OPINION AND ORDER
SPATT, District Judge.
Before the Court at this time is the resentencing of the defendant Paul Chartier ("Chartier"), which raises an issue apparently not yet considered by the courts of this Circuit: whether a string of armed robberies concededly committed to support a heroin addiction constitutes a single "common plan or scheme" to avoid "career offender" status, when the prior crimes were committed with the same individuals, within a month, and utilizing the same modus operandi.
After a plea of guilty to armed bank robbery, at the first sentencing proceeding on April 6, 1990, the Court determined that the defendant was a "career offender" by reason of at least two prior convictions for crimes of violence. With the "career offender" enhancement, the guideline range was increased to 210 to 262 months.
The Court sentenced the defendant to the maximum 262 months, for the following reasons: (1) the defendant's extensive criminal
In United States v. Chartier, 933 F.2d 111 (1991), the Second Circuit vacated the sentence and remanded the case for resentencing, essentially on two grounds.
First, it held that a hearing should be held on whether the four armed robberies committed by the defendant in 1974 were part of a "common plan or scheme," as follows:
Second, the Court stated that "[i]f, upon reconsideration, the District Judge makes a finding that renders Chartier subject to the career offender guideline, we urge the Judge to give renewed consideration to the selection of the particular sentence to be imposed within the guideline range" (933 F.2d at p. 117). Also, in that event, since the guidelines range exceeds 24 months, the District Judge would be required to state "`the reason for imposing a sentence at a particular point within the range'" (see id., quoting 18 U.S.C. § 3553[c]).
In accordance with this direction, a hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980) was held on September 13, 1991.
A career offender is one who (1) "was at least eighteen years old at the time of the instance offense," (2) is being sentenced for "a felony that is either a crime of violence or a controlled substance offense", and (3) "has at least two prior felony convictions of either a crime of violence or a controlled substance offense" (Sentencing Guideline § 4B1.1).
Judge Altimari recently discussed the "career offender" provision, as follows:
Chartier argues that his four prior armed robbery felony offenses were "related" since they were part of a "common plan or scheme", and therefore he does not have "at least two prior felony convictions" (see Sentencing Guideline § 4A1.2, comment n. 3). In support of this contention, he points to: a similar modus operandi; the fact that they are the same types of crimes, namely, three armed bank robberies and one Burger King robbery; the crimes occurred within a short period of time; and that they were all committed to support his heroin addiction.
Offenses are "related", if they "(1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing" (Sentencing Guideline § 4A1.2, comment n. 3).
It is significant within the factual purview of this case, that a similar modus operandi has been held to be insufficient to demonstrate a "common scheme" (see, e.g., United States v. Burkes, 937 F.2d 603 [4th Cir.1991] [per curiam] [unpublished opinion]; United States v. Davis, 922 F.2d 1385, 1389 [9th Cir.1991]).
In United States v. Davis, supra, it was stated:
In United States v. Burkes, 937 F.2d 603 (4th Cir.1991), it was held:
Also, "[a] relation between offenses is not probable when the offenses occurred on different dates and in different jurisdictions" (Burkes, supra, citing United States v. Rivers, supra; see also United States v. Jones, 899 F.2d 1097, 1101 [11th Cir.], cert. denied, ___ U.S. ___, 111 S.Ct. 275, 112 L.Ed.2d 230 ).
Finally, concurrent sentences rendered in the prior offenses do not necessarily indicate a relation or common plan (see, e.g., United States v. Flores, 875 F.2d 1110, 1114 [5th Cir.1989]).
In Jones, supra, the defendant committed two bank robberies involving two different banks on the very same day, approximately ninety minutes apart. The Eleventh Circuit affirmed the District Court which found that "the two incidents in question were temporally distinct and involved two different banks and two different tellers as victims ... and were not part of a single common scheme or plan" (899 F.2d at p. 1101).
A case factually similar to the one at bar is United States v. Rivers, 929 F.2d 136 (4th Cir.1991). The defendant in Rivers had two prior convictions for armed robberies of gas stations committed twelve days apart. The District Court found that these two prior offenses were "related" since they were committed pursuant to a common plan. The Fourth Circuit reversed this finding as "clearly erroneous", and held the defendant to be a "career offender" as a matter of law. In rejecting the District Court's reasoning, the Circuit Court stated:
With the settled law of the other Circuits in mind, the Court will now review the facts established at the Fatico hearing held on September 13, 1991.
The defendant Paul Chartier was the sole witness. In essence, the defendant testified that in 1974 he was involved in a series of criminal activities. He was "strung out on heroin" and committed the crimes to obtain drugs. He got together with two other addicts and they "decided to rob together."
The first robbery occurred at a Burger King in Nassau County in late October or early November 1974. While one perpetrator waited in a stolen get-away car, and
After the Burger King robbery, "we ran out of money real fast." John Taylor, one of the other two individuals, was on parole for bank robbery, "so we decided to rob banks." On November 9, 1974, the defendant took part in an armed robbery of the Suburbia Federal Savings Bank in East Rockaway, Nassau County, New York. This time only the defendant and John Taylor participated in the robbery. The defendant had been in the bank before and knew that there were no glass partitions and no bank guard. Again, Taylor stood guard with the same gun while the defendant vaulted the counter and emptied the tellers' drawers of $9,682.66 and the two ran out to a different stolen get-away car, again wearing ski masks.
Sixteen days later, on November 25, 1974, the defendant held up the "Federally University Insured Bank & Trust Company" (sic) in Newtown, Massachusetts. Although they did not initially intend to rob this bank, when the defendant traveled to Massachusetts to change the small bills obtained from the Suburbia Bank holdup into large bills, he decided, spur of the moment, to rob the Massachusetts bank. The defendant and the two coperpetrators later committed the crime in the same general manner as the two prior robberies. "I would vault the counter, and this one, I think, John had the back door, Joey had the front door ... (and) we had a stolen car a block away ... (and) ... the good car was two or three blocks away." During this robbery, police officers intercepted their car "and started shooting at us." They also wore ski masks in this robbery.
In each robbery they used different stolen cars as "get-away" cars parked outside the banks (or Burger King) and drove to a different "legitimate" car, which was rented, as their "good" car, parked a few blocks away.
Four days after the Massachusetts robbery, on November 29, 1974, the defendant committed his fourth armed robbery; this time in Nassau County. The defendant lived in Valley Stream and had previously been in the Valley Bank of New York. John Taylor said to him, "We got to do another bank". Joey was "shaken up by the police officers firing at us in Boston, so he wasn't with us on that one." Again, wearing a ski mask, the defendant vaulted the counter, announced "robbery", and cleaned out two tellers' drawers while Taylor "played guard", and they proceeded to their stolen car and then to the "good" car.
After these armed robberies, the defendant was arrested, prosecuted, sentenced and jailed.
The defendant testified that the stolen money from each robbery was used for drugs; "we were all strung out on drugs".
On cross-examination, the defendant revealed that he was a heroin addict since he was fourteen years of age. The defendant again stated that he committed the four 1974 robberies to buy heroin. The defendant further testified that the same reason motivated his actions in committing the 1988 Staten Island bank robbery. In 1988 he was also "desperate for heroin" and also robbed a bank close to his home. Then a series of questions revealed the true motivation behind the armed robberies committed by the defendant as follows:
(Tr. at p. 25) (emphasis supplied).
The defendant was sentenced for the prior 1974 armed robberies to seven and one-half to fifteen years, and he actually served nine years and six months. In response to a question by the Court as to any other felonies he committed before or after 1974, the defendant stated he committed many burglaries since he was fourteen. After he left prison in 1984, he was charged with
In his closing arguments, the defendant's counsel contended that (1) the guidelines do not define a "single common plan or scheme"; (2) the Second Circuit stated that "the circumstances have supported a finding of common scheme or plan, had one been made"; (3) the defendant's testimony is uncontradicted; and (4) the modus operandi from the four armed robberies was the same.
Considering all of the circumstances of the four prior armed robbery felony convictions, this Court finds that the four prior felony convictions were not "related" within the meaning of the Sentencing Guidelines.
First, all four robberies, three in New York, one in Massachusetts, were charged in separate indictments, and there was no charge of conspiracy linking any of these substantive offenses. Further, the state authorities never joined the offenses for purposes of investigation or prosecution.
Second, accepting all of the defendant's testimony as true, Chartier has not offered any proof that the four felonies were "related" or part of a "single common scheme or plan". What has been established is that the four armed robberies involved the same defendant, who committed the same types of crimes, employed the same modus operandi, and claims they were all done to support his heroin addiction. The precedent from the Circuits is clear that the mere similarity of separate crimes committed within a short period of time does not create a "common plan or scheme" so as to avoid career offender status. This is the precise factual situation rejected by the Rivers and Kinney courts. In fact, the Fourth Circuit in Rivers found that the District Court's finding of "career offender" based upon such similar crimes committed within twelve days to be clearly erroneous and determined the issue on appeal as a matter of law. Chartier has offered no evidence other than his allegation that the crimes were all committed to support his drug habit and that they were committed in a similar manner, to support his contention that the four crimes, committed in two states, were related or committed pursuant to a common scheme or plan.
In a letter dated September 20, 1991, from Ian Lowell Heller, Esq., counsel to the defendant's attorney, he states at page three:
We know from a review of the pertinent precedents that crimes committed in a similar manner, does not necessarily mean that they are part of a "single common plan or scheme". Theoretically, perhaps if the defendant and his co-perpetrators sat around a table on October 30, 1974 and planned two consecutive robberies of two predetermined locations, on two predetermined dates, that may be sufficient to establish a single common plan or scheme.
Here, the defendant conceded that the crimes were committed, albeit in a similar manner, when his money ran out and he decided he needed additional funds to support his drug habit. These decisions to rob were four separate "spur of the moment" decisions on each of four separate occasions and were not related or part of a single common scheme or plan.
Accordingly, based upon the foregoing, the Court finds that the four 1974 armed robberies were not "related" and were not part of a "single common plan or scheme". The Court therefore finds that the defendant Paul Chartier is a "career offender" pursuant to Sentencing Guideline 4B1.1, and, in the sentencing now before the Court should be in criminal history category VI.
The defendant will now be sentenced by this Court.