United States v. Taft , 250 F. App'x 581 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5267
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
ALFONZO TAFT,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (4:05-cr-00087)
Submitted: September 14, 2007 Decided: October 11, 2007
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer May-Parker, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellant. Anthony E. Flanagan, LAW OFFICES OF
ANTHONY E. FLANAGAN, PA, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alfonzo Taft pled guilty to possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was sentenced to
a term of fifty-seven months imprisonment. The government appeals
the sentence, contending that the district court erred in finding
that Taft was not an armed career criminal pursuant to 18 U.S.C.A.
§ 924(e) (West 2000 & Supp. 2007). We agree that Taft’s criminal
record makes him an armed career criminal and that the sentence was
imposed in error.
Under 18 U.S.C.A. § 924(e), a defendant is an armed
career criminal subject to a minimum sentence of 180 months if he
violates 18 U.S.C. § 922(g) and has three prior felony convictions
for a “violent felony” or a “serious drug offense” (a drug offense
with a maximum sentence of ten years or more), which were
“committed on occasions different from one another.”* Taft had
prior convictions for selling cocaine to an undercover officer on
February 9, 1994, February 25, 1994, and September 14, 1994. The
district court mistakenly concluded that the two February 1994
offenses should be treated as one offense because a conspiracy
charge was brought at the same time and the court believed that the
conspiracy enveloped the two substantive offenses, making them part
*
Guideline section 4B1.4 sets out the procedure for
calculating the offense level and criminal history category for a
defendant who is an armed career criminal under the provisions of
§ 924(e). It went into effect on November 1, 1990; see USSG App.
C, amend. 355.
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of one criminal episode. We rejected the same argument in United
States v. Letterlough, 63 F.3d 332, 337 (4th Cir. 1995).
In Letterlough, the defendant had two prior convictions
for selling crack cocaine to an undercover officer twice on the
same day. The first sale was made at 8:35 p.m. and the second, to
the same undercover officer, was made at 10:15 p.m. Letterlough,
63 F.3d at 334. We held that offenses occur on occasions different
from one another if they arise out of “separate and distinct
criminal episode[s].” Id. at 335 (internal quotation marks and
citation omitted). We further held that Letterlough’s two sales
were not part of a single criminal episode. Instead, each sale
“was a complete and final transaction, and therefore, an
independent offense,” because “[t]he time separating the offenses
was ample to give Letterlough the opportunity to make a conscious
and knowing decision to engage in another drug sale.” Id. at 337.
Thus, the offenses were separate even if they both occurred
“pursuant to a master plan to sell crack cocaine as a business
venture.” Id. Viewed in light of Letterlough, it is clear that
Taft’s two drug sales sixteen days apart were offenses that were
committed on different occasions.
In Letterlough, and again in United States v. Hobbs, 136
F.3d 384 (4th Cir. 1998), we recognized that applying the
definition of “occasions different from one another” to certain
facts may be difficult, and that courts have considered a number of
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factors in such situations, such as “(i) whether the offenses
occurred in different geographic locations; (ii) whether the
offenses were substantively different; and (iii) ‘whether the
offenses involved multiple victims or multiple criminal
objectives.’” Hobbs, 136 F.3d at 388 (citing Letterlough, 63 F.3d
at 335-36). However, these factors are not dispositive; they are
merely an aid to be used when necessary. Letterlough, 63 F.3d at
335. In such difficult cases, “if any one of the factors has a
strong presence, it can dispositively segregate an extended
criminal enterprise into a series of separate and distinct
episodes.” Id. at 336. Taft’s case does not present a difficult
set of facts that would necessitate consideration of these factors.
Taft argues that his February 9 and 25 drug sales
constitute one predicate offense because they took place in the
same geographic location, the nature of the offense was the same,
and the criminal objective was the same in each case. He also
argues that each sale was not a complete and final transaction
because both were part of an ongoing conspiracy. We are satisfied
that none of these factors establish that the two drug sales were
anything but two separate transactions that occurred on different
occasions. Therefore, the district court erred in refusing to
sentence Taft as an armed career criminal.
Accordingly, we vacate the sentence imposed by the
district court and remand for resentencing. We dispense with oral
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argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
VACATED AND REMANDED
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