Merwyn Levering v. United States

United States Court of Appeals
For the Eighth Circuit
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No. 16-3454
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Merwyn L. Levering,
lllllllllllllllllllllPetitioner - Appellant,
v.
United States of America,
lllllllllllllllllllllRespondent - Appellee.
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: October 18, 2017
Filed: May 21, 2018
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Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.*
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COLLOTON, Circuit Judge.
In 2004, a jury convicted Merwyn Levering of two firearms offenses: unlawful
possession of a firearm as a previously convicted felon, and unlawful possession of
*
This opinion is filed by Judge Loken and Judge Colloton under Eighth Circuit
Rule 47E.
a stolen firearm. Based on his criminal history, the district court1 enhanced
Levering’s sentence pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e), and USSG § 4B1.4. The court later vacated Levering’s sentence under 28
U.S.C. § 2255 in light of intervening precedent, but again applied the ACCA
enhancement at a resentencing. Levering appeals the new sentence, and we affirm.
Following a three-day jury trial, Levering was found guilty of possession of a
firearm as a previously convicted felon (Count I), see 18 U.S.C. §§ 922(g), 924(e),
and possession of a stolen firearm (Count II), see 18 U.S.C. § 922(j). The ACCA
establishes a mandatory minimum term of fifteen years’ imprisonment and a
maximum of life imprisonment if a defendant is convicted under § 922(g) and has
sustained at least three previous convictions for a “violent felony . . . committed on
occasions different from one another.” 18 U.S.C. § 924(e)(1). At sentencing, the
district court determined that Levering had sustained at least three such convictions
so that he was subject to an enhanced statutory penalty under § 924(e) and an
increased sentencing guideline range under USSG § 4B1.4(b)(3)(A). The court
imposed concurrent sentences of 262 months on Count I (at the bottom of the
advisory guideline range) and 120 months on Count II.
The district court vacated Levering’s sentences in 2015 after the decision in
Johnson v. United States, 135 S. Ct. 2551 (2015), which declared unconstitutional the
“residual clause” of § 924(e)(2)(B)(ii). 135 S. Ct. at 2563. In light of Johnson, the
court concluded that one of Levering’s prior convictions on which the court had
relied at sentencing—a 2000 Nebraska conviction for escape from official
detention—no longer qualified as a violent felony. At resentencing, however, the
court determined that without considering the escape conviction, Levering was still
an armed career criminal based on three other prior convictions: a 1989 Nebraska
1
The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
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conviction for first-degree assault and two 1994 Iowa convictions for assault while
participating in a felony. The court then varied downward from the advisory
guideline range and sentenced Levering to 240 months on Count I and 120 months
on Count II, to be served concurrently.
The principal dispute on appeal concerns whether the two Iowa assault
convictions were for violent felonies “committed on occasions different from one
another” within the meaning of the ACCA. The convictions arose from Levering’s
high-speed flight from law enforcement officers in a stolen automobile on June 13,
1994. On that date, Levering drove a vehicle through Polk, Dallas, and Adair
counties in Iowa, weaved in and out of traffic, ran his vehicle into a pursuing police
car, and forced other vehicles off the road. Levering was charged and convicted of
assaults in all three counties. The district court concluded that the convictions from
Dallas County and Adair County were for violent felonies that were committed on
different occasions, and counted them both as predicate offenses for purposes of the
ACCA.
Levering argues that the district court erred in making that determination. He
contends that all of his assaults on June 13, 1994, occurred on a single “occasion”
while he fled from law enforcement officers in a high-speed chase across three Iowa
counties. We must determine, therefore, whether Levering committed the two Iowa
assaults in Dallas County and Adair County on “occasions different from one
another.”
As we explained in United States v. Davidson, 527 F.3d 703 (8th Cir. 2008),
vacated in part on other grounds by 551 F.3d 807 (8th Cir. 2008), and repeat here,
the statutory provision at issue has its genesis in a decision of this court. Id. at 707-
08. In United States v. Petty, 798 F.2d 1157 (8th Cir. 1986), vacated, 481 U.S. 1034
(1987), this court held that a defendant was subject to an enhanced sentence under 18
U.S.C. § 1202(a)(1) (Supp. 1984), based on “three previous convictions . . . for
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robbery or burglary,” when he was “convicted in a single indictment of six counts of
robbery stemming from an incident during which he robbed six different people in a
restaurant simultaneously.” 798 F.2d at 1159-60. When Petty petitioned for a writ
of certiorari, the Solicitor General confessed error, noting that “the legislative history
strongly supports the conclusion that the statute was intended to reach multiple
criminal episodes that were distinct in time, not multiple felony convictions arising
out of a single criminal episode.” United States v. Petty, 828 F.2d 2, 3 (8th Cir.
1987). The Supreme Court remanded the case to this court for reconsideration in
light of the Solicitor General’s position, Petty, 481 U.S. at 1034, and this court
remanded the case for resentencing. Petty, 828 F.2d at 3.
The following year, Congress amended the statute to add the requirement that
a defendant must have sustained three convictions “on occasions different from one
another” to qualify as an armed career criminal. Senator Biden, then the chair of the
Senate Judiciary Committee, explained his view that “a single multi-count conviction
could still qualify where the counts related to crimes committed on different
occasions, but a robbery of multiple victims simultaneously (as in Petty) would count
as only one conviction.” 134 Cong. Rec. S17360-02 (Nov. 10, 1988).
Since then, courts presented with multiple convictions for felonies committed
on a single day have striven to determine what is a separate “occasion.” We have said
that offenses occur on different occasions if they are “separate and distinct criminal
episodes that did not result from a continuous course of conduct.” United States v.
Hamell, 3 F.3d 1187, 1191 (8th Cir. 1993); see also United States v. Deroo, 304 F.3d
824, 828 (8th Cir. 2002). But this rephrasing raises more questions: What is an
“episode,” and what is a “continuous course of conduct?”
We know that the Petty situation—six robberies in a restaurant at the same
time—is one episode, a continuous course of conduct, and a single “occasion.” We
have also concluded that two convictions for drug sales to two customers in the same
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room seconds apart counted as only one prior conviction under the ACCA, because
the offenses were “committed, in essence, simultaneously.” United States v.
Willoughby, 653 F.3d 738, 742 (8th Cir. 2011). But even when an offender sets out
to commit multiple violent felonies on a single day, he can sustain more than one
qualifying conviction. In Deroo, we held that three burglaries on one night were
distinct occasions where the defendant burglarized three cabins with different owners
on different lakes. 304 F.3d at 828. We observed that the burglaries occurred in
three separate places and involved three separate victims. Id. United States v. Gray,
85 F.3d 380 (8th Cir. 1996), similarly held that burglaries of two homes located very
close to each other within twenty-five minutes were committed on separate occasions.
Id. at 381.
In Hamell, we held that two assaults were committed on different occasions
where the defendant stabbed one victim with a knife inside a tavern, and shot at
another victim twenty-five minutes later after that victim called the police and
approached the defendant’s girlfriend. 3 F.3d at 1191. We explained that the
“assaults happened at different times and places and had different motivations.” Id.
United States v. Humphrey, 759 F.3d 909 (8th Cir. 2014), likewise concluded that a
defendant’s convictions for first-degree assault and first-degree robbery were separate
predicate offenses where the two offenses were committed fifteen minutes and three
blocks apart against different victims. Id. at 911-12. Synthesizing our decisions, the
court in Willoughby observed that important considerations in the inquiry include “the
time lapse between offenses,” “the physical distance between their occurrence,” and
“their lack of overall substantive continuity, a factor that is often demonstrated in the
violent-felony context by different victims or different aggressions.” 653 F.3d at 743.
In Levering’s case, the charging documents from the Iowa criminal cases
establish that he committed the assaults in two different counties at different times
against different victims. One assault occurred in Dallas County, “just west of the
West Des Moines city limits,” and the other in Adair County, “[a]s the vehicle
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traveled west [on Interstate 80] in the eastbound lane.” In Dallas County, Levering
drove his vehicle into a car driven by a pursuing police officer and ran him off the
road; in Adair County, Levering forced numerous vehicles, including semi-trucks, off
the road.2
Levering acknowledges all of this, but he maintains that the two assaults should
count as only one predicate offense because they were part of a “continuous course
of conduct”—namely, his flight from police. Levering argues that his assaults, like
the drug sales in Willoughby, were not “separate and distinct criminal episodes”
because they shared the same motivation—evading arrest—and were committed
without any intervening period of repose that might have provided Levering an
opportunity to cease his criminal activity.
We reject Levering’s argument as inconsistent with the thrust of our precedent.
Although the phrase “continuous course of conduct” appears in our cases on this
2
Several circuits have concluded that a sentencing court deciding the occasions-
different question is limited to consulting judicial records of the type described in
Shepard v. United States, 544 U.S. 13, 26 (2005). See United States v. King, 853
F.3d 267, 270-75 (6th Cir. 2017); United States v. Dantzler, 771 F.3d 137, 143-46 (2d
Cir. 2014); Kirkland v. United States, 687 F.3d 878, 883-87 (7th Cir. 2012); United
States v. Sneed, 600 F.3d 1326, 1330-33 (11th Cir. 2010); United States v. Taylor,
413 F.3d 1146, 1156-58 (10th Cir. 2005); United States v. Thompson, 421 F.3d 278,
281-86 (4th Cir. 2005). This court in United States v. Boyles, 235 F.3d 1057 (8th Cir.
2000) (per curiam), said that Taylor v. United States, 495 U.S. 575 (1990), did not
limit the evidence that a sentencing court may consider, but Boyles relied on decisions
from the Sixth and Seventh Circuits that were later abrogated by Shepard. 235 F.3d
at 1057. We have not addressed the question directly in a published opinion since
Shepard. See United States v. Melbie, 751 F.3d 586, 588 n.4 (8th Cir. 2014) (parties
waived any objection); United States v. Keith, 638 F.3d 851, 853 (8th Cir. 2011)
(Shepard-approved materials sufficient to resolve dispute). Limiting our review to
the Shepard materials would not affect the outcome here, so we take the conservative
approach by consulting only the charging documents and judgments.
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subject, it has proved unhelpful to the analysis. A burglar on a one-night crime spree
engages in a “continuous course of conduct,” in the ordinary sense of the phrase, as
he moves from home to home stealing property within a short period. Yet we have
held that multiple burglaries within an hour as part of a single plan are committed on
different occasions because they involve different times, locations, and victims.
Deroo, 304 F.3d at 827-28; Gray, 85 F.3d at 381.
Levering is correct that a finding of “different motivations” for multiple
offenses can support a determination of different occasions, Hamell, 3 F.3d at 1191,
but a change in purpose is not a necessary condition. A serial burglar presumably
acts with a single motivation to gather stolen property, but his multiple burglaries on
a single night occur on different occasions. And while we have relied on “a
discernable pause in activity” between offenses to support a determination of
different occasions, Davidson, 527 F.3d at 710, the primary significance of the pause
is the chance to discontinue criminal activity—an opportunity that is not present in
the case of simultaneous offenses like the restaurant robbery in Petty or the dual drug
sale in Willoughby. Levering’s high-speed flight might not have facilitated calm
reflection, but the length of the pursuit undoubtedly gave him an opportunity “to
cease and desist from further criminal activity,” id., by discontinuing the chase or
making a conscious choice to avoid assaulting other drivers whom he encountered on
the road. See United States v. Williams, 187 F.3d 429, 431 (4th Cir. 1999).
We respectfully differ with the broad statement in two unpublished opinions
from the Sixth Circuit that “[g]enerally when a person is evading or resisting arrest
immediately following the actions giving rise to the arrest, subsequent offenses
arising out of the evasion or resistance are part of the same criminal episode.” United
States v. Clark, 591 F. App’x 367, 376 (6th Cir. 2014); see United States v. Mann,
552 F. App’x 464, 470 (6th Cir. 2014). These nonprecedential decisions purported
to derive the quoted proposition from United States v. Graves, 60 F.3d 1183 (6th Cir.
1995), see Mann, 552 F. App’x at 470, but they extended Graves in a significant way
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without convincing explanation. Graves involved a burglary and an assault that was
committed while resisting arrest for the burglary. The perpetrator “was still at the
location of the burglary when he was chased by the police and pointed the gun at the
officer.” 60 F.3d at 1187. The common location for both offenses led the Graves
court to find the situation “more closely analogous to Petty where the defendant
simultaneously robbed multiple victims.” Id. But Graves itself was rejected by the
Fourth Circuit in United States v. Leeson, 453 F.3d 631, 643 n.5 (4th Cir. 2006), so
Clark and Mann rise from a shaky foundation. And whatever the merit of Graves and
its conclusion about offenses committed in a single location, its rationale does not
dictate that all activity undertaken while resisting or evading arrest at different places
and at different times occurs on a single “occasion.”
Levering committed two assaults on the same date but at different times in
different counties against different victims. We conclude that Levering’s assaults in
Dallas and Adair counties were “committed on occasions different from one another”
and qualify as separate predicate offenses under § 924(e). The district court thus
properly enhanced Levering’s sentence under the ACCA and the corresponding
sentencing guideline.
Levering also argues that the district court imposed a substantively
unreasonable sentence under 18 U.S.C. § 3553(a). He contends that even if the court
correctly determined that Levering was an armed career criminal, the court abused its
discretion by giving too little weight to mitigating factors, such as Levering’s age and
supportive family. The district court, however, has wide latitude in deciding how to
weigh the relevant factors under § 3553(a). In pronouncing Levering’s sentence, the
court stressed Levering’s lengthy criminal history and disciplinary violations while
in prison. The court observed that at the original sentencing, it “didn’t appear that
[Levering] had any intention to be a law-abiding, productive citizen.” Ultimately,
after recognizing that Levering had accepted responsibility and was “no longer in
denial,” the court varied downward from the advisory guideline range by 22 months
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and imposed concurrent sentences of 240 months on Count I and 120 months on
Count II. “[I]t is nearly inconceivable that the court abused its discretion in not
varying downward still further.” United States v. Lazarski, 560 F.3d 731, 733 (8th
Cir. 2009). We conclude that there was no abuse of discretion.
The judgment of the district court is affirmed.
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