United States v. Brookshire ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5097
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLTON WAYNE BROOKSHIRE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (CR-04-675)
Submitted: October 28, 2005 Decided: March 29, 2006
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Jonathan S. Gasser, Acting United
States Attorney, E. Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Carlton Brookshire appeals the sentence imposed after he
pleaded guilty to one count of armed bank robbery. Brookshire
argues that the district court erred in determining that he was a
career offender under U.S. Sentencing Guidelines Manual § 4B1.1
(2003) and that application of the sentencing enhancement violated
the Sixth Amendment.
The district court held a sentencing hearing on
November 8, 2004. After hearing argument on the career offender
issue, the district court found that Brookshire was a career
offender and denied Brookshire’s objections. Brookshire was
sentenced to a 188-month term of imprisonment. In accordance with
this court’s decision in United States v. Hammoud, 381 F.3d 316(4th Cir. 2004), vacated, 125 S. Ct. 1051 (2005), the court imposed
an alternative sentence of 188 months.* Brookshire timely
appealed.
Brookshire contends that his prior 1991 robbery
convictions, committed on November 15, 1991, December 10, 1991, and
December 24, 1991, are related. He argues they were related
because they were part of a common scheme under the Sentencing
Guidelines and functionally consolidated for sentencing and
therefore count as one conviction for purposes of his career
*
The oral pronouncement at the sentencing hearing was an
alternative sentence of sixteen years. However, the judgment
indicates a 188-month sentence.
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offender status. He also argues that the district court had to
make factual findings prohibited by United States v. Booker, 125 S.
Ct. 738 (2005), to determine that the convictions were not related.
Pursuant to USSG § 4B1.1, a defendant is a career
offender if “(1) the defendant was at least eighteen years old at
the time the defendant committed the instant offense of conviction;
(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.” USSG
§ 4B1.1(a). Furthermore, for the purpose of counting a defendant’s
prior felony convictions under § 4B1.1, the guidelines direct a
sentencing court to look to the provisions of § 4A1.2, which
consider prior sentences in related cases as a single sentence.
USSG § 4A1.2(a)(2). Moreover, an application note to § 4A1.2
explains: “[p]rior sentences are considered related if they
resulted from offenses that (1) occurred on the same occasion, (2)
were part of a single common scheme or plan, or (3) were
consolidated for trial or sentencing.” USSG § 4A1.2, comment.
(n.3).
The relevant factors in deciding whether offenses are
part of a single common scheme or plan are whether the crimes: (1)
were committed within a short period of time; (2) were committed in
close geographic proximity; (3) involved the same substantive
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offense; (4) were directed at a common victim; (5) were solved
during the course of a single criminal investigation; (6) shared a
similar modus operandi; (7) were animated by the same motive; and
(8) were tried and sentenced separately only because of an accident
of geography. United States v. Breckenridge, 93 F.3d 132, 138 (4th
Cir. 1996) (citations omitted). Not all of these factors must be
present for there to be a common scheme or plan, nor does the
presence of a few of them require that finding. Id. Temporal and
geographic proximity are significant, but not determinative. Id.The same is true of a common motive or a single police
investigation. Id. After reviewing the record and the
circumstances regarding the three robbery offenses at issue, we
conclude that the district court did not err in determining that
Brookshire qualified as a career offender under the Sentencing
Guidelines.
The district court found that the prior robberies
occurred on three separate occasions with a different victim in
each robbery, and that two of the three were also similar because
a firearm was used. The court also heard argument on whether the
prior robberies were the result of a single investigation.
We conclude that the district court’s determination that
the prior robberies were unrelated for sentencing purposes involved
factual findings prohibited by Booker. In United States v.
Thompson, 421 F.3d 278 (4th Cir. 2005), the court held that whether
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convictions were committed on different occasions did not require
a jury factual finding to comply with the Sixth Amendment because
the information was inherent in the convictions themselves.
However, the court also limited this holding to situations where
there is no need for “speculation regarding facts extraneous to the
prior conviction.” 421 F.3d at 286. Brookshire did not argue that
his prior convictions occurred on the same occasion, see USSG
§ 4A1.2, comment. (n.3), as Thompson did. Nonetheless, the
determinations the court made in Brookshire’s case were similar in
some ways to the determinations made by the court in Thompson,
which resulted in a finding that application of the sentencing
enhancement was not plainly erroneous. However, here, the district
court also considered argument on whether the prior robberies were
the product of a single investigation, the crimes were similar in
nature because two of three involved a firearm, and who the victims
of the crimes were. Consideration of these factors take the
findings made by the court in Brookshire’s case beyond the facts
inherent in the prior robbery convictions.
In United States v. Washington, 404 F.3d 834, 842 (4th
Cir. 2005), this court, applying the Supreme Court’s decision in
Shepard v. United States, 125 S. Ct. 1254 (2005), held that relying
on facts outside the indictment in order to conclude a prior
conviction for burglary was a crime of violence that enhanced the
defendant’s offense level was plain error. Here, the district
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court’s necessary consideration of whether the crimes were directed
at a common victim, were solved during the course of a single
criminal investigation, and shared a similar modus operandi were
facts extraneous to the conviction information contained in the
Pre-sentence Report or other Shepard-approved documents.
Therefore, although we affirm the district court’s sentence as to
the conclusion that Brookshire was a career offender under the
Sentencing Guidelines, we vacate the remainder of the sentence and
remand for re-sentencing.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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