United States v. Sesley ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4274
CHARLES SESLEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-99-341)
Submitted: October 31, 2000
Decided: December 8, 2000
Before MICHAEL and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, William C. Ingram, First
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Walter C. Holton, Jr., United States Attorney, L. Patrick
Auld, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
2 UNITED STATES v. SESLEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Charles Sesley pled guilty to bank robbery and was sentenced as
a career offender to a term of 154 months imprisonment under U.S.
Sentencing Guidelines Manual § 4B1.1 (1998). Sesley appeals his
sentence, contending that the district court erred in finding that all
three of his prior convictions and sentences for armed robbery were
not related cases, see USSG § 4A1.2(a)(2), comment. (n.3), and in
sentencing him as a career offender. We agree. We therefore vacate
the sentence and remand for resentencing.
On December 23, 1980, Sesley and O’Dell Boyd robbed a Howard
Johnson’s using a .38 caliber pistol.* On December 30, 1980, Sesley
and Boyd robbed a Travel Lodge with a .38 pistol. Sesley and Boyd
committed a third robbery on December 31, 1980. All the robberies
took place in Greensboro, North Carolina. Sesley and Boyd were
chased by police and arrested after the third robbery. Sesley then con-
fessed to the first two robberies. The probation officer treated the first
and third robberies as related cases because they were consolidated
for judgment in the state court. Sesley argued that the second robbery
should be treated as related to the other two.
At the sentencing hearing, Sesley testified that the second and third
robberies were committed on the same night, and that he and Boyd
decided to commit the third robbery thirty or forty minutes after the
second robbery because they were dissatisfied with the $20 they got
in the second robbery. Under cross-examination, Sesley stated that he
did not pay attention to the time, but he insisted that both robberies
took place within three hours. The government stipulated that the pro-
*The presentence report states that the pistol was used. However, Ses-
ley testified at sentencing that the only weapon present during this rob-
bery was a knife he carried.
UNITED STATES v. SESLEY 3
bation officer had reviewed sealed North Carolina Department of
Corrections records that showed that, in his intake interview, Sesley
stated that the second and third robberies occurred about an hour
apart.
The district court found that the second and third robberies were
not committed on the same occasion because Sesley and Boyd
"robbed different places of business with different victims at different
locations." The court also was unable to find that the second and third
robberies were part of a common scheme or plan. The court found:
[B]ecause they did not get enough money in the first rob-
bery on the 30th, they go to another one, another intent is
formed and another decision is made and another victim and
location are selected. It appears to me to be exactly two felo-
nies of the type that the guidelines and the career criminal
statute and guideline are intended to address and that an
appropriate guideline is the one found in the presentence
report.
When the facts concerning prior convictions and sentences are
undisputed, the determination that the prior offenses are related cases
under § 4A1.2(a)(2) is a legal issue. United States v. Allen, 50 F.3d
294, 296 (4th Cir. 1995). Here, the district court’s decision involved
an interpretation of the guidelines and we review it de novo.
To be sentenced as a career offender, a defendant must be at least
eighteen, the instant offense must be a crime of violence or serious
drug offense, and the defendant must have at least two prior felony
convictions of either a crime of violence or a serious drug offense.
See USSG § 4B1.1. The sentences for the two prior felonies must be
counted separately under USSG § 4A1.1. See USSG § 4B1.2(c). Sen-
tences for prior offenses that were not separated by an intervening
arrest are considered "related cases" and counted as one sentence, see
USSG § 4A1.2(a)(2), if they resulted from offenses that (A) occurred
on the same occasion, (B) were part of a single common scheme or
plan, or (C) were consolidated for trial or sentencing. See USSG
§ 4A1.2, comment. (n.3).
Sesley argues that the second and third robberies were related
under either (A) ("occurred on the same occasion"), or (B) ("were part
4 UNITED STATES v. SESLEY
of a single common scheme or plan"). First, he contends that the third
robbery was "simply a continuation of the second robbery" in that it
was committed because of dissatisfaction with the amount of money
obtained in the second robbery. Sesley offers no authority for his
position. The Eleventh Circuit has held that a robbery and attempted
robbery that occurred within ninety minutes did not occur on a single
occasion because they were temporally distinct and involved different
victims. United States v. Jones, 899 F.2d 1097, 1101 (11th Cir. 1990).
This court has considered the same issue in deciding whether prior
offenses occurred "on occasions different from one another," under 18
U.S.C.A. § 924(e) (West 2000). See United States v. Williams, 187
F.3d 429, 431 (4th Cir. 1999). In Williams, we held that "[t]he fact
that events occurred within a short period of time does not dictate a
result that the offenses occurred on one occasion," as long as the
defendant had enough time between the two offenses to "reflect and
desist" from committing the second offense. Id. (citing United States
v. Hobbs, 136 F.3d 384, 390 (4th Cir. 1998)). Here, Sesley had ample
opportunity to consider whether he wished to commit another rob-
bery. Therefore, the district court did not err in finding that the second
and third robberies did not occur on the same occasion.
Next, Sesley argues that both robberies were part of a single com-
mon scheme or plan because they "satisfy almost all of the factors
cited by the Fourth Circuit in Breckenridge." The factors identified as
relevant to a determination of whether offenses are part of a single
common scheme or plan are:
[W]hether the crimes were committed within a short period
of time, in close geographic proximity, involved the same
substantive offense, were directed at a common victim, were
solved during the course of a single criminal investigation,
shared a similar modus operandi, were animated by the
same motive, and were tried and sentenced separately only
because of an accident of geography.
Breckenridge, 93 F.3d at 138. Sesley contends that the district court
erred in refusing to find a common scheme or plan because: the sec-
ond and third robberies occurred within a one-hour period; both rob-
beries took place in Greensboro; both were solved in a single
investigation; both shared a similar modus operandi; both were sub-
UNITED STATES v. SESLEY 5
stantively the same crime; the motive for both robberies was the
same; and both crimes were prosecuted in the same court.
We find that, under Breckenridge, the presence of these factors
establishes a common scheme or plan. Therefore, we are constrained
to vacate the sentence and remand for resentencing. On remand, Ses-
ley’s second robbery should be treated as related to the other two
prior armed robberies, and all three robberies should be treated as one
offense for criminal history purposes. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
VACATED AND REMANDED