United States v. Breckenridge ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-7685
WILLIAM F. BRECKENRIDGE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James H. Michael Jr., Senior District Judge.
(CR-90-209)
Argued: December 3, 1999
Decided: August 4, 2000
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
_________________________________________________________________
Reversed and remanded by unpublished opinion. Judge Motz wrote
the opinion, in which Judge Luttig joined. Judge Luttig wrote a con-
curring opinion. Judge Traxler wrote a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: William Michael Merone, KENYON & KENYON,
Washington, D.C., for Appellant. Jean Barrett Hudson, Assistant
United States Attorney, Charlottesville, Virginia, for Appellee. ON
BRIEF: Edward T. Colbert, KENYON & KENYON, Washington,
D.C., for Appellant. Robert P. Crouch, Jr., United States Attorney,
Charlottesville, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
MOTZ, Circuit Judge:
William F. Breckenridge appeals the denial of his 28 U.S.C. § 2255motion to vacate, set aside, or correct his sentence, which was
imposed after his conviction for possession with intent to distribute.
Breckenridge argues that he was improperly sentenced as a "career
offender" because his six prior convictions for breaking and entering
were "related" under U.S.S.G. § 4A1.2 as part of a "common scheme
or plan," and that his trial counsel was ineffective for failing to point
out the relationship between the prior offenses.
On previous consideration of Breckenridge's motion, we identified
a number of critical similarities between Breckenridge's past offenses
that gave rise to an inference of a common scheme or plan: all were
burglaries of homes located in close geographic proximity to one
another; all took place during the same four weeks in the spring of
1987; and all were committed for the same motive. See United States
v. Breckenridge, 93 F.3d 132, 139 (4th Cir. 1996). We remanded for
consideration of two narrow questions; if the district court found
either that the six offenses shared a common modus operandi, or that
the offenses would have been tried together but for an accident of
geography, we held that a common scheme or plan for purposes of
U.S.S.G. § 4A1.2 would be established, and Breckenridge would "be
entitled to resentencing within the appropriate guideline range." Id. at
140. On remand, the district court found that neither condition
existed, and that Breckenridge therefore was not entitled to relief. We
reverse and remand for resentencing.
For the following reasons, we conclude that the district court
clearly erred in finding that Breckenridge did not follow a common
modus operandi in committing the six offenses. Indisputably, each
offense involved a surreptitious entry, into the home of a stranger, at
a time when the house was unoccupied. Other, more important simi-
2
larities are also uncontroverted. Breckenridge committed each offense
with the encouragement and assistance of a single police informant,
Clarence Bolton, who, on police instructions, approached Brecken-
ridge prior to the commission of any of the six offenses and offered
to buy stolen goods from him. Each of Breckenridge's 1987 offenses
seems to have been committed, on Bolton's suggestion, during the
evening hours. In each break-in, Breckenridge sought similar types of
goods: household appliances, guns, jewelry, VCRs, and TV sets. And
shortly after each burglary Breckenridge contacted Bolton to sell the
stolen goods. These similarities substantially outweigh the few differ-
ences between the offenses: a slight deviation in the method of entry,
the apparent ransacking of one house, the use by Bolton and Brecken-
ridge of different rendezvous points, and the fact that Breckenridge
did not sell every stolen item to Bolton. Some of the evidence estab-
lishing Breckenridge's modus operandi, including testimony from
Breckenridge himself, did not emerge until the hearing on remand.
The common modus operandi, in combination with other factors
noted above, compels the conclusion that the six offenses were part
of a common scheme or plan. See Breckenridge, 93 F.2d at 140.
We must remember that the only conduct at issue here is that which
led to the six 1987 convictions. Breckenridge may very well have
been engaging, as the dissent suggests, in an "ongoing series of
offenses" prior to the police sting, post at 15, "choosing targets ran-
domly and for convenience," post at 18, but we must focus on the six
convictions alone, not on whatever conduct may have led the police
to be suspicious of Breckenridge in the first place. Breckenridge was
never convicted of any offenses aside from those that he committed
in a four-week span, in residences located near one another, and with
the encouragement and assistance of the police informant Bolton. All
we decide here is that those six offenses were related.
Furthermore, the relative simplicity of Breckenridge's offenses
should not weigh against a finding that they are related. Whether a
group of past offenses is "related" under U.S.S.G. § 4A1.2 goes ulti-
mately to determining whether a defendant deserves increased punish-
ment for a present offense because of "the seriousness of the
defendant's criminal history and the danger that he presents to the
public." U.S.S.G. § 4A1.2, comment. (n.3). The Sentencing Commis-
sion has determined that if past offenses are part of "a common
3
scheme or plan," they are "related" and should not count separately
against a defendant in assessing his criminal history. The Commission
has not mandated, or even suggested, that "common scheme or plan"
requires complicated crimes; relatively ordinary or"generic" offenses
can just as readily constitute a common scheme or plan. The sophisti-
cation of the past offenses has no bearing on whether those offenses
are "related" and certainly has no bearing on the ultimate assessment
of the seriousness of the defendant's criminal history. To focus on
sophistication of the modus operandi merely sets up an advantage at
sentencing for clever or well-educated criminals; nothing indicates
that the Sentencing Commission intended this result.
As the Seventh Circuit has observed in this context,"`scheme' and
`plan' are words of intention, implying that the[offenses at issue]
have been jointly planned, or at least that it have been evident that the
commission of one would entail the commission of the other as well."
United States v. Ali, 951 F.2d 827, 828 (7th Cir. 1992). This concep-
tion of "common scheme or plan"--offenses jointly planned regard-
less of complexity--has been adopted in some form by at least four
other circuits. See United States v. Irons, 196 F.3d 634, 638 (6th Cir.
1999); United States v. Robinson, 187 F.3d 516, 520 (5th Cir. 1999);
United States v. Hallman, 23 F.3d 821, 826 (3d Cir. 1994); United
States v. Chapnick, 963 F.2d 224, 227 n.5 (9th Cir. 1992).
The linkage between Breckenridge's offenses is every bit as strong
as that between the offenses considered in Robinson, in which the
Fifth Circuit held that a defendant's drug sales to undercover police
officers, one week apart, were part of a "common scheme or plan."
During the first sale, after Robinson offered an undercover officer a
commission for the referral of additional customers, the officer set up
the transaction with a second officer. See Robinson, 187 F.3d at 520.
The Robinson court viewed the two offenses as "more than merely
repeated transactions, temporally and geographically alike." Id.Rather, the court found the offenses to be linked together by a joint
plan, reasoning that "[t]he second offense was not a spur of the
moment occurrence, but rather an action proposed and planned at the
time of the first offense." Id. If anything, Breckenridge's offenses are
more closely related than Robinson's because Breckenridge's
offenses were proposed and planned, at least in rough outline, prior
to the commission of any of the offenses, and because one police
4
informant--Bolton--played an identical role in each of the offenses.
Thus, Breckenridge's offenses were not merely solved during the
course of a single sting investigation; they were anticipated by the
police in devising the sting.
The dissent contends that Bolton merely offered to serve as a con-
duit for stolen goods, and that there was therefore no joint planning
between Breckenridge and Bolton. Bolton testified, however, that at
the initial meeting of the two, prior to the commission of any of the
offenses, he asked Breckenridge if he "could obtain" stolen goods,
and Breckenridge "agreed that he would be able to do so." Brecken-
ridge testified on remand that Bolton instructed him to obtain certain
kinds of goods, and to contact Bolton after each burglary at "around
ten or 11:00 at night." Both Bolton and Breckenridge described joint
planning of future burglaries, not an offer by Bolton to serve as a con-
duit for goods obtained during an ongoing series of burglaries. They
each described an exchange similar to the one between the defendant
and the undercover police officer in Robinson .
Accordingly, we reverse and remand for resentencing.
REVERSED AND REMANDED
LUTTIG, Circuit Judge, concurring:
I believe that our opinion in United States v. Breckenridge, 93 F.3d
132 (4th Cir. 1996) ("Breckenridge I"), is seriously flawed. From
what he has written herein in dissent, I believe it plain that Judge
Traxler now believes the same. Nonetheless, Breckenridge I is the law
of the circuit and, as such, I am bound by that decision. In my judg-
ment, Judge Motz has correctly analyzed the two factors of modus
operandi and "but-for" consolidation, which, in Breckenridge I, we
instructed the district court to consider on remand. For this reason, I
concur in Judge Motz's opinion for the court. I appreciate Judge Trax-
ler's efforts at the contrary analysis, but I ultimately find that analysis
forced, a consequence no doubt of the limitations to which he is sub-
ject because of our opinion in Breckenridge I .
TRAXLER, Circuit Judge, dissenting:
In United States v. Breckenridge, 93 F.3d 132 (4th Cir. 1996)
("Breckenridge I"), we considered the motion of William F. Brecken-
5
ridge ("Breckenridge"), made pursuant to 28 U.S.C.A. § 2255 (1988),
to vacate, set aside or correct his sentence. Because we needed addi-
tional findings to determine whether the district court properly denied
that motion, we remanded the case to the district court to answer two
questions, and in doing so, we preordained the ruling that would
occur when the questions were answered. Because the findings made
by the district judge were correct, I believe we should now direct the
result we forecasted in Breckenridge I and affirm the district court's
denial of Breckenridge's § 2255 motion. Accordingly, I respectfully
dissent.
I.
The background of this case is set out in our previous opinion and
can be summarized as follows: In 1991, Breckenridge was convicted
in district court of possession with intent to distribute crack cocaine.
His sentence was substantially affected by whether he was properly
categorized as a career offender as defined in U.S. Sentencing Guide-
lines Manual § 4B1.1 (1990).1 This classification turned on whether
Breckenridge had two prior felony convictions of a crime of violence.
His criminal history revealed that he had been convicted in Char-
lottesville, Virginia, of five burglaries and of an additional burglary
in neighboring Albemarle County. Burglary of a dwelling is a crime
of violence. See U.S.S.G. § 4B1.2(1)(ii). Breckenridge was sentenced
to 12 months imprisonment each for four of the Charlottesville bur-
glaries, and to five years imprisonment for the fifth offense.2 See J.A.
453-454. In Albemarle County he received a six-month suspended
sentence. See Breckenridge I, 93 F.3d at 135.
_________________________________________________________________
1 Under U.S.S.G. § 4B1.1,"[a] defendant is a career offender if (1) the
defendant was at least eighteen years old at the time of the instant
offense, (2) the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense, and (3) the defendant
has at least two prior felony convictions of either a crime of violence or
a controlled substance offense."
2 Although each offense involved breaking into a dwelling to commit
a felony, only one of the convictions was for burglary in the nighttime.
The others were deemed to have been committed during daylight hours
and constituted "statutory burglary," hence the difference between the
five-year sentence and the others.
6
Although the burglaries were six in number, the Guidelines provide
that the prior sentences therefor be examined and a determination
made as to whether those sentences should be counted separately
under U.S.S.G. § 4A1.1(a), (b), or (c). See U.S.S.G. § 4B1.2(3). This
decision hinges on whether the prior cases were unrelated, because
the Guidelines state that prior sentences in unrelated cases are to be
counted separately, whereas sentences for related cases are treated as
one sentence. See U.S.S.G. § 4A1.2(a)(2). The commentary to that
section defines related prior sentences as those which: "(1) occurred
on a single occasion, (2) were part of a single common scheme or
plan, or (3) were consolidated for trial or sentencing." U.S.S.G.
§ 4A1.2, comment. (n.3).3
II.
A.
In examining Breckenridge's claim that all six of his burglaries
were committed pursuant to a single common scheme or plan, see
U.S.S.G. § 4A1.2, comment. (n.3), we took note in Breckenridge I of
the circumstances involved in the burglaries. The cases were solved
by law enforcement officers using an informant ("Bolton"), who at
their direction made himself available to buy items stolen by Brecken-
ridge. Bolton had been arrested by Charlottesville police on a drug
charge and wanted to assist law enforcement to improve his situation.
Officer J.E. Harding of the Charlottesville Police Department had
been investigating Breckenridge for a series of break-ins and he
sought to use Bolton to catch Breckenridge since Bolton lived in the
same area and knew Breckenridge. Breckenridge thereafter sold some
of the goods he stole to Bolton, who tape-recorded their conversa-
tions. Based on identification of the goods, law enforcement officers
were then able to arrest Breckenridge for the burglaries in question.
_________________________________________________________________
3 In Breckenridge I, the record before us reflected that the five Char-
lottesville burglaries had been consolidated for trial by court order. The
parties have since discovered that the joinder had been by consent. There
is no need here to go into the consequences of that difference because the
answers to the pivotal questions we posed in Breckenridge I still control
our disposition.
7
In Breckenridge I, we felt there were facts indicating the possibility
of a single common scheme or plan, but that they were not sufficient
to justify such a conclusion. We declined, therefore, to make an ulti-
mate finding that a single common scheme or plan existed because we
believed there were two additional factors that needed to be examined
before such a determination could be made. I now address these fac-
tors in turn.
B.
First, in Breckenridge I, we recognized the need to decide whether
the six crimes shared a common modus operandi . This factor had not
yet been assessed because facts relevant to it were not in the record.
Accordingly, we remanded the case to the district court for fact-
finding on the modus operandi question, and we pointed out the
importance of this factor:
If the evidence demonstrates that the sixth offense exhibits
the same modus operandi as the other five, then in view of
the other facts--the same substantive offenses committed
close in time and place, and for the same motive--the
offenses should be regarded as having been part of a com-
mon scheme or plan for purposes of § 4A1.2.
Breckenridge I, 93 F.3d at 139.
Modus operandi refers to a criminal's "[m]ethod of operation or
doing things (M.O.)." Black's Law Dictionary 1004 (6th ed. 1990).
Specifically, it is a "[t]erm used by police and criminal investigators
to describe the particular method of a criminal's activity" and "refers
to a pattern of criminal behavior so distinct that separate crimes or
wrongful conduct are recognized as work of [the] same person." Id.Thus, the district court was to receive additional evidence on the
methods by which all the burglaries were committed, with a particular
eye on the Albemarle offense as compared to the others, to see if all
six showed a distinctive pattern unique to the work of one person.
At this point it is important to remember that we had a lot of infor-
mation before us in Breckenridge I that showed substantial similari-
8
ties in the burglaries; but we could not make a decision about modus
operandi from those facts. Consequently, we held that the following
known facts were insufficient to show a common modus operandi:
Each felony was for breaking and entering and grand lar-
ceny of a private residence. The residences were located in
close geographic proximity to each other and the offenses
all occurred during the same one month period in 1987. Five
burglaries occurred in the City of Charlottesville and one in
adjoining Albemarle County, on the street bordering the two
jurisdictions. Similar items--video cassette recorders, jew-
elry, and guns--were stolen in each case.
. . . [T]he police targeted Breckenridge for a sting opera-
tion in which an informant attempted to purchase stolen
items from him. Each transaction between the informant and
Breckenridge was tape recorded by the informant. The tran-
script of the tapes reveals that the informant commissioned
Breckenridge to obtain particular items--video cassette
recorders and televisions--the next time he "went out." The
sting operation was successful; the police were able to con-
nect items sold to the informant by Breckenridge to all six
burglaries.
Breckenridge I, 93 F.3d at 134-35. In spite of these particulars, we
believed details about the individual break-ins were needed to answer
the modus operandi question, and we returned the case to the district
court for fact-finding on this issue.
On remand the evidentiary questions were sent by the district court
to a magistrate judge for a report and recommendation. Submitted for
the record there were the transcripts of the Charlottesville trial and the
Albemarle plea, which revealed the details of the offenses. The mag-
istrate judge also took testimony from Breckenridge's attorney in the
state court proceedings and from the Charlottesville prosecutor. While
acknowledging similarities in the offenses, the magistrate judge nev-
ertheless found there was not a common modus operandi and he for-
warded the record to the district judge.
After receiving objections from Breckenridge to the report of the
magistrate judge, the district court conducted a hearing during which
9
he heard additional testimony from Breckenridge's state court attor-
ney, and from Breckenridge himself. The district court then issued his
opinion also finding there was no common modus operandi: "While
all the offenses were committed in a similar manner, that manner was
not unique in any way: he broke, he entered, he took things." Breck-
enridge v. United States, 977 F. Supp. 766, 770 (W.D. Va. 1997).
This conclusion is sound. While there were certainly similarities as
there generally are when the same person commits a series of similar
offenses, there were significant variations which justified the district
judge's decision. The evidence was uncontradicted that different
methods of entry were used. Sometimes Breckenridge went in
through windows, but on one occasion he went through a door. The
windows entered in Charlottesville were on the back of the house,
while the window used in Albemarle was in the front living room. In
Albemarle the window was broken to gain entry, while the windows
in Charlottesville were not. A pry tool appears to have been used
once, but not on other houses. At least one house was ransacked, but
others were barely disturbed. The items stolen were similar--guns,
VCRs, jewelry and coins--but hardly unique as these easily dispos-
able items are common objects of theft from homes. Different items
were taken from different homes. Most items, but not all, were sold
to Bolton. Sometimes Breckenridge directed Bolton where to drive so
Breckenridge could retrieve the hidden goods. On at least one occa-
sion, Breckenridge brought the goods to Bolton's room. After the
Albemarle theft, Breckenridge approached Bolton on a basketball
court to make a sale. Of note, the May 14 Albemarle burglary
occurred some period of time from those in Charlottesville, which
occurred on April 18, 19, 22, 26 and 27. In other words, the break-ins
of the houses in Charlottesville occurred on almost a daily basis. The
delay in time of the Albemarle burglary is indicative that it was not
part of any plan under which Breckenridge broke into the Charlottes-
ville residences.
Breckenridge argues that there were sufficient similarities in his
mode of operation. The uncontested facts in this regard are that he
surreptitiously went into residences of people he did not know when
the victims were not at home. This practice, however, would fit
almost every burglary. At the hearing before the district judge after
remand and at a time when Breckenridge's conviction was final and
10
the importance of his modus operandi obvious, Breckenridge himself
took the stand to add that he chose the Albemarle location the same
way as the others (but without specificity as to how), and he knocked
on the door there to make sure no one was at home, which he always
did. He further said he timed his break-ins for early evening because
calls to Bolton were to be made around 10:00 p.m. to 11:00 p.m. Even
assuming what Breckenridge said is true, these facts fall far short of
establishing a common modus operandi.4
None of these circumstances relied on by Breckenridge would have
alerted law enforcement that all of these burglaries were the work of
one person. For example, the fact that no one was at home and the
fact that this was verified by Breckenridge would tell the police noth-
ing. The vast majority of homes that are broken into are unoccupied
at the time, and law enforcement would certainly have no way of
knowing if the thief had verified this or not. Likewise, the timing of
the thefts was not evident to anyone. Because the victims had left
their homes, some for substantial periods of time before returning to
find the break-ins, it was difficult for the victims and law enforcement
to know exactly when the crimes had occurred. Indeed, the transcript
of the Charlottesville trial showed the difficulty the prosecutor had in
proving whether the offenses occurred before or after dusk, an ele-
ment important to determining whether a crime was a nighttime bur-
glary, or a statutory burglary occurring during the daylight.
In short, nothing was added on remand to what we already knew
in Breckenridge I to help show a common modus operandi. To the
contrary, the new evidence is that the methods varied significantly
and there was no common modus operandi.
What the district judge realized, and what is obvious now that
_________________________________________________________________
4 There were obvious reasons for disbelieving Breckenridge. Although
Breckenridge swore during the Charlottesville state court trial that he did
not commit any of these burglaries, see J.A. 391, he testified before the
district court, in effect, that he did, see J.A. 627. He further testified at
the Charlottesville trial that he had never sold stolen merchandise to
Clarence Bolton, see J.A. 392, but before the district court he testified
about the arrangements he had made with Bolton to transfer the stolen
goods, see J.A. 628-29.
11
details about the burglaries have been presented, is that these six
offenses were generic break-ins. They were crimes of opportunity
where Breckenridge utilized any means available, as is common with
most burglars. The result is that both the magistrate judge and the dis-
trict judge properly decided there was no common modus operandi in
the commission of the six burglaries by Breckenridge. We review the
district court's legal determinations de novo, see United States v.
Nale, 101 F.3d 1000, 1003 (4th Cir. 1996), and its findings of fact for
clear error, see United States v. Crump, 120 F.3d 462, 468 (4th Cir.
1997). Here, there was no error at all. Accordingly, the question we
asked regarding modus operandi should go against Breckenridge.
C.
The second factor we identified as important and in need of scru-
tiny involved the question of "whether the Albemarle County offense
was tried and sentenced separately from the Charlottesville offenses
only because of an accident of geography." Breckenridge I, 93 F.3d
at 139. We noted this decision depended on Virginia's law controlling
joinder of offenses for trial and specifically on whether all six of the
offenses met Virginia's definition of common scheme or plan as set
out in Spence v. Commonwealth, 407 S.E.2d 916 (Va. Ct. App. 1991),
a test we directed be used. For clarity and direction we quoted the
standard, which bears repeating here. Under Spence, consolidation
"`depend[s] upon the existence of a plan that ties the offenses together
and demonstrates that the objective of each offense was to contribute
to the achievement of a goal not obtainable by the commission of any
individual offenses.'" Breckenridge I, 93 F.3d at 139 (quoting Spence,
407 S.E.2d at 918).
Apparently the magistrate judge and the district judge believed res-
olution of this question went to the issue of consolidation for trial
under the third prong of the Guideline's definition of related cases;
and since there had actually been no judicial consolidation, they did
not address it. Our belief, however, was that the issue was appropriate
to whether there was a common scheme or plan. All the cases had
obviously not been consolidated; so we viewed the question of
whether they could have been, if they all had occurred in one jurisdic-
tion, to be another factor for consideration on the common scheme or
plan prong.
12
Despite the fact that we have no ruling below, we do have enough
uncontested facts about the burglaries before us to answer the ques-
tion ourselves. These cases do not meet Virginia's test for consolida-
tion. The facts clearly show that in the Albemarle burglary, as in all
the burglaries, Breckenridge had his own individual goal of acquiring
goods to sell for money. There was no goal involved that was not
obtainable by this individual offense. It was a simple common bur-
glary, complete in itself and not a part of an overall scheme to achieve
any greater objective. Consequently, under the test we directed be
used, we cannot say that the Albemarle burglary would have been
consolidated for trial with the Charlottesville offenses but for an acci-
dent of geography, and the answer to our second question should
again be adverse to Breckenridge.
III.
With both questions now answered, the result is one prescribed by
Breckenridge I, wherein we held:
If . . . the Albemarle County offense neither shared the
same modus operandi as the Charlottesville offenses nor
would have been consolidated for trial with them but for an
accident of geography, then the offenses cannot be regarded
as related for purposes of sentencing as a career offender.
Breckenridge I, 93 F.3d at 140. Since the six burglaries were not part
of a single common scheme or plan, they were not related as that term
is used in the Guidelines, and Breckenridge was therefore properly
sentenced as a career offender. There obviously then was no defi-
ciency in his counsel's failure to raise the issue at sentencing.
The result I believe we should reach that there was not a single
common scheme or plan at work here is in keeping with the intent of
the Guidelines as expressed in Application Note 9 to Section 1B1.3,
adopted after Breckenridge's sentencings, wherein the United States
Sentencing Commission provided a definition and illustration of what
was meant by "common scheme or plan."5 The distinction drawn
_________________________________________________________________
5 The Guidelines note reads as follows:
13
there between "common scheme or plan" and"same course of con-
duct" is particularly helpful because the series of burglaries Brecken-
_________________________________________________________________
"Common scheme or plan" and "same course of conduct" are
two closely related concepts.
(A) Common scheme or plan. For two or more offenses to
constitute part of a common scheme or plan, they must be sub-
stantially connected to each other by at least one common factor,
such as common victims, common accomplices, common pur-
pose, or similar modus operandi. For example, the conduct of
five defendants who together defrauded a group of investors by
computer manipulations that unlawfully transferred funds over
an eighteen-month period would qualify as a common scheme or
plan on the basis of any of the above listed factors; i.e., the com-
monality of victims (the same investors were defrauded on an
ongoing basis), commonality of offenders (the conduct consti-
tuted an ongoing conspiracy), commonality of purpose (to
defraud the group of investors), or similarity of modus operandi
(the same or similar computer manipulations were used to exe-
cute the scheme).
(B) Same course of conduct. Offenses that do not qualify as
part of a common scheme or plan may nonetheless qualify as
part of the same course of conduct if they are sufficiently con-
nected or related to each other as to warrant the conclusion that
they are part of a single episode, spree, or ongoing series of
offenses. Factors that are appropriate to the determination of
whether offenses are sufficiently connected or related to each
other to be considered as part of the same course of conduct
include the degree of similarity of the offenses, the regularity
(repetitions) of the offenses, and the time interval between the
offenses. When one of the above factors is absent, a stronger
presence of at least one of the other factors is required. For
example, where the conduct alleged to be relevant is relatively
remote to the offense of conviction, a stronger showing of simi-
larity or regularity is necessary to compensate for the absence of
temporal proximity. The nature of the offenses may also be a rel-
evant consideration (e.g., a defendant's failure to file tax returns
in three consecutive years appropriately would be considered as
part of the same course of conduct because such returns are only
required at yearly intervals).
14
ridge committed fits much more neatly into the definition of "same
course of conduct" than it does "common scheme or plan." What we
really had here was an ongoing series of offenses that as such would
not now be properly classified as a common scheme or plan. Thus,
there is further reason for me to believe the result reached by the dis-
trict judge was correct.
IV.
The method of analysis we set forth in Breckenridge I for determin-
ing a single common scheme or plan involved the multifactor test pre-
viously described. By reference to United States v. Ali, 951 F.2d 827(7th Cir. 1992), however, a new test has been added to the mix. The
standard set forth in Ali is one which has gained increasing accep-
tance by the circuits over the past eight years.6 See, e.g., United States
v. Hallman, 23 F.3d 821 (3d Cir. 1994); United States v. Robinson,
187 F.3d 516 (5th Cir. 1999); United States v. Irons, 196 F.3d 634(6th Cir. 1999); United States v. Berry, 212 F.3d 391 (8th Cir. 2000).
Judge Posner, writing for a panel of the Seventh Circuit in Ali,
dealt with a defendant who asserted that relatedness existed between
his previous convictions for robbery of a supermarket and the subse-
quent forgery of a money order taken along with other items in that
theft. Id. at 827. Ali held that the two crimes were not part of a com-
mon scheme or plan because the decision to commit the forgery did
not arise until after the defendant discovered the money order in the
proceeds from the robbery. In rejecting the defendant's claim, the
court stated: "But `scheme' and `plan' are words of intention, imply-
ing that the forgery and the robbery have been jointly planned, or at
least that it have been evident that the commission of one would entail
the commission of the other as well." Id. at 828. By way of further
definition the court gave examples of how its standard would apply:
_________________________________________________________________
6 Although Ali may provide a sound test for determining a single com-
mon scheme or plan, we are bound by the standard we set forth in Breck-
enridge I. See, e.g., United States v. Ruhe, 191 F.3d 376, 388 (4th Cir.
1999) ("[A]s a simple panel, we are bound by prior precedent from other
panels in this circuit absent contrary law from an en banc or Supreme
Court decision.").
15
No one robs without intending to obtain value from what
is taken, and if that is a financial instrument on which a sig-
nature must be forged if it is to be cashed or otherwise used
to the robber's profit the forgery could easily be thought a
part of a single scheme or plan. . . . If the decision to commit
forgery arose only after the robber discovered what he had
taken, the forgery would be no more a part of the scheme
or plan to rob than would be retaliation against a witness of
whose existence the retaliator was unaware when he planned
the crime to which the witness has testified. . . . A crime
merely suggested by or arising out of the commission of a
previous crime is not (to repeat our essential holding)
related to the earlier crime in the special sense of being part
of a common scheme or plan.
Id.If the Ali test is used here, then clearly the six burglaries were not
part of a single common scheme or plan. First, the burglaries were not
jointly planned. There is no evidence Breckenridge planned all of
these crimes on one occasion. In fact the evidence is that he was
already a suspect in ongoing housebreakings before Bolton was ever
caught and that Bolton only provided an outlet for some of the goods
stolen after Bolton's involvement. Neither the law enforcement offi-
cer, nor Bolton, nor Breckenridge testified to any joint planning. The
officer testified about how he came to use Bolton:
So I met with John Lowe and Clarence Bolton and we
talked about things that he might be able to do for law
enforcement that could improve his position. I went up there
with the idea of talking about drug cases but then it hit me
that I knew that Clarence had spent some time living down
in the 10th Street area that maybe he knew William Breck-
enridge. So I asked him if he thought there was a chance he
might try buying stolen goods from Mr. Breckenridge from
breaking and enterings that I felt like he was committing.
...
J.A. 26. Bolton described in his testimony how he approached Breck-
enridge. As is obvious, there was no effort on Bolton's part to do any-
thing other than to offer himself as a conduit for stolen goods.
16
Q Were you asked if you could assist the Charlottesville
Police Department in any way with respect to William
Breckenridge and if so, in what way?
A Yes, I was and Mr. Harding asked me if I thought I
could tap in on anything William was doing or on his sus-
pected break-ins.
Q Did you know William Breckenridge at that time?
A Yes, I did know him.
Q How well did you know him then?
A Did not know him that well, just, you know, in passing.
He had confronted me on a couple of occasions, a few occa-
sions, with regards to goods that he was trying to get rid of.
....
Q What happened after this suggestion was made to you
by Detective Harding as far as any contact you had with
William Breckenridge?
A Detective Harding left town and he went to Los Angeles
and I gave him my word that I would see what I could do,
I'd give it my best effort. I saw William while he was gone
just in passing one night and mentioned--mentioned to him
the fact that I was interested in, you know, the possibility of
purchasing some goods from him if he could attain them. He
agreed that he would be able to do so and we left it at that.
We left each other with the understanding that he would
contact me whenever he felt ready to do so.
J.A. 76-77. Breckenridge himself, if to be believed, stated only that
Bolton told him what type items Bolton would be interested in:
Q When you first met with Mr. Bolton--when did you
first meet with Mr. Bolton before all these offenses?
17
A I met Mr. Bolton in March of that same year.
Q And what did he specifically request you to do?
A He requested for me to give him household appliances,
VCR's, whatever.
Q Are there other items that he requested?
A Yes; guns, jewelry.
Q Did he also request television sets?
A Yes.
J.A. 629. There is simply no evidence that any of these burglaries had
a common origin or were otherwise jointly planned. Breckenridge
was a common criminal of opportunity, choosing targets randomly
and for convenience. The only common design was to break into
homes and steal those things for which there was a ready market.
Under Ali such would not qualify as a common scheme or plan under
the first part of the test, which requires joint planning. Nor would
these crimes pass the second part of Ali, as there is no evidence the
commission of one burglary involved as a necessary consequence the
commission of any other burglary. The basis for Ali was that there
must be a pre-offense intention to carry out all of the other offenses,
regardless of other similarities in the offenses. Here, there is no evi-
dence that any of the particular burglaries shared such a pre-offense
intention. Consequently, if Ali is to provide the touchstone by which
crimes are to be determined to be related or unrelated, then Brecken-
ridge must fail here as well.
The opinion of the Fifth Circuit in United States v. Robinson is also
of no help to Breckenridge. There the prior offenses committed by the
defendant were for two sales of cocaine, one occurring on June 17
and the other on June 24. The two cases were found to be related
because during the first sale of cocaine by the defendant to an under-
cover agent, the defendant told the agent the defendant would pay him
$50 if the agent could refer other customers to the defendant. The sec-
18
ond sale seven days later was pursuant to such a referral. Because the
second sale was planned during the first sale and would not have
occurred but for the first sale, the court held the two were related. See
187 F.3d at 518-20.
Whether Robinson is a correct extension of Ali is debatable, but an
obvious difference between Robinson and the case before us is that
there is no evidence about the planning of Breckenridge's burglaries,
much less that he plotted them with anyone else. Nor does Bolton's
involvement make Robinson analogous. Bolton at best only offered
himself as an outlet for some of the items stolen. He did not instigate
the break-ins or help plan them. His participation was limited to
receiving some of the stolen goods. The crimes we are assessing are
the burglaries. Bolton would not have been involved unless the
houses had contained items Bolton was interested in purchasing and
Breckenridge had in fact stolen those items and sold them to Bolton.
To believe that Bolton precipitated the burglaries, one would have to
presume, among other things, that Breckenridge knew what items
were in the homes before he broke into them, and such a presumption
is completely without a factual basis. Consequently, Bolton's pur-
chases did not in any way mean that the commission of one burglary
would necessarily entail another.
V.
All in all, the burglaries Breckenridge committed should not be
considered related under U.S.S.G. § 4A1.2, comment. (n.3). There-
fore, I believe the lower court decision should be affirmed.
19