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 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:
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,
(4th Cir. 1991), it
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,
[11th Cir.], cert. denied, ___ U.S. ___,
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).
With the settled law of the other Circuits in mind, the Court
will now review the facts established at the Fatico hearing
held on September 13, 1991.
The defendant Paul Chartier was the sole witness. In essence,
the defendant testified that in 1974 he was involved in a
series of criminal activities. He was "strung out on heroin"
and committed the crimes to obtain drugs. He got together with
two other addicts and they "decided to rob together."
A Not daily.
A Yes, sir.
A Well, yes.
Q It would be fair to say that you would decide
when the money ran out what you were going to do
A I was living like for the minute.
THE COURT: Living what?
THE WITNESS: Living for the minute, not even the
day. Like when you are strung out.
Q In fact, sir, I think you told us on your direct
testimony, and I wrote this as near as I could, if
I am not reciting this correctly, tell me, that in
1974, after your first robbery at the Burger King,
you said you ran out of money real fast, then you
and Mr. Taylor and Mr. Massaro decided to rob
other places, is that so?
Q So you had not decided when you robbed the
Burger King you were going to rob in the future?
A We knew we were going to rob. We didn't know the
date or place.
Q Despite the fact you were strung out in 1974?
A Yes, sir.
Q And you just told us before, when you are using
heroin and living for the minute, correct?
A Yes, sir.
Q You are telling us, sir, that in 1974, you had
this all planned out before you did the first
A Yes, sir.
THE WITNESS: Yes. Like I said, we didn't say
well, on November 9, November 25, we are going to
go here and rob this and then rob that, but we
hooked up as a team to rob in the same fashion, you
know, whenever we needed the money that's what we
were going to do.
Q Had you planned to do another one?
A Not a certain place or time, no, because we had
Q In other words, when the money ran out then you
might decide to rob another place?
A We definitely were going to rob another place.
Q But you told us in 1988 —
THE COURT: You mean the Valley Stream Bankmoney,
when that ran out then you would decide to rob
THE WITNESS: We knew we were going to rob a bank
when the money ran out. But when it got down too
real low, that's when we looked, you know. (Tr. at
pp. 22-26) (emphasis supplied).
Q And you also told us on your direct testimony,
sir, that you decided to go up to Massachusetts to
rob the bank up there, after things got hot for
you in New York, because you had committed two
robberies in New York, is that fair to say?
Q So you didn't decide to go to Massachusetts until
after you had robbed the second bank, the bank in
New York, correct?
Q You also told us again, on your direct
testimony, that after you came back from
Massachusetts to Valley Stream, you said when we
came back John said "We have to do another bank"?
A Yes, sir.
Q It's fair to say then you had not decided to do
another bank until you came back to New York?
A Well, let me try to explain. We were partners in
this. We had a common way of doing this and that's
how we were going to do it. Like I said before, the
dates were not planned out. The places were not
planned out. The M O and the way we did it and
everything that was one thing. Like I said, if I
didn't get caught at that time I am sure there
would have been another one, you know."
(Tr. at p. 25) (emphasis supplied).
The defendant was sentenced for the prior 1974 armed
robberies to seven and one-half to fifteen years, and he
actually served nine years and six months. In response to a
question by the Court as to any other felonies he committed
before or after 1974, the defendant stated he committed many
burglaries since he was fourteen. After he left prison in 1984,
he was charged with
stealing a car and was arrested for possession of heroin and
cocaine, which is apparently still a pending state misdemeanor
In his closing arguments, the defendant's counsel contended
that (1) the guidelines do not define a "single common plan or
scheme"; (2) the Second Circuit stated that "the circumstances
have supported a finding of common scheme or plan, had one been
made"; (3) the defendant's testimony is uncontradicted; and (4)
the modus operandi from the four armed robberies was the same.
Considering all of the circumstances of the four prior armed
robbery felony convictions, this Court finds that the four
prior felony convictions were not "related" within the meaning
of the Sentencing Guidelines.
First, all four robberies, three in New York, one in
Massachusetts, were charged in separate indictments, and there
was no charge of conspiracy linking any of these substantive
offenses. Further, the state authorities never joined the
offenses for purposes of investigation or prosecution.
Second, accepting all of the defendant's testimony as true,
Chartier has not offered any proof that the four felonies were
"related" or part of a "single common scheme or plan". What has
been established is that the four armed robberies involved the
same defendant, who committed the same types of crimes,
employed the same modus operandi, and claims they were all done
to support his heroin addiction. The precedent from the
Circuits is clear that the mere similarity of separate crimes
committed within a short period of time does not create a
"common plan or scheme" so as to avoid career offender status.
This is the precise factual situation rejected by the Rivers
and Kinney courts. In fact, the Fourth Circuit in Rivers found
that the District Court's finding of "career offender" based
upon such similar crimes committed within twelve days to be
clearly erroneous and determined the issue on appeal as a
matter of law. Chartier has offered no evidence other than his
allegation that the crimes were all committed to support his
drug habit and that they were committed in a similar manner, to
support his contention that the four crimes, committed in two
states, were related or committed pursuant to a common scheme
In a letter dated September 20, 1991, from Ian Lowell Heller,
Esq., counsel to the defendant's attorney, he states at page
"Indeed, if the facts testified to by Mr. Chartier
do not provide the basis to a finding of common
scheme or plan, it is unlikely that any facts or
circumstances could be defined as such. If this is
not a common scheme or plan, nothing is!"
We know from a review of the pertinent precedents that crimes
committed in a similar manner, does not necessarily mean that
they are part of a "single common plan or scheme".
Theoretically, perhaps if the defendant and his co-perpetrators
sat around a table on October 30, 1974 and planned two
consecutive robberies of two predetermined locations, on two
predetermined dates, that may be sufficient to establish a
single common plan or scheme.
Here, the defendant conceded that the crimes were committed,
albeit in a similar manner, when his money ran out and he
decided he needed additional funds to support his drug habit.
These decisions to rob were four separate "spur of the moment"
decisions on each of four separate occasions and were not
related or part of a single common scheme or plan.
Accordingly, based upon the foregoing, the Court finds that
the four 1974 armed robberies were not "related" and were not
part of a "single common plan or scheme". The Court therefore
finds that the defendant Paul Chartier is a "career offender"
pursuant to Sentencing Guideline 4B1.1, and, in the sentencing
now before the Court should be in criminal history category VI.
The defendant will now be sentenced by this Court.
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