armed  robbery.    It  was  in  the            investigation  of the  November  22 offense  that the  police            obtained  evidence  linking  Riddle  with  it  and  with  the            November 24  armed robbery.  The  investigation also revealed            Riddle's possession  of two handguns, leading to the felon in            possession conviction in the present case.                 Because  of   the  five  separate  burglaries   and  the            resulting convictions  in 1991, the district  court sentenced            Riddle on  the felon  in  possession charge  under the  Armed            Career Criminal Act, 18 U.S.C.  924(e).  The statute requires            that  a  defendant  who  violates  the  felon  in  possession            statute, 18  U.S.C.    922(g), be  given a 15-year  mandatory                                         -2-                                         -2-            minimum  sentence  if   the  defendant  has  three   previous            convictions  for  violent  felonies  "committed  on occasions            different  from  one another."   18  U.S.C.    924(e)(1).   A            violent felony  is defined to include  burglary punishable by            imprisonment  for   more  than  one   year.    18   U.S.C.               924(e)(2)(B)(ii).                   The Sentencing Guidelines  contain a separate  provision            applicable to anyone who meets the statutory definition of an            armed career criminal under  18 U.S.C.   924(e).   U.S.S.G.              4B1.4.  In this  case, it is undisputed that  if Riddle falls            within the armed career criminal definition, the implementing            guideline provides a  sentencing range with a  minimum of 188                                                           _______            months' imprisonment.  This resulted from his possession of a            firearm in connection with the November 24, 1993, robbery and            a   three-level  downward   adjustment   for  acceptance   of            responsibility.   The district court sentenced  Riddle to 188            months' imprisonment.                 On  appeal, the  only question  posed is  whether Riddle            does fit the  definition of  armed career  criminal.   Riddle            does  not dispute  that prior  to  his present  conviction he            committed  burglaries on  five  different  occasions on  four            different dates,  and was ultimately convicted  for all five.            Rather,  focusing  on the  requirement  that  there be  three            previous  convictions  for  violent  felonies  "committed  on                                         -3-                                         -3-            occasions different from one another," 18 U.S.C.   924(e)(1),            Riddle makes three different arguments.                 First,  he points  to  the general  sentencing guideline            used for computing criminal  history, U.S.S.G.   4A1.2, which            provides in  commentary that  prior sentences are  considered            related and counted as only one sentence where inter alia the                                                           _____ ____            offenses  were consolidated  for  trial or  sentencing.   Id.                                                                      ___            comment (n.3).   This  relatedness restriction has  also been            incorporated  in  the   separate  guideline  that  determines            whether an individual has  at least two prior  violent felony            convictions  and  may therefore  be  subject  to an  enhanced            sentence as a "career offender."  U.S.S.G.    4B1.1, 4B1.2(3)            & comment (n.4).                 The relatedness  requirement is  a rule of  thumb device            employed by  the Commission which enhances  the discretion of            district  courts  in   administering  the  criminal   history            provisions, see United States v.  Elwell, 984 F.2d 1289  (1st                        ___ _____________     ______            Cir.),  cert. denied,  113 S.  Ct. 2429  (1993), and  is also                    _____ ______            available to them in  applying the career offender guideline.            The  Commission did  not  purport to  adopt this  relatedness            requirement in the armed career criminal guideline, and there            is no reason  to think that  it had any  intention to do  so.            United States v. Maxey, 989 F.2d 303, 307-08 (9th Cir. 1993).            _____________    _____                 Indeed, there  might be  a serious question  whether the            Commission would be entitled to do so.  The ordinary criminal                                         -4-                                         -4-            history  calculations  and, to  a  large  extent, the  career            offender  guideline  are  products  of  the Commission's  own            devising, with  some very general guidance  from Congress; by            contrast,  the armed  career criminal provision  results from            rather  precise  statutory  language,  which  the  Commission            simply adopts in its armed career criminal guideline.  In all            events, this  difference in  origin certainly  reenforces the            view  that  the  armed  career  criminal  guideline  was  not            intended to  incorporate  the relatedness  requirement.   Cf.                                                                      __            U.S.S.G.    4B1.4 comment. (n.1)  (noting difference  between            statutory definition and U.S.S.G.    4A1.2 and 4B1.1).                 Riddle's  next  argument  is that  the  five burglaries,            although  literally committed  on  separate  occasions,  were            manifestations of a single youthful  crime spree and ought to            be considered a single violent felony under the statute.  The            difficulty  is  that  Congress  has  spoken  with  reasonable            precision in specifying that  the felonies be ones "committed            on  occasions different  from  one another."   Riddle's  five            convictions  embraced  five   different  incidents  on   four            different  dates  involving  five  different   locations  and            victims.                  Whatever elastic there may be in the statutory language,            it is not a  reasonable stretch of language to  describe five            burglaries  at five  different  locations on  four  different            dates as  occurring on the  same occasion.   The case  law in                                         -5-                                         -5-            this circuit, e.g.,  United States  v. Lewis,  40 F.3d  1325,                          ____________________     _____            1346  (1st Cir. 1994) (citing other First Circuit cases), and            in practically  all other circuits,  has rejected contentions            of this kind, sometimes  in much closer cases.   E.g., United                                                             ____________            States v. Godinez, 998 F.2d 471 (7th Cir. 1993).  While there            ______    _______            may  be crimes so closely related as to pose difficult issues            under the statute, this case is not a difficult one.                 Finally,  Riddle argues that  it does not  make sense to            describe as  an armed career criminal  someone whose "career"            of  crime occurred in a couple of  spurts within a year or so            of his eighteenth birthday.   The district court thoughtfully            considered and  addressed the  argument, and  there is  not a            great deal  more to say.  Congress,  thinking primarily about            the protection of  the public, adopted a  definition of armed            career criminal  that ignores the  duration of the  career or            the youthfulness of the adult offender or the lack of lengthy            intervals or arrests between the crimes.                 Congress'  approach  produces  very  severe  results  in            certain cases.   Whether the  result is  severe or  something            worse  in Riddle's case is  a matter of  dispute (our opinion            has  not  completely  recounted his  criminal  involvements).            What we have no reason to doubt is that Congress intended its            statute to work in accordance  with its defining terms rather            than through  the impressionistic evaluation of  judges as to                                         -6-                                         -6-            whether a defendant was or was not "an armed career criminal"            in the lay sense of those words.                 Affirmed.                    ________                                         -7-                                         -7-
