United States v. Russell Linney , 819 F.3d 747 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4847
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
RUSSELL JAVON LINNEY,
Defendant − Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:13-cr-00065-RLV-DCK-1)
Argued: March 22, 2016 Decided: April 26, 2016
Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit
Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Keenan joined.
ARGUED: Chiege Ojugo Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU
OKWARA, Charlotte, North Carolina, for Appellant. Amy Elizabeth
Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee. ON BRIEF: Jill Westmoreland Rose,
Acting United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
WILKINSON, Circuit Judge:
In this case we must determine whether two burglaries that
served as part of the predicate for Russell Linney’s Armed
Career Criminal Act (“ACCA”) sentencing enhancement occurred on
different occasions. See 18 U.S.C. § 924(e)(1). The district
court ruled that the burglaries did in fact occur on different
occasions. We now affirm.
I.
On August 8-9, 2013, Linney and two companions engaged in a
crime spree that started with a pair of burglaries and ended
with a high-speed police chase. During the chase, Linney drove
the getaway car. When the pursuing officers eventually captured
Linney and his companions, they learned that Linney had been in
possession of a 9-mm handgun, but had one of his companions toss
it out the window during the chase. The officers also found a 9-
mm magazine clip in Linney’s pocket.
On August 21, 2013, a federal grand jury charged Linney
with being a felon in possession of a firearm under 18 U.S.C.
§ 922(g)(1). On February 19, 2014, Linney pled guilty to the
charge without a plea agreement.
In anticipation of Linney’s sentencing hearing, a probation
officer prepared a presentence report (“PSR”). The PSR took note
of three North Carolina burglary convictions Linney had
previously received and accordingly classified Linney as an
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armed career criminal under the ACCA -- a classification that
came with a fifteen-year mandatory minimum sentence. After
considering the ACCA enhancement and all other relevant factors,
the PSR recommended a sentence for Linney that included 188 to
235 months of incarceration.
Linney objected to the PSR, arguing 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
government responded by contending that, although the two
burglaries occurred on the same night and in close proximity,
they were in fact separate criminal episodes. Linney and the
government then submitted the state court records from the two
burglary convictions to support their respective arguments.
These records include the indictments, the plea transcript, the
judgment, and an accompanying restitution worksheet.
The indictments provide the following details about the two
burglaries. The first indictment charges Linney with “break[ing]
and enter[ing] the dwelling house of Teresa Cornacchione, which
was located at 319 North Oakwood Drive” in Statesville, “between
the nighttime hours of 8:00 p.m. and 10:00 p.m.,” on December
31, 2009. The indictment also alleges that Linney stole Ms.
Cornacchione’s guitar and television. J.A. 155. The second
indictment charges Linney with “break[ing] and enter[ing] the
dwelling house of James Wilson, which was located at 320 North
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Oakwood Drive” in Statesville, “between the nighttime hours of
7:00 p.m. and 10:00 p.m.,” on December 31, 2009. In contrast to
the Cornacchione indictment, the Wilson indictment does not
allege that Linney stole anything from Mr. Wilson’s home. J.A.
156.
The plea transcript submitted to the district court shows
that Linney pled guilty to both of the December 31, 2009
burglaries at the same time. It also shows that Linney
simultaneously pled guilty to a slew of other crimes, including
a burglary that occurred on December 9, 2010 (this burglary was
used as the requisite third violent felony conviction for
Linney’s ACCA enhancement), seventeen breaking and entering
offenses, two attempted breaking and entering offenses, and one
possession of a stolen vehicle offense. J.A. 158-62.
The state court issued a consolidated judgment covering the
three burglary convictions. Both this judgment and the plea
transcript provide that Linney was to pay restitution for his
crimes. J.A. 151, 161. The judgment states that the restitution
was to be joint and several with codefendants as noted on an
accompanying restitution worksheet, which was explicitly
incorporated into the judgment by reference. J.A. 150-51.
The restitution worksheet in turn lists 20 different
victims from Linney’s various offenses, along with the
restitution owed to each. J.A. 266-72. The restitution worksheet
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also includes a box below each victim’s name, noting whether
another person was jointly and severally liable with Linney for
the restitution owed to that victim. If another person was
jointly and severally liable, the box would be checked and the
other person’s name would be noted. Ms. Cornacchione is listed
as a victim in the restitution worksheet, but the box below her
name remains unchecked, and no other person’s name is noted. Mr.
Wilson is not listed as a victim in the restitution worksheet at
all. J.A. 266-72.
Back before the district court, Linney contended that the
various state court records undermined the government’s argument
that the two December 31, 2009 burglaries occurred on different
occasions. Although he acknowledged that the burglaries had
different victims, Linney pointed out that the burglaries were
committed at neighboring houses during a largely overlapping
three-hour time period, and that they shared the same nature and
objective. Moreover, Linney argued that the mere thirty feet
separating the two houses did not allow him to make a conscious
and knowing decision to commit the second burglary. Furthermore,
Linney claimed that the joint and several liability provisions
in the judgment and accompanying restitution worksheet suggest
that he acted with an accomplice during the two burglaries,
which would mean that he may have only burglarized one of the
houses while his accomplice burglarized the other. Linney thus
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concluded that the government had not shown that the two
burglaries occurred on different occasions.
The government responded by arguing that the December 31,
2009 burglaries involved different victims and different street
addresses, and were thus distinct criminal episodes. And as to
the question of an accomplice, the government noted that Linney
was charged individually in the two indictments, and suggested
that the provisions stating that restitution was to be joint and
several were perhaps an “oversight” or made in reference to
“another case.” J.A. 60-63.
The district court agreed with the government. It found
that the two burglaries involved different victims, different
locations, and different times. J.A. 65. The district court
further found that any evidence of an accomplice derived from
the various restitution records did “not rise to the level of a
preponderance of the evidence in undermining the otherwise
pertinent facts about the two offenses in question, namely that
[Linney] was charged as a principal by himself[] [and] convicted
by himself,” without any reference to another person in the two
indictments. J.A. 67-68. The district court thus concluded that
any evidence from the restitution provisions was “insufficiently
probative” to sustain Linney’s objection, and ruled that the
government had proved that the three North Carolina burglaries
supporting the ACCA enhancement occurred on different occasions.
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The district court then sentenced Linney to 235 months of
incarceration. Linney timely appealed, challenging the district
court’s ruling that the two December 31, 2009 burglaries
occurred on different occasions.
II.
A.
A defendant found guilty of violating the felon in
possession prohibition, 18 U.S.C. § 922(g)(1), is subject to the
ACCA fifteen-year mandatory minimum sentencing enhancement if he
has three previous “violent felony” convictions. 18 U.S.C.
§ 924(e)(1). No one disputes that each of Linney’s three North
Carolina burglaries constitutes a “violent felony.” For Linney
to receive the ACCA enhancement, however, each of the three
burglaries must also have been “committed on occasions different
from one another.” Id. The government bears the burden of
proving that the burglaries occurred on different occasions by a
preponderance of the evidence. United States v. Span, 789 F.3d
320, 324 (4th Cir. 2015) (citing United States v. Archie, 771
F.3d 217, 223 (4th Cir. 2014), cert. denied, 135 S. Ct. 1579
(2015)).
We review de novo the district court’s ruling that Linney
committed the three predicate burglaries on different occasions.
Id. at 325. But we review for clear error the district court’s
factual findings made incident to this ultimate ruling. Id.
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B.
To prove that each offense was committed on a different
occasion, the government must show that each offense arose out
of a “separate and distinct criminal episode.” United States v.
Boykin, 669 F.3d 467, 470 (4th Cir. 2012) (emphasis in original)
(quoting United States v. Carr, 592 F.3d 636, 640 (4th Cir.
2010), cert. denied, 562 U.S. 844 (2010)). That is, each
predicate offense must have “a beginning and an end,” such that
they each “constitute an occurrence unto themselves.” Carr, 592
F.3d at 640 (quoting United States v. Letterlough, 63 F.3d 332,
335 (4th Cir. 1995)).
We have come to rely on five factors to determine whether
predicate ACCA offenses were committed on different occasions:
(1) whether the offenses “arose in different geographic
locations”; (2) whether “the nature of each offense was
substantively different”; (3) whether each offense “involved
different victims”; (4) whether each offense “involved different
criminal objectives”; and (5) whether “the defendant had the
opportunity after committing the first-in-time offense to make a
conscious and knowing decision to engage in the next-in-time
offense.” Span, 789 F.3d at 328 (quoting Carr, 592 F.3d at 644).
Importantly, these five factors may be considered “together or
independently” and the “strong presence” of any one factor “can
dispositively segregate an extended criminal episode into a
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series of separate and distinct episodes.” Id. (quoting Carr,
592 F.3d at 644).
In undertaking this five-factor analysis, courts rely on
“Shepard-approved sources.” Span, 789 F.3d at 326 (citing
Shepard v. United States, 544 U.S. 13 (2005)). In cases such as
this that involve prior convictions based on guilty pleas, these
sources consist of “conclusive judicial records” such as the
indictment, judgment, any plea agreement, the plea transcript or
other comparable record confirming the factual basis for the
plea, id. at 326-27, and any document “explicitly incorporated”
into one of the foregoing. United States v. Harcum, 587 F.3d
219, 223-24 (4th Cir. 2009), abrogated on other grounds as
stated in, United States v. Aparicio–Soria, 740 F.3d 152, 155–56
(4th Cir. 2014). *
Linney does not dispute the existence of his predicate
offenses. See Span, 789 F.3d at 326-27 (citing United States v.
Washington, 629 F.3d 403 (4th Cir. 2011)). Linney also does not
suggest that the district court erroneously identified the five
factors used to make the different occasions determination or
*
The “plea transcript” in this case differs from the
document commonly called a “plea transcript” in federal
practice. In this case, the “plea transcript” or “transcript of
plea” is a North Carolina judicial record that contains the
details of the defendant’s plea. It is completed by the parties
and signed by the defendant. J.A. 158-62. We have previously
indicated that this judicial record is a Shepard-approved
source. See Span, 789 F.3d at 324 n.2, 326-27.
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improperly relied on non-Shepard-approved sources. He instead
contends that the district court erred in applying the five
factors to the two December 31, 2009 burglaries. As he did
below, Linney argues that the government proved only one of the
five factors. Specifically, Linney claims that the two
burglaries occurred at the same location, because the
burglarized houses were only thirty feet apart. He also claims
that the nature and objective of each burglary was the same. And
although Linney concedes that the burglaries involved different
victims, he argues that 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. The burglary of Ms. Cornacchione’s house
occurred at 319 North Oakwood Drive while the burglary of Mr.
Wilson’s house occurred at 320 North Oakwood Drive. And although
Ms. Cornacchione’s house and Mr. Wilson’s house may stand only
thirty feet apart, we agree with the district court that this
distance gave Linney a sufficient opportunity to evaluate
whether to commit another crime. Furthermore, Linney concedes
that Ms. Cornacchione and Mr. Wilson were separately victimized
by the two burglaries.
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Linney may be correct to claim that the two burglaries
shared the same nature and criminal objective, but the district
court did not rely on these factors -- and it did not need to.
As noted, sometimes the “strong presence” of just one factor can
“dispositively segregate an extended criminal episode into a
series of separate and distinct episodes.” Span, 789 F.3d at 328
(quoting Carr, 592 F.3d at 644). Here the district court did not
factually err in finding at least three of the five factors. It
also did not err legally in concluding that the government
proved by a preponderance of the evidence that the two December
31, 2009 burglaries occurred on different occasions.
Indeed, when the facts of Linney’s case are compared to our
precedent in this area, it is clear that Linney’s arguments were
properly weighed and found wanting. Most pertinent is our recent
decision in Carr. There, the defendant broke into thirteen
storage units located at a single address. Carr, 592 F.3d at
638. The district court ruled that each of the thirteen break-
ins occurred on different occasions for purposes of the ACCA
enhancement. Id. at 639. We affirmed the district court’s
ruling, noting that although the break-ins shared the same
nature and criminal objective, they occurred at different
locations, involved different victims, and the space between
each storage unit gave the defendant an opportunity to decide
whether to engage in the subsequent break-in. Id. at 645.
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Were we to accept Linney’s argument, we would need to
somehow merge Ms. Cornacchione, Mr. Wilson, and their respective
houses together. This we simply cannot do. Although different
victims and obvious physical boundaries may not always be
required to support a different occasions determination (e.g.,
breaking into a single victim’s car and house may constitute
different occasions, or a burglarizing adjacent apartment units
may constitute different occasions), the uncontroverted record
shows that these hallmarks of separateness were present here. We
cannot accept Linney’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.
III.
Linney contends, however, that his case contains a wrinkle
absent in Carr and similar cases. Specifically, Linney claims
that the joint and several liability provisions in the
consolidated judgment and accompanying restitution worksheet
indicate that he committed the two December 31, 2009 burglaries
with an accomplice.
It is true that the presence of an accomplice can
complicate the different occasions analysis. See Carr, 592 F.3d
at 643 n.5. For instance, if Linney worked with an accomplice on
the night of December 31, 2009, Linney may have burglarized one
of the houses while his accomplice simultaneously burglarized
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the other. See Span, 789 F.3d at 329. This coordinated criminal
operation would likely result in two convictions for Linney.
Whether it would satisfy the different occasions analysis
required for application of the ACCA enhancement is another
question.
The record in this case, however, does not support Linney’s
suggestion of an accomplice. As the district court noted, the
Shepard-approved sources, including the indictments and the
judgment, show that Linney was charged alone and convicted
alone. The district court was within bounds to rely on these
documents to find that Linney committed the two burglaries
alone.
Yet Linney points out that the judgment and accompanying
restitution worksheet also provide that he was to be jointly and
severally liable to pay restitution for his burglaries. And he
notes that the restitution worksheet even names a Mr. Patrick
Wagner as a codefendant in many of his crimes. Linney
accordingly contends that he committed the two December 31, 2009
burglaries with an accomplice.
But Linney fails to note that, although these documents
suggest that he sometimes committed his crimes in league with an
accomplice, they also suggest that he acted alone on the night
of December 31, 2009. The codefendant box adjacent to Ms.
Cornacchione’s name on the restitution worksheet is unchecked,
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and the line used for listing another person’s name is blank.
Mr. Wilson’s name is absent from the restitution worksheet, but
this absence makes sense in light of the fact that the Wilson
indictment does not allege Linney actually stole anything from
Mr. Wilson’s house. All in all, these sundry details only
support the district court’s finding that Linney committed the
December 31, 2009 burglaries alone.
The briefing and argument in this case revealed that Linney
made a diligent effort to find some positive proof in the state
court records showing that he worked with an accomplice on
December 31, 2009. There does not appear to be any such proof.
Linney is thus left to speculate, asking the government in
essence to prove the absence of an accomplice. But proving a
negative is not a quest the government need undertake. Certainly
it was not clearly erroneous for the district court to find
based on the Shephard-approved sources that Linney alone
committed the two December 31, 2009 burglaries during the three-
hour time span alleged in the two indictments.
Finally, contrary to Linney’s protestations, our recent
decision in Span is readily distinguishable. There, as in this
case, the defendant claimed that he worked with an accomplice,
and that the presence of an accomplice meant his predicate ACCA
offenses may not have occurred on different occasions. Unlike
this case, however, the indictments, plea transcript, and
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judgment from the state court in Span listed contradictory dates
for the various offenses. Indeed, “[n]o single offense date for
any [of the] predicate robbery conviction[s] [was] consistent
across all three sources.” Span, 789 F.3d at 325-26. Moreover,
three of four offenses at issue occurred at the same location.
Id. at 329. Owing to these deep contradictions in the record, we
held that the government had failed to prove that the three
offenses had occurred on different occasions. Unlike the
situation in Span, nothing in the record before us calls into
serious question the district court’s determination that Linney
alone committed the two December 31, 2009 burglaries on
different occasions.
IV.
Linney’s receipt of the ACCA enhancement gave the district
court a sentencing guidelines range of 188 to 235 months of
incarceration. The district court sentenced Linney to the top
end of that range -- 235 months. Linney cursorily suggests that
this sentence is substantively unreasonable. We disagree. It was
entirely proper for the district court to note that Linney
harmed 31 different victims during his many offenses; that
Linney’s most recent pair of burglaries ended with a dangerous
police chase; and that Linney appeared to be the leader in at
least this latest chapter of his long history of criminal
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activity. Accordingly, it was well within the district court’s
discretion to give Linney the sentence he received.
The judgment is
AFFIRMED.
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