United States v. Cherry , 641 F. App'x 829 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
February 22, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 15-7037
v. (D.C. No. 6:13-CR-00093-RAW-1)
(E.D. Okla.)
MICHAEL WAYNE CHERRY,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.
Defendant-Appellant Michael Wayne Cherry appeals from the district
court’s determination that his prior felony convictions qualify as three predicate
violent felonies under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Background
In 2014, Mr. Cherry was convicted of being a felon in possession of a
firearm. 18 U.S.C. § 922(g)(1). According to the presentence report (PSR), Mr.
Cherry was eligible for sentencing under the ACCA, which authorizes an
enhanced penalty for a person who violates § 922(g) and has three previous
convictions for crimes that meet the definition of a “violent felony” that were
“committed on occasions different from one another.” Id. § 924(e)(1). Mr.
Cherry’s three prior convictions were: (1) robbery by force and fear, Muskogee
County Case No. CRF-1993-9 (two counts); (2) assault with a dangerous weapon,
Muskogee County Case No. CRF-1993-8; (3) assault and battery with a dangerous
weapon, Muskogee County Case No. CRF-1997-345. See 3 R. 6–8.
Mr. Cherry objected, arguing that his robbery conviction was not a violent
felony and that all his criminal convictions in 1993 stemmed from the same
course of conduct and should only count as one predicate conviction under the
ACCA. See id. at 36–56. The district court overruled the objections, finding that
Mr. Cherry’s three prior convictions were violent felonies committed on different
occasions. Specifically, the court noted the robbery conviction was a violent
felony, because it satisfied “both prongs” of the ACCA, qualifying as a predicate
offense under § 924(e)(2)(B)(I) (the “force clause”) and § 924(e)(2)(B)(ii) (the
“residual clause”). 2 R. 21–22. The court also found that the robbery and the
assault that Mr. Cherry committed in 1993 were separate and distinct because
-2-
they targeted different victims and occurred on different days. See id. at 24.
Using an offense level of 33—required by his ACCA adjustment—and a
criminal history of category IV, the court determined the guideline range was 188
to 235 months. Mr. Cherry was sentenced to 188 months’ incarceration and three
years’ supervised release.
Discussion
Federal law prohibits convicted felons from possessing firearms, imposing
a punishment of at least 15 years’ imprisonment for violators with three or more
prior convictions for serious drug offenses or violent felonies under the ACCA.
18 U.S.C. §§ 922(g), 924(e)(1); Johnson v. United States, 559 U.S. 133, 136
(2010).
On appeal, Mr. Cherry disputes that his prior convictions qualify him for
this enhanced punishment. He reopens two challenges: first, that his conviction
in 1993 was for conjoint robbery, which is arguably not a violent felony as
defined by the ACCA, and second, that his convictions in 1993 should be counted
as a single predicate because they were not “committed on occasions different
from one another.” We review both claims de novo. See United States v.
Johnson, 130 F.3d 1420, 1430 (10th Cir. 1997). For the reasons explained below,
we disagree.
-3-
A. The 1993 Robberies
To succeed on his first claim, Mr. Cherry faces two hurdles. He first must
demonstrate his robbery conviction was for conjoint robbery in violation of Okla.
Stat. tit. 21, § 800 (“section 800”), and not—as the district court found—for
robbery by force and fear in violation of Okla. Stat. tit. 21, § 791 (“section 791”).
If he succeeds, then he must show that conjoint robbery is not a violent felony as
defined by the ACCA. Mr. Cherry fails, however, to clear the first hurdle,
because according to the judgment, he was convicted of robbery by force and fear
pursuant to section 791, a violent felony under the ACCA.
The record on appeal contains two references to the robbery conviction in
1993: the judgment and the charging information. The judgment, although not
part of the record, is referenced in Mr. Cherry’s PSR. Citing the judgment, the
PSR provides that on March 15, 1993, Mr. Cherry was convicted of two counts of
“Robbery by Force and Fear” pursuant to section 791. 3 R. 6. Mr. Cherry does
not dispute the wording of the judgment. 1 The charging information contains two
relevant details: a caption that sets out a charge for “robbery by force & fear”
citing section 791 and a description that alleges Mr. Cherry and another defendant
“while acting conjointly, each aiding and abetting the other” wrongfully took
another’s property. 1 R. Supp. 3 (emphasis added). The information also
1
During oral argument, Mr. Cherry’s attorney began by acknowledging
that the judgment found Mr. Cherry was convicted of robbery under section 791.
Oral Arg. at 1:29 (“[Section] 791. That’s what the judgment says.”).
-4-
describes how the defendants accomplished this “by means of force or violence”
in count one and “by committing an assault” on the victim in count two. Id.Asking this court to focus on the “aiding and abetting” language in the
information, Mr. Cherry argues that he was actually charged with—and convicted
of—conjoint robbery. He points out that the language in the information matches
the statutory language of section 800. 2 He maintains this court should disregard
the information’s caption, which cites section 791, because in Oklahoma the
“character of the offense” is determined by language in the body; the caption is
only a convenience. See G.E.D. v. Oklahoma, 751 P.2d 755, 756 (Okla. Crim.
App. 1988).
His argument fails because we need not reach the information. The final
judgment is not ambiguous. As the government urged in oral argument—and is
confirmed by the PSR—the judgment apparently contains no reference to the
words “conjoint.” Oral Arg. at 17:06. It contains no reference to the words
“aiding and abetting.” Id. at 17:08. As we understand it, it contains no reference
to section 800. Id. at 17:10. Thus, we have no reason to look beyond the
judgment of conviction. Our inquiry begins and ends there.
2
This statute provides: “Whenever two or more persons conjointly commit
a robbery or where the whole number of persons conjointly commits a robbery
and persons present and aiding such robbery amount to two or more, each and
either of such persons shall be guilty of a felony punishable by imprisonment in
the State Penitentiary for not less than five (5) years nor more than fifty (50)
years.” Okla. Stat. tit. 21, § 800.
-5-
B. The 1993 Robberies and the 1993 Assault Were Separate and Distinct
In addition to three prior violent felony convictions, the ACCA requires
each felony be “committed on occasions different from one another.” 18 U.S.C.
§ 924(e)(1). Mr. Cherry’s second argument is that his robbery and assault
convictions in 1993 “occurred in a single ongoing occasion,” and therefore he
lacks the three required predicates for an ACCA enhancement. Aplt. Br. at 24.
We have long interpreted the phrase “committed on occasions different
from one another” to include “multiple criminal episodes distinct in time.”
United States v. Tisdale, 921 F.2d 1095, 1098–99 (10th Cir. 1990). Criminal
acts—even those that are similar and occur closely in time—may constitute
separate, predicate offenses when the defendant could have chosen to stop his
illegal conduct but continued nonetheless. See United States v. Delossantos, 680
F.3d 1217, 1220 (10th Cir. 2012). For example, a defendant who burglarized
three businesses within the same shopping mall in a single night committed three
separate and distinct criminal episodes. Tisdale, 921 F.2d at 1099. After
burglarizing one business, the defendant was free to leave but instead continued
his spree. Id.Under this rubric, Mr. Cherry’s criminal acts were separate and distinct.
The robberies and assault targeted different victims. The crimes occurred miles
apart and at different times. Mr. Cherry committed the robberies with a co-
defendant; he committed the assault on his own. See generally United States v.
-6-
Boman, 810 F.3d 534, 543–44 (8th Cir. 2016) (finding a defendant’s two prior
convictions that occurred on the same day and both involved a gun were separate
and distinct under the ACCA because they involved different victims, were
separated by about 90 minutes, and occurred in different locations).
Mr. Cherry argues that the government did not meet its burden of proving,
by a preponderance of the evidence, that the acts were separate and distinct. See
Delossantos, 680 F.3d at 1219 (noting the government’s burden of proof). The
evidence in the record, however, supports a finding that the enhancement was
appropriate. The district court properly relied on the information in concluding
the crimes were separate and distinct. Mr. Cherry also claims that for the crimes
to be truly separate and distinct, he would have had to reach “a safe haven” after
completing a criminal act before launching into another unlawful act. See Aplt.
Br. at 26. The law does not require a period of such security. It asks, instead,
whether a defendant could have ended his criminal spree but chose instead to
continue. Here, Mr. Cherry chose to continue.
C. Johnson Error
Finally, we recognize that the district court determined that Mr. Cherry’s
1993 conviction for robbery satisfied “both prongs”—the force and residual
clauses—of the ACCA. See 2 R. 21–22. We now know that the residual clause of
the ACCA violates due process because it is “unconstitutionally vague.” See
Johnson v. United States, 135 S. Ct. 2551, 2557 (2015). The predicate
-7-
convictions, however, need only qualify under one of the ACCA’s clauses to
make Mr. Cherry eligible for the sentencing enhancement. Accordingly, the
Supreme Court’s holding in Johnson does not disturb the district court’s
determination that Mr. Cherry’s prior convictions of robbery, assault, and assault
and battery are predicate offenses under the force clause. See, e.g., United States
v. Taylor, 800 F.3d 701, 719 (6th Cir. 2015).
AFFIRMED. Mr. Cherry’s motion to unseal his objections to the PSR is
DENIED. 3
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
3
Local rules instruct the defendant not to file objections with the district
court, and therefore, the court properly sealed the objections. See E.D. Okla.
Crim. R. 32.1(b) (dictating that responses “shall not be filed with the United
States Court Clerk, in order to preserve the confidentiality of the Presentence
Report”).
-8-