# United States v. Thomas L. Hudspeth > Court of Appeals for the Seventh Circuit · October 28, 1994 · 42 F.3d 1015 URL: https://www.frixlaw.com/law-library/cases/9487609 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Thomas L. HUDSPETH, Defendant-Appellant - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** October 28, 1994 - **Citations:** 42 F.3d 1015; 1994 U.S. App. LEXIS 30123; 1994 WL 592706 - **Precedential status:** Published - **Opinion:** Concurring in part by Flaum - **Judges:** Posner, Fairchild, Cummings, Bauer, Coffey, Flaum, Easterbrook, Ripple, Manion, Kanne, Rovner - **Cited by:** 132 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled — as noted by a later court. - Negative treatments: 3 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9487609 ## How later opinions describe it (automated extraction) - holding that a certified record of conviction satisfies the Government's burden and the defendant must then establish that the prior convictions occurred on one occasion - concluding that defendant who sequentially burglarized three separate businesses in the span of thirty minutes had committed three different offenses for purposes of the armed career criminal sentence enhancement - noting that Taylor applies to the issue as to whether a prior offense constituted a "violent felony” under the ACCA, which is to be decided only by reference to the statutory definition of the crime, and not the particular facts underlying the conviction, whereas Taylor does n… - holding that each unlawful entry was a separate and distinct episode where defendants burglarized three adjacent businesses in a strip mall over the course of thirty minutes ## Opinion text FLAUM, Circuit Judge, with whom POSNER, Chief Judge, and ROVNER, Circuit Judge, join, concurring in part and dissenting in part. At its core, this case requires us to determine the meaning of the statutory language “occasions different from one another,” 18 U.S.C. § 924 (e)(1), a phrase that most of us agree is ambiguous. The full court has divided roughly between those who believe the test of what is an “occasion” calls for a bright-line rule and those who believe that a fact-bound, case-by-case method is preferable. I write separately to explain why I believe the latter approach is better suited to the inquiry we are asked to make. The statutory text and structure provide no clues as to precisely what Congress meant by the term “occasions”; Congress used the term without elaboration. As the principal opinions note, in grappling with the ambiguity of the ACCA, we (and other courts) have held that a different “occasion” means a “separate and distinct criminal episode,” United States v. Godinez, 998 F.2d 471, 472 (7th Cir.1993); United States v. Schieman, *1026 894 F.2d 909, 913 (7th Cir.), cert. denied, 498 U.S. 856 , 111 S.Ct. 155 , 112 L.Ed.2d 121 (1990), but this refinement is only marginally less ambiguous than the statutory provision it explains. The legislative history provides some illumination — we know that simultaneous crimes are to be counted as a single occasion — but not enough to dispose of this case as we are not told whether to make the negative inference that nonsimultaneous crimes cannot occur on one occasion. In my view, the import of the post-Petty amendment to the ACCA is that Congress has spoken clearly to a particular factual scenario (several robberies accomplished by the same “stick-em-up”), but has otherwise left to the courts the task of giving meaning to the phrase “committed on occasions different from one another.” Thus, the amendment does not resolve, once and for all, that all cases involving several crimes committed hard on the heels of one another, though not simultaneously, count as different criminal occasions. Indeed, the snippet of legislative history cited in the majority opinion says as much — “a single multi-count conviction could still qualify where the counts related to crimes committed on different occasions.” See supra at 14 (emphasis added). Sequential crimes can, and often will, involve multiple occasions, but this need not always be the ease. The majority concludes that Hudspeth ought to receive the ACCA enhancement on the basis of his three distinct aggressions against three separate victims in three separate locations. This approach has the apparent virtue of drawing a bright-line (between simultaneous and sequential crimes) that would make the law more predictable for defendants and easier to apply for courts. * For these reasons, Congress might rationally adopt such a rule, though I believe its mechanical application would lead to just as many, if not more, arbitrary results as a case-by-case approach would produce. For example, compare Hudspeth’s situation with that of a defendant who breaks into a small office building (one address, one owner, one insurance company) and then pries his way into three locked offices within that building, •absconding with all of the electronic equipment and petty cash he can find. It would be reasonable to conclude that Hudspeth and our hypothetical defendant are equally aggressive, dangerous, and culpable. Both could have ceased after a single entry, but instead chose to expand their illegal activities to two additional locations before stopping (or being stopped). Yet under the proposed bright-line rule, it is three strikes and you’re out for Hudspeth while his more fortunate cohort remains in the batter’s box with just one strike, though we can be reasonably certain that, like his brother in crime, Hudspeth sought cash and easily-fenced appliances and had no particular affinity for doughnuts, dry cleaning, or insurance — or knew or cared who owned what. In my view, the text, structure, and history of the ACCA neither compel nor suggest this particular (or any) bright-line rule. Indeed, in view of the malleability of the relevant terms (“occasions different from one another” and “separate and distinct criminal episode”), see United States v. Balascsak, 873 F.2d 673 (3d Cir.1989) (en banc), cert denied, 498 U.S. 864 , 111 S.Ct. 173 , 112 L.Ed.2d 138 (1990), I find it quite plausible that Congress declined to define them more precisely so that judges could decide what is an “occasion” by applying an ordinary, every-day meaning to the myriad factual scenarios that arise. We have in the past rejected the notion that fact-dependent standards necessarily produce more inconsistent and arbitrary results than hard and fast rules, see Morgan v. Bank of Waukegan, 804 F.2d 970, *1027 977 (7th Cir.1986), and we ought to do so again today. “[DJeveloping the law on a case-by-case basis and drawing lines depending on the facts is the stuff of judging,” Balascsak, 873 F.2d at 685 (Becker, J., concurring), and over time this process shapes the contours of the law in such a way that future eases follow increasingly more predictably from those that preceded them. For example, we know from Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970), and Petty that the simultaneous robbery of six persons counts as a single occasion while Schieman (involving an assault following a robbery) and Godinez (involving a kidnapping following a robbery) establish that one crime following soon after another can be a separate occasion. These eases guide our analysis of the instant case, though, in my view, they are not dispositive because Hudspeth’s actions fall within the gray area between what the earlier cases establish as single and multiple occasions. While the lapse of time surely is an important factor in determining the number of “occasions” or “episodes”, I read our cases to suggest that other practical considerations— whether the events in question reflect distinct aggressions or demonstrate heightened criminal culpability or dangerousness to society — also may be relevant. See Godinez, 998 F.2d at 472-73 . Congress may, of course, amend the ACC A to guide courts with respect to what is an occasion, but unless and until it does, I believe that a nuanced, fact-based approach better resolves how many occasions are encompassed within a particular course of conduct. In this ease, I find that Hudspeth’s actions, like those of the hypothetical defendant sketched above, were the product of a single aggression and I view the fact that Hudspeth and his partners entered several attached but sepárate stores at sequential addresses, as opposed to, for example, several departments of a single larger store, to be a mere fortuity in these circumstances. In sum, I endorse Judge Ripple’s fact-based approach and agree that we should reverse the sentence in this case. But is this such a bright line after all — or does it simply substitute one ambiguity for another? Consider the burglar who enters a home and pilfers the television from the family room, the candlesticks from the living room, and some jewelry from the bedroom. Has he acted simultaneously or sequentially? Clearly he cannot grab all of these objects with one clean scoop of the arm (nor could one acting without the benefit of specialized equipment or a contortionist’s talents rob or shoot six victims at precisely the same instant), and the proper characterization of the burglar's acts will turn on how much time we will tolerate between so-called “simultaneous" occurrences. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9487609. Public record. Not legal advice.