United States v. Mora-Zapata , 94 F. App'x 63 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-8-2004
USA v. Mora-Zapata
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3072
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-3072
____________
UNITED STATES OF AMERICA
v.
ELMER DEJESUS MORA-ZAPATA
a/k/a CARLOS
a/k/a PEDRO COTTO
a/k/a HELMER JESUS MORA
a/k/a ELMER MORA
Elmer DeJesus Mora-Zapata,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cr-00580-1)
District Judge: Honorable Michael M. Baylson
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Submitted Under Third Circuit LAR 34.1(a)
March 30, 2004
Before: ALITO, FISHER and ALDISERT , Circuit Judges.
(Filed: April 8, 2004)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
On February 19, 2003, Appellant Elmer Dejesus Mora-Zapata pled guilty to six
drug-related offenses. In calculating Mora-Zapata’s sentence, the United States District
Court for the Eastern District of Pennsylvania deemed Mora-Zapata to be a “career
offender” under U.S.S.G. § 4B1.1 because of Mora-Zapata’s two prior felony drug
convictions. Mora-Zapata challenges the district court’s “career offender” decision on
grounds that the two prior felony drug convictions were “related cases” under U.S.S.G. §
4A1.2 that cannot support a “career offender” designation. Because the two prior felony
drug convictions were not “related cases,” we affirm Mora-Zapata’s sentence.
I.
Section 4B1.1 of the Sentencing Guidelines, the “career offender” provision,
mandates an enhancement where a defendant convicted of a crime of violence or a
controlled substance offense “has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). Whether prior felony
convictions actually constitute “two prior felony convictions” for purposes of § 4B1.1(a)
turns on whether “the sentences for ... [those] felony convictions are counted separately
under the provisions of § 4A1.1(a), (b), or (c).” U.S.S.G. § 4B1.2(c). Section
4A1.2(a)(2) provides that “[p]rior sentences imposed in related cases are to be treated as
one sentence for purposes of § 4A1.1(a), (b), or (c).” U.S.S.G. § 4A1.2(a)(2).
2
Application Note 3 to § 4A1.1 explains when prior sentences are considered to
have been “imposed in related cases” for purposes of § 4B1.1:
Prior sentences are not considered related if they were for
offenses that were separated by an intervening arrest (i.e., the
defendant is arrested for the first offense prior to committing
the second offense). Otherwise prior sentences are considered
related if they resulted from offenses that (A) occurred on the
same occasion, (B) were part of a single common scheme or
plan, or (C) were consolidated for trial or sentencing.
U.S.S.G. § 4A1.1 appl. note 3.
The district court designated Mora-Zapata as a “career offender” under § 4B1.1(a)
because of Mora-Zapata’s two prior felony drug convictions in the United States District
Court for the Middle District of Pennsylvania – Criminal No. 84-00159, a conviction for
drug distribution-related offenses based on conduct that occurred on or about
September 25, October 2 and October 25, 1984 (the “159 offense” or “159 conviction”);
and Criminal No. 85-00193, a conviction for drug distribution-related offenses based on
conduct that occurred between early 1983 and the summer of 1984, though distinct from
the conduct underlying the 159 offense (the “193 offense” or “193 conviction”). Mora-
Zapata contends that the 159 and 193 convictions were not separate “prior felony
convictions” because (a) they “occurred on the same occasion” or (b) “were part of a
single common scheme or plan” within the meaning of Application Note 3 to § 4A1.1.1
1
As Mora-Zapata correctly points out, his prior drug-related offenses were not
separated by an intervening arrest and are therefore not disqualified from being “related”
under the “intervening arrest” prong of Application Note 3 to U.S.S.G. § 4A1.1.
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II.
The district court’s determination that Mora-Zapata’s 159 and 193 convictions
were not “related cases” was not erroneous under any standard of review.2 The 159 and
193 convictions were not “related cases” because the offenses underlying them did not
occur on the “same occasion.” Mora-Zapata submits that an “occasion” can be months,
or even years; that the conduct underlying the 193 conviction, alleged in the indictment to
have occurred during the period from early 1983 through December 1984, defines an
“occasion”; and that because the conduct underlying the 159 conviction occurred between
early 1983 and December 1984, it occurred on the “same occasion” as the conduct
underlying the 193 conviction.3
Mora-Zapata’s delineation of “occasion” obliterates the concept and recognizes no
discernible limits to its scope. If an “occasion” can be a period of almost two years, why
2
We have not yet specifically decided what standard of review governs a district
court’s determination that prior felony offenses occurred on the “same occasion,” though
we have determined that a district court’s determination that a defendant’s prior drug
convictions were part of a “single common scheme or plan” must be reviewed only for
“clear error.” See United States v. Beckett, 208 F.3d 140, 147 (3d Cir. 2000). We need
not decide whether the clearly erroneous standard also applies to “same occasion”
determinations because the district court’s decision at issue here survives even the most
searching scrutiny.
3
We assume arguendo that the conduct underlying the 193 conviction extended
beyond the summer of 1984 until December of 1984. As the presentence report reflects,
however, the government’s intended proofs in the 193 matter would only have supported
conduct occurring from early 1983 through the summer of 1984, thus concluding prior to
the conduct underlying the 159 conviction. We need not consider this factual issue
further because even Mora-Zapata’s description of the timing of his conduct does not
support a finding of “same occasion” under our interpretation of the concept.
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not five years, ten years or twenty years? Perhaps if the conduct at issue is closely
connected in terms of the identities of the offenses, victims and accomplices, an
expansive interpretation of “occasion” might be permissible. But then, these forms of
relatedness are already covered by § 4A1.2's “single common scheme or plan” provision.
Courts tend to regard temporal concerns as controlling in assessing whether
conduct occurred on the “same occasion.” See United States v. Moreno-Arredondo, 255
F.3d 198, 207 (5 th Cir.), cert. denied, 122 S.Ct. 491 (2001).4 For example, in United
States v. Paden, 330 F.3d 1066 (8 th Cir. 2003), the Eighth Circuit found that defendant’s
offenses on January 1, 1990 and January 5, 1990 did not occur on the “same occasion”
because they were separated by four days. Paden, 330 F.3d at 1067. While we decline to
say precisely how close together in time offenses must have occurred in order to have
taken place on the “same occasion,” it is clear that where, as here, offenses occurred on
4
The Fifth Circuit in Moreno-Arredondo did recognize that non-temporal elements
such as the similarity and geographical proximity of the prior offenses could be
considered, but that “[o]nly the extent of the temporal separation between commissions
can be controlling for purposes of the same-occurrence prong[.]” Moreno-Arredondo,
255 F.3d at 207. Mora-Zapata relies heavily on Moreno-Arredondo because it involved
one of the rare instances where a court found that prior offenses had occurred on the
“same occasion.” But Moreno-Arredondo is highly distinguishable from this case: the
offenses underlying the defendant’s prior convictions there (indecency with a child)
occurred within minutes of each other without interruption at precisely the same location
– the same seat on the couch in the living room of the home in which defendant, the
victims, and the victims’ mother resided. The Fifth Circuit only examined the nature and
location of the offenses because the temporal separation between the offenses (mere
minutes) was de minimis.
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multiple different days over a span of more than one year, they cannot be said to have
occurred on the “same occasion.”
Mora-Zapata’s attempt alternatively to fit his 159 and 193 convictions into the
“single common scheme or plan” prong of § 4A1.2 similarly fails. Mora-Zapata argues
that his prior convictions were part of a “single common scheme or plan” because they
involved “alleged cocaine sales during the same continuous period of time in the Pocono-
area of the Middle District of Pennsylvania.” In other words, Mora-Zapata would have us
find that repeated commissions of the same crime in the same general geographic area
over a span of more than one year suffices to establish a “single common scheme or
plan.”
Mora-Zapata bears the burden of establishing that the prior convictions were part
of a common scheme or plan. Beckett, 208 F.3d at 147 (citation omitted). We noted in
Beckett “that the terms ‘scheme’ and ‘plan’ are words of intention, implying that [the two
offenses] have been jointly planned, or at least that it would have been evident that the
commission of one would entail the commission of the other as well.” Id. at 147 (quoting
United States v. Ali, 951 F.2d 827, 828 (7 th Cir. 1992)) (internal quotation marks
omitted).
Mora-Zapata offered nothing at his sentencing hearing to demonstrate that the 159
and 193 offenses had been jointly planned, and does not even attempt to do so in his brief
to this Court. Nor has Mora-Zapata offered any evidence or argument showing that the
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commission of one of the offenses underlying one of the convictions “entail[ed] the
commission of the other[s] as well.” Indeed, the conduct underlying the 159 and 193
convictions is marked by its distinctiveness. While the 159 conviction involved four
distributions of cocaine to the same undercover state trooper and informant in two
Pennsylvania towns over the span of one month (September 1984 - October 1984), the
193 conviction involved more than sixty different distributions of varying amounts of
cocaine to seven different buyers in multiple locations in central Pennsylvania over a span
of approximately eighteen months preceding September 1984.
Moreover, accepting Mora-Zapata’s bare assertion that repeated commissions of
similar crimes over a span of more than one year suffices to establish that those crimes
were part of a single common scheme or plan would, as the Fifth Circuit has recognized,
“lead to the illogical result that a defendant who is repeatedly convicted of the same
offense on different occasions could never be considered a career offender under the
guidelines.” United States v. Garcia, 962 F.2d 479, 482 (5 th Cir. 1992). Accordingly, the
district court did not err in concluding that the 159 and 193 offenses were not part of
“single common scheme or plan” for purposes of § 4A1.2 of the Guidelines.
For the foregoing reasons, we affirm the district court’s judgment.
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