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