United States of America v.  Larry Jo Leeson

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4214 
LARRY JO LEESON,
Defendant-Appellant. 
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CR-03-43)
Argued: March 17, 2006
Decided: July 19, 2006
Before GREGORY and DUNCAN, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Gregory and Judge Duncan joined.
COUNSEL
ARGUED: L. Richard Walker, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg,
West Virginia, for Appellant. Zelda Elizabeth Wesley, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Clarksburg, West Virginia, for Appellee. ON BRIEF:
Thomas E. Johnston, United States Attorney, Clarksburg, West Vir-
ginia, for Appellee.

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OPINION
HAMILTON, Senior Circuit Judge:
Larry Leeson (Leeson) appeals his conviction and sentence on one
count of being a felon in possession of a firearm, 18 U.S.C.
§§ 922(g)(1), 924(a)(2). For reasons that follow, we affirm.
I.
On August 6, 2003, Leeson, of Nutter Fort, West Virginia, pre-
sented himself at the Veteran’s Administration (V.A.) hospital in
Pittsburgh, Pennsylvania. Following interaction with Leeson, the
admissions desk clerk at the hospital reported to hospital security that
a man, later identified as Leeson, was acting strangely in that he had
used three different surnames in an attempt to obtain medical treat-
ment or medication. The admissions desk clerk also reported that the
man had a bulge in his coat which might be a gun.
Two uniformed police officers of the V.A. arrived on the scene to
investigate. The first officer approached Leeson while the other hung
back as back-up. After observing some sort of badge on Leeson’s
belt, the first officer asked Leeson if he was a police officer. Leeson
falsely identified himself as Larry McDonald and falsely claimed to
be an agent of the Federal Bureau of Investigation (FBI). The first
officer then asked Leeson whether he had a weapon, to which ques-
tion Leeson replied: "of course I have a weapon." (J.A. 283).
The two officers then requested Leeson to accompany them to the
police station at the V.A. hospital in order to secure Leeson’s weapon
in accordance with V.A. policy. Once at the police station, Leeson
surrendered his weapon, which was a .357 caliber revolver. Because
the officers thought Leeson’s FBI badge looked suspicious, a super-
vising officer contacted the FBI to verify Leeson’s story. In the mean-
time, Leeson was allowed to return to his vehicle in the parking lot
with his firearm in order to retrieve photographic identification. Once
in his vehicle, Leeson fled the scene at a high rate of speed.
About the same time, the officers learned Leeson’s true identity
and home address and contacted the Nutter Fort Police Department
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about the situation, including that Leeson was carrying a firearm. The
Nutter Fort Police Department contacted Sergeant Jeff McAtee (Ser-
geant McAtee) of the Harrison County Sheriff’s Department, who
was familiar with Leeson and the fact that Leeson was not an FBI
agent, but a convicted felon who cannot lawfully possess a firearm.
Officers of several law enforcement agencies joined in pursuit of
Leeson, who led them on a dangerous high speed chase on U.S. Inter-
state 79 using evasive driving maneuvers. Following Leeson’s cross-
ing into West Virginia, his vehicle began to smoke. At such time,
Leeson took an exit off the interstate, brought his vehicle to a sudden
stop on the exit, opened the door, and exited the vehicle. Sergeant
McAtee observed the .357 caliber revolver in a holster on Leeson’s
belt as Leeson exited his vehicle. Because Leeson refused to put his
hands on his vehicle as ordered, the officers grabbed Leeson’s arms
and handcuffed him. While being handcuffed, Leeson told Sergeant
McAtee and the other officer handcuffing him, "[E]asy, I could have
made this bad for you." (J.A. 235). The propriety of the district
court’s admission of this statement at trial in the face of Leeson’s
objection based upon Federal Rule of Evidence 403 is one of the
issues on appeal.
On September 4, 2003, a federal grand jury sitting in the Northern
District of West Virginia indicted Leeson on one count of being a
convicted felon in possession of a firearm. 18 U.S.C. §§ 922(g)(1),
924(a)(2). Following Leeson’s arraignment, he was remanded to cus-
tody to await his trial. Leeson then filed a notice of insanity defense
and moved for a psychiatric examination.1
1Title 18, United States Code § 17 sets forth the federal standard for
an insanity defense:
(a) Affirmative defense.—It is an affirmative defense to a pros-
ecution under any Federal statute that, at the time of the commis-
sion of the acts constituting the offense, the defendant, as a result
of a severe mental disease or defect, was unable to appreciate the
nature and quality or the wrongfulness of his acts. Mental dis-
ease or defect does not otherwise constitute a defense.
(b) Burden of proof.—The defendant has the burden of proving
the defense of insanity by clear and convincing evidence.
18 U.S.C. § 17.
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Leeson’s motion for a psychiatric examination was granted by a
United States Magistrate Judge and, as a consequence, Leeson was
transported to the Metropolitan Correctional Center (MCC Chicago),
Federal Bureau of Prisons, Chicago, Illinois, for psychiatric examina-
tion.
Once at MCC Chicago, Dr. Jason Dana (Dr. Dana), holder of a
doctorate in clinical psychology, examined and evaluated Leeson’s
mental health. On April 6, 2004, Dr. Dana prepared a forensic psy-
chological report detailing his findings and diagnosis regarding Lee-
son. With regard to Leeson’s sanity at the time of the instant offense,
Dr. Dana’s report opined: "there is no indication that he was suffering
from any form of cognitive impairment or mental illness impacting
his ability to understand the nature and quality, or wrongfulness of his
actions at the time of the instant offense." (J.A. 867). Rather, Dr.
Dana’s report diagnosed Leeson as being a malingerer and of having
opiate dependence by history.2
Leeson’s trial commenced on September 16, 2004, wherein he con-
tinued to assert an insanity defense. Leeson called Dr. Jonathan Him-
melhoch (Dr. Himmelhoch), a psychiatrist, to render an expert
opinion in support of his insanity defense. The district court ruled that
Dr. Himmelhoch was qualified to render such an expert opinion. At
trial, Dr. Himmelhoch testified that he diagnosed Leeson with Post
Traumatic Stress Disorder, partial lobe epilepsy, depression, and
migraine headaches. He then testified that, on the day of Leeson’s
charged offense, August 6, 2003, these illnesses worked together to
make Leeson severely mentally ill such that Leeson did not under-
stand the nature and quality or the wrongfulness of his conduct.
The government called Dr. Dana in rebuttal. The district court
ruled that Dr. Dana was qualified to render an expert opinion regard-
ing the presence or absence of severe mental illness or defect in con-
nection with Leeson’s insanity defense. Consistent with his expert
witness report, Dr. Dana testified at trial that, in his opinion, Leeson
was not suffering from any form of cognitive impairment or mental
2At trial, Dr. Dana testified that "malingering is specifically the report-
ing of symptoms of mental illness for the purposes of obtaining a second-
ary gain." (J.A. 544).
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illness which impacted his ability to understand the nature and quality
of or the wrongfulness of his actions on August 6, 2003. Also consis-
tent with his expert witness report, Dr. Dana testified that his diagnos-
tic workup of Leeson indicated malingering and opiate dependence.
At issue on appeal is the following portion of Dr. Dana’s direct testi-
mony at trial in rebuttal to Leeson’s offered testimony of Dr. Himmel-
hoch:
Q. Now regarding your—your diagnosis of malingering,
what specific action or criteria did you utilize in reaching
that conclusion?
A. Going through the different information that he pro-
vided to me, cross-referencing it with records and other
information that was available to me in order to identify the
validity of the claims, the assessment of malingering, it was
done with the services that we mentioned before and behav-
ioral observations, providing him with opportunities to
speak to other members of the psychology services depart-
ment. Generally the more times a person is asked to explain
their problems and concerns, the more opportunity they
have to be inconsistent, so it gets into all of those things.
Q. And you said, of course, he was observed in the—in
the department?
A. Yes.
Q. And so you relied upon information from other mem-
bers, of course?
A. Not only other members of the department but informa-
tion regarding observed behaviors from people who were
not in our department as well.
Q. Give us some examples of information that you utilized
that came from people not within the department but still up
there at the BOP Institution in Chicago.
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A. The Correctional Officers that are responsible for
supervising the units, oftentimes when they see information
that is not in the realm of mainstream, not what is usually
identified, they will leave messages for us, contact us of
course personally about information.
Q. What about other inmates, do you ever receive infor-
mation from other inmates or people incarcerated at the
BOP?
A. Yeah. Occasionally. Though you have to be careful
about that information but in this case there were two sepa-
rate inmates during the time that Mr. Leeson was there that
approached the other forensic psychologist. They did not
talk to me directly.
MR. WALKER [(counsel for Leeson)]: Your Honor, I
object to this. I think this is inappropriate and it is not some-
thing that is considered a basis for his medical or psycholog-
ical evaluation and it’s hearsay.
THE COURT: Overruled.
MR. WALKER: I’d like to cross-examine those individ-
uals.
THE COURT: I said overruled.
A. It is actually a standard in order to gather information
about a person from sources and information. Again, you
have to weigh the validity of all circumstances. In a situa-
tion where this was the only piece of information that I had,
[I] would not generally rely on it. In situations where it’s
one of several pieces of information, it then becomes more
reliable.
Q. And, of course, you’re speaking of the information pro-
vided by the inmates at the institution?
A. Yes.
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Q. And—and what information did they provide? You
said there were two separate ones.
A. Yeah. They—they essentially indicated that Mr. Lee-
son had approached them to recruit them in assisting him in
looking crazy while he was on the unit.
Q. I—I’m sorry?
A. And, that—that—that he had approached them and
asked them to assist him in looking crazy on the unit. And
one—one of the inmates said that he was asked by Mr. Lee-
son to go to the officer and tell him that an inmate in the
back was acting crazy.
(J.A. 545-47). On appeal, Leeson contends the district court abused
its discretion in allowing Dr. Dana to testify regarding the statements
of Leeson’s fellow inmates at MCC Chicago.
On September 22, 2004, the jury rejected Leeson’s insanity defense
and convicted him on the single count of being a felon in possession
of a firearm. At sentencing, the district court determined that Leeson
had three predicate convictions for violent felonies, which qualified
him to be sentenced under the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e). They are: (1) a 1988 conviction in Texas state
court for burglary of a habitation with the intent to commit theft; (2)
a 1984 conviction in Texas state court for aggravated robbery; and (3)
a 1984 conviction in Texas state court for attempted capital murder
of a peace officer. Leeson does not dispute the facts underlying these
predicate convictions as set forth in his presentence report (the PSR).
However, Leeson objected to below and asserts as error on appeal the
district court’s treatment of his prior conviction for aggravated rob-
bery and his prior conviction for attempted capital murder of a peace
officer as two separate offenses that were "committed on occasions
different from one another," 18 U.S.C. § 924(e)(1). According to Lee-
son, these last two offenses were part of a single criminal episode,
such that they cannot be counted as separate predicate offenses for
purposes of sentencing him under the ACCA.
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The district court ultimately sentenced Leeson to 230 months’
imprisonment. This timely appeal followed.
II.
As his first assignment of error, Leeson contends the district
abused its discretion in admitting, over his contemporaneous objec-
tion, the testimony of Sergeant McAtee that, as he was handcuffing
Leeson, Leeson stated: "[E]asy, I could have made this bad for you."
(J.A. 235). Leeson argues the statement had minimal probative value
regarding his state of mind, which value was substantially outweighed
by the danger of unfair prejudice. Fed. R. Evid. 403 ("Although rele-
vant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice . . . ."). According to
Leeson, admission of the statement created the substantial risk that
the jury would punish him for his harsh words and bad character,
rather than make an objective determination of his guilt as to the
offense charged in the indictment.
Leeson’s assignment of error with regard to the challenged state-
ment is without merit. Federal Rule of Evidence 401 defines relevant
evidence as "evidence having any tendency to make the existence of
any fact that is of consequence . . . more probable or less probable
than it would be without the evidence." Fed. R. Evid. 401. Even rele-
vant evidence, however, "may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . ." Fed.
R. Evid. 403. We review a district court’s ruling on the admissibility
of evidence for abuse of discretion. United States v. Brooks, 111 F.3d
365, 371 (4th Cir. 1997).
As Leeson himself concedes, his statement while being handcuffed
by law enforcement officers is relevant to a critical element of the
government’s case. Specifically, the statement is relevant to establish-
ing that Leeson voluntarily and intentionally possessed the firearm
charged in his indictment. United States v. Hobbs, 136 F.3d 384, 390
(4th Cir. 1998) ("To show a § 922(g)(1) violation, the government
must prove three elements: (i) that the defendant was a convicted
felon at the time of the offense; (ii) that he voluntarily and intention-
ally possessed a firearm; and (iii) that the firearm traveled in interstate
commerce at some point."). Moreover, Leeson himself made the "vol-
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untarily and intentionally" element of his felon-in-possession charge
even more of an issue by asserting an insanity defense. Finally, the
statement itself is only mildly menacing. Given the highly probative
value of the challenged statement and its only mildly menacing
nature, we cannot reasonably conclude that its probative value was
substantially outweighed by the danger of unfair prejudice. Accord-
ingly, we hold the district court did not abuse its discretion in overrul-
ing Leeson’s objection to the challenged statement.
III.
Leeson’s second assignment of error pertains to Dr. Dana’s testi-
mony to the effect that, in forming his expert opinion that Leeson did
not suffer from a severe mental illness which prevented him from
appreciating the nature and quality or the wrongfulness of possessing
a firearm as a convicted felon on August 6, 2003, he (Dr. Dana)
relied, inter alia, upon statements by two different prison inmates that
Leeson "had approached them to recruit them in assisting him in look-
ing crazy while he was on the unit," and upon a statement by one of
those inmates that "he was asked by Mr. Leeson to go to the officer
and tell him that an inmate in the back was acting crazy." (J.A. 547).
According to Leeson, the district court abused its discretion in admit-
ting this testimony because it was hearsay, see Fed. R. Evid. 801,
which did not otherwise qualify for admission under Federal Rule of
Evidence 703 (Rule 703).
Rule 703 provides:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those perceived
by or made known to the expert at or before the hearing. If
of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence in order for
the opinion or inference to be admitted. Facts or data that
are otherwise inadmissible shall not be disclosed to the jury
by the proponent of the opinion or inference unless the court
determines that their probative value in assisting the jury to
evaluate the expert’s opinion substantially outweighs their
prejudicial effect.
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Fed. R. Evid. 703.
Leeson argues that the challenged testimony did not qualify for
admission under Rule 703 for three reasons. First, he claims that Dr.
Dana did not sufficiently establish that inmates in a federal mental
health facility, in general, are reasonably relied upon by experts in his
field. Second, he claims that Dr. Dana was not in a position to deter-
mine whether the two fellow inmates were trustworthy sources of
information, and therefore, Dr. Dana could not have reasonably relied
upon their statements. Finally, he claims the district court failed to
make a finding that the probative value of the inmates’ statements
substantially outweighed their prejudicial effect.
As previously stated, we review a district court’s ruling on the
admissibility of evidence for abuse of discretion. Brooks, 111 F.3d at
371. Here, we hold the district court did not abuse its discretion in
admitting Dr. Dana’s testimony regarding the inmates’ out-of-court
statements.
Assuming arguendo the challenged testimony constitutes hearsay
as defined by Federal Rule of Evidence 801,3 we hold the challenged
testimony otherwise qualifies for admission under Rule 703. First,
contrary to Leeson’s position, during Dr. Dana’s testimony, Dr. Dana
sufficiently established that inmates in a federal mental health facility,
in general, are reasonably relied upon by experts in his field. Criti-
cally, we read the following portion of Dr. Dana’s trial testimony to
state that the inmates’ statements were of a type reasonably, but
admittedly cautiously, relied upon by experts in the mental health
field in forming opinions regarding whether a particular inmate is a
malingerer:
Q. And so you relied upon information from other mem-
bers, of course?
3Federal Rule of Evidence 801(c) defines the term "hearsay" as "a
statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter
asserted." Fed. R. Evid. 801(c).
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A. Not only other members of the department but informa-
tion regarding observed behaviors from people who were
not in our department as well.
* * *
Q. What about other inmates, do you ever receive infor-
mation from other inmates or people incarcerated at the
BOP?
A. Yeah. Occasionally. Though you have to be careful
about that information but in this case there were two sepa-
rate inmates during the time that Mr. Leeson was there that
approached the other forensic psychologist. They did not
talk to me directly.
* * *
A. It is actually a standard in order to gather information
about a person from sources and information. Again, you
have to weigh the validity of all circumstances. In a situa-
tion where this was the only piece of information that I had,
[I] would not generally rely on it. . . .
Q. And, of course, you’re speaking of the information pro-
vided by the inmates at the institution?
A. Yes.
(J.A. 545-47) (emphasis added). As for Leeson’s argument that Dr.
Dana was not in a position to determine whether the two fellow
inmates were trustworthy sources of information, and therefore Dr.
Dana could not have reasonably relied upon their statements in form-
ing his expert opinion, Leeson’s argument is a nonstarter given that
Leeson had full opportunity at trial to cross-examine Dr. Dana on this
point and to make such an argument to the jury in closing argument.
Finally, on the issue of whether the district court made a determina-
tion that the probative value of the inmates’ out-of-court statements
substantially outweighed their prejudicial effect, we conclude from
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our reading of the trial transcript that the district court implicitly made
such a finding. We also conclude the district court properly deter-
mined that the probative value of the inmates’ out-of-court statements
outweighed their prejudicial effect. The information that Dr. Dana
relied upon in formulating his expert opinion was highly and directly
relevant to the jury’s task of evaluating that opinion. The district court
did not abuse its discretion in finding that such probative value sub-
stantially outweighed any prejudicial effect of the statements, espe-
cially given that Leeson had the opportunity to cross-examine Dr.
Dana regarding the reasonableness of his reliance on the statements
and the opportunity during closing argument to downgrade the credi-
bility of such out-of-court statements in the eyes of the jury.
In conclusion, we uphold the district court’s admission of Dr.
Dana’s testimony regarding the challenged out-of-court statements by
two of Leeson’s fellow inmates at MCC Chicago.4
4In a letter styled as notice of supplemental authority submitted pursu-
ant to Federal Rule of Appellate Procedure 28(j) (Rule 28(j)), Leeson
argued for the first time in this appeal that the district court’s admission
of Dr. Dana’s testimony regarding the statements of his fellow inmates
constituted error under Crawford v. Washington, 541 U.S. 36 (2004).
From such letter, we infer that Leeson relies upon Crawford to argue
that, regardless of the admissibility of Leeson’s fellow inmates’ out-of-
court statements under Rule 703, such out-of-court statements are barred
by the Sixth Amendment’s Confrontation Clause, unless the inmates
were unavailable to testify at trial and he had a prior opportunity to
cross-examine them. This argument is a wholly different argument than
the argument Leeson presented in the argument section of his opening
brief in challenge to the district court’s admission of the inmates’ out-of-
court statements through the testimony of Dr. Dana. Rather, in the argu-
ment section of his opening brief, Leeson challenges the district court’s
admission of the inmates’ statements exclusively upon the basis that the
statements constituted hearsay and did not otherwise qualify for admis-
sion under Rule 703.
Because Leeson did not present his argument based upon Crawford in
the argument section of his opening brief, and Crawford was readily
available at the time Leeson filed his opening brief, Leeson’s argument
based upon Crawford is waived. See Fed. R. App. P. 28(a)(9) ("[T]he
argument [section of appellant’s brief] . . . must contain . . . appellant’s
contentions and the reasons for them, with citations to the authorities and
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IV.
Finally, Leeson challenges the district court’s determination that he
qualified for an increased sentence under the ACCA. For reasons that
follow, we hold the district court did not err by sentencing Leeson
under the ACCA.
We begin our analysis of this issue by setting forth the relevant
statutory framework. Under the ACCA, a defendant convicted of a
§ 922(g) offense, who also has three previous convictions "for a vio-
lent felony or serious drug offense, or both, committed on occasions
different from one another," 18 U.S.C. § 924(e)(1), is subject to a sen-
tencing increase from a ten year maximum, 18 U.S.C. § 924(a)(2), to
a fifteen year minimum, 18 U.S.C. § 924(e)(1).
The district court counted Leeson’s following three prior convic-
tions as predicate convictions for purposes of sentencing him under
the ACCA: (1) a 1988 conviction in Texas state court for burglary of
a habitation with the intent to commit theft; (2) a 1984 conviction in
Texas state court for aggravated robbery (Aggravated Robbery Con-
viction); and (3) a 1984 conviction in Texas state court for attempted
parts of the record on which the appellant relies."); United States v. Kim-
ler, 335 F.3d 1132, 1138 n.6 (10th Cir. 2003) ("We will not address
issues not raised in the appellant’s opening brief, especially where the
arguments are based on authority that was readily available at the time
of briefing."); United States v. Jones, 308 F.3d 425, 427 n.1 (4th Cir.
2002) (finding Apprendi v. New Jersey, 530 U.S. 466 (2000) argument
raised for the first time in Rule 28(j) letter was waived). See also Yousefi
v. INS, 260 F.3d 318, 326 (4th Cir. 2001) (alien petitioner waived argu-
ment on appeal raised for the first time in his reply brief by failing to
raise it in his opening brief). Indeed, considering an argument advanced
for the first time in a Rule 28(j) filing is not only unfair to the appellee,
it also creates the risk of an improvident or ill-advised opinion being
issued on an unbriefed issue. See McBride v. Merrell Dow and Pharma-
ceuticals, Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986) ("[c]onsidering an
argument advanced for the first time in a reply brief, then, is not only
unfair to an appellee but also entails the risk of an improvident or ill-
advised opinion on the legal issues tendered.") (internal citations omit-
ted).
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capital murder of a peace officer (Attempted Capital Murder Convic-
tion). Leeson argued below and continues to argue on appeal that, for
purposes of determining whether he has three predicate convictions
qualifying him for an increased sentence under the ACCA, the district
court could count his 1988 conviction in Texas state court for bur-
glary of a habitation with the intent to commit theft and either the
Aggravated Robbery Conviction or the Attempted Capital Murder
Conviction, but not both, because these latter two violent felonies
were not "committed on occasions different from one another." 18
U.S.C. § 924(e)(1). The government contends these two violent felo-
nies were "committed on occasions different from one another," id.,
and, therefore, argues the district court did not err in determining that
Leeson qualified for an increased sentence under the ACCA.
The following quote from the PSR sets forth the whole of the
undisputed, underlying facts of Leeson’s Aggravated Robbery Con-
viction and His Attempted Capital Murder Conviction:
Court records reflect that on January 27, 1983, while in the
course of committing theft of property owned by William
Schiefen, Mr. Leeson threatened Mr. Schiefen by exhibiting
and using a firearm. Those records further reflect that on
January 27, 1983, with the intent to commit capital murder,
Mr. Leeson attempted to cause the death of Ronald Lee
Kruise, Sr., a peace officer in the lawful discharge of an
official duty, by intentionally shooting a gun in the direction
of Mr. Kruise, knowing at the time Mr. Kruise was a peace
officer.
The Houston, Texas, Police Department incident report
reflects that on January 27, 1983, at approximately 8:30
p.m., Mr. Ronald Lee Kruise, Sr., an off duty police officer
working outside security at the Food-a-Rama Food Store,
observed an individual, later identified as Mr. Leeson, enter
said store wearing a ski mask and carrying a double barreled
sawed-off shotgun. Officer Kruise immediately dispatched
the Houston Police Department and then positioned himself
behind a vehicle in the parking lot of the store. Once inside
the store, Mr. Leeson displayed the shotgun and ordered
everyone to freeze. There were approximately 10 people
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inside the store at this time. Mr. Leeson then pointed the
shotgun at William Schiefen, the assistant manager, and
demanded money. Mr. Leeson went with Mr. Schiefen to
the various cash drawers and had Mr. Schiefen or other
employees place the money in a green canvas bag. At one
point, Mr. Leeson hit Mr. Schiefen on the neck with the
shotgun, causing Mr. Schiefen to fall to the ground. Mr.
Leeson also demanded that Mr. Schiefen empty all the cash
from his pockets. Mr. Leeson ordered everyone to hit the
floor and then left the store. After Mr. Leeson exited the
store and proceeded to move away from the exit door, Offi-
cer Kruise yelled, "Freeze, Police." Mr. Leeson raised his
shotgun and fired one shot at Officer Kruise. Officer Kruise
responded by discharging his weapon at Mr. Leeson, who in
turn fired a second shot from his shotgun at Office Kruise.
Mr. Leeson then ran around the corner and through the park-
ing lot where he encountered Mr. Kruise’s son, Ronald
Kruise, Jr., who was also an off duty police officer working
security. Mr. Leeson fired three shots from a .357 caliber
Smith and Wesson revolver at Officer Ronald Kruise, Jr.
and then ran behind an apartment complex. By this time,
officers from the Houston Police Department had arrived on
the scene. Within a few minutes, Mr. Leeson was located
attempting to hide in some foliage behind an apartment
complex. According to the police report, Mr. Leeson failed
to display both of his hands despite numerous requests. As
he turned toward the officers with his right hand near his
mid-section, the officers discharged their weapons, striking
Mr. Leeson twice in the right leg. Mr. Leeson was subse-
quently arrested and taken into custody.
(J.A. 833-34).
Leeson’s challenge to the district court’s determination that he
qualified for an increased sentence under the ACCA squarely presents
for our review the issue of whether Leeson’s aggravated robbery of
the Food-a-Rama and his attempted capital murder of Police Officer
Ronald Lee Kruise, Sr. (Officer Kruise, Sr.) constitute offenses "com-
mitted on occasions different from one another." 18 U.S.C.
§ 924(e)(1). Because this is an issue of law, our review is de novo.
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See United States v. Wardrick, 350 F.3d 446, 451 (4th Cir. 2003). In
analyzing this issue, we initially note our previous recognition that
"Congress’s use of the word ‘occasion’ [in § 924(e)(1)] implies that
it intended the offenses underlying the predicate convictions to be dis-
tinct from one another." United States v. Letterlough, 63 F.3d 332,
335 (4th Cir. 1995). We have also explained that "occasions" are
"those predicate offenses that can be isolated with a beginning and an
end—ones that constitute an occurrence unto themselves." Id. at 335.
Furthermore, we have held that, for purposes of determining the
applicability of the ACCA, offenses occur on occasions different from
one another when each offense "arose out of a separate and distinct
criminal episode." Id. (internal quotation marks omitted).
In Letterlough, we listed several factors for courts to consider in
determining whether two offenses arose out of a separate and distinct
criminal episode for purposes of the ACCA: (1) whether the offenses
arose in different geographic locations; (2) whether the nature of each
offense was substantively different; (3) whether each offense involved
different victims; (4) whether each offense involved different criminal
objectives; and (5) after the defendant committed the first-in-time
offense, did the defendant have the opportunity to make a conscious
and knowing decision to engage in the next-in-time offense. Id. at
335-37.
Courts have applied these factors independently, or in con-
junction, to decide that a defendant’s similar offenses are
actually separate and distinct from one another. In essence,
if any one of the factors has a strong presence, it can dispo-
sitively segregate an extended criminal enterprise into a
series of separate and distinct episodes.
Id. at 336.
Careful application of the Letterlough factors to the facts of Lee-
son’s aggravated robbery of the Food-a-Rama and his attempted capi-
tal murder of Officer Kruise, Sr. convinces us that these two offenses
constitute offenses "committed on occasions different from one
another," 18 U.S.C. § 924(e)(1), for purposes of the ACCA.
The first Letterlough factor cuts in favor of a single criminal epi-
sode. The two crimes occurred in the same geographic location. This
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is so despite the fact that one crime occurred inside the store and the
other crime occurred just outside the store. Leeson was still on the
premises of the food store and, in Fourth Amendment parlance, was
within its curtilege.
The second Letterlough factor cuts in favor of two separate and
distinct criminal episodes. The two crimes are distinctly different in
nature. While Leeson’s aggravated robbery involved theft of anoth-
er’s property by threat of violence and one instance of the use of
apparently non-deadly force (i.e., Leeson’s hitting Mr. Schiefen on
the neck with the shotgun), Leeson’s attempted capital murder of
Officer Kruise, Sr. involved the use of deadly force with the intent to
murder a peace officer.
The third Letterlough factor also cuts in favor of two separate and
distinct criminal episodes. The crimes had decidedly different victims.
The store owner and the store’s then present employees and custom-
ers were the victims of Leeson’s aggravated robbery, while Officer
Kruise, Sr. was the victim of Leeson’s attempted capital murder of a
peace officer.
The fourth Letterlough factor cuts in favor of two separate and dis-
tinct criminal episodes. Leeson’s aggravated robbery and attempted
capital murder of a peace officer had different criminal objectives.
The first to get money and the second to commit murder in order to
effectuate his escape from the scene of the earlier aggravated robbery.
As the district court aptly stated,
[o]nce outside the door, the objective changed. The objec-
tive was to get away and Mr. Leeson was confronted with
an obstacle, that being Officer Kruise and his gun and so
Mr. Leeson then, in my opinion, changed objectives. Now
his goal was to get away and to get rid of any obstacles in
his path and that involved firing his weapon at the police
officer.
(J.A. 747). Indeed, the point is proven by the fact that, while the
effectuation of Leeson’s escape may have been a part of Leeson’s
objective in committing the aggravated robbery, Leeson’s commis-
sion of the aggravated robbery could not have been a part of Leeson’s
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objective in shooting Officer Kruise, Sr.; the aggravated robbery hav-
ing already been completed.
Application of the fifth Letterlough factor cuts in favor of two sep-
arate and distinct criminal episodes. The fifth factor considers
whether the defendant had the opportunity to make a conscious and
knowing decision to cease and desist his criminal behavior or engage
in yet another crime. The district court answered this question in the
affirmative:
Did Mr. Leeson have the opportunity to cease and desist
from his criminal actions before he shot at Officer Kruise?
And my answer to that question is yes, he did, because the
facts of the case indicate that Officer Kruise said to him,
"freeze, police". Leeson then fired one shot at Kruise after
being told to stop. Now if he had not been told to stop by
Kruise, who identified himself as police, we might have an
even more difficult question th[a]n the one that [Leeson’s
counsel] thinks we have here. But I believe that that’s a crit-
ical factor in this case, not that it took place within minutes
or even seconds of his leaving the store, but rather the fact
that when confronted by the police officer, who ordered him
to freeze and identified himself as police, Mr. Leeson
responded not by doing so but by shooting at the police offi-
cer. Now this is in substance a significantly different crime
th[a]n the one where he displays his shotgun and demands
money.
(J.A. 747).
In this case, Officer Kruise, Sr. saw Leeson, wearing a ski mask
and carrying a double barreled sawed-off shotgun, enter the store. As
opposed to following him into the store and attempting an arrest,
given the crowded conditions of the store, Officer Kruise, Sr. posi-
tioned himself behind an automobile so as to afford coverage and
waited for Leeson to exit the store. When Leeson exited the store,
Officer Kruise, Sr. did yell "Freeze, Police," and that is when Leeson
raised the shotgun and fired one shot at Officer Kruise, Sr. Under that
scenario, the robbery had been successfully completed when Officer
Kruise, Sr. confronted Leeson.
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Accordingly, we readily agree with the district court that Officer
Kruise, Sr.’s verbal command that Leeson freeze along with his self-
identification as a police officer cut heavily in favor of concluding
that Leeson’s aggravated robbery and his attempted capital murder of
a peace officer were two separate and distinct criminal episodes. First,
the aggravated robbery was actually complete at the time Leeson took
custody and control of the money. Second, at the time Officer Kruise,
Sr. ordered Leeson to freeze and identified himself to Leeson as a
police officer, Leeson was unequivocally presented with the opportu-
nity to cease and desist from engaging in further criminal conduct.
In the final analysis, the weight of the Letterlough factors cutting
in favor of two separate and distinct criminal episodes (i.e., distinctly
different victims, distinctly different crimes, and Leeson’s being pre-
sented with a clear opportunity to cease and desist his criminal behav-
ior prior to the second-in-time crime) decidedly tips the scale in favor
of Leeson’s aggravated robbery and his attempted capital murder of
a peace officer being separate and distinct criminal episodes and, thus,
offenses committed on occasions different from one another for pur-
poses of the ACCA. Cf. United States v. Williams, 187 F.3d 429 (4th
Cir. 1999) (assault with a firearm on a governmental officer and
assault with deadly weapon (on a different police officer) with intent
to kill arose out of separate and distinct criminal episodes for pur-
poses of ACCA, even though offenses were committed within three
blocks of each other and within short period of time for purpose of
escaping apprehension, when ten to fifteen minute interval between
offenses gave defendant opportunity to cease and desist).
To be sure, the circumstances of Leeson’s criminal conduct inside
and then almost immediately just outside the Food-a-Rama readily
fits the description of a crime spree. However, the crime-spree nature
of Leeson’s conduct does not require that we view his aggravated rob-
bery offense and his attempted capital murder of a peace officer
offense as part of a single criminal episode. Rather, our holding today
that these two offenses constitute crimes committed on occasions dif-
ferent from one another for purposes of increasing Leeson’s sentence
under the ACCA is consistent with our case law which recognizes
that, "‘criminals who commit separate crimes against different indi-
viduals while on a spree, within a short period of time, provided that
the perpetrator had the opportunity to cease and desist from his crimi-
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nal actions at any time’" commit crimes on occasions different from
one another. United States v. Hobbs, 136 F.3d 384, 390 (4th Cir.
1998) (quoting United States v. Hudspeth, 42 F.3d 1015, 1020 (7th
Cir. 1994)).5
In sum, we uphold the district court’s determination that Leeson
qualified for an increased sentence under the ACCA.
V.
In conclusion, we affirm Leeson’s conviction and sentence.
AFFIRMED
5We note that Leeson substantially relies on the Sixth Circuit’s deci-
sion in United States v. Graves, 60 F.3d 1183 (6th Cir. 1995). In Graves,
the defendant burglarized a home, encountered police in the woods near
the home, and fled. Id. at 1184-85. One of the police officers at the scene
ordered defendant to halt. Id. at 1185. The defendant "then stopped,
turned, pointed a gun at the officer, and fled again." Id. Following his
capture, the defendant pleaded guilty to burglary and assault. Id. The
Sixth Circuit held that because the defendant had not yet left the location
of the burglary when he committed the assault within moments of the
burglary, the assault and the burglary were part of the same criminal epi-
sode and, thus, were not committed on occasions different from one
another for purposes of the ACCA. Id. at 1187. While Graves does not
appear to be materially distinguishable from the facts of Leeson’s case,
for the reasons we have already expressed in applying the Letterlough
factors, we simply disagree with the Sixth Circuit’s analysis.
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