United States v. Barry ( 1996 )

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                                [NOT FOR PUBLICATION]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-