Elawyers Elawyers
Ohio| Change

United States v. Barry, 96-1380 (1996)

Court: Court of Appeals for the First Circuit Number: 96-1380 Visitors: 9
Filed: Oct. 16, 1996
Latest Update: Mar. 02, 2020
Summary: Defendant, Appellant.Robert M. Barry on brief pro se., _______________, Donald K. Stern, United States Attorney, and Robert E., __________________ ___________, Richardson, Assistant United States Attorney, on brief for appellee.here, they are the same type of crime.district court is affirmed.
USCA1 Opinion









[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________



No. 96-1380


UNITED STATES,

Appellee,

v.

ROBERT M. BARRY,

Defendant, Appellant.

____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge] ___________________

____________________

Before

Torruella, Chief Judge, ___________
Selya and Stahl, Circuit Judges. ______________

____________________

Robert M. Barry on brief pro se. _______________
Donald K. Stern, United States Attorney, and Robert E. __________________ ___________
Richardson, Assistant United States Attorney, on brief for appellee. __________


____________________

OCTOBER 16, 1996
____________________


















Per Curiam. Robert M. Barry appeals his sentence __________

for bank robbery in violation of 18 U.S.C. 2113(a). He

claims that the district court erred by considering him a

career offender pursuant to U.S.S.G. 4B1.1. We disagree.1 1

Under 4B1.1, a career offender is one who "has at

least two prior felony convictions of either a crime of

violence or a controlled substance offense." These two prior

convictions must be unrelated. U.S.S.G. 4B1.2(3). The

commentary to the guidelines provides, in part, that crimes

are "related" if they are part of a "single common scheme or

plan." Id. 4A1.2, comment. (n.3). Appellant alleges that ___

his two prior convictions are part of a common plan because

they were motivated by the same goal -- the need for arrest

and punishment.

Both of these prior offenses occurred in 1983, but

the similarity between the crimes ends there. In September

1984, appellant pleaded guilty to two counts of bank robbery;

appellant committed both robberies in Florida in March 1983.

In January 1984, appellant pleaded guilty to charges

including assault and battery, assault with intent to murder,


____________________

1Because appellant obviously loses on the merits, we 1
decline to address, and therefore express no opinion
concerning, his arguments (1) that the district court erred
by not ruling on his motion objecting to career offender
status and (2) that the rule requiring the sentencing court
to treat as unrelated two offenses separated by an
intervening arrest is inconsistent with the guideline for
computing a defendant's criminal history score.

-2-













armed robbery, and rape. These crimes took place in

Massachusetts in June 1983. Ordinarily, crimes involving

separate victims and occurring at different places and times

are not related under U.S.S.G. 4A1.2, even where, unlike

here, they are the same type of crime. See United States v. ___ _____________

Yeo, 936 F.2d 628, 629 (1st Cir. 1991)(thefts of rented ___

machinery which took place during a six-week time period are

not related, when they involved different victims, and took

place on different dates and in different places).

Nor does the allegation of a common goal, or motive

make the two prior felony convictions part of a "single

common scheme or plan." As the Court of Appeals for the

Fourth Circuit has recognized, "[s]hared motivation cannot

transform two crimes committed three months apart, prosecuted

in different jurisdictions, and involving different victims,

into one illicit act." United States v. Sanders, 954 F.2d _____________ _______

227, 232 (4th Cir. 1992)(a robbery of a bank and a murder in

the course of a different robbery are not "related" for

purposes of determining defendant's career offender status,

even though both crimes allegedly were committed to sustain

defendant's heroin addiction). See also United States v. _________ ______________

Gelzer, 50 F.3d 1133, 1143 (2d Cir. 1995) (the allegation ______

that a crime spree originated with the hostile environment in

which defendant was raised is insufficient to show that the

offenses committed during that spree -- thefts of jewelry --



-3-













were related; the Commission did not intend that criminal

acts "prompted by the same root causes of criminal deviance"

constitute a common plan).

For the foregoing reasons, the judgment of the

district court is affirmed. ________











































-4-






Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer