UNITED STATES оf America, Plaintiff-Appellee, v. Davis Lamar McADAMS, Defendant-Appellant.
No. 93-6362.
United States Court of Appeals, Sixth Circuit.
Argued May 9, 1994. Decided June 3, 1994.
371 F.3d 370
The trial court did not admit the results of the polygraph test and did not permit the State‘s medical witnesses to testify concerning the test or to give any opinion based on the results. Kelly‘s counsel cross-examined these witnesses extensively and argued to the jury that they had not examined Kelly correctly and were biased in favor of the State. The defense had an adequate opportunity to expose any bias on the part of the examining psychiatrists and any deficiencies in their procedures. Therefore, the trial court did not commit error that produced a fundamentally unfair trial by admitting this psychiatric evidence.
CONCLUSION
The record in this case reveals the trial of a difficult ease presided over by an extremely careful and knowledgeable state court judge. We find no constitutional error.
The judgment of the district court is AFFIRMED.
Doris A. Randle-Holt (argued and briefed), Office of the Federal Public Defender, Memphis, TN, for defendant-appellant.
Before MARTIN and JONES, Circuit Judges; and CONTIE, Senior Circuit Judge.
CONTIE, Senior Circuit Judge, delivered the opinion of the court in which MARTIN, Circuit Judge, joined. JONES, Circuit Judge (p. 376), delivered a separate concurring opinion.
CONTIE, Senior Circuit Judge.
Defendant-appellant, Davis Lamar McAdams, appeals the sentence he received after his conviction for possession of a firearm by a felon in violation of
I.
On November 16, 1992, defendant was indicted by the federal grand jury sitting in thе Western District of Tennessee. The indictment charged defendant with possessing a firearm while being a convicted felon in violation of
- On May 23, 1991, conviction for sale of a controlled substance-cocaine in case number 90-16600 in the criminal court of Shelby County, Tennessee.
- On May 23, 1991, conviction for aggravated robbery in case number 91-02242 in the criminal court of Shelby County, Tennessee.
- On May 23, 1991, conviction for aggravated burglary in case number 91-03488 in the criminal court of Shelby County, Tennessee.
- On May 23, 1991, conviction for aggravated robbery in case number 91-02243 in the criminal court of Shelby County, Tennessee.
- On May 23, 1991, conviction for theft of property over $1,000 in case number 91-03055 in the criminal court of Shelby County, Tennessee.
- On May 23, 1991, conviction for theft of property over $1,000 in case number 91-03486 in the criminal court of Shelby County, Tennesseе.
- On May 23, 1991, conviction for possession of an unlawful weapon in case number 91-03487 in the criminal court of Shelby County, Tennessee.
A trial commenced in the present case on June 7, 1993. The jury returned a verdict of guilty on June 8, 1993. A presentence report was filed on August 25, 1993.
A sentencing hearing was held on September 30, 1993. At the sentencing hearing, defendant challenged his designation as an armed career criminal under
Defendant filed a timely notice of appeal. Defendant does not challenge the district court‘s decision that he was an armed career criminal pursuant to
II.
In the present case, defendant is challenging the factual finding of the district court that his criminal history score was 16, resulting in a criminal history category level VI. We review the factual findings of the lower court under a clearly erroneous standard. United States v. Coleman, 964 F.2d 564, 566 (6th Cir.1992). Moreover, due deference is to be given by the appellate court to the lower court‘s application of the sentencing guidelines to the particular facts of a case.
Dеfendant argues that his criminal history category should be a level IV and not level VI, because he entered guilty pleas on the same date and before the same state court judge to the seven felony offenses, which are set forth in the indictment in the present case as the predicate convictions for being a convicted felon in possession of a firearm. Defendant argues that these seven sentences should be treated as one “related” sentence under
In order to determine whether defendant‘s argument has any merit, it is necessary to examine the relevant sentencing guidelines. As noted earlier, defendant is not appealing his designation as an armed career criminal. To determine the criminal history category of an armed career criminal, the relevant guideline section is
(c) The criminal history category for an armed career criminal is the greater of:
(1) The criminal history category from Chapter 4, Part A (Criminal History), or section 4B1.1 (Career Offender) if applicable; or
(2) Category VI, if the defendant used or possessed a firearm or ammunition in connection with the crime of violence or controlled substance offense, as defined in section 4B1.21(1), or if the firearm possessed by the defendant was of a type described in
26 U.S.C. § 5845(a) ; or(3) Category IV.
The presentence report determined that the greatest of the alternative methods set forth under
- (1) Defendant received one criminal history point under
§ 4A1.1(c) for a sentence onJuly 7, 1989 for carrying a dangerous weapon. - (2) He received three criminal history points pursuant to
§ 4A1.1(a) for a sentence of nine years incarceration on May 23, 1991 for possession of a controlled substance with intent to distribute. The drug conviction arose from conduct committed by defendant on September 21, 1990 when he sold crack cocaine to an undercover officer. - (3) He received three criminal history points under
§ 4A1.1(a) for a sentence for theft of prоperty on May 23, 1991. The theft of property offense occurred on or about November 25, 1990 and involved defendant‘s apprehension by police in a stolen vehicle. Defendant‘s sentence for this offense was four years incarceration to run concurrently to the sentence in (2) above. - (4) An additional three points were assessed as a result of a sentence on May 23, 1991 for the theft of property over $1,000, unlawful possession of a weapon, and aggravated burglary. This sentencе was imposed for an offense committed between November 15, 1990 when the burglary occurred to November 17, 1990 when the police apprehended defendant with a stolen vehicle. The presentence report indicated that the police had found a sawed-off shotgun and property that had been stolen from a residence at 3830 Sylvan Hills Cove on November 15, 1990 in the stolen car and in defendant‘s house. The presentence report treated these three convictions as onе. Defendant received sentences respectively of 1.3 years, 2.2 years and 3.4 years incarceration to run concurrently to each other and to the sentences received in (2) and (3) above.
- (5) Defendant also received three criminal history points under
§ 4A1.1(a) for two aggravated robbery sentences on May 23, 1991. The robberies had occurred on November 18, 1990 at 9:30 p.m., when defendant and another person robbed two individuals in their home while armed with shotguns. Defendant received sentences of 1.9 years and 2.9 years incarceration to run concurrently to each other and to the sentences received in (2), (3) and (4) above.1
The criminal history points based on prior convictions totalled 13 points. In addition, defendant received two additional points under
In the present case, defendant does not challenge the criminal history point given for the July 7, 1989 sentence for carrying a dangerous weapon (#1 above). He does, however, challenge the 12 points assessed on the basis of the seven May 23, 1991 state court sentences, asserting that these seven sentences should be treated under the guidelines as one sentence because they resulted from offenses which were consolidated for sentencing. Defendant argues that the state court judge took guilty pleas to all seven offenses at the heаring of May 23, 1991 and entered a single order in regard to all seven indictments.
In regard to whether the seven sentences should be treated as one because they resulted from offenses that were consolidated for sentencing, the relevant guidelines are as follows. Section 4A1.2 defines a prior sentence as:
(a) Prior sentence defined
(1) The term “prior sentence” means any sentence previously imposed upon adjudicati
cation of guilt whether by guilty plea, trial, or plea of nolo contendere, for cоnduct not part of the instant offense. (2) Prior sentences imposed in unrelated cases are to be counted separately. Prior sentences imposed in related cases are to be treated as one sentence for purposes of
§ 4A1.1(a) ,(b) , and(c) .
A commentary to Application Note 3 of
3. Related cases. Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest, (i.e., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if they resulted from offenses that (1) occurred on the same occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing.
In the present case, pursuant to these guidelines, the presentence report determined that the seven sentences imposed on May 23, 1991 were for unrelated cases and should be counted separately. Defendant, on the other hand, argues that the sevеn prior sentences were for related cases, according to
We review the district court‘s findings of fact in regard to whether convictions were consolidated for sentencing under a clearly erroneous standard.
Defendant argues that the district court‘s determination that the seven sentences, which were imposed by the state court judge on May 23, 1991, were not consolidated for sentencing is clearly erroneous. We disagree. In United States v. Coleman, 964 F.2d at 566, this court held that the district court‘s factual finding that the defendant‘s two robbery convictions had not been consolidated for sentencing was not clearly erroneous. The facts of Coleman are almost parallel to those of the present case. In Coleman, the sentences for the two offenses were pronounced on the same date by the same judge and the sentences were ordered to run concurrently, just as in the present case. As this court stated in Coleman, “[t]hese facts, in and of themselves, simply do not suggest that the cases were consolidated for sentencing.” Id. at 567. Moreover, this court in Coleman pointed out that “cases are not consolidated when offenses proceed to sentencing under separate docket numbers, cases are not factually related, and there was no order of consolidation.” Id. In Coleman, the court found that the record as a whole reflected that the two convictions were treated separately and distinctly. There was no order consolidating the cases for sentencing. In each case, there was a separate criminal complaint and separate indictment. The cases proceeded under separate court numbers. Different sentences were levied for the different offenses. The court stated, “In light of these undisputed facts, Coleman‘s two 1975 armed robberies were not consolidated for sentencing....” Id. at 566.
Just as in Coleman, the district court in the present case found that the offenses resulting in the May 23, 1991 sentences were not consolidated for sentencing because the offenses proceeded to sentencing under separate docket numbers, they were not factually related, there was no order of consolidation, there were separate entries of judgment on separate sheets of paper, and different sentences were levied in the different cases. As in Coleman, the record, as a whole, indicated the seven convictions were treated separately and distinctly. Moreover, the district court noted that defendant had filed a petition in state court in 1993 seeking an order stating that the disposition of the seven cases involving defendant on May 23, 1991 had been the result of a consolidated proceeding, but the state court trial judge refused to enter such an order. The district court stated, “That to me is highly persuasive that the court did not intend for these cases to be considered consolidated.” The district court also found nothing unusual in the way the state court handled the seven cases or with the concur-
This determination of the district court is not clearly erroneous. Coleman, 964 F.2d at 566. The record does not reflect that during sentencing in state court on May 23, 1991, either party requested the cаses to be consolidated for sentencing. The record in the state court merely indicates that seven separate sentences for seven different offenses were rendered at the same time. As the district court noted, the sentencing procedure in state court indicated that all seven cases were treated separately. They each bore an individual indictment number, and the sentence in each case was recorded as a separate judgment. No order of сonsolidation was entered by the state court, and most significantly, the state court failed to enter such an order after being petitioned to do so in 1993. We agree with the district court‘s determination that based upon the record, it can be assumed that the state trial judge knew what a consolidated order was, and that his failure to enter such an order when petitioned to do so was strong evidence that the state trial judge did not intend to consolidate the cases for sentencing.3 Furthermore, the distriсt court‘s determination that the seven offenses should not be treated as related is supported by the fact that the May 23, 1991 sentences derived from convictions for offenses which bore no close factual relationship to each other.
Defendant argued that the seven convictions were implicitly consolidated for sentencing because the state court‘s order granting defendant‘s “petition for waiver of trial by jury and request for the acceptance of plea of guilty” fоr all seven cases stated “[t]his cause [which] came on for hearing....” Defendant‘s argument that this order implicitly consolidated the cases for sentencing is undermined by the fact that the state court judge refused to issue an explicit consolidation order when petitioned to do so. Moreover, as the United States points out, the term “[t]his cause” refers to each of the seven cases to which defendant wished to plead guilty, which were separately numbered on the top right section of thе document. Nothing in the state court‘s order accepting defendant‘s petition to plead guilty indicates that the seven cases became one.
The decision of the district court is not only supported by the sixth circuit decision in United States v. Coleman, 964 F.2d at 566, but also is in compliance with a majority of the courts of appeals. See United States v. Russell, 2 F.3d 200, 203 (7th Cir.1993) (two cases, the subject of one plea agreement, were not considered consolidated for sentencing); United States v. Lopez, 961 F.2d 384, 386-87 (2d Cir.1992) (two prior state convictions were not related simрly because the defendant was sentenced to concurrent time on the same day by the same judge); United States v. Ainsworth, 932 F.2d 358, 361 (5th Cir. Cir.) (two cases were not related under
For these reasons, the decision of the district court is hereby AFFIRMED. With a criminal history category of VI and a base offense level of 33, defendant‘s sentencing guideline range was 235-293 months’ imprisonment. Thus, defendant was properly sentenced at the low end of thаt range to 235 months’ imprisonment.
NATHANIEL R. JONES, concurring.
I concur in the judgment reached by the panel, for the applicable case law clearly indicates that Defendant McAdams’ seven cases were not technically consolidated for sentencing purposes. However, I write separately to highlight what I believe to be a prime example of the frequent semantic hoops that this and other courts feel compelled to leap through as a result of the Sentencing Guidelines, to the considerаble disadvantage of criminal defendants.
Application Note 3 to
In the instant case, Defendant McAdams was sentenced on May 23, 1991, for seven convictions, in the same hearing and by the same judge. Applying a commonsense definition to the language of Application Note 3, it seems clear that these cases were therefore “consolidated.” Yet, this court has declined to adopt a straightforward definition of the application note‘s language, holding instead that “[t]hese facts, in and of themselves, simply do not suggest that the cases were consolidated for sentencing.” United States v. Coleman, 964 F.2d 564, 567 (6th Cir.1992). This court and many others have thus applied a technical definition to “consolidated” that bears only a passing resemblance to the plain language of the application note.
In the instant case, application of the technical definition precludes a finding that Defendant McAdams’ cases were consolidated for sentencing, because the seven cases bore separate docket numbers and arose from dissimilar factual bases. As this is the law of the circuit, it must be faithfully applied. Accordingly, I concur in the result of the majority. I write separately only to wonder aloud whether a similarly contorted construction of the plain language would have been adopted if it favored criminal defendants. Much to my chagrin, my instincts—and experience—answer that question with a resounding “no.” Hence, my separate concurrence.
NATHANIEL R. JONES
UNITED STATES CIRCUIT JUDGE