KEARSE, Circuit Judge:
Defendant Paul C. Chartier appeals from a final judgment of the United States District Court for the Eastern District of New York, Arthur D. Spatt, Judge, convicting him, upon his plea of guilty, on one count of bank robbery, in violation of 18 U.S.C. § 2113(d) (1988). Following a remand from this Court in United States v. Chartier, 933 F.2d 111 (2d Cir.1991) ("Chartier I"), the district court sentenced Chartier to, inter alia, a 236-month term of imprisonment, having found that Chartier was a "career offender" within the meaning of the federal Sentencing Guidelines ("Guidelines") 775 F.Supp. 582. On appeal, Chartier contends that the district court's finding was impermissible in light of Chartier I. We disagree and affirm the judgment.
I. BACKGROUND
The events leading to this prosecution are set forth in detail in Chartier I, familiarity with which is assumed. In December 1988, Chartier robbed a bank in Staten Island, New York. He was arrested and pleaded guilty to one count of violating § 2113(d), an offense carrying a statutory maximum prison term of 25 years (i.e., 300 months). Under the Guidelines, the offense level for this robbery, after adjustments for use of a weapon, amount of
However, as discussed in Part I.A. below, the Guidelines prescribe increased punishment for a "career offender," defined in pertinent part as a person who has at least two prior convictions for crimes of violence. See Guidelines §§ 4B1.1, 4B1.2(1)(i). For Chartier's 1988 offense, career offender treatment would set a range of 210-262 months' imprisonment. Chartier urged the court not to treat him as a career offender, arguing, inter alia, that his four prior convictions should be treated as but one conviction because (a) three of his robberies, which had occurred in New York and had been prosecuted by state authorities, were consolidated for sentencing, and (b) the fourth robbery, which had occurred in Massachusetts and had been prosecuted by the federal government, had resulted in a sentence that was imposed to run concurrently with his New York sentence. The court rejected Chartier's arguments and sentenced him to 262 months' imprisonment.
A. The Career Offender Provisions and Chartier I
Chartier appealed, and this Court vacated the sentence principally on the ground that there were factual questions to be resolved with respect to the applicability of the career offender guideline. That guideline, which, as discussed in greater detail in Part II.B. below, was adopted in response to a statutory mandate that certain persons who have repeatedly been convicted of, inter alia, crimes of violence be sentenced "to a term of imprisonment at or near the maximum term authorized," 28 U.S.C. § 994(h) (1988), provides that
Guidelines § 4B1.1 (emphasis added). For these purposes, "two prior felony convictions" is defined as follows:
Guidelines § 4B1.2(3) (emphasis added). Application Note 4 to § 4B1.2 instructs the court to consult § 4A1.2 of the Guidelines with respect to part (B) of this definition, i.e., in order to determine whether a defendant's "felony convictions are counted separately." Section 4A1.2(a)(2) provides that
In turn, the commentary to this section describes the meaning of the term "related cases":
Guidelines § 4A1.2(a)(2) Application Note 3.
In Chartier I, with respect to the separateness of Chartier's convictions, we noted that under Guidelines § 4A1.2(a)(2) and part (3) of its Application Note 3, his convictions for the New York robberies were required to be treated as a single conviction because they had been consolidated for sentencing.
Chartier I, 933 F.2d at 116.
We further instructed the court that if it found that the four offenses were not part of a single common scheme or plan, a finding that would result in career offender status, the court should consider and give reasons for its selection of the precise prison term to be imposed on Chartier within the career offender range:
Id. at 117.
B. The Proceedings and Decision on Remand
On remand, the court held an evidentiary hearing at which Chartier testified and described the robberies of which he had been convicted. He testified that he had been a heroin addict since the age of 14 and that in 1974, at the age of 25, he had joined forces with two other addicts, John Taylor, who had then recently been released from prison, and Joey Massaro. Together, they decided to commit robberies to obtain money to buy narcotics. They first robbed a Burger King in Nassau County, New York. Acquiring only $1,600 in that robbery, they then decided to concentrate on banks because the proceeds would be greater.
They decided to rob only banks that had no guards and that had no glass partitions atop the counters at which the tellers worked. The second and fourth robberies were such banks in Nassau County; the third robbery was a similar bank in Massachusetts. Apparently, in all four robberies Chartier and Taylor followed a general pattern of (a) stealing a car that they parked outside the targeted premises, (b) parking a rented car a few blocks away, (c) entering the premises wearing ski masks, (d) having Chartier announce the robbery, (e) having Taylor stand guard while Chartier vaulted the counter and collected money, (f) leaving the premises no more than two minutes after entering, (g) making their initial getaway in the stolen car, and (h) switching to the rented car. In the Burger King robbery, Massaro waited outside in the stolen getaway car; in the Massachusetts robbery, Massaro guarded a door of the bank. In the two New York bank robberies, only Chartier and Taylor participated.
Chartier described the background of the Massachusetts robbery as follows:
(Hearing Transcript ("Tr.") 15-16.)
With respect to the 1988 robbery leading to the present prosecution, Chartier testified on cross-examination by the government as follows:
(Tr. 22-23.)
With respect to the 1974 robberies, Chartier's cross-examination testimony was as follows:
(Tr. 23-26.)
In an Opinion and Order dated October 11, 1991 ("Decision on Remand"), the district court concluded that Chartier's convictions were not "related" within the meaning of the Guidelines and that Chartier should therefore be considered a career offender. The court discussed United States v. Liranzo, 944 F.2d 73, 79 (2d Cir. 1991), in which this Court had stated that the prior convictions requirement of the career offender guideline should be construed strictly in favor of the defendant; it discussed Chartier I's directions for the findings to be made on remand; and it discussed decisions from other circuits in which groups of robberies had been found not to be part of a single plan or scheme, including United States v. Rivers, 929 F.2d 136 (4th Cir.) (robberies of two gasoline stations in different states 12 days apart held not part of a single common scheme or plan), cert. denied, ___ U.S. ___, 112 S.Ct. 431, 116 L.Ed.2d 451 (1991); United States v. Jones, 899 F.2d 1097, 1101 (11th Cir.) (upholding ruling that robberies of two banks approximately 90 minutes apart were not part of a single common scheme or plan), cert. denied, ___ U.S. ___, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990); and United States v. Kinney, 915 F.2d 1471, 1472 (10th Cir.1990) (same re robberies of three banks, two in one state, one in another, over a three-month period to support defendant's drug addiction).
Here, the district court stated that,
Decision on Remand at 14-15. The court found that Chartier's Massachusetts robbery had been a spur-of-the-moment decision, id. at 9, and it emphasized Chartier's testimony that, as heroin addicts, Chartier and his cohorts had lived for the moment and merely knew that when they needed money, they would rob another bank in the same way. The court concluded that the presence of
Id. at 16 (emphasis in original).
Accordingly, the court sentenced Chartier as a career offender and imposed a term of 236 months' imprisonment. It explained its selection within the prescribed 210-262-month range as recognition of, inter alia, Chartier's candor at the resentencing hearing, and comments of this Court in Chartier I.
This appeal followed.
II. DISCUSSION
On appeal, Chartier contends that the district court on remand refused to follow Chartier I and that a finding that Chartier had engaged in a common scheme or plan was required. We disagree.
A. The Scope of Chartier I
Chartier contends, first, that the message of Chartier I was that on remand, if the district court found as a matter of fact that Chartier had committed four robberies within a three-to-four week period, had used the same modus operandi, and had committed all of the robberies with the same motive, i.e., to obtain money for the support of his heroin addiction, the district court was mandated to find that the Massachusetts and New York robberies were part of a single common scheme or plan. His contention is unsupportable.
The Chartier I statement on which Chartier principally relies was that the circumstances suggested by the record "would have supported a finding of common scheme or plan, had one been made." 933 F.2d at 116 (emphasis added). However, stating that the circumstances would have "supported" a certain finding does not mean that such a finding was compelled. Indeed, we referred to the absence of a finding as to common scheme or plan "one way or the other." Id. Further, we proceeded to give the district court instruction as to what should occur on remand "[i]f, upon reconsideration, the District Judge makes a finding that renders Chartier subject to the career offender guideline." Id. at 117. Since a ruling that Chartier was subject to the career offender guideline was permissible in the present case only if the robberies were not part of a single common scheme or plan, Chartier I plainly did not rule that the district court was required to find that the Massachusetts and New York robberies were part of such a scheme or plan.
B. The Finding of No Single Common Scheme or Plan
The question for the present appeal is whether the district court could properly, on the record compiled on remand, rule that Chartier's Massachusetts robbery and
As indicated in Chartier I, the career offender guideline is a response to a statutory instruction to the Sentencing Commission, enacted as part of the Sentencing Reform Act of 1984, that the Guidelines are to specify for any person who is 18 years of age or older and who (a) is convicted of a crime of violence or certain narcotics offenses, and (b) has previously been convicted of two or more felony offenses that are crimes of violence or narcotics trafficking, a sentence "to a term of imprisonment at or near the maximum term authorized," 28 U.S.C. § 994(h). See Chartier I, 933 F.2d at 112-13. The legislative history of § 994(h) reveals that the concern underlying this instruction was the belief that the vast majority of violent crimes and narcotics trafficking offenses are committed by a small minority of offenders:
128 Cong.Rec. 26,518 (Sept. 30, 1982) (remarks of bill sponsor Senator Kennedy). Thus, the principal goal was twofold: (1) to "incapacitat[e]" the career offender, and (2) to "put on notice" other would-be repeat offenders that "chronic violence will be punished by maximum prison sentences." Though these remarks were made in support of a section in one of the bills leading to the Sentencing Reform Act that directly provided that "`[a] career criminal shall receive the maximum or approximately the maximum penalty for the current offense,'" see id. at 26,512, and Congress determined that it was preferable not to include that provision in the statute but to instruct the Sentencing Commission, whose creation was part of the legislation, to adopt suitable guidelines toward that end, see S.Rep. No. 98-225, 98th Cong., 1st Sess. 175 (1983), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3358, the congressional premise remained that "substantial prison terms should be imposed on repeat violent offenders and repeat drug traffickers," id.
The Commission adopted the career offender guideline provisions discussed in Part I.A. above in response to the congressional mandate in § 994(h). It set a range of imprisonment near the maximum for repeat violent offenders and repeat drug traffickers, and attempted to clarify that what was meant by "two prior felony convictions" was not, inter alia, two convictions for acts that were related by reason of being part of a single common scheme or plan. The Guidelines do not offer explicit clarification of the meaning of the term "single common scheme or plan." In other parts of the Guidelines, however, such as those dealing with relevant conduct for calculation of a defendant's offense level, the term has been used in conjunction with the phrase "same course of conduct," and we have been careful to note that "same
In the career offender context as well, we think it clear that the term "single common scheme or plan" must have been intended to mean something more than simply a repeated pattern of criminal conduct. A defendant may follow the same course of conduct by, e.g., engaging in criminal acts, performing certain roles in the crimes, and repeating those acts and reprising those roles. His pattern, however, even if repeated within a short period of time, see, e.g., United States v. Butler, 970 F.2d 1017, 1027 (2d Cir.1992) (two robberies 15 minutes apart), does not necessarily mean that he has acted pursuant to a single common scheme or plan. The concept of "scheme" or "plan" involves subjective as well as objective elements, though the subjective elements may of course be inferable from events that are objectively observable. Whether or not such an inference is to be drawn is a question for the finder of fact. The mere fact, however, that, in engaging in a pattern of criminal behavior, the defendant has as his purpose the acquisition of money to lead a particular lifestyle does not mean either that he had devised a single common scheme or plan or, if he had, that his course of conduct was necessarily part of it. We do not believe the Commission intended § 4A1.2 Application Note 3 to imply that crimes committed simply in order to fund a lifestyle constitute parts of a single common scheme or plan; and if the Commission had so intended, we would not be able to conclude that it had carried out its congressional mandate. In sum, we conclude that evidence of a plan simply to commit robberies when and as money is desired or needed cannot be enough by itself to permit the repeat robber to avoid being considered a career offender.
While the four robberies committed by Chartier in 1974 fit a pattern, the evidence easily supported the finding that they were not part of a single common scheme or plan. For example, the victim of the first robbery was a fast-food restaurant, not a bank. Chartier and his two cohorts decided to rob banks only after they discovered that the proceeds from the restaurant robbery were small. Thus, if there was a scheme or plan in connection with the first robbery, it was inferable that the plan soon changed.
Further, though all three of the participants had addictions, the identity of the participants in the four robberies was not constant: in two of the four robberies, only Chartier and Taylor participated; in the other two they were assisted by Massaro. Nor was the variation in cast determined by an overall plan: Massaro did not participate in the fourth robbery simply because he had become frightened in the third.
Finally, the district court's finding that the Massachusetts robbery was a spur-of-the-moment enterprise was likewise amply supported by the evidence. Chartier testified, for example, that he, Taylor, and Massaro had not gone to Massachusetts planning to commit a robbery. He also testified that he and his cohorts, "living for the minute," had no long-range plan except to commit robberies when and as they ran out of money. But the Massachusetts robbery did not fit even this supposedly unifying plan, for Chartier had gone into that bank merely to change some bills, "not to rob," and when they robbed that bank they had not run out of money.
In light of the record developed on remand, we conclude that the circumstances of Chartier's four 1974 robberies did not lend themselves to a finding that they were part of a single common scheme or plan, and that the district court's finding that they were not is not clearly erroneous. Accordingly, the court did not err in sentencing Chartier as a career offender.
CONCLUSION
We have considered all of Chartier's arguments on this appeal and have found
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