United States v. Harold Melbie, Jr. ( 2014 )


Menu:
  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 13-2072
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Harold William Melbie, Jr.
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Southern District of Iowa - Des Moines
    ____________
    Submitted: January 17, 2014
    Filed: May 1, 2014 (Corrected: May 1, 2014)
    ____________
    Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
    ____________
    MELLOY, Circuit Judge.
    A jury convicted Harold Melbie of being a felon in possession of a firearm in
    violation of 
    18 U.S.C. § 922
    (g)(1). The district court1 found that prior convictions
    qualified Melbie as an armed career criminal and that the fifteen-year mandatory
    1
    The Honorable John A. Jarvey, United States District Judge for the Southern
    District of Iowa.
    minimum sentence of 
    18 U.S.C. § 924
    (e)(1) applied. Melbie appeals, arguing that the
    district court erroneously treated a prior drug conspiracy conviction and a prior
    possession-with-intent-to-deliver conviction as separate qualifying predicate offenses.
    Although the possession conviction was for conduct that occurred during the period
    of the conspiracy and was related to the object of the conspiracy, the possession
    offense was a discrete episode in a series of events. The district court, therefore,
    correctly determined that the two convictions were "committed on occasions different
    from one another" as required by § 924(e)(1). We affirm the judgment of the district
    court.2
    I.    Background
    The applicability of 
    18 U.S.C. § 924
    (e)(1) in the present case hinges on whether
    Melbie's prior conspiracy conviction and his prior possession conviction may be
    counted as two qualifying prior convictions or whether they must be treated as one.3
    The conspiracy conviction was a 1999 federal conviction. It appears that no party
    2
    Melbie also preserves the argument that Apprendi v. New Jersey, 
    530 U.S. 466
    (2000), requires that a jury find the fact of each of his prior convictions beyond a
    reasonable doubt. Because such an argument is directly counter to the holding in
    Almendarez-Torres v. United States, 
    523 U.S. 224
    , 247 (1998), we necessarily reject
    Melbie's argument.
    3
    
    18 U.S.C. § 924
    (e)(1) applies if a defendant has three prior felony convictions
    for any combination of "violent felon[ies]" or "serious drug offense[s]." Melbie had
    two other potential qualifying felony convictions. One of these other convictions
    clearly qualified as a predicate conviction. The other was for an "overinclusive" state
    offense and would have required application of the modified categorical approach.
    See United States v. Dawn, 
    685 F.3d 790
    , 794–95 (8th Cir. 2012) (allowing a review
    of limited materials only for the purpose of determining which divisible subpart of a
    statute the defendant violated). The government concedes on appeal that it did not
    present the evidence necessary to apply the modified categorical approach. As such,
    the related conviction cannot be used as a § 924(e)(1) predicate conviction, and the
    outcome of this case necessarily turns on resolution of the issue described above.
    -2-
    objects to our review of materials from that case to determine the relevant time frames
    involved, and, in fact, Melbie directs our attention to such materials in his brief.4 That
    conspiracy ran from October 15, 1995 through September 19, 1996, and involved the
    sale of 9.07 kilograms of methamphetamine. The possession conviction was a State
    of Iowa conviction and involved seven grams of methamphetamine on September 19,
    1996. The 1999 PSR for the federal conspiracy conviction described the timing of
    events as follows:
    Melbie was arrested on September 19, 1996, following the execution of
    a search warrant at his residence. He was discovered to be in possession
    of approximately 7 grams of methamphetamine. He was sentenced [by
    the State of Iowa] on December 27, 1996 to a period of imprisonment
    not to exceed 10 years. His active involvement in the [federal
    conspiracy] organization ended at that point.
    Later, Melbie entered into a plea agreement on the federal conspiracy charge
    and the government agreed that Melbie's offense conduct for the Iowa possession
    conviction was "related to the offense conduct for" the federal conspiracy charge. The
    government also agreed that Melbie's federal sentence for the conspiracy charge
    should run concurrently with Melbie's Iowa sentence.
    4
    Because Melbie directs us to these materials and the government does not
    object to our reliance on these materials, we conclude that both parties have waived
    any objections they may have harbored regarding our court looking beyond the facts
    of conviction to analyze the underlying details of Melbie's prior offenses. We note
    that, unlike a typical review of materials pursuant to Shepard v. United States, 
    544 U.S. 13
    , 26 (2005), we do not review these materials to determine whether the
    underlying offense is a "violent felony" or "serious drug offense," rather, we review
    the materials solely to address the question of separateness. We also note that all facts
    we rely upon are undisputed on appeal.
    -3-
    The district court in the present case determined that the possession and
    conspiracy convictions counted as two qualifying prior felony convictions and
    sentenced Melbie accordingly.
    II.   Discussion
    
    18 U.S.C. § 924
    (e)(1) contains a separateness requirement that demands
    predicate felonies be "committed on occasions different from one another." We
    review de novo the district court's interpretation of this statutory language and the
    determination of "whether a prior conviction is a predicate offense" under § 924(e)(1).
    United States v. Van, 
    543 F.3d 963
    , 966 (8th Cir. 2008). In Van, our court relied on
    authority under similar provisions, 
    21 U.S.C. §§ 851
     and 841(b), to address the
    separateness of prior offenses under § 924(e). Id. (interpreting United States v.
    Johnston, 
    220 F.3d 857
    , 861–62 (8th Cir. 2000)); see also United States v. Tate, 
    633 F.3d 624
    , 632–33 (8th Cir. 2011) (applying Van and holding that § 924(e) applied,
    even though the defendant's relevant prior convictions were sufficiently related to
    serve as a "pattern of illegal activity" for racketeering purposes). In addressing the
    applicability of § 924(e) to Melbie, then, we also look to authority under these other
    recidivist provisions.
    In United States v. Gray, 
    152 F.3d 816
     (8th Cir. 1998), we addressed the
    question of whether two prior convictions for two separate controlled buys to the same
    confidential informant on two sequential days counted as one or two predicate felony
    convictions. 
    Id.
     at 821–22. There we described the material inquiry as whether the
    prior convictions were for "separate criminal episodes." 
    Id. at 821
    . We stated that a
    separate criminal episode could be "an incident that is part of a series, but forms a
    separate unit within the whole." 
    Id. at 822
    . We also stated that, "[a]lthough related
    to the entire course of events, an episode is a punctuated occurrence with a limited
    -4-
    duration." 
    Id.
     We held that the sales on sequential days qualified as separate criminal
    episodes. 
    Id.
     Gray did not involve a conspiracy offense as a prior conviction.
    Later, in United States v. Johnston, 
    220 F.3d 857
     (8th Cir. 2000), we applied
    Gray to assess the separateness of a prior conspiracy conviction and a prior
    possession-with-intent-to-distribute conviction. 
    Id.
     at 861–62. In Johnston, the
    government asserted that the prior conspiracy conviction and the prior possession
    conviction counted as separate qualifying prior convictions under 
    21 U.S.C. §§ 841
    (b)
    and 851. 
    Id. at 860
    . It was undisputed that the conduct underlying the earlier
    possession conviction in that case occurred as part of the conspiracy. We concluded
    that "[t]he conduct which resulted in the [possession] conviction was an incident that
    [was] part of a series. Although related to the entire course of events in the ongoing
    conspiracy . . . the . . . possession charge formed a separate unit within the whole."
    
    Id. at 862
     (internal citations and quotation marks omitted). In Johnston, then, we did
    not treat as dispositive the overlapping time frames of the ongoing conspiracy and
    possession offenses. Rather, we focused upon the nature of the conduct for the
    possession offense which was a "'punctuated occurrence with a limited duration.'" 
    Id.
    (quoting Gray, 
    152 F.3d at 822
    ).
    Because our court later relied upon Johnston when interpreting § 924(e), Van,
    
    543 F.3d at 966
    , and because we find the facts of Johnston to be materially
    indistinguishable from the present case, we hold that Johnston controls. As such, we
    must adhere to its application of Gray to the present situation involving an underlying
    conspiracy conviction that overlaps with a separate conviction for conduct that
    occurred as a punctuated event within that conspiracy.
    Melbie argues that a different case, United States v. Willoughby, 
    653 F.3d 738
    (8th Cir. 2011), controls and leads to the opposite result. In Willoughby we reviewed
    cases interpreting the language "committed on occasions different from one another"
    and concluded that "[o]ur court has considered at least three factors . . . in deciding
    -5-
    whether offenses are sufficiently separate and distinct to serve as individual predicate
    convictions for [the § 924(e)(1)] enhancement." Id. at 742. We identified those
    factors as: "(1) the time lapse between offenses, (2) the physical distance between
    their occurrence, and (3) their lack of overall substantive continuity." Id. at 743.
    Melbie argues that because his earlier possession offense indisputably related to the
    conspiracy and took place during the conspiracy, there was no "time lapse" between
    the offenses and the offenses shared a good deal of "overall substantive continuity."
    Id.
    Willoughby, like Gray itself, did not involve an underlying conspiracy
    conviction and a related conviction as the two allegedly qualifying predicate
    convictions. In fact, the ongoing nature and often extended time frames involved with
    conspiracy offenses make the Willoughby factor, "time lapse between offenses," a
    somewhat awkward fit for analysis in the conspiracy context. Johnston demonstrates
    that for application to a conspiracy and a related offense, the "punctuated" nature and
    limited duration of the related offense rather than the absence of a "time lapse" defines
    whether the offense is sufficiently distinct for the purpose of applying § 924(e)(1).
    Further, we note that Johnston preceded Willoughby by ten years, and Willoughby's
    synthesis of cases and identification of relevant factors does not displace the
    authoritative nature of Johnston as applied in the context of an earlier conspiracy.
    Melbie also argues that a factual distinction exists between the facts of his case
    and the facts of Johnston. Specifically, in his own case, the possession offense was
    his final act of involvement with the conspiracy. In Johnston, in contrast, the
    conspiracy spanned time both before and after the "punctuated" possession offense of
    "limited duration." We find this distinction immaterial. Melbie's participation in the
    conspiracy spanned a period of over eleven months, and his possession offense was
    a "punctuated" event of "limited duration" within that time. It was one event in a
    series of events, and nothing about Johnston suggests that its holding only finds
    application where the punctuated criminal act is something other than the conspirator's
    -6-
    final act. See Gray, 
    152 F.3d at 822
     (describing a separate occurrence as conduct that
    is a separate event but that may be "part of a series" of actions). Simply put, Johnston
    and Gray do not suggest that a different rule should apply based upon whether the
    punctuated event is the first event, a middle event, or the last event in the series of
    events.
    III.   Conclusion
    We affirm the judgment of the district court.
    ______________________________
    -7-