United States v. Cardenas, Alejos ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1177
United States of America,
Plaintiff-Appellee,
v.
Alejos Cardenas,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana,
Indianapolis Division.
No. IP 99-76-CR T/F--John D. Tinder, Judge.
Argued May 8, 2000--Decided June 23, 2000
Before Posner, Chief Judge, and Bauer and
Diane P. Wood, Circuit Judges.
Bauer, Circuit Judge. On January 7,
2000, Alejos Cardenas pled guilty to two
counts of possessing a handgun in
violation of 18 U.S.C. sec. 922(g). The
district court sentenced him to a term of
imprisonment of 180 months and 5 years of
supervised release. In computing
Cardenas’ sentence, the district court
found that Cardenas qualified for an
enhancement under the Armed Career
Criminal Act, 18 U.S.C. sec. 922(e)(1).
The ACCA mandates a minimum sentence of
fifteen years for a defendant with three
prior serious drug convictions, who is
subsequently convicted for unlawful
possession of a firearm. Cardenas had
three prior convictions for selling crack
cocaine. The convictions included two
sales of crack cocaine to confidential
informants on March 27, 1995, one at 8:00
p.m. and the other at 8:45 p.m. and a
third the following day at 9:00 p.m. The
district court concluded that each sale
constituted a separate and distinct
criminal episode. Cardenas disagrees,
arguing that the sales on March 27
constituted a single predicate offense
under the ACCA.
We review whether the district court
violated the statute in its sentencing
determination de novo. United States v.
Williams, 68 F.3d 168, 169 (7th Cir.
1995).
Title 18, United States Code, Section
924(e)(1) provides that:
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, committed on
occasions different from one another,
such person shall be fined not more than
$25,000 and imprisoned not less than
fifteen years. . .
In United States v. Hudspeth, 42 F.3d
1015, 1019 (7th Cir. 1995) (en banc), the
court examined the "committed on
occasions different from one another"
language of sec. 924(e)(1). The court
concluded that it is necessary "to look
to the nature of the crimes, the
identities of the victims, and the
locations." Id. Additionally, we must ask
whether the defendant had sufficient time
to cease and desist or withdraw from the
criminal activity. Id.; Williams, at 171.
In Hudspeth, the defendants, in a span
of thirty-five minutes, burglarized three
separate businesses at the Laketown
Shopping Center. Id. at 1022. The
burglars first entered the cleaners. Next
they used a sledge hammer to break the
adjoining wall to gain entrance into the
doughnut shop. Finally, they forced the
door of the adjacent insurance company
open. Id. The court found that each
unlawful entry was a separate and
distinct episode. Before entry into the
second and third businesses, the
defendants had the chance to stop the
criminal activity but instead chose to
continue. Id. Each entry was a "clear and
deliberate" choice. Id.
In this case, the two sales of crack
cocaine on March 27 were two separate and
distinct episodes. While Cardenas sold
the crack cocaine to the same people, the
sales were separated by forty-five
minutes and a half a block. Cardenas had
plenty of time to change his mind, to
cease and desist, and to refuse to sell
to the informants. The price of the
cocaine at the first sale was not
contingent on there being a second sale.
The informants were not afforded any
deals if they purchased more. In fact,
the informants paid the same price at
each sale, $60 for three pieces. Further,
Cardenas did not know if the informants
would even return to buy more. The
understanding after the first sale was
that they would return if the drugs were
acceptable. This was not a single
agreement as Cardenas would like us
tobelieve, but two separate transactions.
The district court correctly applied
sec. 924(e) to Cardenas. As we found in
Hudspeth, "a defendant who has the oppor
tunity to cease and desist or withdraw
from his criminal activity at any time,
but who chooses to commit additional
crimes, deserves harsher punishment. . ."
Affirmed.