United States v. HunnewellUnited States v. Hunnewell
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.
UNITED STATES, Appellee,
v.
Alfred Lawrence HUNNEWELL, Defendant, Appellant.
No. 93-1551.
United States Court of Appeals, First Circuit.
Nov. 24, 1993.
Before BREYER, Chief Judge, SELYA and CYR, Circuit Judges.
Per curiam. Defendant-appellant Alfred Lawrenсe Hunnewell pled guilty to a charge of possession with intent to distribute marijuana, and distribution of it, within 1,000 feet of a secondary school, see
I. BACKGROUND
At sentencing, the government described four offenses as predicate offenses for cаreer of fender status:2
1. A robbery occurring on September 18, 1978, in which Hunnewell and a man named Haskell physically attacked a male in Deering Oaks Park, Portland, Maine, and stole the victim's wallet. Hunnewell pled guilty to this offense on February 2, 1979 and was sentenced in state court to а three year prison term, all but thirteen months of which were suspended.
2. A robbery occurring on September 19, 1978, in which Hunnewell and Haskell. physically attacked and stole money from a different male in the same venue. A jury found appellant guilty. He was sentenced in state court оn January 16, 1979 to a three year prison term, all but fourteen months of which were suspended.
3. A state court conviction for unlawfully a schedulеd drug. On April 8, 1982, Hunnewell was sentenced in state court for this offense to twenty-seven months imprisonment.
4. Two counts of unlawfully trafficking in a scheduled drug, cоnsolidated for trial and sentencing in state court. On April 15, 1987, Hunnewell was sentenced to two years imprisonment, all but six months of which were suspended.
In response, Hunnewell argued that the two drug convictions could not properly 'oe counted as predicate offenses for career offender status. Although he did not dispute that the career offender guidelines list state drug convictions among the crimes that can be used to determine career offender status,3 appellant asserted that the Sentencing Commission illegally exceeded its statutory mandate when it designated state drug convictions as predicate offenses.
Moreover, in appellant's view, the robbery cases are related cases for sentencing purposes within the meaning of U.S.S.G. Sec. 4A1.2. In particular, Hunnewell argues that the two robberies were part of common scheme or plan "to run homosexuals out of Deering Oaks Park in Portland" (the scene of both robberies), and to rob them in the process.4 Thus, appellant says, they should only count as a single predicate offense. See Sec. 4A1.2, comment. (n.3) (stating that "[P]rior sentences are considered related if they resulted from offenses that (1) occurred on the same ocсasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing").
The district court fоund that the two robbery offenses were not part of a common scheme or plan and, thus, were two separate predicate offenses for purposes of the career offender guidelines. The court premised career offender status on these two robbery offenses and did not address the state drug convictions.
II. DISCUSSION
U.S.S.G. Sec. 4B1.1 provides that a defendant is a career offender if threе conditions are met. United States v. Elwell,
With respect to the two state drug convictions, appellant reiterates his argument below that the Sentencing Commission had no authority to write the career offender guidelines to include convictions under state drug laws as predicate offеnses. Appellant contends that the enabling statute,
We need go no further. Since career offender status requires proof of only two priоr convictions for predicate offenses, it would be pointless to consider whether the trial court erred in its determination that the robberies are unrelated offenses. Consequently, the judgment below is affirmed. See Loc. R. 27.1.
Notes
After finding that appellant qualified under the career offender guideline, the district court established the guideline sentencing range at 188-235 months (adjusted offense level--31; criminal history category-IV) and imposed a sentence at the bottom end of the sentencing range
On appeal, the government argues that a fifth conviction is a qualifying predicate offense. we need not address this argument
The career offender guidelines provide in relevant part:
A defendant is a career offender if ... (3) the defendant has at lеast two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. Sec. 4B1.1 (Nov.1992).
The term "cоntrolled substance offense" means an offense under a federal or state law prohibiting the manufacture, import, export, distribution, or dispensing of a controlled substance or the possession of a controlled substance with intent to manufacture, import, expоrt, distribute, or dispense.
U.S.S.G. Sec. 4B1.2 (Nov.1992).
In the court below, appellant also argued that the cases were consolidated. The district court detеrmined on the facts that this was not so, and appellant does not renew that argument here
The statute provides in pertinent part:
The Commission shall assure that the guidelines spеcify a sentence to a term of imprisonment at or near the maximum term authorized [by statute] for categories of defendants in which the defendant ... (2) has previously been convicted of two or more prior felonies, each of which is (A) a crime of violence; or (B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and section 1 of the Act of September 15, 1980 (21 U.S.C. 955a).