United States v. Richardson ( 1999 )

United States Court of Appeals,
Eleventh Circuit.
No. 97-6418.
UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony James RICHARDSON, Defendant-Appellant.
Feb. 11, 1999.
Appeal from the United States District Court for the Southern District of Alabama. (No. 96-00224-
001), Charles R. Butler, Jr., Judge.
Before DUBINA and BARKETT, Circuit Judges, and JONES*, Senior Circuit Judge.
DUBINA, Circuit Judge:
Appellant, Anthony James Richardson ("Richardson"), appeals his sentence imposed by the
district court under the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e) (1984),
for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). For the reasons
stated below, we vacate his sentence and remand for resentencing.
I. BACKGROUND FACTS
Richardson possessed a firearm as a felon on December 31, 1995 ("the § 922(g) violation").
He pleaded guilty in January 1997 and was sentenced in April 1997. The presentence investigation
report ("PSI") stated that Richardson qualified for an enhanced penalty under the ACCA as an armed
career criminal because he had "three prior violent felony convictions committed on different
occasions from one another (WW 28, 29, & 33)." (PSI ¶ 20). The citation to ¶ 28 refers to one
burglary conviction from Washington County, Alabama. The citation to ¶ 29 refers to Richardson's
*
Honorable Nathaniel R. Jones, Senior U.S. Circuit Judge for the Sixth Circuit, sitting by
designation.
conviction on two counts of burglary from Clark County ("the Clarke County burglaries"), for which
the PSI shows one arrest date and joint adjudication but no facts as to the underlying conduct. The
citation to ¶ 33 refers to a drug conviction, for which Richardson was arrested on March 9, 1996,
and convicted on October 21, 1996.
It is uncontroverted that the arrest and conviction for the drug offense in 1996 occurred after
commission of the § 922(g) offense in 1995, but before judgment and sentencing for the § 922(g)
offense in 1997. In response to a sentencing objection, the probation officer again relied on the drug
offense and again counted the Clarke County burglaries as only one conviction: "Richardson has
three prior ... convictions committed on different occasions from one another. These convictions
are burglary, third degree, Washington County, Alabama; burglary, third degree, Clarke County,
Alabama; and unlawful distribution of a controlled substance, Washington County, Alabama." (PSI
Addendum at 1). The district court adopted the findings contained in the PSI.
Richardson argues on appeal that the district court erroneously relied on his drug conviction
in sentencing him as an armed career criminal because it occurred after his violation of § 922(g).
Richardson concedes that the appropriate standard of review on appeal is plain error because he
failed to raise this argument in the district court. The government admits that the 1996 drug offense
does not qualify as a "previous conviction" under the ACCA; however, the government argues that
the district court did not specify the convictions on which it relied and that the record clearly shows
three previous burglary convictions prior to December 31, 1995. Richardson replies that the district
court properly did not assume that the Clarke County burglaries were separate offenses because the
record contained insufficient evidence about the underlying conduct.
II. ISSUE
Whether the district court committed plain error in relying on a 1996 drug conviction to
enhance Richardson's sentence for a 1995 violation of 18 U.S.C. § 922(g).
III. STANDARD OF REVIEW
A sentencing issue not raised in the district court is reviewed for plain error, or error that
is clear or obvious and affects substantial rights. See United States v. Chisholm, 73 F.3d 304, 307
(11th Cir.1996).
IV. DISCUSSION
The issue presented in this appeal is one of first impression in this circuit. All of the circuits
to consider the issue have held, however, that "previous convictions" means convictions obtained
prior to the violation of § 922(g). United States v. Hobbs, 136 F.3d 384, 387-388 n. 3 (4th
Cir.1998), cert. denied, --- U.S. ----, 118 S.Ct. 2358, 141 L.Ed.2d 727 (1998); United States v.
Jefferson, 88 F.3d 240, 243 (3rd Cir.1996); United States v. Talley, 16 F.3d 972, 977 (8th Cir.1994);
and United States v. Garner, 32 F.3d 1305, 1312 (8th Cir.1994). We agree with the reasoning of
our sister circuits and hold that a conviction is "previous" to a § 922(g) offense only if the conviction
occurred before the violation of § 922(g), not simply prior to conviction or sentencing for that
violation. Indeed, we agree with the Eighth Circuit that this interpretation of "previous convictions"
is "the only reasonable interpretation of the plain words of § 924(e)." Talley, 16 F.3d at 977.
In the present case, the findings in the PSI, which the district court adopted, show reliance
on the 1996 drug conviction as a predicate offense under the ACCA. The 1996 drug conviction was
not previous to Richardson's violation of § 922(g) in 1995. It was only previous to his § 922(g)
conviction and sentencing in 1997. Accordingly, since the drug conviction occurred after Richard's
violation of § 922(g), the district court erred in relying on that conviction to enhance his sentence.
This error affected Richardson's substantial rights because his sentencing range was 180-188 months
under the ACCA, much greater than the unenhanced range of 70 to 87 months. See U.S.S.G. Ch.5,
Pt.A, sentencing table (offense level 21, criminal-history category V); (see PSI WW 14-23, 34);
see also Chisholm, 73 F.3d at 307 (to constitute "plain error," a newly raised error must affect
substantial rights).
Because we conclude that the district court's reliance on the drug conviction was plain error,
the only possible basis for application of the ACCA is a determination that the Clarke County
burglaries were two separate criminal episodes. The record is insufficient for us to make this
determination. This court has interpreted the ACCA to require that the three predicate convictions
arise out of a "separate and distinct "criminal episode.' " United States v. Pope, 132 F.3d 684, 689
(11th Cir.1998). See United States v. Greene, 810 F.2d 999, 1000 (11th Cir.1986). The PSI
provides only that Richardson was arrested for the two burglaries on the same day, February 8, 1990,
that they were adjudicated jointly, and the state court assigned two case numbers. On remand, the
district court is not precluded from soliciting facts about the Clarke County burglaries to determine
whether they are separate convictions for the purpose of applying the ACCA.
For the foregoing reasons, we vacate Richardson's sentence and remand this case for further
proceedings consistent with this opinion.
VACATED and REMANDED.