When Are Two or Three Convictions Just One?

February 17, 2015
By Hanging Out with Carl Gunn


  • Convictions of separate offenses can count as multiple prior convictions under the Armed Career Criminal Act even if they’re based on charges in the same charging document.
  • The convictions don’t count separately if they’re not committed on different occasions, or arise out of a “single criminal episode,” but offenses committed within an hour or even a few minutes of each other can be found to have been committed on different occasions and so have been “multiple criminal episodes.”
  • The test under the career offender guideline is better; it counts prior convictions in the same charging document separately only if they’re separated by an intervening arrest.


I recently exchanged e-mails with a colleague about an issue that’s always interested me, and suggests the somewhat tongue-in-cheek title of this post. The issue is whether and when multiple convictions count as multiple convictions for purposes of recidivism enhancements such as the Armed Career Criminal Act in 18 U.S.C. § 924(e), also known by its acronym as the ACCA, and the career offender guideline in § 4B1.1 of the sentencing guidelines. The title of the post may seem a little silly, but it really isn’t silly if you think about what your most natural assumption might be. If you hadn’t (or haven’t) researched it, wouldn’t you assume that multiple counts in a prior case would count as just one of the three prior convictions that are required for the ACCA enhancement?

That assumption and the title of the post also isn’t silly if you think about the purpose of a recidivism enhancement. As Ninth Circuit Judge Trott recognized when he testified in support of the Armed Career Criminal Act while he was an assistant attorney general with “Main Justice” in Washington, D.C.:

[Armed career criminals are] people who have demonstrated, by virtue of their definition, that locking them up and letting them go doesn’t do any good. They go on again, you lock them up, you let them go, it doesn’t do any good, they are back for a third time. At that juncture we should say, “That’s it; time out; it is all over. We, as responsible people, will never give you the opportunity to do this again.”

ACCA, Hearing Before the Subcomm. on Crime of the House Comm. on the Judiciary, 98th Cong., 2d Sess. at 64 (1984),quoted in United States v. McElyea, 158 F.3d 1016, 1020 (9th Cir. 1998). Though Judge Trott later disavowed this testimony in a dissent in the McElyea case as “the combative and irrelevant testimony of an aggressive assistant attorney general,” id. at 1021-22 (Trott, J., concurring and dissenting), it makes a lot of sense. We punish recidivists because they don’t learn their lesson. And the lesson is taught not by the commission of the crime but by the punishment for the crime. If the idea is to put people away when they still haven’t learned after three lessons, the pattern we ought to require for the recidivist enhancement should be conviction for first offense (or set of offenses)/sentence/conviction for second offense (or set of offenses)/sentence/conviction for third offense (or set of offenses)/sentence, not conviction for first, second and third offenses all at once/sentence. See, e.g., 18 U.S.C. § 3559(c) (federal three strikes statute requiring that “each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant’s conviction of the preceding serious violent felony or serious drug offense”).

This was precisely the argument we made when the ACCA first became effective. Unfortunately, it was accepted by just one half of one circuit – in United States v. Balascsak, 873 F.2d 673 (3d Cir. 1989) (12 judges dividing 6-6 on issue). All the other circuits rejected the argument, see, e.g., United States v. Wicks, 833 F.2d 192 (9th Cir. 1987), although they did recognize a requirement that the prior convictions have arisen out of separate “criminal episode[s],” United States v. Petty, 828 F.2d 2, 3 (8th Cir. 1987) (adopting position of Solicitor General in Supreme Court proceedings). Congress then jumped on the bandwagon to write the majority view expressly into the statute. It amended the statute to expressly require not the crime/sentence/crime/sentence/crime/sentence pattern that logic would suggest and that Judge Trott described in his testimony as an assistant attorney general, but three convictions for qualifying offenses that were simply “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).Compare 18 U.S.C. § 3559(c), cited supra.

This not only allows three counts of conviction in a single indictment to support the ACCA enhancement by themselves, but allows them to do this when the offenses were committed the very same night – or even the very same hour. See, e.g., United States v. Phillips, 149 F.3d 1026, 1030 (9th Cir. 1998) (burglary of store and second burglary of “adjacent business” “[s]hortly thereafter” held to be “separate criminal episodes” for purposes of ACCA); United States v. Antonie, 953 F.2d 496, 499 (9th Cir. 1991) (two robberies within 40 minutes of each other, though in different cities and with different victims, held to be “two separate and distinct criminal episodes” which counted separately under ACCA); Wicks, 833 F.2d at 193 (burglaries committed the same night, albeit at different locations, held to be separate criminal episodes which counted separately).Compare United States v. McIlyea, 158 F.3d at 1018, 1021 (burglarizing first store in strip mall by breaking into it and then burglarizing adjacent store by chopping hole in wall and going through hole into adjacent store held to be “part of one criminal episode” and so counted as just one prior conviction under ACCA). As articulated in a summary in United States v. Brady, 988 F.2d 664 (6th Cir. 1993) (en banc) that was adopted inPhillips:

“[M]ere proximity in time between two offenses occurring at different places and involving different victims” would not merge offenses for purposes of the ACCA. Brady, 988 F.2d at 668. Rather, the court reasoned that “time alone” can be sufficient “to separate criminal episodes occurring on the same date, at the same place, and against the same victim.” Id. The en banc court ruled that “[c]onsistent with the holdings of our sister circuits, we believe that offenses committed by a defendant at different times and places and against different victims, although committed within less than an hour of each other, are separate and distinct criminal episodes and that convictions for those crimes should be counted as separate predicate convictions under § 924(e)(1). Id. at 669 (citing United States v. Schieman, 894 F.2d 909, 913 (7th Cir. 1990) (defendant who burglarized shop and shortly thereafter assaulted a police office committed two distinct criminal acts); Antonie, 953 F.2d at 499; . . . ; Wicks, 833 F.2d at 193). Again, the key to the court’s decision was the fact that after the defendant committed the first robbery, he could have decided to stop. “Instead, he decided to rob again.” Brady, 988 F.2d at 669.

Phillips, 149 F.3d at 1032.

This means that multiple counts of a conviction in a single case will often count as separate predicate convictions for ACCA purposes. There are some fact patterns where defendants have prevailed – including scenarios such as robbing multiple victims at one time, see United States v. Petty, 828 F.2d at 3; United States v. Montgomery, 819 F.2d 847, 850 n.2 (8th Cir. 1987); see also United States v. Thomas, 211 F.3d 316, 318, 321 (6th Cir. 2000) (continuing rapes of two different passengers in vehicle without leaving vehicle); offenses against a single victim in a continuing incident, see United States v. Towne, 870 F.2d 880, 889 (2d Cir. 1989) (kidnapping and rape of victim during continuing kidnapping); virtually simultaneous drug sales to two companions at the same location and/or simultaneous possession of drugs at two different locations, see United States v. Willoughby, 653 F.3d 738, 744-45 (8th Cir. 2011); United States v. Blackwood, 913 F.2d 139, 145 (4th Cir. 1990); and attempting to evade and/or assaulting police officers when interrupted by officers during an initial crime, see United States v. Graves, 60 F.3d 1183, 1187 (6th Cir. 1995); United States v. Sweeting, 933 F.2d 962, 967 (11th Cir. 1991); but cf. United States v. Schieman, 894 F.2d at 910-13 (burglary and assault on police officer not single criminal episode when assault took place while fleeing down street several minutes after departure from burglary). See also McElyea, 158 F.3d at 1018, 1021 (facts described above); United States v. Murphy, 107 F.3d 1199, 1208-10 (6th Cir. 1997) (robbery of second apartment in building while holding victim of first robbery in other apartment to keep victim from calling police). These scenarios may be more the exception than the rule, however. See generally James W.L. Osborne, One Day Criminal Careers: The Armed Career Criminal Act’s Different Occasions Provision, 44 J. Marshall L. Rev. 963, 975-80 (2011) (collecting and discussing cases). You certainly can’t assume that a single violent felony or drug trafficking entry in a rap sheet means ACCA won’t apply to your client.

This contrasts with the rule for the career offender guideline, by the way. The rule for that provision is better, though it still falls short of fitting into the more logical crime/punishment/crime/punishment/crime/punishment chain suggested at the beginning of this post. The career offender guideline incorporates the general criminal history rules of the sentencing guidelines, see U.S.S.G. § 4B1.2, comment. (n.3), which allow prior sentences to be counted separately only if (1) they are for charges contained in different charging instruments and imposed on different days or (2) they are separated by intervening arrests, see U.S.S.G. § 4A1.2(a)(2). See also U.S.S.G. § 4B1.2(c) (providing that prior convictions are counted separately only if “the sentences . . . are counted separately under the provisions of §4A1.1(a), (b), or (c)”). So multiple counts of conviction in a single prior case usually won’t count as separate prior convictions for purposes of the career offender guideline, as long as they’re not separated by an intervening arrest. And note that the career offender guideline varies from the usual criminal history rules in one respect, by requiring that the prior convictions exist at the time of the new offense, seeU.S.S.G. § 4B1.2(c). Compare U.S.S.G. § 4A1.2, comment. (n.1) (defining “prior sentence” to include “[a] sentence imposed after the commencement of the instant offense, but prior to sentencing on the instant offense”). Note that this is also true of the ACCA, since it requires that the person possess a firearm and “has [not later sustains] three previous convictions for a violent felony or serious drug offense.” 18 U.S.C. § 924(e)(1) (emphasis added).

So the bottom line for today’s post is a mixed bag. The assumption we might make about prior convictions in a single case not counting as separate convictions for purposes of a recidivist enhancement is true for the career offender guideline (unless there was an intervening arrest), but isn’t true for the ACCA. Your felon in possession of a firearm client could face a life sentence as an ACCA “career criminal” based on just a single prior crime spree.

There is another angle, however. Coming up in the next weeks’ posts – some potential Apprendi– and Descamps-based defenses.