U.S. v. Huskey

• Decision Date: 17 March 1998
• Docket Number: No. 97-50564,97-50564
• Citation: 137 F.3d 283
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry S. HUSKEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 283

137 F.3d 283

UNITED STATES of America, Plaintiff-Appellee, v. Terry S. HUSKEY, Defendant-Appellant.

No. 97-50564.

United States Court of Appeals, Fifth Circuit.

March 17, 1998.

Richard L. Durbin, Jr., Asst. U.S. Atty., H. Charles Strauss, San Antonmio, TX, for Plaintiff-Appellee.

Carl Cornwell, Overland Park, KS, for Huskey.

Appeal from the United States District Court for the Western District of Texas.

Before REYNALDO G. GARZA, DUHE and STEWART, Circuit Judges.

DUHE, Circuit Judge:

Defendant-Appellant Terry Huskey ("Huskey") appeals the district court's calculation of his sentence. For the reasons that follow, we find that the district court did not commit clear error in assessing the amount of marijuana attributable to Huskey. But, because we find that the district court erroneously calculated Huskey's criminal history score, we must remand for resentencing.

BACKGROUND

Huskey pled guilty to conspiracy to possess marijuana with intent to deliver, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. Huskey had been a member of an organization that, from 1992 to 1996, trafficked large amounts of marijuana across the country.

Huskey was sentenced in June, 1997. In calculating Huskey's criminal history score under U.S.S.G. §§ 4A1.1-.2, the district judge relied on two prior sentences, imposed by a Kansas state court, for theft and attempted possession of cocaine. Those sentences arose from the following events.

On February 9, 1990, Kansas police found 21 stolen antique guns in the trunk of a vehicle owned by Huskey's wife. Police also found marijuana, marijuana cigarettes and cocaine in Huskey's residence. Huskey was charged with theft, possession of marijuana In sentencing Huskey for the instant offenses, the district judge found that the Kansas sentences had been imposed in "unrelated cases." See U.S.S.G. § 4A1.2(a)(2). Thus, the judge assessed Huskey criminal history points separately for each Kansas offense ¹--three for the cocaine and three for the theft. See U.S.S.G. § 4A1.1(a). ² Three additional points were added to that subtotal because Huskey engaged in the charged drug conspiracy while he was under state sentences and after his release from imprisonment on those same sentences. See U.S.S.G. §§ 4A1.1(d) and (e). The judge thus assessed a total of nine criminal history points to Huskey, placing him in criminal history category IV. See Sentencing Table, Ch. 5 Pt. A. Based on the amount of marijuana found attributable to Huskey (see U.S.S.G. § 1B1.3; see also discussion infra at II) and various other adjustments, Huskey's offense level was computed to be 33 (see U.S.S.G. § 2D1.1(a)), with a corresponding category IV range of 188-235 months. Huskey was sentenced to 192 months.

and attempted possession of cocaine. All three charges were presented in the same criminal information under cause number 90-CR-0292; there was, however, no formal order consolidating the charges. Huskey was sentenced for all three counts on the same day and given one year imprisonment for the marijuana offense, one to five years imprisonment for the cocaine offense, and one to three years imprisonment for the theft offense, with the sentences to run concurrently. The Kansas records do not indicate that separate judgments with separate numbers were issued. Huskey was released and placed on probation for the offenses on September 3, 1992, and finally discharged on November 8, 1993.

DISCUSSION

I.

Huskey contends that the Kansas sentences were imposed in "related cases" and therefore should not have been counted separately in assessing criminal history points. He argues that, because the three charges were presented in the same criminal information under the same docket number, the sentences therefore "resulted from offenses that ... were consolidated for trial or sentencing." U.S.S.G. § 4A1.2, comment. (n. 3). Huskey, then, argues he should only have had six criminal history points, placing him in category III with a range of 168-210 months. See Sentencing Table, Ch. 5 Pt. A.

We accept district court fact findings relating to sentencing unless clearly erroneous, but we review de novo application of the guidelines. United States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir.1993). We review the district court's determination of relatedness under § 4A1.2(a)(2) de novo. Id. at 146-47; see also United States v. Garcia, 962 F.2d 479, 481 (5th Cir.1992).

A.

As stated above, in computing criminal history points, prior sentences in unrelated cases are counted separately; prior sentences in related cases are treated as one sentence. See U.S.S.G. § 4A1.2(a)(2). The guidelines commentary observes that:

[p]rior 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.

U.S.S.G. § 4A1.2, comment. (n. 3). The cocaine and the stolen weapons were merely discovered on the same day by the Kansas police; there is no evidence in the record We have never squarely addressed in this Circuit whether, absent a formal order of consolidation, charging separate offenses in the same information under the same docket number nonetheless "consolidates" the offenses and thereby makes them "related" under § 4A1.2(a)(2). Language from our prior cases is instructive, however.

                from which we can deduce that the offenses either "occurred on the same occasion" or were "part of a single common scheme or plan."   Thus, for Huskey to prevail, the offenses must have been "consolidated for trial or sentencing" within the meaning of § 4A1.2, comment.  (n. 3)
                

In United States v. Metcalf, 898 F.2d 43 (5th Cir.1990), we rejected the defendant's argument that his sentences for two prior burglaries were related under § 4A1.2(a)(2) because they ran concurrently and were imposed on the same day. Id. at 45-46. Judge King wrote that:

... in United States v. Flores, we rejected an assertion that cases are consolidated for sentencing under the Guidelines "[s]imply because two convictions have concurrent sentences." Moreover, we do not believe that sentencing on two distinct cases on the same day necessitates a finding that they are consolidated. Here, the 1982 and 1983 offenses proceeded to sentencing under separate docket numbers and there was no order of consolidation.

Id. at 46 (citations omitted) (emphasis added).

We confronted a similar argument in United States v. Gipson, 46 F.3d 472 (5th Cir.1995). There the defendant argued that his seven prior robbery convictions were related under § 4A1.2(a)(2) because they were all "sustained" on the same day in the same judgment of conviction. Id. at 476. Rejecting that contention, Judge Smith observed:

[a]ll but two of the robberies had separate case numbers when they went to trial and judgment, which indicates that at most the two robberies sharing the same case number had been consolidated for judgment.

Id. (emphasis added). See also United States v. Ainsworth, 932 F.2d 358, 361 (5th Cir.1991).

Thus, dicta from our case law strongly imply that offenses charged under the same docket number have been "consolidated" even absent a formal order of consolidation. Sentences for such charges therefore proceed from "related cases" within the meaning of § 4A1.2(a)(2). Decisions from other Circuits provide further support for that position.

In United States v. Alberty, 40 F.3d 1132 (10th Cir.1994), the Tenth Circuit was called upon to decide whether the defendant's two prior juvenile offenses were related because he was sentenced to identical concurrent terms on the same day. Id. at 1134. The record was unclear as to whether there had been a formal order consolidating the charges. Id.

The court began its analysis by observing that prior offenses are generally considered related when an "express judicial order of either consolidation or transfer" brings them before the same court. Id.,citing United States v. Chapnick, 963 F.2d 224, 229 (9th Cir.1992), and United States v. Delvecchio, 920 F.2d 810, 812 (11th Cir.1991). The court observed, however, that, under its own precedent, a formal judicial order was "sufficient, but not necessary, to permit a finding that prior cases were 'consolidated for sentencing.' " Alberty, 40 F.3d at 1134, citing United States v. Gary, 999 F.2d 474, 479-80 (10th Cir.1993), and United States v. Villarreal, 960 F.2d 117, 119-21 (10th Cir.1992). Without addressing what other circumstances might lead to a finding of "relatedness," the court found that Alberty had not demonstrated that his two prior offense were related. Alberty, 40 F.3d at 1135. Primarily, the court relied on the sentencing judge's finding that the two juvenile convictions were handled on the same day merely for judicial convenience. Id. ³ But the court added Moreover, the fact that Mr. Alberty received concurrent sentences on both offenses does not mandate a contrary finding ... especially when the two charges retained separate docket numbers.

Id. (citations omitted) (emphasis added).

In United States v. Stalbaum, 63 F.3d 537 (7th Cir.1995), the Seventh Circuit considered whether three prior misdemeanors for which the defendant had been sentenced to identical concurrent terms in the same proceeding were related. Id. at 538. As in Alberty, supra, there was no formal order of consolidation. Id. The court noted initially that the Seventh Circuit had already rejected the government's position that a formal order of consolidation was a prerequisite to finding prior offenses related. Id. at 539, citing United States v. Joseph, 50 F.3d 401, 403 (7th Cir.1995). But the court added that, lacking a formal consolidation order, a defendant would be required to "show[ ]...