United States v. James Elliott

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2766
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES E LLIOTT,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 09 CR 225—Philip P. Simon, Chief Judge.
A RGUED F EBRUARY 24, 2012—D ECIDED D ECEMBER 20, 2012
Before M ANION and R OVNER, Circuit Judges, and
C OLEMAN, District Judge. Œ
R OVNER, Circuit Judge. After he pleaded guilty to a felon-
in-possession charge, 18 U.S.C. § 922(g)(1), James Elliott
Œ
The Honorable Sharon Johnson Coleman, of the United States
District Court for the Northern District of Illinois, sitting by
designation.
2 No. 11-2766
was sentenced as an armed career criminal based on
the district court’s finding that a series of three robberies
he perpetrated in a five-day period when he was
eighteen years old were “committed on occasions
different from one another,” 18 U.S.C. § 924(e)(1). Elliot
challenges that finding, contending that he had a right
to have a jury, rather than the judge, assess the nature
of his prior crimes, and that our decision in United States
v. Hudspeth, 42 F.3d 1015, 1019-22 (7th Cir. 1994) (en
banc), abrogated on other grounds by Shepard v. United
States, 544 U.S. 13, 125 S. Ct. 1254 (2005), should be over-
ruled. We affirm.
I.
On October 22, 2009, police officers in Merrillville,
Indiana were dispatched to a residence on complaints
about an unwanted person being present. They arrived
to discover Elliott sitting on the front porch of the resi-
dence with his hands in his pockets. Elliott briefly
removed his hands from his pockets when asked to do
so, but reinserted them as the officers began to ap-
proach him, assuring the officers that he had nothing
in them. In fact, he did. When one of the officers
grabbed Elliott’s right hand, he discovered a loaded .22-
caliber revolver in his pocket.
Because Elliott previously had been convicted of six
felony offenses—including burglary, theft, and operating
a vehicle while intoxicated—federal law made it illegal
for him to possess a firearm. 18 U.S.C. § 922(g)(1). A
No. 11-2766 3
grand jury subsequently indicted him on a felon-in-posses-
sion charge. The government then filed a notice
indicating that it intended to seek an enhanced penalty
based on his criminal history pursuant to the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). In
relevant part, that statute specifies a minimum prison
term of fifteen years (and a maximum term of life) for
a felon-in-possession who has three previous con-
victions for violent felonies or serious drug offenses “com-
mitted on occasions different from one another.”
§ 924(e)(1). Burglary qualifies as a violent crime for pur-
poses of the ACCA. § 924(e)(2)(B)(ii). The government
contended that Elliott’s convictions for three burglaries
he committed over a period of five days in 1998
rendered him subject to the enhanced penalty specified
by the ACCA. Without that enhancement, he would
otherwise have been subject to a maximum prison term
of 10 years. § 924(a)(2).
Elliott, although he did not contest the fact of his
prior convictions, nonetheless opposed the enhancement.
As relevant here, he contended that whether the three
burglaries were committed on occasions different from
one another constituted a factual question as to which
the Fifth and Sixth Amendments, and the Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348 (2000), entitled him to a jury trial. Second,
Elliott argued that because the three burglaries took
place over a period of several days during what he re-
garded as a single criminal episode, the court should
find that they were not committed on occasions
4 No. 11-2766
different from one another, and that consequently he
was not subject to the enhanced penalty.1
The district court rejected both arguments in a
written opinion. United States v. Elliott, 2011 WL 3273466(N.D. Ind. Aug. 1, 2011). The court invoked Almendarez-
Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998),
as its authority to make determinations regarding
Elliott’s criminal history. 2011 WL 3273466, at *4; see also
R. 18-2 at 20-22. And, looking to our en banc decision
in Hudspeth, the court found that the three 1998 burglaries
were committed on occasions different from one an-
other. 2011 WL 3273466, at *2-*3. The court emphasized
that the burglaries were committed sequentially rather
than simultaneously, and that significantly more time
had passed between the burglaries than was the case in
Hudspeth, affording Elliott the opportunity after each
burglary to cease his criminal conduct. Id., at *3. The
court added at sentencing: “[C]learly when somebody
commits three burglaries over the course of five days,
under the way the Seventh Circuit and for that
matter, every other circuit it appears, has interpreted
[section] 924[(e)], those would all be qualifying convic-
tions.” R. 18-2 at 19.
1
Elliott also argued below that the bright-line approach to
the different-occasions inquiry that we adopted in Hudspeth
renders the enhanced penalties imposed by the ACCA
irrational and excessive, in violation of the Eighth Amend-
ment’s ban on cruel and unusual punishments. The district
court rejected that contention, and Elliott does not renew the
argument here.
No. 11-2766 5
The court proceeded to sentence Elliott to the minimum
term of 180 months specified by the ACCA. That term
was eight months below the low end of the sentencing
range recommended by the Sentencing Guidelines.
II.
Elliott renews his challenge to the armed career
criminal enhancement on appeal. As a threshold matter,
he contends that whether the three burglaries for which
he previously had been convicted occurred on occasions
different from one another was a fact-intensive issue
that he was entitled to have a jury resolve. He acknowl-
edges that under Almendarez-Torres, the district judge
is authorized to make certain findings regarding a de-
fendant’s criminal history, but contends that whether
his prior crimes occurred on occasions different from
one another represents a distinct type of inquiry that
Almendarez-Torres does not authorize the judge to make.
As to the substance of the ACCA inquiry, Elliott urges
this court to overrule its en banc decision in Hudspeth,
a step that he believes would pave the way to recogni-
tion that the three burglaries he committed in 1998
were indivisible components of a single, multi-day
crime spree and thus were not committed on occasions
different from one another. Both arguments present
questions of law that we review de novo. Kirkland v.
United States, 687 F.3d 878, 882-83 (7th Cir. 2012); United
States v. Trennell, 290 F.3d 881, 889 (7th Cir. 2002).
As to the first issue, the district judge was empowered
to determine whether Elliott committed the burglaries
6 No. 11-2766
on occasions different from one another. The Supreme
Court in Almendarez-Torres held that a defendant’s recidi-
vism is not an element of the offense which must be
found by a jury beyond a reasonable doubt, but rather is
a sentencing factor that may be found by the sentencing
judge, even when recidivism increases the statutory
maximum penalty to which the defendant is exposed.
523 U.S. at 239, 243-46, 118 S. Ct. at 1228-29, 1230-32.
Almendarez-Torres has remained good law even as the
Court in later decisions has recognized a defendant’s
right to a jury finding on other factors that expose the
defendant to a longer sentence. See Jones v. United States,
526 U.S. 227, 119 S. Ct. 1215 (1999); Apprendi v. New Jersey,
supra, 530 U.S. 466, 120 S. Ct. 2348; Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531 (2004); United States v. Booker,
543 U.S. 220, 125 S. Ct. 738 (2005); United States v. O’Brien,
130 S. Ct. 2169 (2010). Indeed, each of these cases has
expressly cited the fact of a prior conviction as an excep-
tion to the rule it stated. Jones, 526 U.S. at 243 n.6, 119 S. Ct.
at 1224 n.6; Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63;
Blakely, 542 U.S. at 301, 124 S. Ct. at 2536; Booker, 543
U.S. at 244, 125 S. Ct. at 756; O’Brien, 130 S. Ct. at 2174.2
2
This is not to say that the future of Almendarez-Torres is
secure. Justice Thomas’s concurrence in Shepard v. United States
remarked that “Almendarez-Torres . . . has been eroded by this
Court’s subsequent Sixth Amendment jurisprudence, and a
majority of the Court now recognizes that Almendarez-Torres
was wrongly decided.” 544 U.S. 13, 27, 125 S. Ct. 1254, 1264
(2005) (Thomas, J., concurring in part and concurring in the
judgment). We ourselves have observed:
(continued...)
No. 11-2766 7
Elliott has a point when he stresses that whether a
defendant’s prior crimes occurred on occasions
different from one another is a question that looks
beyond “the fact of a prior conviction,” see Blakely, 542
U.S. at 301, 124 S. Ct. at 2536 (quoting Apprendi), and for
that matter beyond the elements essential to that convic-
tion, see Taylor v. United States, 495 U.S. 575, 599, 602, 110
S. Ct. 2143, 2158, 2160 (1990); see also Nijhawan v. Holder,
557 U.S. 29, 33-36, 129 S. Ct. 2294, 2298-2300 (2009) (distin-
guishing statutory provisions which call for categorical
inquiry into nature of defendant’s prior conviction
from those which call for circumstance-specific inquiry
into facts underlying defendant’s prior conviction). The
facts that inform the determination of whether prior
crimes occurred on different occasions—including the
times and dates, places, and victims of those crimes—
usually do not constitute essential elements of a convic-
2
(...continued)
Almendarez-Torres is vulnerable to being overruled not
because of Shepard but because of United States v. Booker, 543
U.S. 220, 125 S.Ct. 738 (2005). Booker holds that there is a
right to a jury trial and to the reasonable-doubt standard
in a sentencing proceeding (that is, the Sixth Amendment
is applicable) if the judge’s findings dictate an increase
in the maximum penalty. Id. at 756. Findings made under
the Armed Career Criminal Act do that. So if logic rules,
those findings too are subject to the Sixth Amendment. . . .
United States v. Browning, 436 F.3d 780, 782 (7th Cir. 2006).
We added, however, that “the continued authority of
Almendarez-Torres is not for us to decide.” Id.8 No. 11-2766
tion. See, e.g., United States v. Cina, 699 F.2d 853, 859 (7th
Cir. 1983) (“An ‘essential’ or ‘material’ element of the
crime is one whose specification with precise accuracy
is necessary to establish the very illegality of the behavior
and thus the court’s jurisdiction. Only in rare cases is time
a material element of the offense charged, even where
continuing offenses such as conspiracy are alleged.”)
(citation omitted); United States v. Muhammad, 928
F.2d 1461, 1470 (7th Cir. 1991) (“[T]he location where
the offense took place is not an ‘essential’ or ‘material’
element of the crime as that term was defined in Cina.”);
cf. United States v. Alhalabi, 443 F.3d 605, 613 (7th Cir.
2006) (payment amounts referenced in food stamp
fraud charges were not material elements of the offense).
On the other hand, because facts of this nature serve
to define the scope of a crime, provide notice to the defen-
dant of what precisely he is charged with doing so that
he can prepare a defense, and protect him against
double jeopardy, see United States v. Castaldi, 547 F.3d
699, 703 (7th Cir. 2008); United States v. Blanchard, 542
F.3d 1133, 1140 (7th Cir. 2008); United States v. Andrus, 775
F.2d 825, 843-44 (7th Cir. 1985); United States v. Horton, 676
F.2d 1165, 1169 (7th Cir. 1982), they are closely inter-
woven with the essential elements of an offense. We
recently observed that “in rejecting arguments after
Apprendi that the separate occasions determination falls
outside the Almendarez-Torres exception, we and other
circuits have gone to great lengths to explain that the
facts related to whether prior convictions occurred on
different occasions cannot be easily distinguished from
the facts related to the existence of the prior convic-
No. 11-2766 9
tions.” Kirkland v. United States, supra, 687 F.3d at 890 (coll.
cases). Moreover, facts such as these, although they are
not normally essential elements of a conviction, will
frequently, if not usually, be disclosed in charging docu-
ments, plea agreements, findings of fact resulting from
a bench trial, and other materials that the Supreme
Court described as “conclusive records made or used in
adjudicating guilt.” Shepard v. United States, supra, 544
U.S. at 21, 125 S. Ct. at 1260. Our decision in Kirkland
emphasizes that a court’s inquiry as to the different-
occasions prong of the ACCA is limited to such docu-
ments. 687 F.3d at 888-89.
Consequently, this court, like our sister circuits, has
construed Almendarez-Torres to permit a district court to
make a finding for purposes of the ACCA as to whether
a defendant committed three or more violent felonies
or serious drug offenses on occasions different from
one another. United States v. Hendrix, 509 F.3d 362, 375-76
(7th Cir. 2007); United States v. Morris, 293 F.3d 1010, 1012-
13 (7th Cir. 2002); United States v. Skidmore, 254 F.3d
635, 642 (7th Cir. 2001) (coll. cases from other circuits).
Indeed, our decisions have explicitly rejected the very
argument that Elliot makes here—namely, that deter-
mining the relationship of a defendant’s prior crimes to
one another is beyond the scope of the finding that
Almendarez-Torres permits a judge to make. See Hendrix,
509 F.3d at 375-76 (citing United States v. Schlifer, 403 F.3d
849, 852 (7th Cir. 2005) (determination whether de-
fendant’s prior crimes were unrelated, for purposes of
U.S.S.G. § 4B1.1, is not beyond scope of inquiry judge
may make under Almendarez-Torres)); Morris, 293 F.3d
at 1012-13. As we observed in Morris:
10 No. 11-2766
The Almendarez-Torres Court even cited § 924(e) of
the ACCA as one of many examples for the proposi-
tion that “prior commission of a serious crime—is as
typical a sentencing factor as one might imagine.”
523 U.S. at 230, 118 S. Ct. 1219. Moreover, the recidi-
vism enhancement at issue in Almendarez–Torres
also limited the convictions that could be consid-
ered—to include only aggravated felonies. Morris
has failed to articulate a reasoned basis for distin-
guishing the factor at issue here from other factors
traditionally considered in enhancing a sentence
based on recidivism.
293 F.3d at 1012-13. Thus, unless and until the Supreme
Court overrules Almendarez-Torres or confines its holding
solely to the fact of a prior conviction, as opposed to the
nature and/or sequence of a defendant’s prior crimes,
a district judge properly may make the findings
required by the ACCA.
Hudspeth supplies the answer to the second question
presented by Elliott’s appeal—whether the three
burglaries he committed in 1998 occurred on
occasions different from one another. Our discussion of
the different-occasions inquiry in Hudspeth began with
the recognition of widespread agreement among the
circuit courts that a defendant will be subject to the
ACCA enhancement “if each of [his] prior convictions
arose out of a ‘separate and distinct criminal episode.’ ” 42
F.3d at 1019 (quoting United States v. Schieman, 894 F.2d
909, 911 (7th Cir. 1990) (emphasis in Hudspeth) & coll.
cases). Factors relevant to that assessment include the
nature of the crimes, the identities of the victims, and the
No. 11-2766 11
locations where the crimes took place. Id. We also recog-
nized that the timing is a relevant consideration, but to
a limited extent: crimes that occur simultaneously will
be deemed to have occurred on a single occasion; but
the passage of even a small amount of time between
crimes—10 minutes in Schieman—may well suffice to
separate them for purposes of the ACCA. Id. at 1919-20.
What really matters, we emphasized, is the opportunity
of the perpetrator to terminate his wrongdoing. Id.
at 1020. Thus, even when a defendant has committed
a multi-crime spree over a short period of time, each
offense comprising the spree will be considered to have
occurred on a separate occasion so long as the defendant
at each step had the opportunity to stop and proceed
no further. Id. (citing United States v. Brady, 988 F.2d 664,
668-69 (6th Cir. 1993) (en banc)). When a defendant com-
mits multiple crimes simultaneously—as when he robs
more than one person at the same time, or commits
essentially one act that violates multiple criminal stat-
utes—there is no dividing point between the offenses
that affords him the chance to desist from further
criminal activity. See id. at 1020, 1021. “In contrast, a
defendant who commits sequential crimes has the oppor-
tunity at each and every turn to withdraw from his crimi-
nal activity.” Id. at 1021. Therefore, we concluded, a
court’s inquiry as to the timing of the prior offenses
“is simple: were the crimes simultaneous or were they
sequential?” Id. at 1021 (emphasis in original).
Having adopted that bright-line rule, our assessment
of the prior crimes at issue in Hudspeth was straightfor-
ward. The defendant and his accomplices had committed
a series of three burglaries over a period of 36 minutes
12 No. 11-2766
against three adjoining businesses in a strip mall: they
had first pried open the door of a dry cleaners, then
used a sledgehammer to break through a wall separating
the cleaners from the donut shop next door, and from
there forced open a door connecting the donut shop
with an insurance company; along the way, they ran-
sacked all three businesses. Because the defendant had
burglarized the three businesses in sequence rather than
simultaneously, we deemed the burglaries to have oc-
curred on different occasions for purposes of the ACCA:
Entry into each successive business reflected a clear
and deliberate choice to commit a “distinct aggres-
sion,” [United States v.] Godinez, 998 F.2d [471] at
473 [(7th Cir. 1993)]. At any given point in time
during his crime spree, Hudspeth was free to cease
and desist from further criminal activity. He
instead chose to continue. Because of his three deci-
sions to enter each successive business, it is evident
that he intended “to engage in a separate criminal
episode.” [United States v.] Tisdale, 921 F.2d [1095] at
1099 [10th Cir. 1990)]; see also Godinez, 998 F.2d at 472
(“one crime hard on the heels of another can be a
‘separate and distinct criminal episode,’ as Schieman
itself shows.”).
42 F.3d at 1022.3
3
Our understanding of the facts surrounding the burglaries
at issue in Hudspeth rested to a significant extent on the
police reports regarding those burglaries. See 42 F.3d at 1018 &
n.3. The Supreme Court’s subsequent decision in Shepard
(continued...)
No. 11-2766 13
Hudspeth’s result and rationale leave no question that
Elliott’s three prior burglaries likewise occurred on dif-
ferent occasions. The burglaries involved different
victims and different homes, and they took place sequen-
tially rather than simultaneously. Elliott, like Hudspeth,
thus had an opportunity after each burglary to con-
template what he was doing and abandon his course
of criminal conduct. Indeed, Elliott’s burglaries took
place over the course of five days—and one or more
days apart from one another—rather than over the
course of 36 minutes, as was the case in Hudspeth.
Elliott thus had far more of an opportunity to change
course and desist from wrongdoing than did Hudspeth.
See, e.g., United States v. Nigg, 667 F.3d 929, 936 (7th Cir.)
(three armed robberies committed over six days consti-
tuted separate criminal episodes under Hudspeth), cert.
denied, 132 S. Ct. 2704 (2012); United States v. Hunter, 418
F. App’x 490, 493-94 (7th Cir. 2011) (non-precedential
decision) (recognizing that it would be frivolous to
contend that robberies of five different victims in dif-
ferent locations on same day constituted a single
criminal episode, notwithstanding fact that they all
3
(...continued)
disapproved reliance on such extra-judicial records in
assessing the nature of a defendant’s prior convictions. 544
U.S. at 26, 125 S. Ct. at 1263. To the extent Hudspeth deemed
it proper to resort to such documents in evaluating the rela-
tionship of a defendant’s prior crimes to one another,
our decision on that point is no longer good law, as we recog-
nized in Kirkland, 687 F.3d at 886-87 & n.9.
14 No. 11-2766
stemmed from same bank robbery, as robberies were
committed sequentially rather than simultaneously);
United States v. Reyna, 327 F. App’x 660, 661 (7th Cir.
2009) (non-precedential decision) (agreeing that it would
be frivolous to argue that burglaries of three different
homes over six days constituted a single criminal episode
under Hudspeth, as defendant had “the opportunity to
change his mind before undertaking each successive
burglary”); United States v. Hale, 227 F. App’x 506, 508-
10 (7th Cir. 2007) (non-precedential decision) (two rob-
beries of different businesses on same day con-
stituted separate offenses under Hudspeth); United States
v. Morris, supra, 293 F.3d at 1014 (under Hudspeth and
other precedents, two shootings on same night,
“although close in time and location, involved distinct
criminal aggressions from which [defendant] had an
opportunity to cease and withdraw”); United States v.
Cardenas, 217 F.3d 491, 492 (7th Cir. 2000) (three sales
of crack cocaine to informants over two days, with
two sales taking place only 45 minutes and half a block
apart, amounted to distinct criminal episodes under
Hudspeth); United States v. Gilbert, 45 F.3d 1163, 1168-69
(7th Cir. 1995) (burglaries of five public school
buildings over three-day period constituted distinct
episodes, where burglaries “involved separate schools,
different victims, and distinct locations”).
Hudspeth makes the result in this appeal a foregone
conclusion; but that does not mean that overruling
Hudspeth, as Elliott urges us to do, would lead to a different
outcome. Overruling a precedent obviously “is not a step
No. 11-2766 15
we take lightly,” NewPage Wis. Sys. Inc. v. United Steel
Workers Int’l Union, 651 F.3d 775, 779 (7th Cir. 2011), and
overruling an en banc decision is something that only
the full court could do, United States v. Carpenter, 406
F.3d 915, 916 (7th Cir. 2005). Moreover, we typically
reserve reexamination of a precedent for a case in which
abandoning that precedent would make a difference.
E.g., Loomis v. Exelon Corp., 658 F.3d 667, 675 (7th Cir.
2011). Here, as the district court implied when it observed
that Elliott’s prior burglaries would meet the ACCA’s
different-occasions test under the law of this or any
other circuit, even setting aside Hudspeth, Elliott
is unlikely to prevail in his contention that his prior
burglaries constituted a single rather than multiple crimes.
The rationale of the dissents in Hudspeth is illuminating
in this regard. Both dissents were critical of the bright-
line rule distinguishing simultaneous crimes from sequen-
tial ones. 42 F.3d at 1026-27 (Flaum, J., concurring in
part and dissenting in part); id. at 1035, 1037 (Ripple, J.,
concurring in part and dissenting in part). Both argued
for a less rigid approach that would allow more
pragmatic judgments in examining a set of prior crimes
to determine whether they should be treated as sepa-
rate or distinct criminal episodes. Judge Flaum sug-
gested that “a nuanced, fact-based approach better
resolves how many occasions are encompassed within a
particular course of conduct.” Id. at 1027. Judge Ripple
observed that the court’s adoption of a bright-line test
constituted a departure from its prior decisions in this
area, which “ha[d] reflected a thoughtful and measured
approach to the task required by the statute—identifying
16 No. 11-2766
those criminals whose repetitive behavior requires a
special degree of isolation from society.” Id. at 1035; see
also id. at 1037. He argued that “[f]actors of time and
distance must be evaluated in terms of the legislative
intent in order to identify and segregate the true recidi-
vist.” Id. at 1036. Looking at the facts in Hudspeth
through that lens, Judge Ripple concluded that the
series of three burglaries should be treated as a single
episode:
In a very short period of time, Mr. Hudspeth and his
accomplices, with a sledgehammer and other tools,
broke into three adjoining businesses in one location
and ransacked them. Their arrival with such tools
designed to expedite the penetration of the walls
between the adjacent businesses reflects a clear plan
for the group to work together to break through
from one business to another. This venture did not
comprise “distinct aggressions,” [Godinez, 998 F.2d
at 473], but rather a singular, continuous course
of conduct that depended on the spatial proximity of
these stores. . . .
Id. Judge Flaum agreed:
I view the fact that Hudspeth and his partners
entered several attached but separate stores at sequen-
tial addresses, as opposed to, for example, several
departments of a single larger store, to be a mere
fortuity in these circumstances.
Id. at 1027.
It is worth pointing out that neither dissent signaled
any disagreement with the holdings of pre-Hudspeth
No. 11-2766 17
decisions like Schieman and Godinez, which were given
significant attention in the majority decision in Hudspeth
and which treated crimes committed within a very
short time of one another as separate episodes for
purposes of the ACCA. See Schieman, 894 F.2d 909 (defen-
dant assaulted police officer who approached him
to question him about burglary he had committed some
five to 10 minutes earlier and three blocks away); Godinez,
998 F.2d 471 (defendant kidnapped woman in order to
use her car in robbery, which he committed slightly
more than one hour after the kidnapping). Judge Ripple’s
dissent, in fact, recognized that the sort of recidivism
that Congress meant to punish more severely when it
enacted the ACCA “can be manifest in relatively short
time frames and in situations not far removed from
each other,” and his dissent cited many cases to that
effect. 42 F.3d at 1035 & n.20.
Instead, the dissenters believed that the majority’s error
in Hudspeth lay in emphasizing the sequential nature of
a defendant’s criminal acts to the exclusion of other
circumstances suggesting that those acts ought to be
treated as part of a single criminal episode. Illustratively,
Judge Ripple pointed out that under the majority’s
simultaneous-versus-sequential test, a defendant who
enters a dwelling and shoots multiple people simulta-
neously with one burst of automatic weapons fire
commits a single aggression, but if he then walks into
another room to shoot another person, he commits a
second, distinct aggression. Id. at 1037. Judge Flaum
similarly noted that the majority’s way at looking
at sequencing attributed artificial importance to
18 No. 11-2766
fortuitous circumstances: thus, in Hudspeth, the sequen-
tial burglaries of adjoining but separate businesses
were treated as distinct criminal episodes, whereas
an unlawful entry into a single business, and the
ensuing break-in into several locked offices within that
business, would be deemed one criminal episode. Id.
at 1026.
Overruling Hudspeth would remove just one of the
obstacles to Elliott’s position. It would do away with
Hudspeth’s bright-line rule and leave room for the
more nuanced judgments for which the dissenters in
that case advocated. If the facts underlying Elliott’s
three prior burglaries were comparable to those at issue
in Hudspeth, the door might be open to Elliott’s con-
tention that his prior burglaries constituted one criminal
episode for purposes of the ACCA. But Elliott did not
burglarize, one right after the other, three business
in the same mall or three adjoining townhouses. He
burglarized three different residences on different
days.4 Even with Hudspeth cleared from his path, Elliott
still would have to contend with a wealth of authority,
including precedents like Schieman and Godinez, which
treat crimes committed at different locations and at
different times—even when separated only by a matter
4
Elliott’s counsel informs us, although this fact is not in the
record, that each of the residences Elliott burglarized were
apartments essentially in the same complex. Even so, it is
clear from the record Elliott did not burglarize the apart-
ments seriatim on the same day.
No. 11-2766 19
of minutes or hours—as distinct for purposes of the
ACCA. See United States v. Hale, supra, 227 F. App’x at 510
(“even if we were to employ a case-by-case approach,
as Hale advocates, the facts of his case do not suggest
that his two robberies [of different businesses on same
day] could be considered one”); United States v. Godinez,
supra, 998 F.2d at 473 (“Godinez . . . committed his
crimes against different victims, in different places,
more than an hour apart. It would strain language con-
siderably, without serving any purpose plausibly attrib-
uted to Congress, to treat the kidnapping and the rob-
bery as a single ‘occasion.’ ”); Schieman, 894 F.2d at 913(“Schieman had successfully completed the burglary
of Jenny’s Cake Fair and safely escaped from the prem-
ises before committing the subsequent offense [five to
10 minutes later].”); see also United States v. Spears, 443 F.3d
1358, 1360 (11th Cir. 2006) (two robberies of multiple
victims in same parking lot within two minutes and 25
to 30 feet of one another); United States v. Deroo, 304
F.3d 824, 828 (8th Cir. 2002) (“Crimes occurring even
minutes apart can qualify [as distinct criminal acts],
however, if they have different victims and are com-
mitted in different locations.”) (citing United States v. Gray,
85 F.3d 380, 381 (8th Cir. 1996) (two burglaries of nearby
houses within 25 minutes), and United States v. Hamell,
3 F.3d 1187, 1191 (8th Cir. 1993) (two assaults, inside
and outside of same bar, within 25 minutes)); United
States v. Hobbs, 136 F.3d 384, 387-89 (4th Cir. 1998) (three
burglaries of three different stores, at least a mile apart
from one another, in space of one hour); United States
v. Rideout, 3 F.3d 32, 35 (2d Cir. 1993) (successive
20 No. 11-2766
burglaries of two different homes separated by distance
of 12 to 13 miles and driving time of 20 to 30 minutes);
United States v. Brady, supra, 988 F.2d at 668-70 (robberies
at different locations, 45 minutes apart); United States v.
Antonie, 953 F.2d 496, 499 (9th Cir. 1991) (two armed
robberies, at two different businesses in different towns,
40 minutes apart); United States v. Tisdale, supra, 921 F.2d
at 1098-99 (burglaries of two businesses and post office
located inside of same shopping mall in course of one
night); United States v. Washington, 898 F.2d 439, 442
(5th Cir. 1990) (successive robberies of same clerk at
same convenience market several hours apart).
Elliott’s theory is that his prior burglaries comprised
a single crime spree triggered by a need for money to
support his drug habit. But on that view, even a long
string of crimes, committed over a much greater
expanse of time than Elliott’s burglaries were, could be
construed as a single criminal episode. An addiction to
drugs or alcohol, for example, may be at the root of crimi-
nal behavior that spans years rather than days. (Elliott’s
own addiction to multiple narcotics appears to have
plagued him for a substantial period of his life.) There
might be some sense in treating a series of crimes as
essentially one, indivisible episode, particularly when
the crimes occurred in a discrete part of the defendant’s
past and are explained by something like an addiction
that the defendant later overcame. The district judge in
this case himself entertained “long thoughts” about
how Elliott’s prior burglaries were best characterized.
2011 WL 3273466, at *1; R. 18-2 at 20.
No. 11-2766 21
Nonetheless, it is difficult to reconcile Elliott’s theory
with the language that the ACCA uses. The statute
refers to crimes “committed on occasions different from
one another.” § 924(e)(1). When a day or more has
passed between offenses, especially when the offenses
were committed at different locations and against
different victims, logic suggests that these crimes
occurred on different occasions. See, e.g., United States v.
Ross, 569 F.3d 821, 823-24 (8th Cir. 2009) (two crack
cocaine sales made three days apart to same informant);
United States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005)
(seven residential burglaries occurring on six different
dates, some within days of one another and two on
same day); United States v. Stearns, 387 F.3d 104, 108-09
(1st Cir. 2004) (two burglaries of same warehouse on
consecutive days); United States v. Richardson, 230 F.3d
1297, 1300 (11th Cir. 2000) (per curiam) (two burglaries
of different buildings at least 30 hours apart), abrogated
on other grounds by Shepard v. United States, supra, 544
U.S. 13, 125 S. Ct. 1254; (United States v. Melina-Gutierrez,
980 F.2d 980, 983 (5th Cir. 1992) (three burglaries com-
mitted within weeks of one another); United States v.
Roach, 958 F.2d 679, 683-84 (6th Cir. 1992) (three drug
sales made over course of two weeks, two of which
were separated by one day). Elliott himself cites no case
to the contrary. The cases that he does cite are readily
distinguishable, in that they involve crimes that over-
lapped temporally, see United States v. Willoughby, 653
F.3d 738, 744-45 (8th Cir. 2011) (near-simultaneous sales
of marijuana to police officer and informant as they
stood side by side in defendant’s living room); United
22 No. 11-2766
States v. Towne, 870 F.2d 880, 891 (2d Cir. 1989) (kidnap
and rape of same victim), or took place on the heels of
one another, see United States v. Murphy, 107 F.3d 1199,
1210 (6th Cir. 1997) (defendant was guarding victim at
the site of the first burglary while his accomplices pro-
ceeded to burglarize next-door residence in same du-
plex); United States v. Graves, 60 F.3d 1183, 1187 (6th
Cir. 1995) (defendant’s assault on police officer while
attempting to flee from the site of his burglary). The
district court was therefore correct when it observed
that Elliot’s burglaries would not be treated as a single
criminal episode under any jurisdiction’s precedent.
III.
The district court committed no error in finding that
Elliott’s burglaries occurred on different occasions
for purposes of the ACCA. The burglaries occurred on
different days and involved different residences and
victims. Under any plausible construction of the
statute’s different-occasions language, the burglaries
constituted distinct criminal episodes. Reconsideration
of the approach that this court adopted in Hudspeth
would not lead to a different result on the facts of this
case. To the extent that the statute produces results that
are perceived as unjust, the problem is one for Congress
to fix rather than this court.
A FFIRMED.
12-20-12