The opinion of the court was delivered by: Spatt, District Judge.
Before the Court at this time is the resentencing of the
defendant Paul Chartier ("Chartier"), which raises an issue
apparently not yet considered by the courts of this Circuit:
whether a string of armed robberies concededly committed to
support a heroin addiction constitutes a single "common plan or
scheme" to avoid "career offender" status, when the prior
crimes were committed with the same individuals, within a
month, and utilizing the same modus operandi.
After a plea of guilty to armed bank robbery, at the first
sentencing proceeding on April 6, 1990, the Court determined
that the defendant was a "career offender" by reason of at
least two prior convictions for crimes of violence. With the
"career offender" enhancement, the guideline range was
increased to 210 to 262 months.
In United States v. Chartier, 933 F.2d 111 (1991), the Second
Circuit vacated the sentence and remanded the case for
resentencing, essentially on two grounds.
First, it held that a hearing should be held on whether the
four armed robberies committed by the defendant in 1974 were
part of a "common plan or scheme," as follows:
". . . we think Chartier should have a further
opportunity to obtain a finding on an issue which
turns an increment of 15 years of imprisonment . .
." (933 F.2d at p. 116).
Second, the Court stated that "[i]f, upon reconsideration,
the District Judge makes a finding that renders Chartier
subject to the career offender guideline, we urge the Judge to
give renewed consideration to the selection of the particular
sentence to be imposed within the guideline range" (933 F.2d at
p. 117). Also, in that event, since the guidelines range
exceeds 24 months, the District Judge would be required to
state "`the reason for imposing a sentence at a particular
point within the range'" (see id., quoting
18 U.S.C. § 3553[c]).
In accordance with this direction, a hearing pursuant to
United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979), cert.
denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980)
was held on September 13, 1991.
A career offender is one who (1) "was at least eighteen years
old at the time of the instance offense," (2) is being
sentenced for "a felony that is either a crime of violence or
a controlled substance offense", and (3) "has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense" (Sentencing Guideline § 4B1.1).
Judge Altimari recently discussed the "career offender"
provision, as follows:
"The `career offender' provisions of the
Sentencing Guidelines are designed to increase
substantially the sentences of those found to be
career criminals. See United States v. Richardson,
923 F.2d 13, 15 (2d Cir. 1991); U.S.S.G. § 4B1.1
and § 4B1.2. Thus, once a defendant is found to be
a `career offender,' his or her base offense level
is increased significantly and the defendant is
placed automatically in a criminal history category
of VI. See Richardson, 923 F.2d at 15;
U.S.S.G. 4B1.1. To qualify as a career offender, a
defendant must, among other things, have two prior
felony convictions that are either a `crime of
violence' or a `controlled substance offense.'
U.S.S.G. § 4B1.1" United States v. Liranzo,
944 F.2d 73, 78 (2d Cir. 1991).
Chartier argues that his four prior armed robbery felony
offenses were "related" since they were part of a "common plan
or scheme", and therefore he does not have "at least two prior
felony convictions" (see Sentencing Guideline § 4A1.2, comment
n. 3). In support of this contention, he points to: a similar
modus operandi; the fact that they are the same types of
crimes, namely, three armed bank robberies and one Burger King
robbery; the crimes occurred within a short period of time; and
that they were all committed to support his heroin addiction.
Offenses are "related", if they "(1) occurred on a single
occasion, (2) were part of a single common scheme or plan, or
(3) were consolidated for trial or sentencing" (Sentencing
Guideline § 4A1.2, comment n. 3).
It is significant within the factual purview of this case,
that a similar modus operandi has been held to be insufficient
to demonstrate a "common scheme" (see, e.g., United States v.
Burkes, 937 F.2d 603 [4th Cir. 1991] [per curiam] [unpublished
opinion]; United States v. Davis, 922 F.2d 1385, 1389 [9th Cir.
In United States v. Davis, supra, it was stated:
In United States v. Burkes, 937 F.2d 603 (4th Cir. 1991), it
"Burkes argues that his prior offenses were part
of a common scheme. He claims a similar modus
operandi and notes that both offenses were for
possession or distribution of narcotics, that both
offenses occurred in Connecticut, that the offenses
occurred within six weeks of each other, that he
purchased the drugs involved in both offenses from
the same supplier in New York, and that his
sentence for the second offense was to run
concurrent with the sentence for the first offense
although it was one year longer. These factors fail
to qualify Burkes' offenses as part of a common
A similar modus operandi is insufficient to
demonstrate a common scheme (United States v.
Davis, 922 F.2d 1385 [9th Cir. 1991])."
Also, "[a] relation between offenses is not probable when the
offenses occurred on different dates and in different
jurisdictions" (Burkes, supra, citing United States v. Rivers,
supra; see also United States v. Jones, 899 F.2d 1097, 1101
[11th Cir.], cert. denied, ___ U.S. ___, 111 S.Ct. 275, 112
L.Ed.2d 230 ).
Finally, concurrent sentences rendered in the prior offenses
do not necessarily indicate a relation or common plan (see,
e.g., United States v. Flores, 875 F.2d 1110, 1114 [5th Cir.
In Jones, supra, the defendant committed two bank robberies
involving two different banks on the very same day,
approximately ninety minutes apart. The Eleventh Circuit
affirmed the District Court which found that "the two incidents
in question were temporally distinct and involved two different
banks and two different tellers as victims . . . and were not
part of a single common scheme or plan" (899 F.2d at p. 1101).
A case factually similar to the one at bar is United States
v. Rivers, 929 F.2d 136 (4th Cir. 1991). The defendant in
Rivers had two prior convictions for armed robberies of gas
stations committed twelve days apart. The District Court found
that these two prior offenses were "related" since they were
committed pursuant to a common plan. The Fourth Circuit
reversed this finding as "clearly erroneous", and held the
defendant to be a "career offender" as a matter of law. In
rejecting the District Court's reasoning, the Circuit Court
"This finding is clearly erroneous. Such reasoning
would have the effect of making related offenses
of almost all crimes committed by one individual.
The fact that both offenses were committed to
support one drug habit does not make the offenses
related under § 4A1.2.
The district court's finding `[i]t was only an
accident of geography that precluded such
consolidation' is not supported by the record and
is clearly erroneous. The offenses were committed
in different jurisdictions and on different dates.
The offenses were adjudicated separately and