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Criminal Practice – Burglaries Were on ‘Separate’ Occasions

U.S. v. Linney (Lawyers Weekly No. 001-074-16, 16 pp.) (Wilkinson, J.) No. 14-4847, April 26, 2016; USDC at Statesville, N.C. (Voorhees, J.) 4th Cir.

Holding: A district court did not err in determining that, during a two-day crime spree, defendant committed two separate burglaries on different occasions, making defendant eligible for an enhanced sentence under the Armed Career Criminal Act; the 4th Circuit affirms defendant’s sentence of 235 months.

After defendant pleaded guilty to being a felon in possession of a firearm, he objected to a presentence report classifying him as eligible for sentencing under the ACCA, based on his criminal record. He argued that two of the three burglaries noted in the PSR occurred on the same occasion and thus both could not be used to support the ACCA enhancement. The parties submitted the state court records from the two burglary convictions to support their respective arguments. These records included the indictments, the plea transcript, the judgment and an accompanying restitution worksheet.

Although defendant concedes the burglaries at issue involved different victims, he argues the close proximity of the two houses prevented him from making a conscious and knowing decision to engage in the second burglary.

We cannot accept this view. It is undisputed that the indictments show that the burglaries occurred at two distinct street addresses, which means that they occurred at different geographic locations. Although the two houses may stand only 30 feet apart, we agree with the district court that this distance gave defendant a sufficient opportunity to evaluate whether to commit another crime. Further, defendant concedes that the victims were separately victimized by the two burglaries.

We cannot accept defendant’s invitation to turn a blind eye to the separate nature of his burglaries and thereby effectively rule that two crimes are no worse than one.

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