ROVNER, Circuit Judge.
After he pleaded guilty to a felon-in-possession charge, 18 U.S.C. § 922(g)(1), James Elliott was sentenced as an armed career criminal based on the district court's finding that a series of three robberies he perpetrated in a five-day period when he was eighteen years old were "committed on occasions different from one another," 18 U.S.C. § 924(e)(1). Elliott challenges that finding, contending that he had a right to have a jury, rather than the judge, assess the nature of his prior crimes, and that our decision in United States v. Hudspeth, 42 F.3d 1015, 1019-22 (7th Cir.1994) (en banc), abrogated on other grounds by Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), should be overruled. We affirm.
On October 22, 2009, police officers in Merrillville, Indiana were dispatched to a residence on complaints about an unwanted person being present. They arrived to discover Elliott sitting on the front porch of the residence with his hands in his pockets. Elliott briefly removed his hands from his pockets when asked to do so, but reinserted them as the officers began to approach him, assuring the officers that he had nothing in them. In fact, he did. When one of the officers grabbed Elliott's right hand, he discovered a loaded .22-caliber revolver in his pocket.
Because Elliott previously had been convicted of six felony offenses — including
Elliott, although he did not contest the fact of his prior convictions, nonetheless opposed the enhancement. As relevant here, he contended that whether the three burglaries were committed on occasions different from one another constituted a factual question as to which the Fifth and Sixth Amendments, and the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), entitled him to a jury trial. Second, Elliott argued that because the three burglaries took place over a period of several days during what he regarded as a single criminal episode, the court should find that they were not committed on occasions different from one another, and that consequently he was not subject to the enhanced penalty.
The district court rejected both arguments in a written opinion. United States v. Elliott, 2011 WL 3273466 (N.D.Ind. Aug. 1, 2011). The court invoked Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), as its authority to make determinations regarding Elliott's criminal history. 2011 WL 3273466, at *4; see also R. 18-2 at 20-22. And, looking to our en banc decision in Hudspeth, the court found that the three 1998 burglaries were committed on occasions different from one another. 2011 WL 3273466, at *2-*3. The court emphasized that the burglaries were committed sequentially rather than simultaneously, and that significantly more time had passed between the burglaries than was the case in Hudspeth, affording Elliott the opportunity after each burglary to cease his criminal conduct. Id., at *3. The court added at sentencing: "[C]learly when somebody commits three burglaries over the course of five days, under the way the Seventh Circuit and for that matter, every other circuit it appears, has interpreted [section] 924[ (e) ], those would all be qualifying convictions." R. 18-2 at 19.
The court proceeded to sentence Elliott to the minimum term of 180 months specified by the ACCA. That term was eight months below the low end of the sentencing range recommended by the Sentencing Guidelines.
Elliott renews his challenge to the armed career criminal enhancement on appeal.
As to the first issue, the district judge was empowered to determine whether Elliott committed the burglaries on occasions different from one another. The Supreme Court in Almendarez-Torres held that a defendant's recidivism is not an element of the offense which must be found by a jury beyond a reasonable doubt, but rather is a sentencing factor that may be found by the sentencing judge, even when recidivism increases the statutory maximum penalty to which the defendant is exposed. 523 U.S. at 239, 243-46, 118 S.Ct. at 1228-29, 1230-32. Almendarez-Torres has remained good law even as the Court in later decisions has recognized a defendant's right to a jury finding on other factors that expose the defendant to a longer sentence. See Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); Apprendi v. New Jersey, supra, 530 U.S. 466, 120 S.Ct. 2348; Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. O'Brien, ___ U.S. ___, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010). Indeed, each of these cases has expressly cited the fact of a prior conviction as an exception to the rule it stated. Jones, 526 U.S. at 243 n. 6, 119 S.Ct. at 1224 n. 6; Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63; Blakely, 542 U.S. at 301, 124 S.Ct. at 2536; Booker, 543 U.S. at 244, 125 S.Ct. at 756; O'Brien, 130 S.Ct. at 2174.
Elliott has a point when he stresses that whether a defendant's prior crimes occurred on occasions different from one another is a question that looks beyond "the
Consequently, this court, like our sister circuits, has construed Almendarez-Torres to permit a district court to make a finding for purposes of the ACCA as to whether a defendant committed three or more violent felonies or serious drug offenses on occasions different from one another. United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir.2007); United States v. Morris, 293 F.3d 1010, 1012-13 (7th Cir.2002); United States v. Skidmore, 254 F.3d 635, 642 (7th Cir.2001) (coll. cases from other circuits). Indeed, our decisions have explicitly rejected the very argument that Elliott makes here — namely, that determining the relationship of a defendant's
293 F.3d at 1012-13. Thus, unless and until the Supreme Court overrules Almendarez-Torres or confines its holding solely to the fact of a prior conviction, as opposed to the nature and/or sequence of a defendant's prior crimes, a district judge properly may make the findings required by the ACCA.
Hudspeth supplies the answer to the second question presented by Elliott's appeal — whether the three burglaries he committed in 1998 occurred on occasions different from one another. Our discussion of the different-occasions inquiry in Hudspeth began with the recognition of widespread agreement among the circuit courts that a defendant will be subject to the ACCA enhancement "if each of [his] prior convictions arose out of a `separate and distinct criminal episode.'" 42 F.3d at 1019 (quoting United States v. Schieman, 894 F.2d 909, 911 (7th Cir.1990) (emphasis in Hudspeth) & coll. cases). Factors relevant to that assessment include the nature of the crimes, the identities of the victims, and the locations where the crimes took place. Id. We also recognized that the timing is a relevant consideration, but to a limited extent: crimes that occur simultaneously will be deemed to have occurred on a single occasion; but the passage of even a small amount of time between crimes — 10 minutes in Schieman — may well suffice to separate them for purposes of the ACCA. Id. at 1019-20. What really matters, we emphasized, is the opportunity of the perpetrator to terminate his wrongdoing. Id. at 1020. Thus, even when a defendant has committed a multi-crime spree over a short period of time, each offense comprising the spree will be considered to have occurred on a separate occasion so long as the defendant at each step had the opportunity to stop and proceed no further. Id. (citing United States v. Brady, 988 F.2d 664, 668-69 (6th Cir.1993) (en banc)). When a defendant commits multiple crimes simultaneously — as when he robs more than one person at the same time, or commits essentially one act that violates multiple criminal statutes — there is no dividing point between the offenses that affords him the chance to desist from further criminal activity. See id. at 1020, 1021. "In contrast, a defendant who commits sequential crimes has the opportunity at each and every turn to withdraw from his criminal activity." Id. at 1021. Therefore, we concluded, a court's inquiry as to the timing of the prior offenses "is simple: were the crimes simultaneous or were they sequential ?" Id. at 1021 (emphasis in original).
Having adopted that bright-line rule, our assessment of the prior crimes at issue
42 F.3d at 1022.
Hudspeth's result and rationale leave no question that Elliott's three prior burglaries likewise occurred on different occasions. The burglaries involved different victims and different homes, and they took place sequentially rather than simultaneously. Elliott, like Hudspeth, thus had an opportunity after each burglary to contemplate what he was doing and abandon his course of criminal conduct. Indeed, Elliott's burglaries took place over the course of five days — and one or more days apart from one another — rather than over the course of 36 minutes, as was the case in Hudspeth. Elliott thus had far more of an opportunity to change course and desist from wrongdoing than did Hudspeth. See, e.g., United States v. Nigg, 667 F.3d 929, 936 (7th Cir.) (three armed robberies committed over six days constituted separate criminal episodes under Hudspeth), cert. denied, ___ U.S.___, 132 S.Ct. 2704, 183 L.Ed.2d 61 (2012); United States v. Hunter, 418 Fed.Appx. 490, 493-94 (7th Cir. 2011) (non-precedential decision) (recognizing that it would be frivolous to contend that robberies of five different victims in different locations on same day constituted a single criminal episode, notwithstanding fact that they all stemmed from same bank robbery, as robberies were committed sequentially rather than simultaneously); United States v. Reyna, 327 Fed.Appx. 660, 661 (7th Cir.2009) (non-precedential decision) (agreeing that it would be frivolous to argue that burglaries of three different homes over six days constituted a single criminal episode under Hudspeth, as defendant had "the opportunity to change his mind before undertaking each successive burglary"); United States v. Hale, 227
Hudspeth makes the result in this appeal a foregone conclusion; but that does not mean that overruling Hudspeth, as Elliott urges us to do, would lead to a different outcome. Overruling a precedent obviously "is not a step we take lightly," NewPage Wis. Sys. Inc. v. United Steel Workers Int'l Union, 651 F.3d 775, 779 (7th Cir.2011), and overruling an en banc decision is something that only the full court could do, United States v. Carpenter, 406 F.3d 915, 916 (7th Cir.2005). Moreover, we typically reserve reexamination of a precedent for a case in which abandoning that precedent would make a difference. E.g., Loomis v. Exelon Corp., 658 F.3d 667, 675 (7th Cir.2011). Here, as the district court implied when it observed that Elliott's prior burglaries would meet the ACCA's different-occasions test under the law of this or any other circuit, even setting aside Hudspeth, Elliott is unlikely to prevail in his contention that his prior burglaries constituted a single rather than multiple crimes.
The rationale of the dissents in Hudspeth is illuminating in this regard. Both dissents were critical of the bright-line rule distinguishing simultaneous crimes from sequential ones. 42 F.3d at 1026-27 (Flaum, J., concurring in part and dissenting in part); id. at 1035, 1037 (Ripple, J., concurring in part and dissenting in part). Both argued for a less rigid approach that would allow more pragmatic judgments in examining a set of prior crimes to determine whether they should be treated as separate or distinct criminal episodes. Judge Flaum suggested that "a nuanced, fact-based approach better resolves how many occasions are encompassed within a particular course of conduct." Id. at 1027. Judge Ripple observed that the court's adoption of a bright-line test constituted a departure from its prior decisions in this area, which "ha[d] reflected a thoughtful and measured approach to the task required by the statute — identifying those criminals whose repetitive behavior requires a special degree of isolation from society." Id. at 1035; see also id. at 1037. He argued that "[f]actors of time and distance must be evaluated in terms of the legislative intent in order to identify and segregate the true recidivist." Id. at 1036. Looking at the facts in Hudspeth through that lens, Judge Ripple concluded that the series of three burglaries should be treated as a single episode:
Id. Judge Flaum agreed:
Id. at 1027.
It is worth pointing out that neither dissent signaled any disagreement with the holdings of pre-Hudspeth decisions like Schieman and Godinez, which were given significant attention in the majority decision in Hudspeth and which treated crimes committed within a very short time of one another as separate episodes for purposes of the ACCA. See Schieman, 894 F.2d 909 (defendant assaulted police officer who approached him to question him about burglary he had committed some five to 10 minutes earlier and three blocks away); Godinez, 998 F.2d 471 (defendant kidnapped woman in order to use her car in robbery, which he committed slightly more than one hour after the kidnapping). Judge Ripple's dissent, in fact, recognized that the sort of recidivism that Congress meant to punish more severely when it enacted the ACCA "can be manifest in relatively short time frames and in situations not far removed from each other," and his dissent cited many cases to that effect. 42 F.3d at 1035 & n. 20.
Instead, the dissenters believed that the majority's error in Hudspeth lay in emphasizing the sequential nature of a defendant's criminal acts to the exclusion of other circumstances suggesting that those acts ought to be treated as part of a single criminal episode. Illustratively, Judge Ripple pointed out that under the majority's simultaneous-versus-sequential test, a defendant who enters a dwelling and shoots multiple people simultaneously with one burst of automatic weapons fire commits a single aggression, but if he then walks into another room to shoot another person, he commits a second, distinct aggression. Id. at 1037. Judge Flaum similarly noted that the majority's way at looking at sequencing attributed artificial importance to fortuitous circumstances: thus, in Hudspeth, the sequential burglaries of adjoining but separate businesses were treated as distinct criminal episodes, whereas an unlawful entry into a single business, and the ensuing break-in into several locked offices within that business, would be deemed one criminal episode. Id. at 1026.
Overruling Hudspeth would remove just one of the obstacles to Elliott's position. It would do away with Hudspeth's bright-line rule and leave room for the more nuanced judgments for which the dissenters in that case advocated. If the facts underlying Elliott's three prior burglaries were comparable to those at issue in Hudspeth, the door might be open to Elliott's contention that his prior burglaries constituted one criminal episode for purposes of the ACCA. But Elliott did not burglarize, one right after the other, three business in the same mall or three adjoining townhouses. He burglarized three different residences on different days.
Elliott's theory is that his prior burglaries comprised a single crime spree triggered by a need for money to support his drug habit. But on that view, even a long string of crimes, committed over a much greater expanse of time than Elliott's burglaries were, could be construed as a single criminal episode. An addiction to drugs or alcohol, for example, may be at the root of criminal behavior that spans years rather than days. (Elliott's own addiction to multiple narcotics appears to have plagued him for a substantial period of his life.) There might be some sense in treating a series of crimes as essentially one, indivisible episode, particularly when the crimes occurred in a discrete part of the defendant's past and are explained by something like an addiction that the defendant later overcame. The district judge in this case himself entertained "long thoughts" about how Elliott's prior burglaries were best characterized. 2011 WL 3273466, at *1; R. 18-2 at 20.
Nonetheless, it is difficult to reconcile Elliott's theory with the language that the ACCA uses. The statute refers to crimes "committed on occasions different from one another." § 924(e)(1). When a day or more has passed between offenses, especially when the offenses were committed at
The district court committed no error in finding that Elliott's burglaries occurred on different occasions for purposes of the ACCA. The burglaries occurred on different days and involved different residences and victims. Under any plausible construction of the statute's different-occasions language, the burglaries constituted distinct criminal episodes. Reconsideration of the approach that this court adopted in Hudspeth would not lead to a different result on the facts of this case. To the extent that the statute produces results that are perceived as unjust, the problem is one for Congress to fix rather than this court.
AFFIRMED.
United States v. Browning, 436 F.3d 780, 782 (7th Cir.2006). We added, however, that "the continued authority of Almendarez-Torres is not for us to decide." Id.