U.S. v. Ali, 91-1302
| Decision Date | 10 January 1992 |
| Docket Number | No. 91-1302,91-1302 |
| Citation | 951 F.2d 827 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Wali ALI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Matthew M. Schneider, Asst. U.S. Atty., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.
Sheldon Nagelberg, Chicago, Ill., for defendant-appellant.
Before POSNER, COFFEY and RIPPLE, Circuit Judges.
The defendant was convicted of burglary of a federally insured credit union and sentenced to 41 months in prison. The sentence was higher than it would otherwise have been, because of the defendant's previous convictions--two of which, he argues, should have been consolidated, and therefore treated as one, because they were "related" within the meaning of the federal sentencing guidelines. One was a robbery of a supermarket and the other was a forgery a few days later of a money order that was part of the haul from the supermarket's cash register. The official commentary to the guidelines deems cases "related" that occurred on a single occasion, or were consolidated for trial or sentencing, or were part of a "single common scheme or plan." U.S. Sentencing Guidelines § 4A1.2(a)(2), Application Note 3. The robbery and forgery were committed on different days and the prosecutions were not consolidated either for trial or for sentencing, so the question is whether they were part of a single scheme or plan.
It is a question to which few cases speak. United States v. Davis, 922 F.2d 1385, 1389-90 (9th Cir.1991), holds sensibly that two crimes are not related within the special sense of the guidelines commentary merely because their modus operandi is the same. United States v. Kinney, 915 F.2d 1471 (10th Cir.1990), holds that crimes committed months apart are not related just because they have a common objective, in that case to support the defendant's drug habit. See also United States v. Veteto, 920 F.2d 823 (11th Cir.1991). The closest case to ours is United States v. Coleman, 947 F.2d 1424 (10th Cir.1991), which holds that retaliation by a defendant against a witness is not part of the same scheme as the crime for which the defendant was being prosecuted. This is plainly right if the retaliation was not anticipated and planned when the original crime was planned or committed. For they are then separate crimes and the fact that the first was suggested by the second is no reason to suppose the defendant less dangerous than one might otherwise have thought. We must keep in mind the purpose of the "related" test. It is to identify the less dangerous criminal. A criminal is not less dangerous...
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