United States v. Lonnie Allen Thomas

applicable rules procedures with- any obligation notify, out much less America, UNITED STATES of from, receive consent Floss and Daniels. Plaintiff-Appellee, right EDSI’s to choose the nature of its

performance promise renders illusory. its explained: As Professor Williston has THOMAS, Lonnie Allen Defendant- promisor aWhere retains an unlimited Appellant. right later the to-decide nature or extent performance, promise of his is too No. 98-6740. legal indefinite for enforcement. The unlimited choice effect destroys the Appeals, United States Court of promise merely and makes it illusory. Sixth Circuit. Williston, Samuel Contracts Argued: Feb. (3d ed.1957). illusory EDSI’s promise does not create Decided and April Filed: a binding obligation. purported The arbi- agreement tration therefore lacks a mutu-

ality obligation. Without a mutuality of

obligation, the agreement lacks consider- and,

ation accordingly, not does constitute

an enforceable agreement.8 arbitration

V.

Ryan’s pursued an acceptable

objective in an unacceptable manner. An

employer may enter agreement

employees requiring the arbitration of all

employment disputes, including those in

volving federal statutory claims. Yet an

employer cannot seek to do so such a

way that leaves employees with no consid promise

eration for their to submit their

disputes Here, to arbitration. we find that

Floss and Daniels did not any receive con

sideration for promise their to arbitrate

their disputes. We thus refuse to enforce promise

their Ryan’s. favor of judgment of the United States Dis-

trict Court for the Eastern District of

Tennessee in case 99-5187 is AF-

FIRMED, judgment and the of the United

States District Court for the Eastern Dis-

trict of Kentucky in case 99-5099 is RE-

VERSED.

8. Floss insists that the district agreement court erred in ment. Because the is unenforcea- grounds, as matter of law that she was ble on other we do not address this fraudulently not sign agree- induced argument. TN,

Attorney, Memphis, Plaintiff-Ap- for pellee.

Stephen (argued B. Shankman briefed), Harviel, Jr., T. Fed. Clifton Pub- (briefed), lic Defender Office of the Fed- eral Public Defender for the Western Tennessee, TN, of Memphis, District Defendant-Appellant. CLAY,

Before: COLE and Circuit BELL*, Judges; Judge. District BELL, J., opinion D. of delivered court, COLE, J., joined. which CLAY, 321-23), (pp. J. delivered a concurring opinion. OPINION BELL, Judge. District Allen in- Defendant Lonnie Thomas was mari- possession dicted on one count of distribute, in juana with intent to violation 841(a)(1), § of 21 and one count of U.S.C. of a firearm in violation possession felon § 922(g). September of 18 U.S.C. On plea guilty Defendant entered a firearm, possession felon in Count at sentenc- with Count 1 to be dismissed was sentenced as an ing. Defendant under the Armed Armed Career Criminal (“ACCA”), Act 18 U.S.C. Career Criminal 924(e)(1), § § 4B1.4 of the United to 200 Sentencing Guidelines be followed imprisonment, months supervised release. years term of three 1 was dismissed motion of Count United States. appeal Defendant contends

On him sentencing erred in as district court 924(e). § criminal under an armed career in 18 Congress provided U.S.C. 924(e) violates person that if a who 922(g) previous has three convictions offense, Canale, felony drug Attorney a violent or a serious J. Asst. U.S. Stuart both, briefed), occasions different or “committed on (argued and Office of U.S. * Bell, designation. Michigan, sitting by Robert Holmes The Honorable Judge for the Western District States District another,” person from one shall be Thomas came over the front seat and years. not imprisoned less than fifteen beating passenger] [the started about Bucky the face. grabbed [the driver] making its determination that Defen- around the neck and told her Thomas criminal, dant was an armed career kill passenger] would if she did not [the district court on evidence of three relied they drive where told her. 1) prior to a attempt convictions: commit 3, felony: burglary degree August third tried Bucky get keys to the out of the 2) 3) 1982; 10, 1986; rape July rape and ignition but he could not because there 10,1986.1 July is a button that has to pushed be for the There dispute prior is no that the three keys to come out. He made [the driver] convictions were for violent offenses within stop the car. raping Thomas started meaning the of the ACCA. Defendant con- passenger] Bucky [the took [the tends, however, 10, July that his 1986 con- raped out and her on ground. driver] rape victions for do not constitute two Thomas beat passenger’s] [the head separate predicate offenses under the stat- against the window of the car. ute because out arose of one criminal [the Thomas then made drive to driver] episode. place. another took pas- [the Thomas objections Because there were no to the senger] out of the car and knocked her facts contained in the presentence report, to the concrete and beat her head on a the district court adopted presentence car that parked was there. Thomas report findings as its concerning of fact raped passenger] repeatedly [the underlying facts rape convictions.2 Bucky finally persuaded get Thomas to early 1, morning January hours back in They changed the car. then 1986, two women in a car Thomas asked partners Bucky raped passen- [the companion, and his McKinney Roosevelt T. ger] vaginally anally. twice Thomas (“Bucky”) for directions to the Arkansas raped vaginally [the driver] and made Bridge. agreed The men to show them perform her oral sex on him. the way and asked for a ride. The men got the back seat of the Eventually, car. The Bucky told Thomas he details of what occurred next quoted thought saw a police car. The two men from the presentence report:3 exited the car and the away. women drove Although 1. the indictment listed a fourth con- 3.Defendant contends that the district court possession viction for convicted felon in looking underlying of a erred in at the facts of the handgun, government predicate conceded that this convictions. Defendant’s reliance violence, Arnold, 1117, was not a crime of and the district on United States v. qualifying predi- Cir.1995), court did not (6th consider it as a 1121-24 and United States v. purposes Seaton, cate applying offense for (6th Cir.1995), ACCA. support misplaced. of this contention is Arnold proposition and Seaton stand for the underly- that a court should not consider tire suggesting To the extent Thomas is now incorrect, predicate facts of the presentence report conviction in deter- was that ar mining predicate gument whether a object offense is a crime has been waived. A failure to purposes of violence for presentence report to the of the Armed Career any waives future Ward, They speak Criminal Act. do not objections. to what the See United States v. 190 (6th Cir.1999) court should consider whether (citing F.3d United Duranseau, (6th predicate offenses were "committed States v. F.3d Cir.1994)), occasions different from one cert. denied another.” All of sub nom. Morris v. - States, -, opinions U.S. our on this issue have involved 120 S.Ct. con- (2000). specific underlying sideration of the facts See also United Cullens, Indeed, prior imag- States v. Cir. convictions. we cannot 1995) curiam) (defendant (per ine how a who fails such determination could be made object sentencing underlying an error at waives his without reference to the facts of right appeal). predicate to assert the error on offenses. separate punishment multiple in two hanced

Thomas was indicted criminal rape of the two women. episodes indictments for the that were distinct time.” Id. at 5 years convicted and sentenced to (quoting Hughes, He was indictment, to run 1354, 1361 Cir.1991)). on each imprisonment concurrently. An episode is an incident that is determined that the The district court series, separate but a unit forms with- rapes of the two victims constituted two Although in the whole. related to the purposes crimes ACCA: events, entire course of episode is a is, in language we have here What punctuated occurrence with limited du- Brady, Brady [United ration. (en banc) ], an inci- Brady, (quoting Hughes, 988 F.2d at 668 that is of a series but forms a dent 1361). 924 F.2d at unit the whole. Al- separate within Brady In the defendant committed an related to the entire course of though armed at Mack events, robbery Avenue Beau- episode punctuated is a occur- Thirty he ty Shop. minutes later commit- we rence with a limited duration. Here a at victim, robbery ted second armed the Club have the first which rape argued Continental Bar. Id. at 666. He episode. We then have an forms one only that the two robberies should count as opportunity for Mr. Thomas to have predicate purposes from further crimi- one offense for of the ceased and desisted ACCA, 924(e)(1), § nal conduct. Instead he made a decision because 18 U.S.C. separate commit a act of point represented single, at that a crime continuous victim, aggression against a second and spree separate rather than two offenses. raped rape court, banc, he the victim of the second sitting rejected en his This “[cjonsistent point that occurred time.4 argument, and held that circuits, be- holdings of our sister we “Since whether lieve that offenses committed a defen- single multiple was a occasion or conduct places dant at different times presents legal question occasions a con victims, against although different commit- statute, cerning interpretation of a we other, ted within less than an hour of each review the district court’s decision de episodes separate and distinct criminal Murphy, novo.” 107 F.3d United States those and that convictions for crimes (6th Cir.1997). 1199, 1208 separate predicate should be counted as prior two offenses can Whether 924(e)(1).” § convictions under Id. at 669. predicate be treated as under the crimes arriving In at our conclusion that on the depend ACCA does not number separate epi constituted two robberies convictions or the number of victims. sodes, oth we three cases from considered Brady, United States v. separate that had found two er circuits (citing n. 5 United States (a (8th Cir.1987)) a episodes where there had been success Petty, 828 F.2d crime before the completion ful of the first defendant’s six convictions for six armed upon. We simultaneously could second crime was embarked robberies committed v. Schie only predicate offense for observed that United States count as one (7th Cir.1990), man, penalty of the enhanced of 18 894 F.2d purposes 1202(a) 1986), de emphasized § that “the (repealed pre Seventh Circuit U.S.C. 924(e)). successfully completed his In fendant had decessor statute 18 U.S.C. “ 924(e) safely escaped from the Brady burglary that en- and had we observed clarify signifi- that this was not case 4. The trial found it somewhat fact in order court determinative, cant, were and the two men although possibly not where the two victims stopped riding in the car the entire time was and moved to a around that the vehicle occurred. court mentioned this these incidents different location. The premises, concluding burglary police ep thus home his assault on officer just isode before undertook an assault on the woods outside of the consti- home Brady, investigating the officer the case.” single episode tuted a of criminal conduct v. Tis F.2d at 668. because the assault the officer at was dale, Cir.1990), the same location and within moments of burgla the Tenth Circuit held that three Id. at 1186-87. burglary. “successfully” ries committed' at different question single multiple epi- or within mall dur shopping stores the same recently sodes was most addressed in evening the same crimi Murphy, episodes. nal We observed Tenth (6th Cir.1997). Murphy After and two burgla Circuit had noted that each “[a]fter accomplices occupant robbed the ry, the defendant was free to desist first a duplex, Murphy residence of re- Brady, Finally, leave.” mained in the prevent first residence to we noted that in United States v. Wash occupant calling police, from while ington, Cir. accomplices adjoining his robbed the resi- 1990), the defendant had com “[b]ecause Although Murphy dence. was convicted pleted safely the first offense and escaped, robberies, of both we held that his convic- the court refused to consider the second tions for robberies of two sides of the a part single spree.” offense of a crime duplex single epi- constituted a criminal Brady, 988 F.2d at 669. 924(e). § purposes sode for of We rea- analyses Consistent with the in the cases soned that “Murphy because never left Seventh, from the Tenth and Fifth Cir- location, original his he never ceased his cuits, Brady we noted in that “while defen- original conduct and he successfully never Brady dant sat at the Club Continental escaped the site of the first until crime shotgun, Bar with his concealed he could the complete.” second was 107 F.3d at robbery have decided that the one he had enough committed was for evening. the Our reasoning guided these cases is Instead, he again.” decided to rob ACCA, purpose which is to F.2d at 669. Hughes, target recidivism. As we noted in We built on this theme of conclusion of propriety inflicting pun- of severer the first offense in United States v. Wil- ishment son, [repeat] offenders has (6th Cir.1994). In long recognized been country this Wilson the defendant was convicted of two in England. They punished are not criminal sexual conduct offenses on the offense, second time for the earlier but house, same date and in the same but repetition aggra- of criminal conduct victims, against separate and on different their guilt justifies vates heavier floors and locations within the house. Id. penalties again when convicted. at 1131. We found no error in the district court’s determination that sep- these were Graham v. West (quoting 924 F.2d at 1361 924(e): § arate offenses for of purposes Virginia, 616, 623, 32 S.Ct. “Defendant could have halted his criminal (1912)). 56 L.Ed. 917 Congress “Because Yet, rampage any time. he chose to recidivists, intended punish predi- selecting continue different victims in sep- cate conduct must amount to separate and Id. places.” arate distinct transactions in some definable Graves, Murphy,

In 60 F.3d 1183 sense.” 107 F.3d at 1210. There (6th Cir.1995), noting Brady court must be some “reasoned basis” for consid- had “considered whether or ering not the defen- criminal conduct to be a definable Graves, event. Id. As we cautioned in safely escaped dant from one crime scene “[i]t crime,” before he committed the second necessary apply we should not be to reach to instead, statute; held that burglary defendant’s of a this the statute should be aggressions carried out his appli- plice, Thomas facts demand its where the applied simultaneously. against the two women at 1187. cation.” first Considering whether women cannot rapes Thomas’ two provides a reasoned concluded crime was deemed to have been “committed be the conduct determining whether basis different from one another.” occasions episode such more than one constitutes rapes part Both of one continuous “repetition it can be considered that rape “punctuated Each was not a episode. crime is If the first criminal conduct.” occurrence with a limited duration.” See safely infer that we can concluded Rather, Brady, rapes F.2d at 668. into second crime entered defendant single, ongo- of a of both women were As noted purpose. with a fresh ing episode. criminal Pope, Cir.1998), appeals are “virtu the courts Conclusion “the ‘suc stating that ally unanimous” that Defendant- Accordingly, we hold plus crime completion of one cessful’ Thomas’ 1986 convictions for Appellant commit decision to subsequent conscious a sin- of the two women constituted rapes that crime crime makes second another episode purposes criminal of defin- gle purposes the first for the distinct from offenses for an enhanced predicate Id. the ACCA.” as an Armed Career Criminal sentence it is today, case before us 924(e). result, § As a under 18 U.S.C. completion of a or definable the absence only two Defendant has been convicted of the sec the first crime before endpoint of 924(e). under His predicate felonies distinguishes begun was ond crime improperly therefore en- sentence was Wilson, Brady from this case 924(e) under and U.S.S.G. hanced in opinions in our brings it more line with reasons, we foregoing § 4B1.4. For the Murphy and Graves. “The defendant resentencing. REMAND for hereby assault and Wilson completed one sexual victim in elected to seek out another then CLAY, concurring. Judge, Circuit completing after the first another location I in the outcome Although concur first location.” leaving the crime I do so based by majority, reached the contrast, in Murphy, By 107 F.3d at 1210. lenity. I believe the upon the rule of started when this case the sexual assault oc- “committed on language of the statute the women’s vehicle both men entered am- from one another” is casions different the until both men exited did not end for an though provides in that it biguous thought they had seen vehicle when punish- the punishment, enhanced when as argue, car. It is not sufficient to police cannot be deter- applied ment is to be case, in this government argued the language. plain mined the statute’s necessarily sequential rapes (“ACCA”), Act 18 Armed Career Criminal physically impossible because it was 924(e). case, the well- In such a U.S.C. time. rape two women at one Thomas to rule of judicial doctrine of “the established fact that the crime ignore cannot We ambiguity lenity” applies, “resolv[ing] pen more than sexual encompassed punishment.” in favor of the more lenient do Bucky Thomas and asserted etration. (7th Dictionary Black's Law at the control over both women minion and ed.1999). women under They kept same time. both statutory canon of It is a well settled the duration of throughout their control interpreting stat- that when conclusion of construction incident. There was no this utes, is the of the statute language activity against “[t]he the first Thomas’ criminal and it interpretation, starting point began raping the second woman when if point plain ending also be the of his accom- should the assistance woman. With 322 Cir.1994) (9th is clear.” Unit- (affirming the district

meaning language Choice, 837, (6th ed application lenity 201 F.3d 840 court’s of the rule of Cir.2000) v. Ron Pair ACCA); United States United States v. (citing interpreting Enters., Inc., Blake, 235, 241, 138, 109 489 U.S. S.Ct. (1989)).

1026, However, 103 L.Ed.2d 290 lenity may applied that rule of be (stating clear, Guidelines). if is not language the statute Sentencing in interpreting legislative history resort may we view, my plain language In neither meaning language. ascertain the legislative history of the statute nor the is Comshare, Litig., See In re Inc. Sec. in interpreting pertinent instructive (6th 542, Cir.1999); see also fact, when the ambiguous language. Kassouf, United States “committed on occasions differ language (6th Cir.1998). If the statute remains 924(e), ent from another” was added to ambiguous plain after consideration of its both the House and the refrained Senate meaning, legislative history, structure and submitting from a Report with the amend lenity applied the rule of is in favor of See ment. U.S.C.C.A.N. United States v. See criminal defendants. Moreover, provide the case law fails to Hill, Cir.1995). requisite guidance to resolve the case Bass, In United States v. permit us to determine the outcome. 347-48, (1971) S.Ct. In attempting ambiguity, to remove the Supreme policies Court enunciated the interpreting language case law “com time lenity: behind the honored axiom of mitted on occasions different from one an principle lenity] [rule This is founded other” has led to inconsistent outcomes in policies long two that have been our Court as well as other Circuits. Com First, of our tradition. “a fair warning pare v. Brady, given language should be to the world Cir.1993) 666, 669 (holding that understand, that the common world will two robberies committed at different of what law if intends to do a certain places against times and different vic passed. line is warning To make the although tims committed within less than fair, far possible so as the line should be one hour of each other were crimes com Second, clear.” because of the serious- mitted on occasions different from one an penalties, ness of criminal and because other) Murphy, punishment usually represents criminal (6th 1199, Cir.1997) F.3d 1208 (holding the moral condemnation of the communi- two convictions for armed robberies of ty, legislatures and not courts should two in duplex residences a were not activity. policy define criminal This em- crimes committed on occasions different against bodies “the instinctive distaste another); United States v. from one men languishing prison unless the Graves, 1183, (6th 1186-87 Cir. lawmaker clearly said should.” 1995) (holding burglary the defendant’s (citations 348, Id. at 92 S.Ct. 515. omit a home and police his assault on a officer ted). Accordingly, “policy lenity just in the woods outside of the home means will interpret that the Court not a were not crimes committed on occasions statute penal federal so as to increase the different from one another though even ty places it on an individual when such an the assault the officer was at the interpretation can be no than a guess more same location and within moments Schieman, v. with United States v. Congress burglary) as to what intended.” Bifulco States, (7th (find 381, 387, 909, Cir.1990) United 447 U.S. S.Ct. 910-13 (1980) 2247, Lad (quoting 65 L.Ed.2d 205 that a defendant who a committed States, ner v. 169, 178, United burglary and several minutes later as (1958)). 209, See pursuing S.Ct. saulted an officer him down the Weekley, F.3d 1125 street committed crimes on dif- occasions another). Compare (vague sentencing ferent from one Unit- provisions which are not (9th McElyea, ed States v. 158 F.3d 1016 clear can questions). raise constitutional Cir.1998) burglary However, (finding two convictions unnecessary it is under the cir- within place adjoining that took stores express cumstances of this case to opin- period a not short of time were committed ion as to constitutionality of the stat- another) ute, different from on occasions one and I expressly refrain from doing so. Washington, v. United States 898 Because we must save a statute from its (finding infirmity, constitutional and any doubt on that defendant who clerk at robbed same statutory the issue of construction should all-night convenience store twice within a thus be resolved in favor avoiding few committed hours crimes on occasions vagueness question, void for under the rule another). that, different from one “where a susceptible statute is of two constructions, by one grave of which precise There is no test that courts may doubtful questions constitutional arise and use in whether crimes have by the other of questions which such been on “committed occasions different avoided, duty [this is adopt Court’s] from one another.” See United States v. latter.” United States ex rel. Attorney Hudspeth, 42 F.3d Cir. Co., v. General Delaware & Hudson 1994) (holding that “crimes [] committed 366, 408, U.S. 29 S.Ct. 53 L.Ed. 836 victims, sequentially, against different (1909). different times different locations” occasions different from one an case, In this where the do facts not lend other); Tisdale, a themselves to determination of whether (“The Cir.1990) defendant the crimes were “committed on occasions had committed crimes on different occa another,” different from one rule of [ajfter sions because the defendant ‘suc lenity should be deemed to control. In- cessfully completed’ burglarizing one busi deed, although there were two different ness, he was free to leave. fact victims who were each raped multiple chose, burglarize instead to another times one presence during another’s business is evidence of his intent to engage episode, continuous the record does not in a criminal episode.”); see also remotely provide us with a clear and defin- Balascsak, question itive answer to the whether (3d Cir.1989) (en banc) (where plurali acts were “committed on occasions differ- ty concluded that a defendant must have Therefore, ent from one another.” be- been convicted twice before he committed cause we are ambigu- confronted with an his third predicate offense order to be ous criminal statute and choice must be eligible for the enhancement under the sentencing made between Defendant ACCA). mandatory the harsher minimum under Although the issue was not raised and the more punish- ACCA lenient were it parties, lenity, not for the rule of it ment under the sentencing guidelines, the possible thoroughly is that this ambiguous rule of lenity dictates that Defendant be statute could be declared unconstitutional punishment sentenced to the less harsh ground on the that it vagueness. is void for sentencing guidelines. under the void-for-vagueness “[T]he doctrine re

quires that a [criminal] statute de [be] ... with sufficient definiteness

fine[d] [so] ” ordinary people can understand.... Lawson, 352, 357, 103

Kolender v. 461 U.S. (1983);

S.Ct. see also

Grayned Rockford, 108- (1972) S.Ct. 33 L.Ed.2d

Case Details

Case Name: United States v. Lonnie Allen Thomas

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 27, 2000

Citation: 211 F.3d 316

Docket Number: 98-6740

Court Abbreviation: 6th Cir.