United States of America v. Lonnie Allen Thomas

*The Honorable Robert Holmes Bell, United States District Judge for
the Western District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0151P (6th Cir.)
File Name: 00a0151p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA
Plaintiff-Appellee,
v.
LONNIE ALLEN THOMAS,
Defendant-Appellant.
;>

1
No. 98-6740
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 98-20072—Julia S. Gibbons, Chief District Judge.
Argued: February 2, 2000
Decided and Filed: April 27, 2000
Before: COLE and CLAY, Circuit Judges; BELL*, District
Judge.

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2 United States v. Thomas No. 98-6740
_________________
COUNSEL
ARGUED: Stephen B. Shankman, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for
Appellant. Stuart J. Canale, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Stephen B. Shankman, T. Clifton Harviel, Jr.,
OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Memphis, Tennessee, for Appellant. Stuart J. Canale,
ASSISTANT UNITED STATES ATTORNEY, Memphis,
Tennessee, for Appellee.
BELL, D. J., delivered the opinion of the court, in which
COLE, J., joined. CLAY, J. (pp. 11-14), delivered a separate
concurring opinion.
_________________
OPINION
_________________
BELL, District Judge. Defendant Lonnie Allen Thomas
was indicted on one count of possession of marijuana with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and
one count of felon in possession of a firearm in violation of
18 U.S.C. § 922(g). On September 11, 1998, Defendant
entered a plea of guilty to Count 2, felon in possession of a
firearm, with Count 1 to be dismissed at sentencing.
Defendant was sentenced as an Armed Career Criminal under
the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(1), and § 4B1.4 of the United States Sentencing
Guidelines to 200 months imprisonment, to be followed by a
term of three years supervised release. Count 1 was
dismissed upon motion of the United States.
On appeal Defendant contends that the district court erred
in sentencing him as an armed career criminal under § 924(e).

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14 United States v. Thomas No. 98-6740
Although the issue was not raised by the parties, were it not
for the rule of lenity, it is possible that this thoroughly
ambiguous statute could be declared unconstitutional on the
ground that it is void for vagueness. “[T]he
void-for-vagueness doctrine requires that a [criminal] statute
[be] define[d] . . . with sufficient definiteness [so] that
ordinary people can understand . . . .” Kolender v. Lawson,
461 U.S. 352, 357 (1983); see also Grayned v. Rockford, 408
U.S. 104, 108-109 (1972) (vague sentencing provisions which
are not clear can raise constitutional questions). However, it
is unnecessary under the circumstances of this case to express
an opinion as to the constitutionality of the statute, and I
expressly refrain from doing so. Because we must save a
statute from its constitutional infirmity, and any doubt on the
issue of statutory construction should thus be resolved in
favor of avoiding the void for vagueness question, under the
rule that, “where a statute is susceptible of two constructions,
by one of which grave and doubtful constitutional questions
arise and by the other of which such questions are avoided,
[this Court’s] duty is to adopt the latter.” United States ex rel.
Attorney General v. Delaware & Hudson Co., 213 U.S. 366,
408 (1909).
In this case, where the facts do not lend themselves to a
determination of whether the crimes were “committed on
occasions different from one another,” the rule of lenity
should be deemed to control. Indeed, although there were two
different victims who were each raped multiple times in one
another’s presence during a continuous episode, the record
does not remotely provide us with a clear and definitive
answer to the question of whether the acts were “committed
on occasions different from one another.” Therefore, because
we are confronted with an ambiguous criminal statute and a
choice must be made between sentencing Defendant to the
harsher mandatory minimum under the ACCA and the more
lenient punishment under the sentencing guidelines, the rule
of lenity dictates that Defendant be sentenced to the less harsh
punishment under the sentencing guidelines.
No. 98-6740 United States v. Thomas 3
1Although the indictment listed a fourth conviction for convicted
felon in possession of a handgun, the government conceded that this was
not a crime of violence, and the district court did not consider it as a
qualifying predicate offense for purposes of applying the ACCA.
2To the extent Thomas is now suggesting that the presentence report
was incorrect, that argument has been waived. A failure to object to the
presentence report waives any future objections. See United States v.
Ward, 190 F.3d 483, 492 (6th Cir. 1999) (citing United States v.
Duranseau, 19 F.3d 1117, 1123 (6th Cir. 1994)), cert. denied sub nom.
Morris v. United States, 120 S.Ct. 940 (2000). See also United States v.
Cullens, 67 F.3d 123, 124 (6th Cir. 1995) (per curiam) (defendant who
fails to object to an error at sentencing waives his right to assert the error
on appeal).
Congress has provided in 18 U.S.C. § 924(e) that if a
person who violates § 922(g) has three previous convictions
for a violent felony or a serious drug offense, or both,
"committed on occasions different from one another," that
person shall be imprisoned not less than fifteen years.
In making its determination that Defendant was an armed
career criminal, the district court relied on evidence of three
prior convictions: 1) attempt to commit a felony: burglary
third degree August 3, 1982; 2) rape July 10, 1986; and
3) rape July 10, 1986.1
There is no dispute that the three prior convictions were for
violent offenses within the meaning of the ACCA. Defendant
contends, however, that his July 10, 1986 convictions for rape
do not constitute two separate predicate offenses under the
statute because they arose out of one criminal episode.
Because there were no objections to the facts contained in
the presentence report, the district court adopted the
presentence report as its findings of fact concerning the the
facts underlying the rape convictions.2 In the early morning
hours of January 1, 1986, two women in a car asked Thomas
and his companion, Roosevelt T. McKinney ("Bucky") for
directions to the Arkansas Bridge. The men agreed to show
them the way and asked for a ride. The men got in the back

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4 United States v. Thomas No. 98-6740
3Defendant contends that the district court erred in looking at the
underlying facts of the predicate convictions. Defendant’s reliance on
United States v. Arnold, 58 F.3d 1117, 1121-24 (6th Cir. 1995), and
United States v. Seaton, 45 F.3d 108, 111-112 (6th Cir. 1995), in support
of this contention is misplaced. Arnold and Seaton stand for the
proposition that a court should not consider the underlying facts of the
predicate conviction in determining whether a predicate offense is a crime
of violence for purposes of the Armed Career Criminal Act. They do not
speak to what the court should consider in determining whether the
predicate offenses were "committed on occasions different from one
another." All of our opinions on this issue have involved consideration
of the specific facts underlying the prior convictions. Indeed, we cannot
imagine how such a determination could be made without reference to the
underlying facts of the predicate offenses.
seat of the car. The details of what occurred next are quoted
from the presentence report:3
Thomas came over the front seat and started beating [the
passenger] about the face. Bucky grabbed [the driver]
around the neck and told her Thomas would kill [the
passenger] if she did not drive where they told her.
Bucky tried to get the keys out of the ignition but he
could not because there is a button that has to be pushed
for the keys to come out. He made [the driver] stop the
car. Thomas started raping [the passenger] and Bucky
took [the driver] out and raped her on the ground.
Thomas beat [the passenger’s] head against the window
of the car.
Thomas then made [the driver] drive to another place.
Thomas took [the passenger] out of the car and knocked
her to the concrete and beat her head on a car that was
parked there. Thomas raped [the passenger] repeatedly
and Bucky finally persuaded Thomas to get back in the
car. They then changed partners and Bucky raped [the
passenger] twice vaginally and anally. Thomas raped
[the driver] vaginally and made her perform oral sex on
him.
No. 98-6740 United States v. Thomas 13
(6th Cir. 1997) (holding two convictions for armed robberies
of two residences in a duplex were not crimes committed on
occasions different from one another); United States v.
Graves, 60 F.3d 1183, 1186-87 (6th Cir. 1995) (holding the
defendant’s burglary of a home and his assault on a police
officer in the woods just outside of the home were not crimes
committed on occasions different from one another even
though the assault upon the officer was at the same location
and within moments of the burglary) with United States v.
Schieman, 894 F.2d 909, 910-13 (7th Cir. 1990) (finding that
a defendant who committed a burglary and several minutes
later assaulted an officer pursuing him down the street
committed crimes on occasions different from one another).
Compare United States v. McElyea, 158 F.3d 1016 (9th Cir.
1998) (finding two burglary convictions that took place in
adjoining stores within a short period of time were not
committed on occasions different from one another) with
United States v. Washington, 898 F.2d 439, 440-42 (5th Cir.
1990) (finding that defendant who robbed same clerk at all-
night convenience store twice within a few hours committed
crimes on occasions different from one another).
There is no precise test that courts may use in determining
whether crimes have been “committed on occasions different
from one another.” See United States v. Hudspeth, 42 F.3d
1015, 1021 (7th Cir. 1994) (holding that “crimes [] committed
sequentially, against different victims, at different times and
different locations” were on occasions different from one
another); United States v. Tisdale, 921 F.2d 1095, 1099 (10th
Cir. 1990) (“The defendant had committed crimes on different
occasions because [a]fter the defendant ‘successfully
completed’ burglarizing one business, he was free to leave.
The fact that he chose, instead to burglarize another business
is evidence of his intent to engage in a separate criminal
episode.”); see also United States v. Balascsak, 873 F.2d
673, 681 (3d Cir. 1989) (en banc) (where plurality concluded
that a defendant must have been convicted twice before he
committed his third predicate offense in order to be eligible
for the enhancement under the ACCA).

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12 United States v. Thomas No. 98-6740
common world will understand, of what the law intends
to do if a certain line is passed. To make the warning
fair, so far as possible the line should be clear.’ Second,
because of the seriousness of criminal penalties, and
because criminal punishment usually represents the
moral condemnation of the community, legislatures and
not courts should define criminal activity. This policy
embodies ‘the instinctive distaste against men
languishing in prison unless the lawmaker has clearly
said they should.’
Id. at 348. (citations omitted). Accordingly, the “policy of
lenity means that the Court will not interpret a federal statute
so as to increase the penalty it places on an individual when
such an interpretation can be no more than a guess as to what
Congress intended.” Bifulco v. United States, 447 U.S. 381,
387 (1979) (quoting Ladner v. United States, 358 U.S. 169,
178 (1958)). See United States v. Weekley, 24 F.3d 1125 (9th
Cir. 1994) (affirming the district court’s application of the
rule of lenity in interpreting the ACCA); United States v.
Blake, 59 F.3d 138, 140 (10th Cir. 1995) (stating that rule of
lenity may be applied in interpreting Sentencing Guidelines).
In my view, neither the plain language of the statute nor the
legislative history is instructive in interpreting the pertinent
ambiguous language. In fact, when the language “committed
on occasions different from another” was added to § 924(e),
both the House and the Senate refrained from submitting a
Report with the amendment. See 1988 U.S.C.C.A.N. 5937.
Moreover, the case law fails to provide the requisite guidance
to resolve the case and permit us to determine the outcome.
In attempting to remove the ambiguity, case law interpreting
the language “committed on occasions different from one
another” has led to inconsistent outcomes in our Court as well
as other Circuits. Compare United States v. Brady, 988 F.2d
664, 666, 669 (6th Cir. 1993) (holding that two robberies
committed at different times and places and against different
victims although committed within less than one hour of each
other were crimes committed on occasions different from one
another) with United States v. Murphy, 107 F.3d 1199, 1208
No. 98-6740 United States v. Thomas 5
4The trial court found it somewhat significant, although possibly not
determinative, that the vehicle was stopped and moved to a different
location. The court mentioned this fact in order to clarify that this was not
a case where the two victims and the two men were riding around in the
car the entire time that these incidents occurred.
Eventually, Bucky told Thomas he thought he saw a police
car. The two men exited the car and the women drove away.
Thomas was indicted in two separate indictments for the
rape of the two women. He was convicted and sentenced to
5 years imprisonment on each indictment, to run concurrently.
The district court determined that the rapes of the two
victims constituted two separate crimes for purposes of the
ACCA:
What we have here is, in the language of Brady [United
States v. Brady, 988 F.2d 664 (6th Cir. 1993) (en banc)],
an incident that is part of a series but forms a separate
unit within the whole. Although related to the entire
course of events, an episode is a punctuated occurrence
with a limited duration. Here we have the rape of the
first victim, which forms one episode. We then have an
opportunity for Mr. Thomas to have ceased and desisted
from further criminal conduct. Instead he made a
decision at that point to commit a separate act of
aggression against a second victim, and he raped the
victim of the second rape that occurred in point in time.4
"Since determining whether the conduct was a single
occasion or multiple occasions presents a legal question
concerning the interpretation of a statute, we review the
district court’s decision de novo." United States v. Murphy,
107 F.3d 1199, 1208 (6th Cir. 1997).
Whether two prior offenses can be treated as predicate
crimes under the ACCA does not depend on the number of
convictions or the number of victims. United States v. Brady,
988 F.2d 664, 668 n. 5 (6th Cir. 1993) (citing United States v.

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6 United States v. Thomas No. 98-6740
Petty, 828 F.2d 2, 3 (8th Cir. 1987) (a defendant’s six
convictions for six armed robberies committed
simultaneously could count as only one predicate offense for
purposes of the enhanced penalty of 18 U.S.C. § 1202(a)
(repealed 1986), the predecessor statute of 18 U.S.C.
§ 924(e)). In Brady we observed that "§ 924(e) enhanced
punishment for multiple criminal episodes that were distinct
in time." Id. at 668 (quoting United States v. Hughes, 924
F.2d 1354, 1361 (6th Cir. 1991)).
An episode is an incident that is part of a series, but
forms a separate unit within the whole. Although related
to the entire course of events, an episode is a punctuated
occurrence with a limited duration.
Brady, 988 F.2d at 668 (quoting Hughes, 924 F.2d at 1361).
In Brady the defendant committed an armed robbery at the
Mack Avenue Beauty Shop. Thirty minutes later he
committed a second armed robbery at the Club Continental
Bar. Id. at 666. He argued that the two robberies should
count as only one predicate offense for purposes of the
ACCA, 18 U.S.C. § 924(e)(1), because they represented a
single, continuous crime spree rather than two separate
offenses. This court, sitting en banc, rejected his argument,
and held 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.
In arriving at our conclusion that the robberies constituted
two separate episodes, we considered three cases from other
circuits that had found two separate episodes where there had
been a successful completion of the first crime before the
second crime was embarked upon. We observed that in
United States v. Schieman, 894 F.2d 909, 913 (7th Cir. 1990),
the Seventh Circuit emphasized that "the defendant had
successfully completed his burglary and had safely escaped
No. 98-6740 United States v. Thomas 11
_________________
CONCURRENCE
_________________
CLAY, Circuit Judge, concurring. Although I concur in the
outcome reached by the majority, I do so based upon the rule
of lenity. I believe the language of the statute “committed on
occasions different from one another” is ambiguous in that
though it provides for an enhanced punishment, when the
punishment is to be applied cannot be determined by the
statute’s plain language. Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). In such a case, the well-
established judicial doctrine of “the rule of lenity” applies,
“resolv[ing] the ambiguity in favor of the more lenient
punishment.” B LACK’S LAW DICTIONARY 1332-33 (7th ed.
1999).
It is a well settled canon of statutory construction that when
interpreting statutes, “[t]he language of the statute is the
starting point for interpretation, and it should also be the
ending point if the plain meaning of that language is clear.”
United States v. Choice, 201 F.3d 837, 840 (6th Cir. 2000)
(citing United States v. Ron Pair Enters., Inc., 489 U.S. 235,
241 (1989)). However, if the language in the statute is not
clear, we may resort to the legislative history to ascertain the
meaning of the language. See In re Comshare, Inc. Sec.
Litig., 183 F.3d 542, 549 (6th Cir. 1999); see also United
States v. Kassouf, 144 F.3d 952, 955 (6th Cir. 1998). If the
statute remains ambiguous after consideration of its plain
meaning, structure and legislative history, the rule of lenity is
applied in favor of criminal defendants. See United States v.
Hill, 55 F.3d 1197, 1206 (6th Cir. 1995).
In United States v. Bass, 404 U.S. 336, 347-48 (1971) the
Supreme Court enunciated the policies behind the time
honored axiom of lenity:
This principle [rule of lenity] is founded on two policies
that have long been part of our tradition. First, ‘a fair
warning should be given to the world in language that the

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10 United States v. Thomas No. 98-6740
Conclusion
Accordingly, we hold that Defendant-Appellant Thomas’
1986 convictions for the rapes of the two women constituted
a single criminal episode for purposes of defining predicate
offenses for an enhanced sentence as an Armed Career
Criminal under 18 U.S.C. § 924(e). As a result, Defendant
has been convicted of only two predicate felonies under
§ 924(e). His sentence was therefore improperly enhanced
under § 924(e) and U.S.S.G. § 4B1.4. For the foregoing
reasons, we hereby REMAND for resentencing.
No. 98-6740 United States v. Thomas 7
from the premises, thus concluding the burglary episode
before he undertook an assault on the officer investigating the
case." Brady, 988 F.2d at 668. In United States v. Tisdale,
921 F.2d 1095, 1099 (10th Cir. 1990), the Tenth Circuit held
that three burglaries committed "successfully" at different
stores within the same shopping mall during the same evening
were separate criminal episodes. We observed that the Tenth
Circuit had noted that "[a]fter each burglary, the defendant
was free to desist and leave." Brady, 988 F.2d at 668.
Finally, we noted that in United States v. Washington, 898
F.2d 439, 441-42 (5th Cir. 1990), "[b]ecause the defendant
had completed the first offense and safely escaped, the court
refused to consider the second offense a part of a single crime
spree." Brady, 988 F.2d at 669.
Consistent with the analyses in the cases from the Seventh,
Tenth and Fifth Circuits, we noted in Brady that "while
defendant Brady sat at the Club Continental Bar with his
concealed shotgun, he could have decided that the one
robbery he had committed was enough for the evening.
Instead, he decided to rob again." 988 F.2d at 669.
We built on this theme of conclusion of the first offense in
United States v. Wilson, 27 F.3d 1126, 1131 (6th Cir. 1994).
In Wilson the defendant was convicted of two criminal sexual
conduct offenses on the same date and in the same house, but
against separate victims, and on different floors and locations
within the house. Id. at 1131. We found no error in the
district court’s determination that these were separate offenses
for purposes of § 924(e): "Defendant could have halted his
criminal rampage at any time. Yet, he chose to continue
selecting different victims in separate places." Id.
In United States v. Graves, 60 F.3d 1183 (6th Cir. 1995),
noting that the Brady court had "considered whether or not
the defendant safely escaped from one crime scene before he
committed the second crime," we held that the defendant’s
burglary of a home and his assault on a police officer in the
woods just outside of the home constituted a single episode of
criminal conduct because the assault upon the officer was at

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8 United States v. Thomas No. 98-6740
the same location and within moments of the burglary. Id. at
1186-87.
The question of single or multiple episodes was most
recently addressed in United States v. Murphy, 107 F.3d 1199
(6th Cir. 1997). After Murphy and two accomplices robbed
the occupant of the first residence of a duplex, Murphy
remained in the first residence to prevent the occupant from
calling the police, while his accomplices robbed the adjoining
residence. Although Murphy was convicted of both
robberies, we held that his convictions for robberies of two
sides of the duplex constituted a single criminal episode for
purposes of § 924(e). We reasoned that because "Murphy
never left his original location, he never ceased his original
conduct and he never successfully escaped the site of the first
crime until the second was complete." 107 F.3d at 1210.
Our reasoning in these cases is guided by the purpose of the
ACCA, which is to target recidivism. As we noted in
Hughes,
The propriety of inflicting severer punishment upon
[repeat] offenders has long been recognized in this
country and in England. They are not punished the
second time for the earlier offense, but the repetition of
criminal conduct aggravates their guilt and justifies
heavier penalties when they are again convicted.
924 F.2d at 1361 (quoting Graham v. West Virginia, 224 U.S.
616, 623 (1912)). "Because Congress intended to punish
recidivists, the predicate conduct must amount to separate and
distinct transactions in some definable sense." Murphy, 107
F.3d at 1210. There must be some "reasoned basis" for
considering criminal conduct to be a definable event. Id. As
we cautioned in Graves, "[i]t should not be necessary to reach
to apply this statute; instead, the statute should be applied
where the facts demand its application." 60 F.3d at 1187.
Considering whether the first crime was concluded provides
a reasoned basis for determining whether the conduct
constitutes more than one episode such that it can be
No. 98-6740 United States v. Thomas 9
considered a "repetition of criminal conduct." If the first
crime is concluded we can safely infer that the defendant
entered into the second crime with a fresh purpose. As noted
in United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998),
the courts of appeals are "virtually unanimous" in stating that
"the ‘successful’ completion of one crime plus a subsequent
conscious decision to commit another crime makes that
second crime distinct from the first for the purposes of the
ACCA." Id.
In the case before us today, it is the absence of a completion
or definable endpoint of the first crime before the second
crime was begun that distinguishes this case from Brady and
Wilson, and brings it more in line with our opinions in
Murphy and Graves. "The defendant in Wilson completed
one sexual assault and then elected to seek out another victim
in another location after completing the first crime and
leaving the first location." Murphy, 107 F.3d at 1210. By
contrast, in this case the sexual assault started when both men
entered the women’s vehicle and did not end until both men
exited the vehicle when they thought they had seen a police
car. It is not sufficient to argue, as the government has argued
in this case, that the rapes were necessarily sequential because
it was physically impossible for Thomas to rape two women
at one time. We cannot ignore the fact that the crime
encompassed more than sexual penetration. Thomas and
Bucky asserted dominion and control over both women at the
same time. They kept both women under their control
throughout the duration of this incident. There was no
conclusion of Thomas’ criminal activity against the first
woman when he began raping the second woman. With the
assistance of his accomplice, Thomas carried out his
aggressions against the two women simultaneously.
Thomas’ rapes of the two women cannot be deemed to have
been "committed on occasions different from one another."
Both rapes were part of one continuous episode. Each rape
was not a "punctuated occurrence with a limited duration."
See Brady, 988 F.2d at 668. Rather, the rapes of both women
were part of a single, ongoing criminal episode.

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