United States v. Brown, Dennis ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2738
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DENNIS BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 372--George M. Marovich, Judge.
Submitted December 14, 1999--Decided April 7, 2000
Before ESCHBACH, COFFEY and RIPPLE, Circuit Judges.
COFFEY, Circuit Judge. Defendant-Appellant
Dennis Brown ("Brown") received a 125-month term
of imprisonment after pleading guilty to bank
robbery by force or violence, in violation of 18
U.S.C. sec. 2113(a). On direct appeal, Brown
challenges the district court’s computation of
his criminal history score, maintaining that his
four previous aggravated and armed robbery state
convictions/1 should have been treated as one
offense because they formed as part of a common
scheme or plan and therefore were related under
U.S.S.G. sec. 4A1.2(a)(2). We AFFIRM.
I. BACKGROUND
For approximately 6 weeks in March and April of
1998, Brown was engaged in a crime spree that
consisted of five robbery offenses, occurring on
March 23, April 16, April 30, May 1 and May 9,
1998. Four of these robberies (March 23, April
16, April 30, and May 9) resulted in three
Illinois indictments for aggravated robbery and
one Illinois indictment for armed robbery, all of
which Brown pled guilty to in the Illinois court
system. The fifth robbery, occurring on May 1,
1998, resulted in a federal charge resulting from
a grand jury indictment on December 15, 1998,
charging Brown with bank robbery by force or
violence in violation of 18 U.S.C. sec. 2113(a).
A. Prior State Robbery Convictions
1. March 23, 1998 & April 16, 1998 Robberies
Brown’s crime spree began on March 23, 1998,
when, according to an arrest report of the
Harwood Heights, Illinois police department, he
entered the "Genesis Two Hands Down" store and
directed the employee to give him all the money
from the drawer. Brown then ordered the employee
to come to the front of the store and kneel down
as he exited. Apparently impressed with his
success, Brown struck again on April 16, 1998,
when he robbed the Harwood Heights "Life Uniform"
store. The arrest report indicates that the
defendant entered the store, asked the employee
if she was alone, and she replied in the
affirmative. He then asked how much money was in
the register and displayed a handgun in the
waistband of his pants. After the employee handed
over the currency in the drawer, he ordered her
to get down on the floor as he exited the
store./2
2. April 30, 1998 Robbery
Apparently believing that his luck would never
end, on April 30, 1998, the defendant held up
another location. According to a Morton Grove,
Illinois police report, the defendant entered a
Shell Station Mini-Mart and ordered one of the
employees to open the register. When the employee
asked if he was kidding, Brown lifted his shirt
and displayed a steel revolver in the waistline
of his pants. The employee then opened the
register and placed the cash drawer on the
counter. Brown took the money from the drawer and
told the employee to lie down on the floor for
five minutes and if he got up, he would be shot
by his accomplice who was watching./3
3. May 9, 1998 Robbery
Proving the old proverb that all "good" things
must come to an end, Brown’s final act of his
crime spree occurred on May 9, 1998, when he
entered the "WorldWide Liquor" store at 3500 N.
Harlem, Chicago, walked to the counter and
demanded money while lifting his shirt and
displaying a handgun tucked in his belt.
According to the Chicago police arrest report,
the employee complied and gave Brown $150. Brown
then ordered the employee to lie down on the
floor and fled the scene./4
B. The Federal Armed Bank Robbery Conviction
Brown went for the jackpot on May 1, 1998, when
he entered the Lombard, Illinois branch of the
LaSalle Bank, lifted his shirt, displayed the
butt end of a revolver and shouted, "I’ve got a
gun and a grenade in my pocket, my partner just
gave me the signal, he’s got a police scanner in
the car, so don’t set off any alarms or I’ll pull
the pin on this and we’ll all die." Brown then
handed a bag to a bank employee and told the
employee to go to the teller counter and have it
filled. The defendant continued to terrorize the
bank employees and patrons by threatening, "Don’t
make any mistakes, I don’t want any strapped
money or I’ll pull the pin," and also warned that
if anyone called for help, he would come back in,
"pull the pin, and we’ll all explode." The
LaSalle Bank’s records reflected that the bank
was out $9,248 as a result of the armed bank
robbery.
Approximately two weeks later, on May 14, 1998,
the Lombard Police Department was advised that an
individual recently arrested by the Chicago
Police Department for aggravated robbery had
signed a written confession in which he admitted
to robbing the Lombard, Illinois branch of the
LaSalle Bank./5 The following day, Brown was
identified in a photo lineup by two eyewitnesses
as the individual who robbed the LaSalle Bank on
May 1, 1998./6
On December 15, 1998, Brown was indicted on
one-count of bank robbery by force or violence,
and on January 27, 1999, pled guilty and his plea
was accepted. The Presentence Investigation
Report ("PSR") recommended that Brown receive a
total of thirteen criminal history points,
including ten points for his four previously
discussed state convictions for aggravated and
armed robbery./7 The sentencing judge adopted
the recommendation of the PSR and made the
following findings with respect to his prior
state robbery convictions: the court found that
the April 16 robbery was "related" to the March
23 robbery under Application note 3 to U.S.S.G.
sec. 4A1.2(a)(2) because the two offenses had
been "consolidated for the purposes of
sentencing" by the state court, thus resulting in
the allocation of just one criminal history point
under sec. 4A1.1(f) for the April 16 robbery,/8
but counted the March 23, April 30, and May 9
robberies separately and allocated three criminal
history points for each offense under U.S.S.G.
sec. 4A1.1(a), resulting in nine criminal history
points.
Before sentencing, Brown filed objections to the
PSR, contending that all four state robbery
convictions were related under sec. 4A1.2(a)(2)
as part of a common scheme or plan and thus
should have been counted only once in the
criminal history computation. The sentencing
judge rejected his challenge and sentenced him to
125 months imprisonment to run concurrently with
his state sentences. Brown appeals.
II. DISCUSSION
This Circuit has recently clarified the
applicable standard of review, holding that a
district court’s determination that certain prior
sentences are not related is a factual one, and
that we review under the clear error standard.
See United States v. Buford, 201 F.3d 937, 940-42
(7th Cir. 2000); United States v. Joy, 192 F.3d
761, 770 (7th Cir. 1999). For purposes of
calculating a defendant’s criminal history, under
sec. 4A1.2(a)(2), prior sentences imposed in
"unrelated" cases are counted separately, but
prior sentences imposed in "related" cases are
counted as one sentence. Application note 3 to
sec. 4A1.2(a)(2) offers this advice:
Prior sentences are not considered related if
they were for offenses that were separated by an
intervening arrest (i.e., the defendant is
arrested for the first offense prior to
committing the second offense). Otherwise, prior
sentences are considered related 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.
U.S.S.G. sec. 4A1.2, cmt. (n.3) (emphasis added).
Brown relies on this application note in arguing
that his four robberies are all related under the
common scheme or plan prong because they involved
a similar modus operandi and were connected by a
common purpose. Specifically, the defendant
contends that he was "strung out" on drugs each
time, displayed a gun during two of the
robberies, and during each incident, demanded
currency, took the money, ordered the victims
onto the floor and exited the scene, all with the
"common purpose" of obtaining money to feed his
drug addiction. Before we address the defendant’s
arguments, we will review the applicable law.
A. "Single Common Scheme or Plan"
Although the sentencing guidelines do not define
"single common scheme or plan," we have held that
"’scheme’ and ’plan’ are words of intention,
implying that [the offenses] have been jointly
planned." United States v. Ali, 951 F.2d 827, 828
(7th Cir. 1992). In other words, for purposes of
sec. 4A1.2(a)(2), crimes are part of a single
common scheme or plan only if: (1) they were
"jointly planned"; or (2) one crime entails the
commission of the other. See Joy, 192 F.3d at
771. Under this analysis, Brown must demonstrate
that "he either intended from the outset to
commit [the] crimes or that he intended to commit
one crime which, by necessity, involved the
commission of [the others]." United States v.
Carroll, 110 F.3d 457, 460 (7th Cir. 1997)
(emphasis added). "Because the defendant is in
the best position to know whether he jointly
planned two or more crimes and is the beneficiary
of any reduction in his sentence, he has the
burden of showing that his prior offenses were
part of a single scheme or plan." Joy, 192 F.3d
at 771.
B. Defendant Brown’s Arguments
Even though this Court has gone out of its way
to define what constitutes a "single common
scheme or plan," the defendant in his arguments
has ignored the ruling caselaw. Specifically,
Brown does not argue that he "intended from the
outset" to commit the robberies or that one of
the robberies necessarily involved committing the
others; instead, he maintains that a similar
modus operandi in each of the crimes will support
a finding of relatedness. However, as we have
previously and explicitly stated, "[c]rimes are
not related just because they have similar modus
operandi, or because they were part of a crime
spree." See United States v. Sexton, 2 F.3d 218,
219 (7th Cir. 1993). Committing "like crimes that
were close in time and similar in style" is not
enough to establish a "singular common scheme or
plan." See id./9
The defendant also argues that these crimes
were committed within a month and a half of each
other and in the same general area, and were thus
connected by a specific common purpose--to fund
his drug addition. Crimes are not considered
related under sec. 4A1.2(a)(2), however, merely
because each of the offenses were committed with
the same general purpose. See Carroll, 110 F.3d
at 460; United States v. Brown, 962 F.2d 560, 564
(7th Cir. 1992). In fact, this Court has made
clear that under sec. 4A1.2 (a)(2), crimes will
not "be deemed related simply because they are
committed to achieve a singular objective--such
as support of a drug habit." Brown, 962 F.2d at
564; see United States v. Woods, 976 F.2d 1096,
1100 (7th Cir. 1992) (citing United States v.
Rivers, 929 F.2d 136, 139-40 (4th Cir. 1991)).
Further, despite whatever factual similarities
the defendant’s robberies may have, he is
required to present sufficient evidence that
establishes a singular common scheme or plan. We
have held on several occasions that merely
similar, seriatim robberies fall far short of
qualifying as a "single common scheme or plan."
In Sexton, we held that even a crime spree
involving four burglaries within a three-week
time frame, "at the same time of day, taking the
same types of property from rural residences,
using the same get-away car, and with the same
motive to make money," does not satisfy the
relatedness standard. Sexton, 2 F.3d at 219.
Likewise, we ruled in Woods that three robberies
committed eight days apart, with the defendant
planning to rob as many places as he could, was
not the type of common scheme or plan
contemplated by the guidelines. See Woods, 976
F.2d at 1099-1100. This Court similarly held in
Brown that two bank robberies committed eight
days apart also did not evidence a common scheme
or plan. See Brown, 962 F.2d at 565.
[A] relatedness finding requires more than mere
similarity of crimes. A common criminal motive or
modus operandi will not cause separate crimes to
be related within the meaning of the Guidelines
commentary. Nor will crimes be deemed related
simply because they are committed to achieve a
singular objective--such as support of a drug
habit or debt collection.
Brown, 962 F.2d at 564 (citations omitted).
To his detriment, Brown fails to establish, or
even argue, that he intended "from the outset" to
commit the March 23, April 30 and May 9
robberies, or that one of the robberies
necessarily involved committing the others.
Indeed, the facts and circumstances of the
defendant’s crimes suggest that he is a
recidivist who was on a crime spree during a ten
day period from April 30 through May 9 of 1998.
See, e.g., Ali, 951 at 828 ("We must keep in mind
the purpose of the ’related’ test. It is to
identify the less dangerous criminal. A criminal
is not less dangerous because his crime is part
of a spree."). There is no evidence that Brown
either "jointly planned" the robberies, that is,
intended to commit the robberies "from the
outset," or that he intended to commit one of the
robberies which necessarily involved committing
the others. See Carroll, 110 F.3d at 460. Thus,
we conclude that the defendant has not carried
his burden of showing that the prior offenses
were part of a "single common scheme or plan" as
defined under the holdings of this Court in Joy,
Carroll and Ali. See Joy, 192 F.3d at 771;
Carroll, 110 F.3d at 460; Ali, 951 F.2d at 828.
Accordingly, we hold that the district court did
not commit clear error when it found that the
defendant’s March 23, April 30 and May 9, 1998
robberies were not related, and properly counted
the prior convictions separately for purposes of
computing Brown’s criminal history. We AFFIRM.
/1 As discussed later in detail, Brown has three
Illinois state convictions for aggravated robbery
as well as one Illinois conviction for armed
robbery. In sum, he received a nine-year term of
imprisonment on each conviction with the
sentences ordered to run concurrently.
/2 Brown pled guilty in Illinois state court to one-
count of aggravated robbery for each offense,
which were later consolidated for purposes of
sentencing only.
/3 The defendant pled guilty in Illinois state court
to one-count of armed robbery.
/4 Brown pled guilty in Illinois state court to one-
count of aggravated robbery.
/5 Also, at the time of his arrest, the defendant
was wearing clothing and carrying a bag similar
to the clothing worn and the bag carried by the
LaSalle Bank bank robber.
/6 The Presentence Investigation Report does not
indicate whether these two eyewitnesses were bank
customers or employees, or if they could have
also identified Brown by his voice.
/7 Brown also received three criminal history points
for three other prior state convictions (criminal
damage to property, domestic battery and
battery), bringing his total criminal history
points to thirteen and placing him in criminal
history category VI.
/8 Neither party challenges this sentencing
determination.
/9 Under Application note 9 to sec. 1B1.3, "[f]or
two or more offenses to constitute part of a
common scheme or plan, they must be substantially
connected to each other by at least one common
factor, such as common victims, common
accomplices, common purpose, or similar modus
operandi." As we stated in Joy, however, the
"common scheme or plan" concept under sec. 1B1.3
is used for ascertaining relevant offense conduct
and adjustments, and is inapplicable for purposes
of our review under sec. 4A1.2(a)(2). See Joy,
192 F.3d at 771 n.7; U.S.S.G. sec. 1B1.3(b)
("Factors in Chapters Four and Five that
establish the guideline range shall be determined
on the basis of the conduct and information
specified in the respective guidelines.").