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 2000-12

United States v. Michael Scott Boyles ( 2000 )


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  •                      United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-2367
___________
United States of America,                 *
*
Appellee,             * Appeal from the United States
* District Court for the District
v.                                  * of Minnesota.
*
Michael Scott Boyles,                     *     [PUBLISHED]
*
Appellant.            *
___________
Submitted: December 12, 2000
Filed: December 19, 2000
___________
Before LOKEN, HEANEY, and FAGG, Circuit Judges.
___________
PER CURIAM.
Michael Scott Boyles pleaded guilty to being a felon in possession of firearm in
violation of
    18 U.S.C. § 922
    (g)(1). Concluding Boyles had "three previous convictions
. . . for a violent felony . . . committed on occasions different from one another,"
    18 U.S.C. § 924
    (e), the district court sentenced Boyles to the statutory mandatory
minimum sentence of fifteen years in prison. On appeal, Boyles contends he does not
qualify for sentencing under § 924(e) because his two second-degree criminal sexual
conduct convictions were committed on the same occasion. According to Boyles, the
district court erroneously considered the facts underlying the convictions to conclude
they were committed at different times. In Boyles's view, the district court is limited
to the charging documents and statutory language. Contrary to Boyles's argument,
Taylor v. United States,
    495 U.S. 575
     (1990) and U.S.S.G. § 4B1.1 do not limit the
evidence a sentencing court may examine to decide whether earlier offenses were
committed on different occasions. See United States v. Thomas,
    211 F.3d 316
    , 318 n.3
(6th Cir. 2000); United States v. Hudspeth,
    42 F.3d 1015
    , 1018 n.3 (7th Cir. 1994) (en
banc). Indeed, our opinions on this issue have involved consideration of the specific
facts underlying the earlier convictions. E.g., United States v. Hamell,
    3 F.3d 1187
    ,
1191 (8th Cir. 1993).
Here, each assault complaint involves a different minor girl, and asserts Boyles
molested the victim from February 1, 1992 through January 1, 1993. Further, Boyles's
confession establishes the sexual misconduct occurred at separate times, when Boyles
was alone with one of the girls. The district court correctly decided the offenses were
separate and distinct criminal episodes, see
    id.,
     and thus properly counted them as two
separate felonies. The district court did not commit error in failing to apply the rule
of lenity.
Boyles's conviction is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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