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U.S. v. CHARTIER

October 11, 1991

UNITED STATES OF AMERICA, PLAINTIFF
v.
PAUL CHARTIER, DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

OPINION AND ORDER

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.

BACKGROUND

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][1]).

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.

THE LAW

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. 1991]).

In United States v. Davis, supra, it was stated:

  "Although Davis's two crimes were of a similar
  type and shared the same modus operandi, they
  nevertheless constituted

  two separate crimes which he apparently
  perpetrated thirteen months apart. The Eleventh
  Circuit has held, and we agree, that a common
  modus operandi is not enough to demonstrate a
  single common scheme or plan. United States v.
  Jones, 899 F.2d 1097, 1101 [11th Cir.], cert.
  denied, ___ U.S. ___, 111 S.Ct. 275, 112 L.Ed.2d
  230 (1990)."

In United States v. Burkes, 937 F.2d 603 (4th Cir. 1991), it was held:

  "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
  scheme.
  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 [1990]).

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. 1989]).

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 stated:

  "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
  ...

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