UNITED STATES of America, Plaintiff-Appellee,
v.
Terry Lee CARTER, Defendant-Appellant.
No. 00-6568.
United States Court of Appeals, Sixth Circuit.
Argued: December 10, 2001.
Decided and Filed: March 20, 2002.
Bruсe I. Griffey (argued and briefed), Office of the Federal Public Defender for the Western District Of Tennessee, Memphis, TN, for Appellant. Dan L. Newsom, (argued and briefed), Assistant United States Attorney, Memphis, TN, for Appellee.
Before JONES and COLE, Circuit Judges; SARGUS, District Judge.*
OPINION
SARGUS, District Judge.
Defendant-Appellant Terry Lee Carter appeals his sentencе following a guilty plea to a violation of 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B), receipt and possession of child pornography. Carter asserts that his three prior convictions for drug offenses in state court should have been treated as one offense for the purpose of calculating criminal history points under § 4A1.2 of the Sentencing Guidelines. For the reasons that follow, the sentence imposed by the district court is AFFIRMED.
I.
The facts underlying the issue raised by Carter are not in dispute. In applying the Sentencing Guidelines, the district court determined that Carter's three prior convictions in state court for selling cocaine were not related in thаt each conviction represented a separate offense for purposes of computing his criminal history.
Whether the three prior convictions are treated as related is of significance. Carter does not challenge the computed offense level of 23. Consequently, if the three stаte convictions for trafficking in cocaine are treated as related, the applicable sentencing guideline range would be 70 to 87 months. The district judge treated the three prior convictions as unrelated which resulted in a sentencing guideline range of 92 to 115 months. The district court imposed an effectivе sentence of 95 months of imprisonment, consisting of 60 months on count one to run concurrently with the 95 month sentence imposed as to count two.
Carter was charged in three separate state indictments with unlawful possession with the intent to sell cocaine. The first offense occurred on February 7, 1990, the second оn February 14, 1990, and the third on February 24, 1990. The cases were never consolidated by the state trial court. The judgments imposing sentence were all rendered on the same day and by the same judge. Each of the three separate judgment entries reflect that the defendant had been convicted of selling cocаine "from February 7 through February 24, 1990," a period of time which encompassed all of the sales set forth in the three separate indictments. Further, all three sentences were to run concurrently. Finally, in unrebutted testimony from Carter's prior counsel, as well as from Carter himself, all three sales of cocaine werе made to the same individual.
The district court discounted the fact that Carter had been sentenced on the same day and held that such fact alone does not establish consolidation of cases. The Court also noted that the offenses occurred on three separate dates and resulted in three separate convictions. The district court thereupon concluded that the cases were not related.1
II.
This court reviews a district court's interpretation of the sentencing guidelines de novo. United States v. Carroll,
Prior sentences imposed in unrelated cases are to be counted separately. Prior sentences imposed in related cases are to be treated as one sentence....
Further, the accompanying Commentary states at note 3:
Prior sentences are not considered related if they were for offenses that were separated by an intervening аrrest (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 (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. SENTENCING GUIDELINES MANUAL § 4A1.2, cmt. n. 3 (2001).
Carter contends that the state court essentially consolidated the three offenses and treated them as though they occurred on the same occasion and were part of a single common scheme or plan. The record is clear, however, that all thrеe offenses were separately indicted and never consolidated for either trial or sentencing. While the state court judge sentenced Carter on the same day as to all three offenses with the sentences to be served concurrently, the district court did not err in concluding that the cases were nоt consolidated and the offenses did not occur on the same occasion. The fact that judgment was pronounced on the same day with sentences to run concurrently, without more, does not establish that the offenses were consolidated. United States v. Coleman,
A more difficult question is whether the three drug transactions were part of a common scheme or plan. In United States v. Irons,
Under the standard enunciated in Irons, the district court correсtly concluded that the prior drug convictions were not related. There is no evidence that Carter jointly planned all three drug sales. Nor does the record indicate that the commission of the first drug transaction would in any way entail the commission of the following drug sales. For these reasons, the sentence of the district court is AFFIRMED in all respects.
III.
This Court also concludes, however, that U.S.S.G. § 4A1.2(a)(2), together with the accompanying commentary, creates the potential for widely disparate treatment of prior criminal convictions based on matters wholly unrelated to the underlying offenses. The facts in this case demоnstrate that charging decisions,3 rather than the criminal conduct itself, resulted in a substantial increase in Carter's criminal history category and his subsequent sentence. In most jurisdictions, including the federal system, the three drug offenses would typically have been consolidated in a single indictment.
An example of the potentiаl for unwarranted disparity is found in this case. Carter's three prior state convictions for cocaine distribution could have been the subject of federal prosecution. All three sales would have been the subject of separate counts and, if charged in a single indictment, would be treated, after conviсtion, as related under U.S.S.G. § 4A1.2(a)(2), given the consolidation of three offenses.
Further, under the operation of the Sentencing Guidelines, a conviction on one or more of the three counts would potentially subject a defendant to a sentence based upon the quantity of drugs involved in all three sales. See U.S.S.G. §§ 1B1.3(a)(2), 2D1.1 and 3D1.1.4 Further, neither the prosecutor nor the defendant would have had any reasoned basis to oppose a plea bargain involving a plea of guilty to only a single count.5
Consequently, had Carter been indicted and convicted in federal court on the same charges which form the basis for his three prior conviсtions, he would have been most likely charged in a single indictment, convicted of only a single count, and sentenced on the quantity of drugs in all three sales. With regard to the instant charges, under U.S.S.G. § 4A1.2(a)(2), he would thereafter have had only a single prior drug conviction rather than the three attributable to the state drug convictions.
Prior decisions from this Court further illustrate the point. In United States v. Head,
As explained in United States v. Breckenridge,
This Court further notes that other circuits have declined to adopt the rule set forth in United States v. Ali, supra, and United States v. Irons, supra. See United States v. LaBarbara,
The Breckenridge court articulated the following considerations to determine whether prior convictions are related:
In deciding whether offenses are part of a common scheme or plan, courts have looked to whether the crimes were committed within a short period of time, in close geographic proximity, involved the same substantive offense, were directed at a common victim, were solved during the course of а single criminal investigation, shared a similar modus operandi, were animated by the same motive, and were tried and sentenced separately only because of an accident of geography. See, e.g. United States v. Shewmaker,
Breckenridge,
This Court also recognizes that the United States Sеntencing Commission has acknowledged difficulties in the application of U.S.S.G. § 4A1.2(a)(2) and has modified portions of the Guideline and Commentary. Application Note 3 to U.S.S.G. § 4A1.2 has been added to provide that prior offenses are not related if the criminal acts were separated by an intervening arrest, regardless of whether the various crimes were consolidated for trial or sentencing.7 The Commission has also promulgated U.S.S.G. § 4A1.1(f) which adds a point to a defendant's criminal history for every crime of violence otherwise considered as related to other consolidated offenses, to a maximum of three points, unlеss the crimes of violence actually "occurred on the same occasion."8
Despite those amendments, it is the view of this Court that the goal of reasonable uniformity sought by the Sentencing Guidelines is undermined with regard to the differing applications of U.S.S.G. § 4A1.2(a)(2). The treatment of the issue by the various Courts of Appeаl evidences the lack of consistency and, therefore, the lack of uniformity in the application of this provision of the Sentencing Guidelines. This Court urges the Sentencing Commission to review U.S.S.G. § 4A1.2(a)(2) with regard to the concerns herein expressed.
IV.
Based upon the foregoing, the sentence imposed by the district court is AFFIRMED in all respects.
Notes:
Notes
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio, sitting by designation
During her oral imposition of sentence, Judge Gibbons did take into consideration the fact the three drug convictions occurred relatively close in time. For this reason, the district court noted that the sentence imposed was at the low end of the guideline range
See United States v. Beckett,
There is no implied criticism intended here. The record is not clear as to why the cases were charged separately. Indeed, in most circumstances prosecutors logically prefer charging related counts in the same indictment for purposes of prosecutorial and judicial economy
U.S.S.G. § 1B1.3(a)(2) defines the relevant conduct on which a defendant is sentenced to include all acts "that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. §§ 2D1.1 and 3D1.1 provide that multiple drug offenses are to be grouped and the quantity of drugs from each offense added together to determine a single offense level. As this Court explained inUnited States v. Hill,
Empirical data supports this conclusion. In the years 1999 through 2001, forty-four percent of all federal defendants were charged with more than one offense; only seventeen percent were convicted on more than one offense. ADMINISTRATIVE OFFICE OF THE U.S. COURTS, DATA SOURCE (1999-2001)
In an unreported case,United States v. Mumphrey,
Application Note 3 to U.S.S.G. § 4A1.2 states, in part: "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) ..." U.S. Sentencing Guidelines Manual § 4A1.2, cmt., n. 3 (2001).
U.S.S.G. § 4A1.1(f) states: "Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was considered related to another sentence resulting from a conviction of a crime of violence, up to a total of 3 points for this itemProvided, that this item does not apply where the sentences are considered related because the offenses occurred on the same occasion." (emphasis in original).