DOUGLAS APONTE, PETITIONER V. UNITED STATES OF AMERICA No. 90-5687 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. 1) is noted at 909 F.2d 1491 (Table). JURISDICTION The judgment of the court of appeals was entered on July 9, 1990. The petition for a writ of certiorari was filed on September 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). QUESTION PRESENTED Whether petitioner's five prior convictions for burglary satisfied the rquirement of "three previous convictions * * * for a violent felony" under the sentence enhancement provisions of 18 U.S.C. 924(e)(1), where petitioner committed the underlying offenses at different times, but was convicted of all five offenses at a single judicial proceeding. STATEMENT After a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g). Pursuant to 18 U.S.C. 924(e)(1), petitioner was sentenced to imprisonment for 180 months, to be followed by four years of supervised release. The court of appeals affirmed. 1. On the morning of September 8, 1988, petitioner and Carlos Lopez burglarized a house in Miami, Florida, and removed a number of valuable items, including a Winchester .22 caliber rifle. Petitioner and Lopez placed all of the stolen goods in a car and drove off. Local police officers observed the burglary, stopped petitioner's car a short distance from the residence, and arrested Lopez and petitioner. The rifle, partially concealed in a gun case, was found directly behind petitioner; the possession of that weapon supported petitoner's firearm conviction. Gov't C.A. Br. 2-4. 2. At sentencing, the government urged that 18 U.S.C. 924(e)(1) required the imposition of a mandatory sentence of fifteen years' imprisonment because of petitioner's prior criminal record. /1/ The government noted that petitioner had been convicted of five previous burglaries that had been committed on separate dates, were charged in separate indictments, and were resolved in separate orders issued by the state court. The convictions had been entered, however, after petitioner's pleas of guilty in a single consolidated proceding on July 29, 1987. Gov't C.A. Br. 17; Pet. 5. Petitioner contended that 18 U.S.C. 924(e) did not apply to him. He argued that because his prior convictions had been entered in a single proceeding, they did not provide the "three previous convictions" required to trigger application of Section 924(e)(1). Moreover, petitioner maintained that the Sentencing Guidelines would provide a sentencing range of eight to fourteen months' imprisonment in his case, and that, in those circumstances, a fifteen-year sentence under Section 924(e)(1) should not be imposed. The sentencing judge rejected petitioner's arguments, and sentenced him to a 15-year prison term in accordance with 18 U.S.C. 924(e)(1). The court of appeals affirmed per curiam in an unpublished order. Pet. App. 1. ARGUMENT Petitioner renews his claim (Pet. 6-12) that 18 U.S.C. 924(e)(1) does not apply to him because his five prior burglary convictions were entered at a single judicial proceeding, and becaue a lesser sentence would apply under provisions found in the Sentencing Guidelines. He appears to contend (Pet. 9) that in order for Section 924(e)(1) to apply, an offender must have been convicted of each prior predicate offense before committing the next subsequent offense. That contention, which has been rejected by every court of appeals that has considered it, lacks merit and does not warrant this Court's review. 1. Section 924(e)(1) requires a mandatory 15-year term of imprisonment for a person who knowingly possesses a firearm in or affecting commerce and who "has three previous convictions in any court * * * for a violent felony * * * committed on occasions different from one another". /2/ The uniform view of the courts of appeals is that when counting predicate offenses under Section 924(e)(1), "multiple convictions arising from multiple criminal transactions should be treated as separate convictions, regardless of the number of judicial proceedings involved in the conviction." United States v. Herbert, 860 F.2d 620, 622 (5th Cir. 1988) (affirming the application of Section 924(e)(1) when two of the predicate burglary convictions arose from a single judicial proceeding), cert. denied, 109 S. Ct. 2074 (1989); United States v. Schoolcraft, 879 F.2d 64, 74 (3d Cir.) (per curiam) (holding that "a defendant need not be convicted of one predicate offense before committing the next predicate offense" for purposes of Section 924(e)(1)), cert. denied, 110 S. Ct. 546 (1989); United States v. Rush, 840 F.2d 580 (8th Cir.) ("(I)t is the criminal episodes underlying the convictions, not the dates of conviction, that must be distinct to trigger the provisions of (Section 924(e)(1))."), cert. denied, 487 U.S. 1238 (1988); United States v. Greene, 810 F.2d 999 (11th Cir. 1986) (four convictions based on one indictment are sufficient where the convictions arise from separate episodes). /3/ Contrary to the position espoused by petitioner, no court of appeals has held that a defendant must have been convicted of one violent felony, committed a second offense and been convicted, and then committed the third offense and been convicted in order for Section 924(e)(1) to apply.. /4/ Indeed, since the time that petitioner committed the offense involved in this case, Congress has made it unmistakably clear that the three prior offenses and convictions need not be sequential in order for Section 924(e)(1) to apply. In the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Section 7056, 102 Stat. 4402, Congress amended Section 924(e)(1) to add the language that the three predicate offenses must have been "committed on occasions different from one another." /5/ As the principal drafter of the 1988 amendment explained, the additional language clarified the requirement of Section 924(e)(1) that the three previous convictions had to be for offenses committed on separate occasions. 134 Cong. Rec. S17370 (daily ed. Nov. 10, 1988) (remarks of Sen. Biden). But, the drafters explained, "a single multi-count conviction could still qualify where the count related to crimes committed on different occasions." Ibid. /6/ That is the case here with respect to petitioner's prior convictions. /7/ Petitioner committed five separate burglaries, which resulted in a separate indictments; the five charges were then adjudicated in a single state court proceeding following petitioner's entry of guilty pleas. If all of those charges had arisen from a single episode of criminal conduct, then petitioner's contention that he did not have the required three previous convictions would have merit. But the burglaries were committed on separate dates, arose from separate transactions, and constituted separate offenses; his commission of a firearm offense one year later brought him within the class of recidivists that Section 924(e)(1) was intended to reach. Accordingly, petitioner was properly subjected to the enhancement provisions of Section 924(e)(1). 2. Despite the consistent line of authority interpreting Section 924(e)(1), petitioner contends (Pet. 6-8) that a different approach to counting prior offenses, derived from the Sentencing Guidelines, should be applied in this case. That argument is without merit. The Sentencing Guidelines do not apply when a separate statute provides a minimum sentence for a specified offense. Section 5G1.1(b) of the Guidelines states that "(w)here a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence." See United States v. Taylor, 882 F.2d 1018, 1032 (6th Cir. 1989), cert. denied, 110 S. Ct. 2592 (1990). Consequently, Section 924(e)(1) takes precedence over any contrary provisions or methods of computing sentences that would otherwise apply under the Sentencing Guidelines. Moreover, the "career offender" provisions of the Guidelines on which petitioner places particular reliance (Pet. 6-7) do not furnish a suitable model for interpreting Section 924(e)(1). The Guidelines classify as a "career offender" a defendant who "has at least two prior felony convictions of either a crime of violence or a controlled substance offense" (and satisfies other requirements not pertinent here). Guideline Section 4B1.1. In defining the terms used in the career offender classification, the Guidelines state that the two prior felony convictions must have been entered prior to the commission of the current offense, and the sentences imposed must be "counted separately" under Part A of Chapter 4 of the Guidelines. Section 4B1.2(3). Part A, in turn, indicates that prior sentences imposed in "related cases" are not counted separately for purposes of calculating an offender's criminal history, Section 4A1.2(a)(2); the commentary explains that cases are related if they were "consolidated for trial or sentencing." Application Note 3 to Sentencing Guideline Section 4A1.2, Guidelines Manual, p. 4.7 (Nov. 1990). Contrary to petitioner's implication, the fact that two convictions are "related" under the Guidelines when they have been consolidated for trial or sentencing -- and therefore do not count separately for identifyng a "career offender" -- does not represent a policy determination that such an offender is necessarily less culpable or less deserving of punishment. Rather, the commentary explains that (t)he court should be aware that there may be instances in which this definition is overly broad and will result in a criminal history score that underrepresents the seriousness of the defendant's criminal history and the danger he represents to the public. For example, if the defendant commits a number of offenses on independent occasions separated by arrests, and the resulting criminal cases are consolidated and result in a combined sentence of eight years, counting merely three points for this factor will not adequately reflect either the seriousness of the defendant's criminal history or the frequency with which he commits crimes. In such circumstances, the court should consider whether departure is warranted. Ibid. In other words, the Sentencing Guidelines' approach of not treating a defendant as a "career offender" if he has only two prior felonies that were consolidated for sentencing is tempered by the recognition that such a definition may produce artificially lenient results -- and that such skewed results should be corrected through the sentencing judge's exercise of discretion to increase the sentence by departing upward from the Guidelines. See Guideline Section 4A1.3 (policy statement on adequacy of criminal history category and grounds for departure). In contrast, sentencing flexibility is not a feature of Section 924(e)(1); that provision expresses a congressional judgment that for specified types of recidivist offenses involving three violent felonies, a mandatory minimum term is appropriate. Congress did not intend to create an underinclusive category that could be supplemented by discretionary departures. In giving effect to that legislative determination, it is hardly appropriate to borrow the Sentencing Guidelines' method of computing prior felony convictions, when that method is recognized to yield an insufficiently severe sentence in some of the cases where it is applied. Such borrowing would be particularly inappropriate in light of the fact that the Guidelines themselves take cognizance of Section 924(e)(1) and devote a separate section to that provision to ensure that it prevails over inconsistent sentencing Guidelines. See Guideline Section 4B1.4. /8/ In framing that provision, the Sentencing Commission explicitly noted that the terminology and sentencing approach employed under Section 924(e)(1) diverges from that employed elsewhere in the Guidelines. The commentary states that (i)t is to be noted that the definitions of "violent felony" and "serious drug offense" in 18 U.S.C. 924(e)(2) are not identical to the definitions of "crime of violence" and "controlled substance offense" used in Section 4B1.1 (Career Offender), nor are the time periods for the counting of prior sentences under Section 4A1.2 (Definitions and Instructions for Computing Criminal History) applicable to the determination of whether a defendant is subject to an enhanced sentence under 18 U.S.C. 924(e). Application Note 1 to Sentencing Guideline Section 4B1.4, Guidelines Manual, p. 4.14 (Nov. 1990). In view of the Guidelines' express efforts to give effect to the unique sentencing provisions embodied in Section 924(e)(1), it would be highly incongruous to transpose the Guidelines' approach to counting prior convictions into the body of law interpreting that provision. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General MERVYN HAMBURG Attorney NOVEMBER 1990 /1/ 18 U.S.C. 924(e)(1) currently provides in pertinent part: In the case of a person who violates Section 922(g) of this title and has three previous convictions by any court * * * for a violent felony * * * committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under Section 922(g), and such person shall not be eligible for parole with respect to the sentence imposed under this subsection. The version of the statute in force at the time of petitioner's offense differed slightly, see pp. 5-7, infra, but the differences have no bearing on the issue presented here. /2/ The statutory definition of "violent felony" includes burglary. 18 U.S.C. 924(e)(2)(B). Petitioner does not claim that the inclusion of his offenses was improper under the definition of "burglary" embraced by this Court in Taylor v. United States, 110 S. Ct. 2143 (1990). /3/ See also United States v. Washington, 898 F.2d 439 (5th Cir.) (applying enhancement provisions when two of the predicate offenses had been committed on successive days), cert. denied, 111 S. Ct. 122 (1990); United States v. Schiman, 894 F.2d 909, 912-913 (7th Cir.) (predicate offenses need not be adjudicated separately to satisfy the requirement of three prior convictions; it is sufficient that the offenses arise from "separate and distinct criminal episode(s)"), cert. denied, 111 S. Ct. 155 (1990); United States v. Towne, 870 F.2d 880, 889 (2d Cir.) (collecting cases accepting the view that Section 924(e)(1)'s "reference to 'convictions' pertains to single 'episodes' of felonious criminal activity that are distinct in time, rather than literal convictions"), cert. denied, 109 S. Ct. 2456 (1989). /4/ One of the opinions in United States v. Balascsak, 873 F.2d 673 (3d Cir. 1989) (en banc), did express that view, but the court was evenly divided on the point. Compare id. at 674-684 (opinion of Chief Judge Gibbons, joined by five other judges, announcing the judgment), with id. at 684 (Becker, J., concurring) (agreeing with the five dissenting judges that "Congress intended that, to qualify as triggering offenses for the enhanced penalty, the three previous convictions must each have arisen from separate criminal episodes, but need not be separated by intervening convictions"). A subsequent decision of the Third Circuit followed the rule prevailing in all other circuits that have addressed the issue (and the reasoning of the Balascsak dissent), holding that the conviction for each predicate offense need not have preceded the commission of the subsequent offense. See United States v. Schoolcraft, supra. /5/ That amendment responded to developments following the decision in United States v. Petty, 798 F.2d 1157 (8th Cir. 1986), where the court of appeals had applied the predecesor version of Section 924(e) to enhance the sentence of a defendant because he had been previously convicted of six counts of armed robbery even though the offenses arose from his robbery of six people at the same time and place. On the defendant's petition for certiorari, the Solicitor General expressed the view that the court of appeals had erred and that the enhanced penalty under the former provision should be limited to multiple criminal episodes that are distinct in time. Brief for the United States, Petty v. United States, No. 86-6263, at 4-10. In light of the Solicitor General's concession, this Court granted the petition, vacated the judgment, and remanded to the court of appeals for further consideration. 481 U.S. 1034 (1987). The government's brief in Petty did not express a view on the question involved in this case -- "whether convictions on multiple counts arising out of multiple criminal episodes, yet covered by a single indictment, count as multiple 'previous convictions'" under the applicable provisions. U.S. Br. at 10 n.9. In our brief in opposition in Wicks v. United States, No. 87-6807, however, we did answer that question, stating that former Section 924(e) applied even if the prior convictions resulted from a single prosecution, provided the underlying conduct arose from separate criminal episodes. U.S. Br. in Opp. at 3-4 & n.2. This Court denied the petition for certiorari. Wicks v. United States, 488 U.S. 831 (1988). (We have provided copies of our briefs in Petty and Wicks to petitioner.) /6/ Petitioner makes no claim that his five prior burglary convictions arose from a single episode of criminal conduct. Cf. United States v. Taylor, 882 F.2d 1018, 1029 (6th Cir. 1989), cert. denied, 110 S. Ct. 2592 (1990). /7/ The amended Section 924(e) did not apply to petitioner, since his offense was committed on September 8, 1988, and the amendment was enacted on November 18, 1988. See 1 U.S.C. 109. But nothing accomplished through the amendment is necessary to sustain petitioner's conviction; rather, the legislative history of that amendment simply serves to confirm the prevailing judicial interpretation of Section 924(e) -- namely, that multiple criminal convictions arising out of separate episodes may each count as a predicate offense under Section 924(e)(1), even if all of the convictions were rendered in a single proceeding. /8/ This section was added to the Guidelines effective November 1, 1990. See Guidelines Manual, App. C, Amend. 355, p. C198 (Nov. 1990).