ALVIN GENE WASHINGTON, PETITIONER V. UNITED STATES OF AMERICA No. 89-7840 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 Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 11-14) is reported at 898 F.2d 439. JURISDICTION The judgment of the court of appeals was entered on March 30, 1990. The petition for a writ of certiorari was filed on June 25, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's three convictions for armed robbery constitute three previous convictions under the enhanced sentencing provision of 18 U.S.C. 924(e) (Supp. IV 1986) although two of the robberies were committed within a 24-hour period against the same victim. STATEMENT Following a jury trial in the United States District Court for the Southern District of Texas, petitioner was convicted of possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. 922(g)(1) (1982 & Supp. IV 1986). He was sentenced to 15 years' imprisonment under 18 U.S.C. 924(e)(1) (Supp. IV 1986), to be followed by a four-year term of supervised release. He was also sentenced to a conditional five-year term of imprisonment to be served in lieu of the 15-year term if it is determined that Section 924(e)(1) does not apply to him. 1. The evidence at trial showed that on September 7, 1988, petitioner, a convicted felon, possessed a .25 caliber automatic pistol, .22 caliber ammunition, and .25 caliber ammunition. The weapon and ammunition were discovered by Houston police during a consensual search of petitioner's residence conducted in connection with questioning regarding a theft of electronic equipment. 1 R. 39; 5 R. 83, 92-96, 129-130, 162. Petitioner was sentenced to the 15-year mandatory minimum term of imprisonment provided in 18 U.S.C. 924(e) for defendants convicted of possessing a firearm or ammunition in violation of 18 U.S.C. 922(g)(1) after "three previous convictions * * * for a violent felony or a serious drug offense, or both." /1/ The enhanced sentence was imposed because in 1980 petitioner had been convicted in a Mississippi state court of three armed robberies. Presentence Report at 3, 4, 5. Mississippi state records (GXs 11, 12a, 12b, and 12c) show that the convictions were for stealing $105 in an armed robbery of Brenda Kelly at a ToteSum store on September 22, 1979; stealing $70 in an armed robbery of Mike Nematollahi at a Majik Market convenience store on October 13, 1979; and stealing $51.78 in a second armed robbery of Mike Nematollahi on October 14, 1979. /2/ Petitioner objected in writing and at the April 17, 1989, sentencing hearing that 18 U.S.C. 924(e)(1) did not apply to him. He argued that the October 13 and 14 robberies constituted a single criminal episode because one occurred at 11:30 p.m. on October 13 and the other occurred the next morning and involved the same victim. 1 R. 27; 6 R. 7-8. Petitioner's counsel acknowledged that petitioner fled the Majik Market after the first robbery and returned later to commit the second robbery. 6 R. 17. The district court rejected petitioner's argument that because two robberies of the same convenience store occurred only a few hours apart, the two offenses should be treated as a single criminal episode or "spree" under Section 924(e). 6 R. 7-18, 22. The court commented that "if every time (petitioner) needs 70 bucks he goes back to (the same) Magic Market" and "make(s) continual instead of continuous withdrawals from the same location seems to me to be distinct." 6 R. 9-10. The court contrasted petitioner's return to the store to commit a second robbery with a single robbery of a store and its customers, employees, and people in the parking lot in a "continuous process." The court stated that the former would constitute separate offenses under Section 924(e), while the latter would constitute a single offense within the meaning of the statute. 6 R. 10, 15-16. 2. The court of appeals affirmed. Pet. App. 11-14. It rejected petitioner's argument that the convictions for the two robberies of the same convenience store a few hours apart constituted a single previous conviction for purposes of Section 924(e). The court explained that where multiple convictions arise from a continuous course of conduct, they are treated by the courts as a single previous conviction for purposes of Section 924(e). By contrast, the court explained, if the multiple convictions do not arise from a continuous course of conduct, they constitute multiple previous convictions for purposes of that provision. Pet. App. 13. The court found that petitioner's convictions for the two robberies of the same victim on the same night constituted two previous convictions, because petitioner completed one robbery and escaped, only to return after several hours to commit a second, entirely separate robbery. ARGUMENT Petitioner contends (Pet. 6-9) that his two convictions for two robberies of the same convenience store within a single 24-hour period should be treated as a single previous conviction for purposes of Section 924(e), because the robberies were part of a single criminal spree. This factbound contention does not merit the attention of this Court. The version of Section 924(e)(1) that was in effect at the time of petitioner's offense prescribed an enhanced sentence for any felon in possession of a firearm who "has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony * * * ." The courts of appeals have uniformly held that version of Section 924(e)(1) applicable as long as the predicate convictions arose from separate criminal episodes or transactions. See, e.g., United States v. Bolton, 905 F.2d 319 (10th Cir. 1990); United States v. Schieman, 894 F.2d 909, 910-913 (7th Cir. 1990), cert. pending, No. 90-5001; United States v. Schoolcraft, 879 F.2d 64, 70-75 (3d Cir.), cert. denied, 110 S. Ct. 546 (1989); United States v. Pedigo, 879 F.2d 1315 (6th Cir. 1989); United States v. Towne, 870 F.2d 880, 888-891 (2d Cir.), cert. denied, 109 S. Ct. 2456 (1989); United States v. Herbert, 860 F.2d 620, 622 (5th Cir.), cert. denied, 109 S. Ct. 2074 (1989); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.), cert. denied, 109 S. Ct. 147 (1988); United States v. Harden, 846 F.2d 1229, 1232 (9th Cir.), cert. denied, 109 S. Ct. 264 (1988); United States v. Rush, 840 F.2d 580, 581 (8th Cir.), cert. denied, 108 S. Ct. 2908 (1988); United States v. Wicks, 833 F.2d 192, 193 (9th Cir. 1987), cert. denied, 109 S. Ct. 87 (1988); United States v. Greene, 810 F.2d 999, 1000 (11th Cir. 1986). Whether criminal conduct constitutes single or multiple transactions or episodes for purposes of Section 924(e) depends upon an analysis of the circumstances of the case, particularly whether the conduct underlying the two convictions is "distinct in time." See United States v. Wicks, 833 F.2d at 194; United States v. Petty, 828 F.2d 2 (8th Cir. 1987), cert. denied, 486 U.S. 1057 (1988). A single criminal episode is criminal conduct that involves "a continuous course of behavior against a single victim" (United States v. Towne, supra) or simultaneous conduct against multiple victims (United States v. Petty, supra). Thus, in United States v. Schieman, 894 F.2d at 913, the court found that convictions for a burglary and an assault on a police officer that occurred a few minutes after the burglary and at a different location constituted two prior convictions under Section 924(e)(1). The court explained that after the first offense was completed, there was no principled way to distinguish between an attack on an officer that occurred a few minutes later and one that occurred a day later. Similarly, in United States v. Wicks, supra, the court found that two burglaries that occurred the same night at different locations constituted separate predicate convictions because they were "distinct in time." This case is akin to Schieman and Wicks, not Towne and Petty, on which petitioner relies. In Towne, the defendant committed a rape in the course of a kidnapping. The court there held that the two offenses were part of a single criminal episode and could not be charged as separate convictions for purposes of the enhancement statute. In Petty, the defendant simultaneously robbed a number of victims. The court held that the multiple convictions arising from that incident could not be employed as multiple predicate acts for purposes of Section 924(e) enhancement. In 1988, Congress amended Section 924(e)(1) to adopt expressly the interpretation that had been employed by the courts of appeals. 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 provide that the enhanced sentence applies to otherwise qualified felons who have "three previous convictions * * * (for predicate offenses) committed on occasions different from one another * * *." The amended statute, effective January 1, 1989, now makes clear that the construction adopted by the court of appeals, in accord with other circuits, is correct: a felon's three prior convictions need only arise from separate criminal episodes occurring on different occasions. Here, the October 13 and 14 armed robberies were by petitioner's own admission "distinct in time" (United States v. Wicks, 833 F.2d at 194); in the words of the amended statute, they were "committed on occasions different from one another" (18 U.S.C. 924(e)(1)). That the robberies were close in time and had the same victim does not alter that conclusion. Petitioner had completed the first robbery and left the premises before returning several hours later to commit a second robbery. There was a clear break in time between the two offenses, and the fact that both offenses had the same victim was largely fortuitous. The convictions were not for a continuous course of criminal conduct that should be counted as a single previous conviction for purposes of the enhanced penalty statute. Petitioner erroneously relies (Pet. 8-9) on United States v. Balascsak, 873 F.2d 673, 681 (3d Cir. 1989) (en banc) for the proposition that the enhancement provisions could apply only if the convictions for the first two predicate offenses preceded the commission of the third predicate offense. In the first place, petitioner did not claim below that at least some of the predicate convictions had to occur at different times regardless of when the offenses occurred. Secondly, Balascsak does not create a conflict in the circuits as petitioner's reliance on it implies. As the Third Circuit explained in United States v. Schoolcraft, 879 F.2d at 72-73, the en banc Third Circuit was evenly divided on the question whether Section 924(e)(1) requires offenses to be separated by intervening convictions in order to qualify as predicates for an enhanced sentence. Balascsak therefore does not create a conflict among the courts of appeals. That is particularly true in light of the Third Circuit's more recent decision in Schoolcraft, which followed the uniform rule adopted by the courts of appeals that intervening convictions are not required. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General KAREN SKRIVSETH Attorney AUGUST 1990 /1/ At the time of the instant offense, 18 U.S.C. 924(e) (Supp. IV 1986) provided that: a person who violates section 922(g) of this title and has three previous convictions * * * for a violent felony or a serious drug offense, or both, * * * 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. "Violent felony" was defined in 18 U.S.C. 924(e)(2)(B) (Supp. IV 1986) to include an offense punishable by imprisonment for more than one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another." /2/ The presentence report mistakenly states that the October 13 robbery occurred on October 17.