United States v. Sutton, Robert D. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-1679, 02-1687 & 02-1739
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT D. SUTTON, JAMES H.
FLEMING, and MICHAEL L. BROWN,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 01-CR-32-C—Barbara B. Crabb, Chief Judge.
____________
ARGUED APRIL 14, 2003—DECIDED JULY 23, 2003
____________
Before CUDAHY, POSNER, and EASTERBROOK, Circuit
Judges.
CUDAHY, Circuit Judge. Brown, Sutton and Fleming
appeal their convictions and sentences for committing a
series of armed robberies. They challenge the sufficiency
of the effect on interstate commerce supporting the Hobbs
Act charges. They also appeal the district court’s refusal to
allow admission of certain fingerprint evidence. Sutton
and Brown appeal the admission at trial of Fleming’s out
of court confession claiming a violation of the Confronta-
tion Clause. Sutton challenges the enhancement of his
sentence for obstruction of justice. Finally, Fleming chal-
lenges the imposition of his multiple life sentences in a
2 Nos. 02-1679, 02-1687 & 02-1739
consecutive, rather than concurrent, manner. None of the
issues raised has merit. We affirm.
I.
The three appellants, Michael Brown, James Fleming
and Robert Sutton, appeal their convictions and sentenc-
ing on a variety of shared and individual issues involving
a series of robberies they committed in and around Madi-
son, Wisconsin, including the robbery of a Wendy’s Res-
taurant (“Wendy’s”), a Kohl’s Food Store (“Kohl’s”), and
a Great Midwest Bank (“Midwest Bank”). In all, there
were eleven robberies resulting in a twenty-one count in-
dictment.
Prior to trial, both the defendants and government
made motions in limine to exclude certain evidence. The
government sought to exclude the admission of certain
fingerprint evidence. At the robberies of the Kohl’s
and Wendy’s the police had collected fingerprints from
locations that witnesses had identified as having been
touched by the robbers. Analysis by the police finger-
print laboratory concluded, however, that the prints taken
from the crime scenes did not match the defendants’
fingerprints. The defendants sought to admit this evidence
to demonstrate that they were not the robbers. The dis-
trict court granted the government’s motion to exclude
because the defendant failed to call an expert witness
to explain the reports. The district court reasoned that
without an expert witness’s explanation the reports were
of no evidentiary value.
Sutton and Brown’s motion in limine sought, inter alia,
to exclude the testimony of Detective Dandurand, who
was to testify about the confession of co-defendant Fleming,
as a violation of their Confrontation Clause rights. See
Bruton v. United States, 391 U.S. 123 (1968). The govern-
ment redacted the names of Brown and Sutton, replacing
Nos. 02-1679, 02-1687 & 02-1739 3
them with neutral identifiers. The district court found that
the redaction met the requirements of the Confrontation
Clause, and denied the defense motion.
Prior to the federal trial in the present case, Sutton was
tried for the Midwest Bank robbery in a state court pro-
ceeding held in Dane County Circuit Court. At that trial,
Sutton and a woman, Lashecka Calvin, testified that they
were together at a place far from the bank during the
Midwest Bank robbery, thus providing an alibi for Sutton.
Sutton was acquitted by the jury in that trial. For the
present federal case, Sutton had listed Calvin as an alibi
witness and subpoenaed her. Testifying before the grand
jury in the present case, Calvin, together with another
woman, Angela Cramer, recanted Sutton’s alibi and
testified that Sutton had asked them to lie about being
with him at the time of the robbery. Cramer also testified
to this at trial.
Brown, Fleming and Sutton were convicted by the dis-
trict court of multiple counts of conspiracy to violate, and
substantive violations of, the Hobbs Act, 18 U.S.C. § 1951;
of numerous bank robberies under 18 U.S.C. § 2113(a);
and of use of firearms to commit robberies under 18
U.S.C. § 924(c). Not every defendant was charged in every
substantive count because not all defendants were involved
in every robbery. Although found guilty of all the other
counts with which he was charged, Fleming was found not
guilty of using a firearm in the Clark Retail Enterprises
robbery (Count 9), which is not at issue in this appeal.
Before and after the verdict, the defense moved for
acquittal pursuant to Fed. R. Crim. P. 29, based on the
argument that the government had failed to show the
requisite effect on interstate commerce necessary to sup-
port a Hobbs Act conviction. The court denied both mo-
tions.
4 Nos. 02-1679, 02-1687 & 02-1739
Brown was sentenced to 73 years and 4 months impris-
onment.1 Fleming, per 18 U.S.C. § 3559(c)’s three-strikes
provision, was sentenced to life in prison on each count for
which he was convicted. The life sentences for Fleming’s
§ 924(c) convictions were imposed consecutively, as required
by § 924(c)(1)(D). Sutton received a sentence of 52 years
and 3 months. His sentencing included a two-level sen-
tencing enhancement under U.S. Sentencing Guidelines
Manual § 3C1.1 (“U.S.S.G.”) for obstructing justice by
providing a false alibi defense in Sutton’s state case, and
attempting to do so during the federal case.
There are five issues on appeal. First, all of the appel-
lants claim that the government did not provide sufficient
evidence of an effect on interstate commerce to support
the Hobbs Act convictions. Second, the appellants all
challenge the exclusion of the government’s fingerprint
reports. Third, Brown and Sutton appeal the district
court’s decision to allow Detective Dandurand to testify
about Fleming’s confession. Fourth, Sutton appeals the
district court’s obstruction of justice finding and subse-
quent sentence enhancement of two levels. Fifth, Fleming
appeals his consecutive life sentences.
1
There appears to be some confusion as to the actual length of
Brown’s sentence. The government’s brief states that the “court
sentenced defendant Brown to 340 months in prison.” Appellee’s
Br. at 6. However, our examination of the record indicates that
Brown’s “total sentence of imprisonment is 73 years and 4
months.” R. 198 at 3. Additionally, the record does not reveal
to us what, if any, enhancements he received. This does not
affect the present appeal because Brown does not appeal his
sentencing.
Nos. 02-1679, 02-1687 & 02-1739 5
II.
A. Hobbs Act
All three defendants appeal the court’s decision that
there was sufficient effect on interstate commerce to
support the indictments’ counts under the Hobbs Act. They
argue that, after the Supreme Court’s decisions in United
States v. Lopez, 514 U.S. 549 (1995) and United States v.
Morrison, 529 U.S. 598 (2000), the government must
prove a “substantial effect” on interstate commerce in
order for there to be jurisdiction to prosecute under the
Hobbs Act, and failed to do so. 18 U.S.C. § 1951.
However, the defendants acknowledge that this argu-
ment has been rejected by this court in the past. We
have ruled definitively that the Hobbs Act only re-
quires that the government show a de minimis effect on
interstate commerce to “bring robbery within its prosecuto-
rial reach.” United States v. Peterson, 236 F.3d 848, 851-52
(7th Cir. 2001).2 The defendants also acknowledge that
application of the government’s “depletion of assets” theory
easily meets the de minimis effect standard. We find
nothing in the defendants’ arguments that would per-
suade us to overrule established circuit precedent.
2
With the obvious predicate requirement that the class of
transactions or the types of businesses affected must have a
substantial connection to interstate commerce, such that inter-
ference with that class of transactions would have a substan-
tial effect on commerce—even if the specific events prosecuted
do not, themselves, have a substantial effect on interstate com-
merce. See Citizens Bank v. Alafabco, Inc., 123 S. Ct. 2037, 2040
(2003); United States v. Thomas, 159 F.3d 296, 297-98 (7th Cir.
1998). The aggregate transactions of banks, restaurants and re-
tail stores, such as those robbed by the defendants, clearly meet
that requirement.
6 Nos. 02-1679, 02-1687 & 02-1739
B. Fingerprint Evidence
The admission or exclusion of evidence (when objected to
at trial) is reviewed for abuse of discretion. United States
v. Bonner, 302 F.3d 776, 780 (7th Cir. 2002). However,
the jury’s verdict will stand if the evidentiary error is
harmless. An error will be found harmful only if it had
a “substantial and injurious effect or influence on the jury’s
verdict.” Young v. James Green Mgmt., Inc., 327 F.3d 616,
621 (7th Cir. 2003) (internal quotations omitted).
The district court refused to admit two of the govern-
ment’s fingerprint reports into evidence because the
defense, which wanted to use the reports’ conclusions to
demonstrate that the defendants were not present at two
of the robberies, failed to call or subpoena an “expert” to
explain the report. R. 185 at 64. The decision to exclude
the reports was not an abuse of discretion, and to the ex-
tent there was any error by the district court, it was
harmless.
This issue involves a number of interrelated concerns. To
begin with, the defendants argue that the reports are
admissible as self-authenticating documents that fall
within the public records exception to hearsay. It is likely
true that the fingerprint reports are self-authenticating
and fall within the public records exception to hearsay,
but this is not enough to make them admissible. The
reports appear to be certified copies of public records that
meet the self-authentication requirements of Federal Rule
of Evidence (“FRE”) 902, and would not have required a
foundation witness. Neither the district court nor the gov-
ernment disputes the authenticity of the fingerprint re-
ports. Additionally, the evidence was a report of a public
office setting forth the opinions of that office resulting from
a police investigation into the Wendy’s and Kohl’s robberies,
and likely not excludable as hearsay. See FRE 803(8)(C).
The Supreme Court made clear in Beech Aircraft Corp. v.
Nos. 02-1679, 02-1687 & 02-1739 7
Rainey, 488 U.S. 153, 163-64 (1988), that the Rule 803(8)(C)
exception encompasses opinions and conclusions and is not
limited to purely factual findings. In Beech Aircraft Corp.,
an investigative report of an airplane crash contained
the investigator’s opinion concerning whether pilot error
was the cause of the accident. Id. at 158. The Supreme
Court ruled that the opinions contained in the report
were also covered by the exception to the hearsay rule
contained in Rule 803(8)(C). Id. at 170. The state’s finger-
print reports, which express the conclusions and opinions of
a state laboratory technician concerning the discovered
fingerprints, are similarly not excludable as hearsay.3
But hearsay goes only to the form of the testimony.
The testimony itself must still be substantively admissible.
The “testimony” at issue consists of the statements in the
fingerprint reports themselves. The district court did
not specifically invoke any particular rule of evidence in
excluding the fingerprint reports. In the hearing on the
motions in limine, the court noted that the “reports may
be admissible under the public records exception, but
without an expert to explain them, they are of no evi-
dentiary value.” R. 185 at 64. In its written ruling grant-
ing this portion of the government’s motion, the court
stated that “[w]ithout [expert witnesses], defendants
have no reliable evidence to put before the jury of the lack
of fingerprint identification.” R. 130 at 4.
The court’s ruling is susceptible to various interpreta-
tions. We believe the court was excluding the evidence
3
The government, unlike the defendants, is not covered by the
exception in Rule 803(8)(C), and would be barred by Rule 802
from entering the reports into evidence. Instead, the prosecu-
tion would have to present live testimony to analyze the fin-
gerprints and testify to the match, or lack of match, between
the fingerprints at the crime scene and the fingerprints of the
defendants.
8 Nos. 02-1679, 02-1687 & 02-1739
because the report, without a witness to explain it, failed
to meet the requirements of Rule 403: the reports’ proba-
tive value was substantially outweighed by the danger
of unfair prejudice.4 We begin this analysis by noting that
the reports were relevant. To the extent that the finger-
prints lifted were not those of the defendants, the reports
decreased the probability that a defendant touched the
spot where the prints were found. However, the proba-
tive value of the reports is slight. The reports do not
prove the negative: the lack of a match does not prove
that the defendants were not present at the crime scene.
In fact, without any additional expert testimony to pro-
vide context for the reports’ conclusions or with respect
to the likelihood of fingerprints being found in those
places and on those surfaces, the probative value of the
reports begins to approach zero asymptotically. On the
other hand, and more significantly, the possibility that
a jury would rely on these reports in the absence of con-
text and believe that the reports did prove the negative
4
We also note in passing that the district court’s use of the
phrases “evidentiary value” and “reliable evidence” is also
susceptible to the interpretation that the reports’ expert testi-
mony was inadequate under Rule 702. There is no question that
fingerprint analysis, as a general methodology, meets the
requirements of Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579 (1993), and FRE 702. See United States v. Havvard, 260 F.3d
597 (7th Cir. 2001). However, the language of the district court
could be interpreted to indicate that, in this particular case, the
specific testimony at issue (in the form of the report), fails to
demonstrate that the “testimony is the product of reliable
principles and methods” or that it fails to show that the “witness
has applied the principles and methods reliably to the facts
of the case.” FRE 702(2) and (3). Given that the reports con-
sisted of little more than a bare conclusion, we would have little
difficulty finding their exclusion appropriate within this ana-
lytical framework.
Nos. 02-1679, 02-1687 & 02-1739 9
may create a substantial probability of prejudice. It is not
an abuse of discretion for the court to be so inclined and
therefore to exclude the evidence.
Finally, to the extent that there could be error in the
exclusion of the reports, it was harmless. As mentioned, the
probative value of the reports alone is minimal. In light
of the other evidence arrayed against the defendants, the
exclusion of the reports cannot be said to have had a
substantial and injurious effect or influence on the jury’s
verdict.
C. Fleming’s Confession & Bruton
Although the decision to admit or deny evidence is
reviewed for abuse of discretion, a district court’s inter-
pretation of the Confrontation Clause of the Sixth Amend-
ment is a legal question that we review de novo. United
States v. Hernandez, 330 F.3d 964, 972 (7th Cir. 2003).
The use of a non-testifying criminal defendant’s confes-
sion against him during a joint trial risks violating the
Confrontation Clause rights of the co-defendants. Bruton,
391 U.S. 123. If the confession incriminates the co-defen-
dants, then those defendants are denied their rights
under the Confrontation Clause to cross-examine the wit-
nesses against them, and their trials must be severed if
the confession is to be used. However, as the Supreme
Court and this court have both recognized, there are
ways to use the confession without incriminating the co-
defendants, and thus protect the rights of the co-defen-
dants. Proper redaction of the confession to eliminate
all references to the co-defendants, combined with a
limiting instruction to the jury that it may not consider
the confession against anyone other than the confessing
defendant has been found adequate. Richardson v. Marsh,
481 U.S. 200, 211 (1987). Additionally, a redaction that
replaces co-defendant names with neutral pronouns such
10 Nos. 02-1679, 02-1687 & 02-1739
that there is no obvious reference to the co-defendants
will, along with limiting instructions, suffice to protect co-
defendants’ Confrontation Clause rights. Gray v. Mary-
land, 523 U.S. 185, 196 (1998) (validating, in dictum, the
use of “a few other guys” as a replacement for names in a
confession that would avoid a Bruton violation); Hernan-
dez, 330 F.3d at 973; United States v. Brooks, 125 F.3d
484, 501 (7th Cir. 1997); United States v. Hubbard, 22 F.3d
1410, 1421 (7th Cir. 1994). It is clear that the court pro-
vided the appropriate limiting instructions to the jury
regarding Fleming’s confession. But there is a dispute
concerning the redactions of Brown’s and Sutton’s names
from the confession.
Fleming’s confession, as introduced through the testi-
mony of the detective who solicited it, was edited by
redacting the names of Brown and Fleming, and replacing
their names with “another individual,” “other individual(s),”
“other individual in Madison,” “other individual robber,” “an
individual,” “the individual,” “this individual,” “two individu-
als,” “third individual,” “this person,” “that person,” “other
person,” “the guy” and other combinations of these. R. 183
at 5-A-107 to 133. This kind of redaction is not a blank
space deletion of the kind found improper in Gray. There,
the witness read the confession into evidence, saying the
word “deleted” or “deletion” whenever the co-defendants’
names appeared. Gray, 523 U.S. at 188. However, Sutton
and Brown argue that the present case meets the larger,
more general prohibition of Gray against redactions that
replace names with “a symbol or other similarly obvious
indications of alteration . . . that . . . so closely resemble
Bruton’s unredacted statements that, in our view, the
law must require the same result.” Id. at 192. Brown
and Sutton rely on this court’s interpretation of Gray in
United States v. Hoover, 246 F.3d 1054 (7th Cir. 2001),
where the names of two gang leader defendants—one in
prison, one not in prison—were replaced with “incarcerated
Nos. 02-1679, 02-1687 & 02-1739 11
leader” and “unincarcerated leader,” respectively. The use
of replacement words that fail to “avoid[ ] a one-to-one
correspondence between the confession and easily identified
figures sitting at the defense table” violates Bruton. Id.
at 1059. Brown and Sutton also point us towards United
States v. Eskridge, 164 F.3d 1042 (7th Cir. 1998), where
this court found the replacement of the codefendant’s name
with “another” was a Bruton violation, but was found to
be harmless error.
Unlike Hoover, there is no clear one-to-one correspon-
dence between the replacement words, such as “another
person,” and either of the defendants. In Hoover, “incarcer-
ated leader” was the equivalent of using a nickname,
and the immediate one-to-one correspondence to the
defendant was unavoidable. Hoover, 246 F.3d at 1059.
“Another person” and similar neutral words used in the
present case create no such immediate identification,
especially given that there were multiple people, identified
and unidentified, involved in the various crimes detailed
in Fleming’s confession. See Hubbard, 22 F.3d at 1421(finding no Bruton violation when confession redacted and
name replaced with “other person” and only connection
to co-defendant is a “contextual implication” from other
evidence). The connection of “another person” to either
Brown or Sutton comes only through inference and the
context of other evidence presented. The redaction attenu-
ates that inference sufficiently for the purposes of Bruton,
and makes the present case clearly distinguishable from
Hoover. See Richardson, 481 U.S. at 208.
While Sutton’s case presents no additional unusual
circumstances, Brown argues that the references in the
confession to the “after hours club” where the conspira-
tors gathered and planned their crimes makes it clear
that one of the “other persons” that the confession names
must, necessarily, be Brown. Brown’s argument centers
12 Nos. 02-1679, 02-1687 & 02-1739
around the following testimony from Detective Dandurand
concerning a planning session for one of the robberies.
Q: Detective Dandurand, did Mr. Fleming in his
interview statement tell you that a Stacy Pete
was also at the club, that after hours club that
evening?
A: Yes, he did.
Q: Did he indicate she was playing with a handgun
at the after hours club?
A: Yes. What Mr. Fleming explained was that at the
club Stacy Pete had a handgun and she was wav-
ing it around in jest and making some comments
that she was going to knock off a bank.
Dandurand Direct Testimony, R. 183, at 5-A-109. Brown
argues that the ability of Stacy Pete to wave a gun around
and talk of robbing a bank meant the club owner en-
dorsed her behavior and must have been involved in the
robberies. Therefore, the club owner must be one of the
unnamed individuals. Other evidence specifically named
Brown as the owner of the after hours club in question. We
are unconvinced. None of the redactions replaced Brown’s
name with “owner of the after hours club,” nor is the
owner of the club mentioned in Fleming’s confession. In
order to reach the conclusion argued by Brown, the jury
would have had to pursue an extended inferential chain
of reasoning: 1) Stacy Pete waved a gun and mentioned a
bank robbery at a club; 2) She could only do that if the
club owner endorsed her behavior; 3) If the club owner
endorsed this behavior, he must be involved in the rob-
beries; 4) If he was involved in the robberies, he must be
a defendant; and finally, 5) because he is never expressly
mentioned elsewhere in the confession, he must be one
of the unnamed “individuals” in the confession. This in-
ferential chain is far from the express identification in-
volved in Hoover, where a jailed gang leader’s name was
Nos. 02-1679, 02-1687 & 02-1739 13
replaced with “incarcerated leader.” Hoover, 246 F.3d
at 1054. If Brown’s name had been replaced with “after
hours club owner,” then his situation would be more
comparable to that of Hoover.
Eskridge is of limited use to the defendants because the
government’s concession in that case that there was a
Bruton violation and the court’s dominant focus on the
harmlessness of the error resulted in a very cursory dis-
cussion of the redaction. Eskridge, 164 F.3d at 1044. We
believe it is distinguishable from the present case princi-
pally because there were only two people involved in the
crime altogether, and any reference to “another” person
would necessarily refer to the co-defendant. In the present
case there were drivers, gun suppliers and co-conspira-
tors of all kinds, with different individuals being involved
in different roles for different crimes. “Another individual”
could refer to many people besides Brown and Sutton.
There was, therefore, no Bruton violation in the redac-
tion of Fleming’s confession. Additionally, to the extent
that there was a violation, the substantial amount of other
evidence incriminating Brown and Sutton, including sig-
nificant testimony from various criminal collaborators,
would render the error harmless.
D. Obstruction Enhancement for Sutton
Sutton also challenges the district court’s two-level
enhancement of his sentence for obstruction of justice
under U.S.S.G. § 3C1.1.5 We review a district court’s find-
5
U.S.S.G. § 3C1.1 says “If (A) the defendant willfully obstructed
or impeded, or attempted to obstruct or impede the administra-
tion of justice during the course of the investigation, prosecution,
(continued...)
14 Nos. 02-1679, 02-1687 & 02-1739
ing that a defendant obstructed justice for clear error.
United States v. Sims, 329 F.3d 937, 944 (7th Cir. 2003).
Sutton argues that Lashecka Calvin’s testimony recant-
ing her earlier alibi testimony offered at the state trial is
a classic case of “he said, she said,” and not sufficient
to support the § 3C1.1 enhancement. Additionally, Sutton
claims that his acquittal by a jury in state court dem-
onstrates that his alibi was not false and that Calvin’s
testimony in federal court recanting the alibi is a lie.
Sutton’s arguments are unpersuasive.
For the purposes of Sutton’s federal sentencing, the
relevant fact is that the district court found that he had
attempted to convince Calvin to lie to federal authorities
for him. The district court found that “Sutton arranged
for false testimony to be given by Lashecka Calvin to
give him an alibi for that robbery” and that Sutton “[filed]
the alibi notice listing Lashecka Calvin as somebody
who would testify . . . that he was with her and not at
the bank when it was robbed.” Sutton Sentencing Tr. at 10.
The Sentencing Guidelines and this circuit’s precedents
make clear that attempting to influence a witness to make
false statements to investigating authorities qualifies as
an obstruction of justice under § 3C1.1. See U.S.S.G.
§ 3C1.1, cmt. n.4(a); United States v. Friend, 104 F.3d 127,
130-31 (7th Cir. 1997); United States v. Ross, 77 F.3d
1525, 1534-35, 1549-50 (7th Cir. 1996); United States v.
5
(...continued)
or sentencing of the instant offense of conviction, and (B) the
obstructive conduct related to (i) the defendant’s offense of
conviction and any relevant conduct; or (ii) a closely related
offense, increase the offense level by 2 levels.” Application Note
4(a) gives “threatening, intimidating, or otherwise unlawfully
influencing a co-defendant, witness, or juror, directly or indirectly,
or attempting to do so” as an example of conduct to which the
adjustment is supposed to apply. U.S.S.G. § 3C1.1, cmt. n.4(a).
Nos. 02-1679, 02-1687 & 02-1739 15
Wright, 37 F.3d 358, 361-62 (7th Cir. 1994). The district
court found that Sutton attempted to influence Lashecka
Calvin (as well as Angela Cramer) to provide him a
false alibi in the present case.
Sutton’s argument that this is merely a “he said, she said”
situation is simply an attack on the sufficiency of the
evidence supporting the court’s findings of fact—in the
present case, credibility of witnesses. Sutton’s unsup-
ported assertions are insufficient to make the district
court’s credibility finding clearly erroneous. United States
v. Agostino, 132 F.3d 1183, 1198 (7th Cir. 1997). Similarly,
Sutton’s argument that the state court acquittal precludes
a finding that his alibi was false is also unpersuasive. Given
his conviction for the Midwest Bank robbery and the
district court’s finding that he attempted to influence
Calvin and Angela Cramer to lie for him, his insistence
that his alibi cannot be false rings of irrational denial.
Sutton can provide us with no authority for the proposi-
tion that the district court was not permitted as a matter
of law to find the alibi false. And otherwise his assertions
are nothing more than attacks on the sufficiency of the
evidence—attacks that do not persuade us that the en-
hancement was clearly erroneous.
E. Consecutive Life Sentences for Fleming
Finally, we are also unpersuaded by Fleming’s argument
that the district court erred because it imposed his life
sentences consecutively under § 924(c)(1)(D)(ii)6 instead
6
18 U.S.C. § 924(c)(1)(D)(ii) states in relevant part:
“Notwithstanding any other provision of law— . . . no term
of imprisonment imposed on a person under this subsec-
tion shall run concurrently with any other term of impris-
(continued...)
16 Nos. 02-1679, 02-1687 & 02-1739
of concurrently. Statutory interpretation is a matter of
law and is therefore reviewed de novo. APS Sports Collect-
ibles, Inc., v. Sports Time, Inc., 299 F.3d 624, 628 (7th Cir.
2002). Fleming’s argument is two-fold: (1) Fleming at-
tempts to argue that he was sentenced under 18 U.S.C.
§ 3559(c),7 not § 924(c), and (2) therefore the district
court had the discretion to impose concurrent sentences
under § 924(c) instead of consecutively as the statute
mandates. In essence, Fleming argues that because he
was sentenced under § 3559, the district court should
have properly imposed the sentences concurrently.
Fleming’s argument fails in both respects. He was not
sentenced under § 3559, and therefore the district court
did not have discretion to impose his sentences concur-
rently. Section 3559 describes no crime under which a
defendant can be sentenced—it is merely a sentencing
provision that is dependent on the “third strike” crime
that triggers its application. See United States v. Boone,
No. 97-4094, 1998 U.S. App. LEXIS 15270, at *11 (4th Cir.
July 9, 1998); United States v. Eubanks, No. 98-4053, 1998
6
(...continued)
onment imposed on the person, including any term of impris-
onment imposed for the crime of violence or drug traffick-
ing crime during which the firearm was used, carried, or
possessed.”
7
18 U.S.C. § 3559(c)(1) states in relevant part:
“Mandatory life imprisonment.—Notwithstanding any other
provision of law, a person who is convicted in a court of
the United States of a serious violent felony shall be sen-
tenced to life imprisonment if—
(A) the person has been convicted (and those convic-
tions have become final) on separate prior occasions in a
court of the United States or of a State of—
(i) 2 or more serious violent felonies;”
Nos. 02-1679, 02-1687 & 02-1739 17
U.S. App. LEXIS 29372 (4th Cir. Nov. 18, 1998). The trig-
gering crime for Fleming was a violation of § 924(c).
Therefore, Fleming was sentenced for his crime under
§ 924(c), and required to receive life imprisonment accord-
ing to § 3559. Because he was sentenced under § 924(c), the
sentences must be imposed consecutively. United States
v. Garrett, 903 F.2d 1105, 1114 (7th Cir. 1990) (finding
that § 924(c) unambiguously requires imposing consecu-
tive sentences). The spectacular improbability of serving
consecutive life sentences notwithstanding, the sentenc-
ing was proper.
AFFIRM
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-23-03