United States v. Morris, Katrell B. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4241
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KATRELL B. MORRIS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois, Springfield Division.
No. 01 CR 30064—Jeanne E. Scott, Judge.
____________
ARGUED APRIL 5, 2002—DECIDED JUNE 17, 2002
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Before FLAUM, Chief Judge, POSNER and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Katrell Morris pled guilty to pos-
session of a firearm by a felon and was sentenced to 180
months imprisonment, 5 years of supervised release, and
a $100 special assessment. He appeals his sentence on a
number of grounds, but the dispositive one is his challenge
to the court’s application of the armed career criminal en-
hancement. Morris acknowledges that if the armed career
criminal enhancement is upheld, then his other challenges
to the sentence are meaningless because the sentence would
be valid.
Morris’ sentence was enhanced under the Armed Career
Criminal Act (ACCA), which provides in relevant part
2 No. 01-4241
(e)(1) In the case of a person who violates section 922(g)
of this title and has three previous convictions by any
court referred to in section 922(g)(1) of this title for a
violent felony or a serious drug offense, or both, commit-
ted on occasions different from one another, such person
shall be fined not more than $25,000 and imprisoned
not less than fifteen years . . . .
[emphasis added] 18 U.S.C. § 924(e)(1). The convictions
which formed the basis for that enhancement were a ju-
venile adjudication for attempted robbery, which Morris
does not challenge, and two convictions for aggravated
discharge of a firearm. The aggravated discharge convic-
tions stemmed from actions taken on a single night, and re-
sulted in concurrent eight year sentences. Morris argues
that the enhancement is not proper because the aggravated
discharge convictions were not committed on occasions dif-
ferent from one another and thus he lacks the three con-
victions necessary for application of the armed career
criminal enhancement. He further contends that the en-
hancement of his sentence violated his constitutional rights
as set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000),
because a jury was never presented with the issue of
whether the convictions were committed on occasions dif-
ferent from one another.
We first consider the Apprendi issue. Morris argues that
under Apprendi, the determination of whether his prior
convictions were “committed on occasions different from one
another” should have been presented to the grand jury,
tried before the jury, and found beyond a reasonable doubt
before he was sentenced under § 924(e)(1). We rejected this
argument in United States v. Skidmore, 254 F.3d 635
(7th Cir. 2001), and that remains the law of this circuit.
Skidmore relied on Almendarez-Torres v. United States, 523
U.S. 224 (1998), in which the Supreme Court held that
recidivism used to enhance a defendant’s maximum penalty
is not an element of a crime that must be charged in the
No. 01-4241 3
indictment and determined beyond a reasonable doubt, but
is instead a traditional sentencing factor decided by the
judge. Skidmore, 254 F.3d at 642; Almendarez-Torres, 523
U.S. at 239, 243-44. Almendarez-Torres noted that recidi-
vism has long been considered a distinct issue because it
“ ‘does not relate to the commission of the offense, but goes
to the punishment only.’ ” 523 U.S. at 244, quoting Graham
v. West Virginia, 224 U.S. 616, 629 (1912). Although the Ap-
prendi Court suggested that Almendarez-Torres might not
survive the logic of Apprendi, the Court did not overrule
Almendarez-Torres, and in fact explicitly carved out an ex-
ception for recidivism in its holding. Apprendi, 530 U.S. at
489-90. Unless and until the Court chooses to overrule
Almendarez-Torres, we are bound by it. For that reason, we
held in Skidmore that an enhancement imposed pursuant
to § 924(e)(1) based on a defendant’s three separate violent
felonies is proper under Apprendi.
Morris attempts to avoid our clear holding in Skidmore
by arguing that he challenges not the fact of the convictions,
but the determination that those convictions were commit-
ted on occasions different from one another. That determi-
nation, he argues, should have been submitted to the jury
under the reasonable doubt standard. Morris presents no
authority for parsing out the recidivism inquiry in that
manner. The logic of both Skidmore and Almendarez-Torres
applies to this aspect of the recidivism inquiry, which mere-
ly involves a determination of which prior convictions will
be considered. The Almendarez-Torres Court even cited
§ 924(e) of the ACCA as one of many examples for the
proposition that “prior commission of a serious crime—is
as typical a sentencing factor as one might imagine.” 523
U.S. at 230. Moreover, the recidivism enhancement at issue
in Almendarez-Torres also limited the convictions that could
be considered—to include only aggravated felonies. Morris
has failed to articulate a reasoned basis for distinguishing
the factor at issue here from other factors traditionally con-
sidered in enhancing a sentence based on recidivism.
4 No. 01-4241
In fact, this precise argument was recently rejected by the
Second Circuit in United States v. Santiago, 268 F.3d 151
(2d Cir. 2001). In Santiago, the court held that Apprendi’s
recidivism exception encompasses the issue of whether prior
convictions arose from offenses “committed on occasions
different from one another.” Id. at 155. The court first rea-
soned that “the separateness of the convictions is not a
fact which is different in kind from the types of facts
already left to the sentencing judge by Almendarez-Torres
and Apprendi . . .” Id. at 156. Second, the court noted that
recidivism has traditionally been an issue for the judge, and
that treating recidivism as a substantive criminal offense
would be problematic, including the risk of significant prej-
udice to the defendant from introducing evidence of the
defendant’s prior crimes to the jury. Id. Finally, the court
noted that Almendarez-Torres distinguished recidivism
as relating to the punishment alone, not to the commission
of the offense, which was true of the § 924(e)(1) inquiry
as well. Id. Accordingly, the court rejected the defendant’s
attempt to cabin the separateness inquiry under Apprendi.
We agree with Santiago, and hold consistent with Skidmore
that the enhancement in this case was proper under Ap-
prendi.
Morris next contends that the convictions fail the
§ 924(e)(1) inquiry, in that they were not “committed on
occasions different from one another,” and that the district
court erred in holding otherwise. Specifically, Morris chal-
lenges the determination that the two aggravated discharge
convictions constituted convictions on occasions different
from one another. In United States v. Hudspeth, 42 F.3d
1015 (7th Cir. 1994) (en banc), this court examined the
ACCA’s “committed on occasions different from one an-
other” language of § 924(e)(1) and provided a framework
for making that determination. Hudspeth held that in an-
alyzing the separateness requirement, the court should
consider the “nature of the crimes, the identities of the
No. 01-4241 5
victims, and the locations,” and should determine whether
the crime involved distinct criminal aggressions where the
perpetrator had the opportunity to cease and desist from
his criminal actions at any time but failed to do so. Id. at
1019-20. Regarding the timing of multiple crimes, the
Hudspeth court centered the inquiry on whether the crimes
were simultaneous or sequential. Id. at 1021. Morris argues
that the crimes here were similar in time and location and
therefore fail that test.
A brief review of our other cases reveals that the shooting
offenses in this case were “committed on occasions different
from one another” as we have interpreted that provision.
For instance, in Hudspeth, the perpetrator in a 35-minute
time period broke into three businesses that were all con-
nected as part of a strip mall. Id. at 1018-19. Although the
burglaries were committed at the same approximate time
and in the same general location, the Hudspeth majority
held that each entry into a new business establishment
constituted a distinct criminal aggression and that the
perpetrator had the opportunity to withdraw but chose to
commit the additional criminal act. Id. at 1022. Accordingly,
the court held that the offenses were not a single criminal
act, and thus were crimes committed on occasions different
from one another under the ACCA. Similarly, in United
States v. Schieman, 894 F.2d 909 (7th Cir. 1990), a pre-
Hudspeth case, the court found separate criminal episodes
where a defendant committed a burglary and, three blocks
away when approached by an officer, he knocked the officer
to the ground and fled. Id. at 910. The court held that the
battery and burglary fell within the ACCA because they
involved separate crimes against separate victims in sep-
arate locations. Id. at 913. Schieman therefore establishes
that even “ ‘one crime hard on the heels of another can be a
separate and distinct criminal episode.’ ” Hudspeth, 42 F.3d
at 1020, quoting United States v. Godinez, 998 F.2d 471,
472 (7th Cir. 1993). Finally, in United States v. Cardenas,
6 No. 01-4241
217 F.3d 491 (7th Cir. 2000), the court recognized that even
related crimes, similar in nature, can fall within § 924(e)(1)
despite temporal proximity. In Cardenas, the defendant
sold crack cocaine to confidential informants with the un-
derstanding that they would return to purchase more if
they found it acceptable. Id. at 492. Forty-five minutes
later, those same informants completed a second purchase
from him approximately a half block away from the location
of the first purchase. Id. Despite the similarities in time,
location and nature of the crime, the court held that the
offenses were committed on occasions different from one
another because the first sale was not contingent on the
second one, and Cardenas had time to change his mind and
to refuse to engage in the second sale. Id. Because the
offenses involved not a single agreement, but rather sep-
arate transactions, the court applied § 924(e).
Like those cases, the two offenses committed by Morris,
although close in time and location, involved distinct crim-
inal aggressions from which he had an opportunity to cease
and withdraw. The facts underlying the offenses are not
in dispute. Morris shot at victim Derek Kye from his auto-
mobile at the corner of 17th and Pine, and then drove away.
Kye then ran to his aunt’s home and told his aunt and
cousin what had happened. His cousin, Lebaron Pettis, left
the home to seek help presumably because they did not
have a phone at the house. Pettis ran to 1501 Martin Luth-
er King Drive and was knocking on the door when Morris
drove up and fired three shots at Pettis. Pettis escaped
injury. Those shooting incidents were similar in nature, but
involved different victims at different locations and times.
Although they were close in time and proximity, they
involved distinct criminal aggressions. Morris had left the
scene of the first incident, and that was a complete criminal
act at that time. He certainly had the opportunity at that
time to drive away from the scene and cease his criminal
actions. Instead, he chose to drive back and to initiate an
No. 01-4241 7
additional criminal aggression, this time shooting at Pettis.
That is the type of criminal action that, although “hard on
the heels of the earlier offense,” nevertheless constitutes an
offense on an “occasion different from the other” under the
ACCA. It is legally indistinguishable from the type of con-
duct we reviewed in Hudspeth, Schieman, and Cardenas,
and therefore the district court appropriately applied the
enhancement under the ACCA. Because that alone supports
the sentence in the case, we need not address the other
sentencing issues raised by Morris. The decision of the dis-
trict court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—6-17-02