United States v. Hawkins , 16 F. App'x 209 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 98-4553
EVERETTE CALVIN HAWKINS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong Jr., District Judge.
(CR-96-908)
Argued: June 7, 2001
Decided: August 15, 2001
Before NIEMEYER and TRAXLER, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Reversed and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: Parks Nolan Small, Federal Public Defender, Columbia,
South Carolina, for Appellant. Kevin Frank McDonald, OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee. ON BRIEF: J. Rene Josey, United States Attorney,
Harold Watson Gowdy, III, Assistant United States Attorney, Green-
ville, South Carolina, for Appellee.
2 UNITED STATES v. HAWKINS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Everette Calvin Hawkins ("Hawkins") appeals from the district
court’s decision to sentence him as a "career offender" under § 4B1.1
of the United States Sentencing Guidelines, alleging that his four pre-
vious burglary convictions should have been considered "related"
under § 4A1.2(a)(2) of the Guidelines. See U.S.S.G. § 4B1.1 &
§ 4A1.2(a)(2) (1997). We reverse and remand for resentencing.
I.
Hawkins pled guilty to possession with intent to distribute cocaine
base in violation of 21 U.S.C.A. § 841(a)(1) (West 1999). His presen-
tence report reflected four previous burglary convictions, all of which
occurred within a one week period of time and, although the record
does not disclose the exact locations, concededly within the city limits
of Greenville, South Carolina. The burglaries all involved the break-
ing and entering of private residences and the theft of such common
items as silverware and video cassette recorders. A single police
investigation solved all of these crimes as Hawkins’ arrest on one
resulted in his confessing to the other three. Each residence was bro-
ken into by Hawkins during the daytime and after he had located the
easiest method of entry. The same accomplice assisted Hawkins dur-
ing each burglary. The purpose of each burglary was to convert the
stolen items into cash to pay off Hawkins’ drug debt. Hawkins sold
all the silverware to the same two antique shops, and disposed of the
other stolen items at the same pawn shop. All of the cases were infor-
mally consolidated for sentencing on the same day in state court and
Hawkins received concurrent sentences for each of the offenses.
Because the district judge viewed the state burglary convictions as
separate offenses and because burglaries qualify as crimes of violence
under the Sentencing Guidelines, see U.S.S.G. § 4B1.2(a)(2), Haw-
UNITED STATES v. HAWKINS 3
kins was found to be a career offender under U.S.S.G. § 4B1.1 and
sentenced to 168 months imprisonment for his federal drug distribu-
tion conviction. Whether these burglaries were properly counted sepa-
rately or whether the Guidelines require them to be treated as one
prior conviction is the heart of this appeal.
II.
Under the United States Sentencing Guidelines, a defendant’s
criminal history is reflected in points which are attributed in various
ways to the defendant’s prior misdeeds. How multiple prior convic-
tions are counted may depend upon whether the cases are considered
"related" under U.S.S.G. § 4A1.2(a)(2), which reads in pertinent part
as follows: "Prior sentences imposed in unrelated cases are to be
counted separately. Prior sentences imposed in related cases are to be
treated as one sentence for purposes of § 4A1.1(a), (b), and (c)." In
Application Note 3 to this section, the Guidelines define "related
cases" as follows:
Related Cases. 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 (1) occurred on the same occasion, (2) were
part of a single common scheme or plan, or (3) were consol-
idated for trial or sentencing.
U.S.S.G. § 4A1.2, cmt. n.3. Chapter 4 of the Guidelines provides no
definition of a "single common scheme or plan," although Application
Note 9 to U.S.S.G. § 1B1.3, which pertains to relevant conduct, pro-
vides as follows:
"Common scheme or plan" and "same course of conduct"
are two closely related concepts.
(A) Common scheme or plan. For two or more offenses to
constitute part of a common scheme or plan, they must be
substantially connected to each other by at least one com-
4 UNITED STATES v. HAWKINS
mon factor, such as common victims, common accomplices,
common purpose, or similar modus operandi. For example,
the conduct of five defendants who together defrauded a
group of investors by computer manipulations that unlaw-
fully transferred funds over an eighteen-month period would
qualify as a common scheme or plan on the basis of any of
the above listed factors; i.e., the commonality of victims (the
same investors were defrauded on an ongoing basis), com-
monality of offenders (the conduct constituted an ongoing
conspiracy), commonality of purpose (to defraud the group
of investors), or similarity of modus operandi (the same or
similar computer manipulations were used to execute the
scheme).
(B) Same course of conduct. Offenses that do not qualify
as part of a common scheme or plan may nonetheless qual-
ify as part of the same course of conduct if they are suffi-
ciently connected or related to each other as to warrant the
conclusion that they are part of a single episode, spree, or
ongoing series of offenses. Factors that are appropriate to
the determination of whether offenses are sufficiently con-
nected or related to each other to be considered as part of
the same course of conduct include the degree of similarity
of the offenses, the regularity (repetitions) of the offenses,
and the time interval between the offenses. When one of the
above factors is absent, a stronger presence of at least one
of the other factors is required. For example, where the con-
duct alleged to be relevant is relatively remote to the offense
of conviction, a stronger showing of similarity or regularity
is necessary to compensate for the absence of temporal
proximity. The nature of the offenses may also be a relevant
consideration (e.g., a defendant’s failure to file tax returns
in three consecutive years appropriately would be consid-
ered as part of the same course of conduct because such
returns are only required at yearly intervals.)
U.S.S.G. § 1B1.3, cmt. n.9.
Courts differ on the question of whether a "single common scheme
or plan" in Application Note 3 to § 4A1.2 should be given the same
UNITED STATES v. HAWKINS 5
meaning as the definition of "common scheme or plan" set forth in
Application Note 9 to § 1B1.3(a)(2). Compare United States v.
LaBarbara, 129 F.3d 81, 86 (2d Cir. 1997), with United States v.
Beckett, 208 F.3d 140, 147 n.2 (3d Cir. 2000); United States v.
Brown, 209 F.3d 1020, 1024 n.9 (7th Cir. 2000); United States v.
Berry, 212 F.3d 391, 394-95 (8th Cir.), cert. denied, 121 S. Ct. 253(2000). We have never addressed the issue in a published opinion.
However, in United States v. Breckenridge, 93 F.3d 132 (4th Cir.
1996), we examined Section 4A1.2(a)(2) of the Guidelines in the con-
text of a defendant who had six prior convictions for breaking and
entering and grand larceny, and we identified eight specific factors for
district courts to use in evaluating whether prior offenses constituted
a "common scheme or plan." Recognizing that no one factor, or par-
ticular combination, would dictate such a finding, we nevertheless
listed those which would be indicative that multiple crimes were part
of a common scheme or plan:
1. Commission within a short period of time
2. Close geographic proximity
3. Same substantive offenses
4. Directed at a common victim
5. Solved in a single criminal investigation
6. Similar modus operandi
7. Animated by the same motive
8. Tried and sentenced separately only because of an acci-
dent of geography
See id. at 138. We review the trial court’s Sentencing Guideline deter-
mination deferentially. See Buford v. United States, 121 S. Ct. 1276,
1278 (2001).
In Breckenridge, we had a substantial amount of information
before us regarding the factors to be considered, but nevertheless
6 UNITED STATES v. HAWKINS
remanded the case to the district court for additional findings on the
modus operandi used in the various break-ins and for further informa-
tion regarding the potential for consolidation under state law. See
Breckenridge, 93 F.3d at 140. On appeal after remand, we ultimately
concluded that the six prior burglary convictions were related, requir-
ing that Breckenridge’s sentence as a career criminal be reversed. See
United States v. Breckenridge, No. 97-7685, 2000 WL 1086786 (4th
Cir. Aug. 4, 2000).
We find the facts before us indistinguishable in any meaningful
way from those before the court in Breckenridge. Both Breckenridge
and Hawkins committed their crimes within a short period of time; in
fact, Hawkins’ crimes were committed within a shorter time frame
that those committed by Breckenridge. Both engaged in the same sub-
stantive offenses directed at the same type of victims, and both defen-
dants’ offenses were solved as part of a single police investigation.
The methods of entry were similar, a common accomplice was used
by each defendant, similar items were stolen, and the stolen goods
went to common locations. The geographic proximity of the crimes
is about the only aspect which is not demonstrably parallel — Breck-
enridge burglarized homes within blocks of each other, although
across a county line, whereas Hawkins’ crimes were all committed
within the city limits of Greenville — but this small difference hardly
justifies the different outcome here.
We recognize, of course, that other circuits have refused to allow
crimes committed in this fashion to be treated as one under the career
offender guideline, holding instead that "relatedness" is reserved for
situations where the offenses were jointly planned or where it was
evident that the commission of one would entail the commission of
the other. See United States v. Ali, 951 F.2d 827, 828 (7th Cir. 1992)
("We must keep in mind the purpose of the ‘related’ test. It is to iden-
tify the less dangerous criminal. A criminal is not less dangerous
because his crime is part of a spree."); see also Brown, 209 F.3d at
1023 (holding that robberies committed within a month and a half of
each other, in the same general area, which shared a similar modus
operandi, and specific common purpose of funding a drug addiction
were not related because defendant failed to establish that he intended
from the outset to commit the robberies or that one necessarily
involved committing the others); accord Beckett, 208 F.3d at 147-48;
UNITED STATES v. HAWKINS 7
United States v. Irons, 196 F.3d 634, 638 (6th Cir. 1999); cf. United
States v. Robinson, 187 F.3d 516, 520 (5th Cir. 1999); United States
v. Hallman, 23 F.3d 821, 826 (3d Cir. 1994). While these cases may
indeed state the better rule, and would likely dictate affirming Haw-
kins’ sentence in this case, we are currently bound by our contrary
precedent in Breckenridge. See Bell v. Jarvis, 236 F.3d 149, 159 (4th
Cir. 2000) (en banc) ("[A] panel of this court cannot overrule the
decision of another panel; only the en banc court may overrule a prior
panel decision.") (internal quotation marks omitted).
III.
For the foregoing reasons, the judgment of the district court is
reversed and the case remanded for resentencing in accordance with
this opinion.
REVERSED AND REMANDED