United States v. David Thomas Schieman

regardless of ing. concluded that The AU Meyer’s age ability on his

the effect of

work, impair- there was no medical cause engaging mining him in coal mining.

gainful comparable to coal work proper inquiry make that was the

Since (b)(2), and since the conclusion to

under inquiry supported by substantial

evidence, holding did not err in AU presump- Zeigler rebutted the interim (b)(2).

tion under the Benefits Review

The decision of

Board is

AFFIRMED. America,

UNITED STATES of

Plaintiff-Appellee, SCHIEMAN,

David Thomas

Defendant-Appellant.

No. 89-1782. Appeals,

United States Court

Seventh Circuit. Timothy (argued), M. Morrison Office of Argued Sept. Ind., Atty., Indianapolis, plain- the U.S. Decided Jan. tiff-appellee. Rimstidt, Yackey (argued),

Allan L. Ladd, Ind., Yackey Indianapolis, & for de- fendant-appellant. BAUER, Judge,

Before Chief RIPPLE, MANION, Judges. Circuit BAUER, Judge. Chief A defendant who is convicted viola- 922(g) tion of 18 and has three U.S.C. § previous convictions for violent both, drug offense or committed on serious another, different from one occasions provi- Act sions of the Armed Career Criminal (ACCA), Section 18 U.S.C. § impris- shall be provides that such years. The than fifteen oned for not less requirement, but that a 1980 conviction for appeal appropriate is the first issue robbery did. Neither of these deter- to determine whether bank by which appeal. The minations are at issue on previous three convic- has the defendant introduced evidence of government whether two of also issue is The second tions. previous felony other convictions for offenses which two Schieman’s David Thomas 1,May approximate- 1974. At offenses, and an occurred on burglary a into ly May 2:00 a.m. on Schieman broke on the same eve- battery Fair, Main Jenny’s The Cake located at 1518 S. standard. district ning, meet this Bloomington, Illinois. He stole mon- that Schieman was sub- St. court determined register fled the 924(e) sentencing. ey We affirm. from the cash and ject to § Thereafter, scene. he went to Hicksatomic I. Station, located at 1201 S. Main St. and Gas public telephone used the to call a taxicab. jury sitting grand South- A federal call, making While he was observed Indiana returned a five of ern District Bloomington Officer Ernest Sandell of the against Schieman. The indictment count investigating Department Police who was charged being him with a felon indictment burglary. approached When Sandell of a firearm violation of 18 possession him, question Scheiman knocked Sandell to being fugitive a 922(g)(1) and with U.S.C. § ground escaped and on foot. a firearm in violation of 18 possession of booth, phone pa- Sandell found two brown 922(g)(2). The indictment also U.S.C. § $30.50, per containing including sacks on a federal offi- charged him with assault pennies stamped Jenny’s rolls of Cake Fair. 111, posses- of 18 U.S.C. cer in violation § arrested, subsequently Schieman was tried unregistered firearm in violation of an sion guilty burglary and found of one count of 5861(d), possession and of of 26 U.S.C. § aggravated battery. and one count of At an obliterated serial number firearm with sentencing hearing, government 5861(h). A su- of U.S.C. violation § contended that these convictions were two later, perseding indictment was filed add- separate convictions for violent felonies count, solicitation of a crime of ing a sixth that, together and with the 1980 conviction of 18 in violation U.S.C. violence for bank these convictions made then notified the court and government The Schieman enhance- it would seek to have the defendant 924(e). provision ment The district 924(e). pursuant Schieman sentenced agreed and sentenced him to the cus- Thereafter, govern- and the Schieman tody of the Bureau of Prisons for a term of plea agreement. ment entered into Schie- years on counts 3 and to be served guilty agreed plead man to counts 3 and concurrently with the term of 36 months on of 18 charging violations U.S.C. brought counts 5 and 6. Schieman then 922(g)(1) and and counts 5 and §§ argues predi- appeal. He first 5861(d) charging violations of 26 U.S.C. §§ product “sepa- cate offenses must be the (h). agreed government The to dismiss episodes” rate and distinct charging solicitation of a crime of the count previous to count towards the three convic- (The government had earlier violence. 924(e). tions He next con- charg- asked court to dismiss count tends that his convictions for officer.) plea on a federal assault aggravated battery product were the agreement provided govern- also just episode and thus that one criminal he seek to have sen- ment would 924(e). improperly sentenced under § 924(e). pursuant to 18 U.S.C. tenced sentencing hearing, govern- At the II. ment introduced evidence of four satisfy subject to the require- in order to In order to be enhanced ACCA, penalty provisions that a defendant ments of court found previous convictions for conspiracy to commit must have three conviction drug offense escape satisfy any violent or serious felony” did not the “violent different from one or out-of the committed occasions Armed Career Criminal sta- 924(e).1 tus. The first another. 18 U.S.C. § appropriate appeal

issue on standard Herbert, 860 F.2d at 622. by which to determine whether the defen- Circuit, however, The Third has held that requisite dant has the three convictions. episode each criminal adjudicated must be possibilities.2 There are two Most courts separately to count towards the three con that a to the have held defendant is victions the statute. United penalty, regardless enhanced of the num- Balascsak, States v. (3rd 873 F.2d 673 Cir. adjudications, long ber of as each convic- (en banc). Balascsak, 1989) In the district tion arises out of a and distinct according sentenced the defendant See, United States episode. criminal 1202(a) upon finding based that § (6th Cir.1989), Pedigo, F.2d 879 1315 burglaries committed one apart block on Towne, (2nd United States F.2d 880 870 10-11, July (the of 1981 first Cir.1989), 860 p.m., at 10:45 and the second (5th Cir.1988), United States v. F.2d 620 a.m.) sometime p.m. between 11:00 and 7:00 Gillies, (1st Cir.1988), 851 F.2d 492 adjudicated and together counted as two Rush, (8th Cir.1988), States v. 840 F.2d 580 convictions. Six members of the en banc United States v. court held that the ACCA did not intend Greene, 810 Cir.1987), United States v. jointly that such tried offenses count to (11th Cir.1986). adopting.this In F.2d 999 Rather, ward the three offenses. standard, Herbert the First Circuit in stat- the statute was aimed at ed: demonstrated, people who have [Those] definition, by virtue of their Petty, Supreme locking that Court faced with issue, up letting them and go them doesn’t multiple

a similar concluded that do any good. They go again, you on lock convictions must be treated as one con- up, you go, them let them it 1202(a) doesn’t do purposes if viction the con- any good, they are back for a third time. victions from a arose criminal juncture At say, that we should ‘That’s negative implication transaction. The it; out; We, it is all over. as re- holding multiple is that convictions sponsible people, give you will never arising multiple from criminal transac- opportunity again.’ to do this tions should be treated as victions, regardless ju- of the number of (quoting Testimony at 682 Stephen proceedings dicial in the Trott, General, involved convic- Attorney Assistant Crimi Division, tion. To hold otherwise would be to cre- reprinted in Armed Career nal state, by ate a situation which the Hearing Criminal Act: on H.R. 1627 and 52S. electing to consolidate or not to consol- the Subcomm. on Crime Before Judiciary, on the charges idate House Comm. based transac- tions, (1984)). “sepa could maneuver a defendant into 2d 64 To the Sess. certiorari, original petition appeared 1. The ACCA at 18 U.S.C. for writ of the Solicitor Gen- 1202(a)(1) (Supp.1984). error, stating Thus some of the eral confessed believe that “[W]e opinion 924(e). decisions cited in this will refer to underlying purpose of the statute and the 1202(a) rather than § Congress intent of indicate that the court of ... appeals construing was in error in the statute to statute, to the amendment Prior 1988 arising multiple felony reach out of language which added the “committed on occa- (Brief 29-30). episode.” criminal another," different possibility, was a sions third there Petty’s granted petition Court Eighth evidenced Cir- respect to this issue and remanded to the court Petty, cuit’s decision in United States v. F.2d 798 appeals for reconsideration. 481 U.S. vacated, (8th Cir.1986), 107 remand, the 95 L.Ed.2d 810. On remand, S.Ct. court vacated the enhanced sentence Petty, imposed In the court adopted the view of the Solicitor General upon the enhanced sentence a defendant who multiple previously had been convicted of six counts of the “statute was intended to reach robbery arising episodes armed from an incident that were distinct in time.” simultaneously which the defendant robbed six Petty, 828 F.2d at 3. patrons response Petty's of a restaurant. purposes of episode” test em convictions for the distinct criminal

rate and circuits, judges adopt reasoning the six of the dissent ployed We now require panel grafted thus on the of the of other in Balascsak and episode must be ment that each question.3 have faced this circuits which adjudication own punctuated by its that this answer is clear after the We think separate conviction. to count aas 924(e), recent amendment to most disagreed, vigorously ambiguity how- judges any previous Five clarified ever, majority’s assessment of the with the Anti-Drug statutory language. See Abuse statute, argued dissent “Con- 100-690, Act of Pub.L. enacting the enhanced gress’s concern (1988).4 now Stat. The statute at issue this case was penalty provision reads: repeated criminals involved with those person of a the case who violates interven- episodes, with without 922(g) section of this title and has three Balascsak, ing efforts at rehabilitation.” previous by any court re- The dissent cited the 873 F.2d at 688. 922(g)(1) ferred to in title section of this in the histo- repeated statements drug for a violent serious caught ry criminals are and convicted offense, both, committed on occa- they actually crimes than com- for fewer another, such sions different from mit, see, S.Rep. No. 97th 2d $25,- person shall fined not more than be (1982), 3, 21, S.Rep. No. Sess. imprisoned 000 and not less than 15 suggest- Cong., 1st Sess. years ... ed that 924(e)(1988) added). (emphasis 18 U.S.C. overriding

Congress’s concern with the language This is same used previ- that once a has three fact specified provisions, the offenses ous convictions for Act, likely 3575(e)(1) quite (repealed he or she is to be U.S.C. effective Nov. a member of that ‘small number of re- 1, 1987) 849(e)(1)(repealed and 21 U.S.C. § highly peat offenders commit a 1, 1987), [who] effective Nov. neither of which disproportionate amount of the violent required that the offenses ad- be today,’ plaguing S.Rep. crime America judicated separately to count towards the any regardless interven- No. 585 three convictions the statute. ing convictions. Balascsak, See 873 F.2d at 686 n. 2. Al- Balascsak, 873 F.2d at 688. The dissent though unnecessary it is to look to the adoption “sepa- of the thus advocated legislative history statutory when the lan- episode” rate and distinct criminal test and unambiguous, agree guage is we also would have sentenced Balascsak under leg- those circuits which have examined the 924(e). history islative and concluded that repeat was aimed at offenders re- ACCA appeal,

Prior to this this circuit has not gardless intervening of the number of appro- opportunity had the to address the See, Wicks, e.g. victions. 833 F.2d at priate under which to determine Herbert, has three F.2d at 622. whether the defendant appears viability plurality It that the of the but found it was not met in this case. The opinion question in Balascsak is in after the remaining judges adopted “separate five Third Circuit’s most recent decision on this is- by distinct” test and found that it was satisfied Schoolcraft, sue. In United States v. noting the facts of the offenses. After that it (3rd Cir.1989), adopted per curiam court by plurality opinion, was not bound episode" “separate and distinct criminal test of analysis adopted the dissent’s Schoolcraft in Balascsak. Scirica, (Judge the dissent in Balascsak. ever, how- decision.) dissented from the The School- court found that it was not bound craft decision in original statutory 4. Some circuits had found the alignment because of the Balascsak language ambiguous leg and had looked required of intervening of the court votes. Six members See, e.g., history clarification. Unit islative apply to convictions in order 860 F.2d at ed States he ACCA.A seventh concurred in the result: adopted test, "separate the dissent's and distinct” above, ag- offenses of stated we Schieman’s For the reasons sepa- reasoning gravated battery of the should count as two follow the adopt “separate sentencing and dis circuits and rate convictions for § convictions, episode” together test determine purposes. tinct These two subject to the en a defendant is whether for bank with the 1980 conviction 924(e). penalty provision of hanced him The decision make affirmed. court is therefore district III. contends that the district court RIPPLE, Judge, concurring in Circuit finding of which erred that the offenses dissenting part. part and product sepa- he was convicted were agree majority’s I with the conclusion episodes. He ar- distinct criminal rate and “separate epi- and distinct criminal gues that the offense of bat- appropriate analysis sode” is the test of the bur- tery simply a continuation applicability determine the of the Armed and therefore that these two glary offense (ACCA), Career Criminal Act 18 U.S.C. separately. cannot be counted offenses 924(e). However, respectfully disagree I disagree. We analysis, applied that this when to the facts case, had success In this Schieman case, justifies of this the enhancement of Jenny’s completed burglary of fully the My Mr. Schieman’s sentence. brothers escaped the safely Fair and from Cake conclude that Mr. Schieman is liable under committing subsequent the premises before 924(e) 18 U.S.C. because he was convict- Wicks, offense. See United States having crimes on the ed committed two (two burglaries committed the F.2d 192 However, evening. same it is clear that counted night in different locations same reality part in the two incidents were 924(e) predicate sen as two offenses episode: Mr. com- Schieman away from tencing). He was three blocks mitted a walked three blocks approached Sandell the store when Officer arrange away telephone to make a call to battery him. To consider and, scene, transportation away from the in burglary of offense a continuation of attempt apprehension, pushed an to evade preclude would consid fense phone police a officer at the booth. designed is to any eration offense which approximately pushing incident original detection of the crime. prevent robbery. five minutes after the questioned Had Sandell Officer attempt justify In an to its character- robbery following day, about this separate as crimi- ization of this event later, un three weeks Schieman's attack episodes, nal states doubtedly considered a would be complete, there original crime is “[o]nce episode. original and distinct Once way distinguish between principled is no complete, principled there is no crime is investigation response in to an an attack way distinguish between an attack the bur- within ten minutes of commenced investigation commenced response to an response to an inves- glary and an attack and an within ten minutes of burgla- day after the tigation commenced response investigation to an com attack ought ry.” at 913. This rationale Ante day burglary. To make menced a after First, it is two reasons. not stand for grant would a distinction this situation Congress. contrary express intent of windfall for the the criminal an unintended methodology nec- analytical Secondly, the quick detection of his crime. This we de “principled” distinc- essary make such cline to do. law. in our criminal tion is well-established “committed Because Schieman against separate crimes victims A locations,” Towne, 870 respect to this 193; intent with 833 F.2d at (citing F.2d at 891 Indeed, certainly mystery. 1000), no Greene, we find that section 810 F.2d at branch, responsible multiple felony arising for the counts from a the executive statutes, federal criminal episode multiple “pre- enforcement of congressional acknowledged has man- vious convictions.” level, and, at- date at least on national at 7. During tempted to remain faithful to it. colleagues Our in other circuits have rec legislative hearings, then Assist- the 1984 ognized congressional mandate and Attorney Stephen S. Trott de- ant General scrupulous observing have been the con the Armed Career Criminal Act as scribed gressional scope limitations on the of this who, persons having already aimed at been See, potent provision. re- episode, involved in a serious criminal Pedigo, United States v. turn to such antisocial behavior: Cir.1989) (remanding for a determination as people who have These are demonstrat- to whether the convictions consti ed, definition, their virtue of that lock- requisite tuted epi number of criminal letting up go them them doesn’t sodes). Even dealing when with situations any good. They go again, you do lock clearly that more scope fall within the go, up, you them let them it doesn’t do statute, they carefully differenti have they any good, are back for a third time. type ated those situations from the before juncture, say, At that we should “That’s Certainly us now.1 the two cases cited out; We, it; it is all over. as re- majority hardly support its conclusion sponsible people, give you will never that Mr. Schieman’s actions on the again.” opportunity to do this 1,May sepa 1974 must be considered as Act, Hearing Armed Career Criminal Be Indeed, in episodes. rate fore the Subcomm. on Crime of the House Towne, denied, (2d Cir.), cert. Judiciary, Comm. on the 2d — U.S. -, 2456, 109 S.Ct. 104 L.Ed.2d (1984) (quoted in Sess. 64 Brief of Solicitor (1989), 1010 the court determined that two States, Petty v. 8-9, United 481 General incidents, together resulted in four 1034, 1968, U.S. 107 S.Ct. 95 L.Ed.2d 810 kidnapping rape, convictions of (1987)). fashion, similar a brief sub constituted prior episodes, not four. Petty v. mitted to the Court in Id. at 891. After examining legislative States, 1034, United 107 S.Ct. history 924(e), of section the court conclud (1987), 95 L.Ed.2d 810 the Solicitor ed: legislative history General examined the quite It seems clear that this section of the statute: the Act target was intended to recidi- throughout legislative [References i.e., vists, engaged those who have reports and the floor debates to “career activity violent criminal on at least three criminals,” offenders,” “repeat “habitual occasions, and not individuals offenders,” “recidivists,” “revolving happen acquire who three convictions offenders, loser,” door” “three single as a result episode criminal offender,” “third-time “[defendants] (or, here, events). as two such criminal times,” victed three and to defendants at 891. In the second case committing subsequent a “third or rob- cited United majority, bery,” are inconsistent 833 F.2d notion — denied, (9th Cir.1987), cert. Congress statute], that intended un- 192 U.S. [the -, penalty like in federal enhanced 109 102 S.Ct. L.Ed.2d 63 provisions, to count burgla- defendant had committed two Taylor, spree multiple 1. See United States v. 882 F.2d constitute criminal - (6th Cir.1989) (determining transactions”), denied, -, 1028-29 whether cert. U.S. 109 spree” acts constitute "crime is a diffi (1989); S.Ct. 104 L.Ed.2d 639 United case, question; presented cult in that since not Gillies, (1st Cir.) States v. 851 F.2d burglaries months); in different committed (sufficient predicate convictions even if two F.2d States v. 622 n. burglaries single episode), on same treated as 1988) (not addressing Cir. issue of “whether — denied, U.S. -, rt. ce multiple convictions for crimes committed over period days part or hours as However, apply clear: the enhancement is to night. the same ries on They activity and distinct. who turns anew to criminal crimes were completed episode. One was an earlier and at different locations. after By the other. con necessary imple- the continuation of The factual not assessment trast, the crimes were committed here ment that intent is the tradition- operation episode part process. of the same judicial hardly al fare of the It is —a escape. The burglary and the immediate impossible an task. rigorous meet the crimes do not Today’s holding places this circuit well determining sepa met that should be judicial interpre- outside the mainstream of See United States episodes. rate criminal tation on this issue. This enhance- Balascsak, (3d Cir. provision important ment an tool in the is 1989) (en banc) (“I that the believe peaceful society. maintenance of a There episode requirement must read be way is no more certain to weaken it than to rigorously and that we must insist beyond recognition. it stretch convincingly government prove (and they episodes of which crimes (Becker, part) truly separate.”) were

were

J., concurring).

B majority’s suggestion princi that no possible a crime

pled distinction between detection within ten

committed to elude original crime and com minutes of the RAILWAY LABOR EXECUTIVES’ day ignores mitted a later the fact ASSOCIATION, al., Petitioners, et distinctions are made often our similar instance, type For the same criminal law. is made in the case of cf determination INTERSTATE COMMERCE law, felony-murder. Indiana a homi Under COMMISSION, al., et asportation of during cide committed Respondents, property is considered to occur with stolen v. Eddy in one continuous transaction. State, 24, (Ind.1986). “A 496 N.E.2d the commis al.,

transaction is continuous when Murray, Daniel R. et the homicide and are sion of both Intervening Respondents. time, place, and conti closely connected 89-3148, 89-3208. Nos. State, Sheckles

nuity of action.” (Ind.1986). Certainly, N.E.2d Appeals, Court of United States Co., Sedima, v. Imrex S.P.R.L. ever since Circuit. Seventh 3275, 3285 496 n. 105 S.Ct. Dec. Submitted circuit n. “[t]his Court’s admoni has followed Feb. Decided required government tion and has prove ‘continuity plus relationship’ activity] pattern racketeering to show a [of purposes of RICO.” Cir.1988),

Muskovsky, 863 F.2d — U.S. -, denied, rt. ce See also 1345, 103 L.Ed.2d 813 Horak, (7th Cir.1987). There is no reason of assessment cannot be

why the same sort congressional intent

made here. The

Case Details

Case Name: United States v. David Thomas Schieman

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 23, 1990

Citation: 894 F.2d 909

Docket Number: 89-1782

Court Abbreviation: 7th Cir.