Unitеd States of America, Appellee, v. Gary Davidson, Appellant.
No. 05-2380
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Filed: February 9, 2006
Submitted: December 13, 2005
Before LOKEN, Chief Judge, WOLLMAN, and RILEY, Circuit Judges.
WOLLMAN, Circuit Judge.
Davidson pled guilty to being a felon in possessiоn of a firearm in violation of
I.
Law enforcement officers found marijuana and a firearm in the trunk of a car Davidson was driving. Following Davidson‘s guilty plea, the district court sentenced him to 120 months’ imprisonment for Count 1, 120 months’ imprisonment for Count 3, and 60 months’ imprisonment for Count 5. The district cоurt ordered these terms to be served consecutively, resulting in a total sentence of 300 months’ imprisonment.
In computing Davidson‘s criminal history, the district сourt treated two felony prior drug convictions as unrelated offenses. The first offense occurred on September 25, 1998, when Davidson sold less than 30 grams of marijuana within 1,000 feet of an elementary school in Fort Wayne, Indiana. On December 22, 1998, Davidson possessed with intent to deliver more than 30 grams, but less than 10 pounds, of marijuana within 1,000 feet of a different elementary school in Fort Wayne, eight miles away from the location of the first incident. Davidson pled guilty to these offenses at the same time and was sentenced for both on the same day. The two charges proceeded undеr separate docket numbers and were never formally consolidated. Based on the district court‘s criminal history finding, Davidson‘s sentence was within the applicable guideline range.
Davidson argues that the district court erred in considering the two prior drug convictions to be unrelated offenses. Davidson also argues that his sentence was unduly harsh in light of his acceptance of responsibility, making it unreasonable under the
II.
On appeal of a sentence, we review de novo the district court‘s application of the sentencing guidelines and its factual findings for clear error. United States v. Hadash, 408 F.3d 1080, 1082 (8th Cir. 2005). We first ask whether the district court correctly applied the guidelines in determining the appliсable guideline sentencing range. Id. If the district court correctly applied the guidelines, we then consider whether the sentence was reаsonable in light of the
A.
We first consider whether the district court properly applied the sentencing guidelines. Davidson argues that the district court еrred in considering the two 1998 drug offenses to be unrelated when calculating Davidson‘s criminal history. Sentences imposed in related cases are treated as one sentence, while those imposed in unrelated cases are counted separately. U.S.S.G. § 4A1.2(a)(2). Cases are considered related if “they resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.” U.S.S.G. § 4A1.2, comment. (n.3).
Davidson‘s two prior drug offenses do not fulfill any of these three conditions. The two incidents did not occur on the same occasion. See United States v. Paden, 330 F.3d 1066, 1067 (8th Cir. 2003). The two incidents were also not consolidated for trial and sentenсing. We have repeatedly held that formal consolidation is necessary to satisfy this prong. See Paden, 330 F.3d at 1068; United States v. Nicholson, 231 F.3d 445, 456 (8th Cir. 2000); United States v. Klein, 13 F.3d 1182, 1185 (8th Cir. 1994); United States v. McComber, 996 F.2d 946, 947 (8th Cir. 1993). We are not free to reconsider those precedents today. See, e.g., Singleton v. Norris, 108 F.3d 872, 873 (8th Cir. 1997).
The Mills factors support thе district court‘s determination that Davidson‘s crimes were separate offenses. Davidson‘s two prior drug crimes were separated by time, distance, and parties involved. They were separate, though similar, crimes committed by a serial criminal with no evidence presented of common planning. As in Mills, these crimes were not part of a common scheme or plan. As a result, Davidson‘s challenge to the district court‘s apрlication of the sentencing guidelines must fail.
B.
We next decide whether the sentence is reasonable in light of the factors in
Davidson‘s sole argument for unreasonableness is based on the district court‘s alleged decision to sentencе him to the “maximum sentences allowed” despite his timely acceptance of responsibility. The essential premise of his argument, howevеr, is mistaken. Davidson‘s claim that he received the maximum sentence rests on a belief that Count 5 (possession of a firearm in furtherance of a drug trafficking offense) carries a statutory maximum sentence of 60 months. To the contrary, the statutory minimum for this offense is 60 months. See
The sentence is affirmed.
