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United States v. Barry, 1st Cir. (1996)

The court upheld the defendant's sentence as a career offender. The defendant had two prior felony convictions - bank robberies in Florida in 1983 and crimes including assault, battery, assault with intent to murder and armed robbery in Massachusetts also in 1983. The court found these offenses were unrelated and not part of a common scheme. They involved separate victims and locations and occurred at different times. Shared motivation of needing arrest or stemming from a difficult upbringing does not make separate crimes committed months apart a single criminal act. The defendant's sentence as a career offender was affirmed.

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46 views11 pages

United States v. Barry, 1st Cir. (1996)

The court upheld the defendant's sentence as a career offender. The defendant had two prior felony convictions - bank robberies in Florida in 1983 and crimes including assault, battery, assault with intent to murder and armed robbery in Massachusetts also in 1983. The court found these offenses were unrelated and not part of a common scheme. They involved separate victims and locations and occurred at different times. Shared motivation of needing arrest or stemming from a difficult upbringing does not make separate crimes committed months apart a single criminal act. The defendant's sentence as a career offender was affirmed.

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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[NOT FOR PUBLICATION]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
________

Richardson, Assistant United States Attorney, on brief for appellee


__________

____________________

OCTOBER 16, 1996


____________________

Per Curiam.
__________

Robert M. Barry

appeals his sentence

for

bank robbery

claims that

in violation of

the district

18 U.S.C.

court erred

career offender pursuant to U.S.S.G.

Under

least

2113(a).

by considering

4B1.1.

He

him a

We disagree.1
1

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

two prior

felony

convictions of

either

a crime

of

violence or a controlled substance offense."

These two prior

convictions

4B1.2(3).

must be unrelated.

commentary to

are

U.S.S.G.

the guidelines provides, in

The

part, that crimes

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

plan."

Id.
___

4A1.2, comment. (n.3).

his two prior convictions

they were motivated by the

and punishment.

Appellant alleges that

are part of a common

same goal -- the need

plan because

for arrest

Both of these prior

the

offenses occurred in 1983, but

similarity between the crimes

ends there.

In September

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

appellant committed both robberies

In

January

1984,

appellant

in Florida in March 1983.

pleaded

guilty

to

charges

including assault and battery, assault with intent to murder,

____________________

1Because
1
decline

to

appellant

obviously

address,

and

concerning, his
by

not ruling

treat

intervening

as

therefore

on his

motion objecting

arrest is

two

offenses

inconsistent

no

to career

we

opinion

offender

sentencing court
separated

with the

computing a defendant's criminal history score.

-2-

merits,

district court erred

the rule requiring the

unrelated

the

express

arguments (1) that the

status and (2) that


to

loses on

by

an

guideline for

armed

robbery,

Massachusetts in

and

June

rape.

1983.

separate victims and occurring

are not related

here, they

Yeo,
___

under U.S.S.G.

These

crimes

Ordinarily, crimes

628,

machinery which took

629 (1st

place

in

involving

at different places and times

4A1.2, even where,

are the same type of crime.

936 F.2d

took

Cir.

unlike

See United States v.


___ _____________

1991)(thefts of

rented

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

common scheme

Fourth

or plan."

Circuit has

convictions

As the

part of

Court of

recognized, "[s]hared

"single

Appeals for

the

motivation cannot

transform two crimes committed three months apart, prosecuted

in different jurisdictions,

into

one illicit act."

227, 232

the

and involving different victims,

United States v.
_____________

Sanders, 954 F.2d


_______

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

course of

different robbery

purposes of determining

even though

are

not "related"

defendant's career offender

both crimes allegedly were

for

status,

committed to sustain

defendant's

Gelzer,
______

heroin addiction).

50 F.3d

1133, 1143 (2d

See also United States v.


_________ ______________

Cir. 1995)

(the allegation

that a crime spree originated with the hostile environment in

which

defendant was raised is insufficient

offenses committed during

to show that the

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,

district court is affirmed.


________

the

judgment of

the

-4-

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