U.S. v. Davis

• Decision Date: 05 November 1990
• Docket Number: No. 90-30137,90-30137
• Citation: 922 F.2d 1385
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Eugene DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1385

922 F.2d 1385

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Eugene DAVIS, Defendant-Appellant.

No. 90-30137.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 1990. ^*

Decided Jan. 4, 1991.

Brian Patrick Conry, Portland, Or., for defendant-appellant.

Robert B. Ross, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT, CHOY and THOMPSON, Circuit Judges.

CHOY, Circuit Judge:

Ronald E. Davis appeals from a March 26, 1990 judgment sentencing him to thirty-four months in prison, to be followed by two years on probation. Davis alleges (1) that the trial court erred when it calculated his criminal history score by failing to count two "related" cases as one sentence under section 4A1.2(a)(2) of the United States Sentencing Guidelines; ¹ and (2) that the trial court erred when it calculated $150,000 to be the "probable or intended" loss resulting from his scheme to defraud Levix-U.S.A. Because neither of Davis's contentions has merit, we AFFIRM the judgment of the lower court.

FACTUAL AND PROCEDURAL BACKGROUND

On September 19, 1989, a federal grand jury indicted Davis under 18 U.S.C. Sec. 1343 on six counts of wire fraud involving (1) the theft of 1000 ceiling fans valued at $11,800, 24,000 pairs of panty hose valued at $14,400, one round-trip first-class airline ticket worth $1,148.00, various shop tools worth $13,200, and (2) the attempted thefts of one first-class round-trip airline ticket and $150,000 in precious gems. On January 16, 1990, Davis pled guilty to count IV, a scheme to defraud Levix-U.S.A. of some $110,000 in diamonds and $40,000 in rubies.

Davis's method of operation was to call a business and place an order, using a false name, say "Mr. X." He would ask for the victim's bank account number and promise to pay for the order by wire transfer. Later, he or an accomplice would call the victim, falsely identify himself as a bank representative, and falsely report that the bank had received a wire transfer from "Mr. X." The victim would then ship the order to Davis and Davis would sell the stolen goods. Davis was also charged with using the same scheme in 1984 to steal 1,500 pounds of crab meat and 500 pounds of shrimp, worth more than $13,000, from four Seattle seafood suppliers.

At a sentencing hearing on March 20, 1990, the trial court calculated Davis's criminal history score at 12, based on four prior convictions, each with a score of 3. Davis argued instead for a criminal history score of 9, maintaining that two of the convictions stemmed from "related" cases the scores of which should be counted as a single score in accordance with U.S.S.G. Sec. 4A1.2(a)(2). The trial court, however, ruled that the cases were unrelated in light of United States v. Gross, 897 F.2d 414, 416 (9th Cir.1990).

One of the prior convictions in question stemmed from Davis's December 23, 1981 arrest in Everett, Washington on three counts of issuing bad checks. Davis was subsequently sentenced in Snohomish County Superior Court on May 17, 1983. The other conviction stemmed from Davis's arrest, sometime in January 1983, for Theft I in Seattle, Washington. For that crime, Davis was sentenced in King County on May 13, 1983.

STANDARDS OF REVIEW

We review de novo a district court's application of the United States Sentencing Guidelines, to the extent that such application involves a mixed question of law and fact. United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir.1989) (citing United States v. Sanchez-Lopez, 879 F.2d 541, 558 (9th Cir.1989)). ² However, in The first issue presented for review, whether two cases are "related" for purposes of U.S.S.G. Sec. 4A1.2(a)(2), is a mixed question of law and fact subject to de novo review. See Sanchez-Lopez, 879 F.2d at 558; cf. Gross, 897 F.2d at 416 (where both parties stipulated to pertinent facts, only question of law remained). The second issue, the district court's calculation of the amount of probable or intended loss due to Davis's scheme, is a factual finding to be reviewed for clear error in accordance with 18 U.S.C. Sec. 3742(e). United States v. Wills, 881 F.2d 823, 827 (9th Cir.1989).

reviewing a district court's determination of underlying facts in connection with sentencing, this court will reverse only those findings which are clearly erroneous. Gross, 897 F.2d at 416; 18 U.S.C. Sec. 3742(e) (1988). ³

ANALYSIS

I. CRIMINAL HISTORY SCORE

Davis properly preserved this issue for review by raising timely objections, both before and during his sentencing hearing, in accordance with Federal Rule of Criminal Procedure 51. Far from raising an alternate theory on appeal, Davis has consistently maintained three grounds in support of his contention that the two prior state convictions were "related cases" under the Commentary to section 4A1.2 of the United States Sentencing Guidelines. First, Davis alleged that both convictions were for the same type of crime, namely writing checks on closed bank accounts. Second, Davis alleged, as a matter of fact, that Washington state courts had "consolidated" the two cases for sentencing. Third, Davis alleged that the cases were "consolidated," as a matter of Washington state law, because he had received concurrent sentences for the two convictions.

A. Davis's prior convictions arose from two criminal cases which were "unrelated" within the meaning of U.S.S.G. Sec. 4A1.2.

The Commentary to section 4A1.2 of the sentencing Guidelines states, in Application Note 3, that: "Cases are considered related if they (1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing." (emphasis added). Thus, the Commission sets forth three alternative definitions of "related cases" for the federal courts to apply. However, in United States v. Gross, 897 F.2d at 416-17, this court held generally that "application notes are not binding law," but merely "advisory commentary to assist in the application of the statute."

The Sentencing Commission acknowledged that the definition of "related cases" set forth in Application Note 3 was purposefully very broad. In order to compensate for this overbreadth, it provided that sentencing courts could depart from the Sentencing Guidelines, but only in accordance with the procedures outlined in section 4A1.3.

The court should be aware that there may be instances in which this definition is overly broad and will result in a criminal history score that underrepresents the seriousness of the defendant's criminal history and the danger that he presents to the public.... In such circumstances, the court should consider whether departure is warranted. See Sec. 4A1.3.

U.S.S.G. Sec. 4A1.2, comment. (n. 3).

Nevertheless, in Gross, this court narrowly construed the phrase "consolidated for ... sentencing." In Gross, both parties In contrast to this circuit, the Fifth Circuit has explicitly accorded deference to Application Note 3. United States v. Metcalf, 898 F.2d 43, 46 n. 6 (5th Cir.1990). Instead of narrowly defining the term "related cases," the Fifth Circuit has merely endorsed upward departure from the Sentencing Guidelines in accordance with Sec. 4A1.3. Id. The Guidelines authorize such departure whenever the overbroad definition of "related cases" produces a criminal history score which "underrepresents the seriousness of a defendant's criminal history and the danger that he presents to the public." U.S.S.G. Sec. 4A1.2, comment. (n. 3).

                stipulated that the three state cases in question had arisen out of "factually unrelated" criminal actions and that defendant Gross had received three concurrent sentences for the crimes at a single hearing.  Gross, 897 F.2d at 416.    Upon these facts, this court implicitly held, as a matter of law, that "factually unrelated" cases cannot be "related" under section 4A1.2(a)(2) of the Sentencing Guidelines.  Id.  In so holding, this court rejected only that "part of Application Note 3 that suggests that cases consolidated for sentencing are to be deemed related."    Id. at 416
                

Although Gross and Metcalf employ different analytical approaches, they both produce essentially the same outcome when applied to the case at bar. Because Davis's convictions are unrelated under Sec. 4A1.2, the district court properly recorded them as two separate criminal history scores.

B. Davis's cases did not occur on a single occasion.

Davis never maintained that the underlying offenses were committed on a single occasion. Nor did he argue that they occurred within the same general time period. The presentence investigation report indicates that Davis was arrested for these crimes two years apart and tried by state courts in two different jurisdictions. He was arrested for the first crime in 1981 and for the second crime in 1983. The 1983 arrest was for criminal acts committed in 1983. This indicates that the underlying crimes were committed at least thirteen months apart.

C. Davis's cases were not part of a common scheme or plan.

As to his first contention, Davis states correctly that both convictions stemmed from the same kind of underlying offense--the unlawful issuance of bad checks. The presentence report indicates that he had one conviction for unlawful issuance of bad checks in Snohomish County for paying rent with a bad check and one Theft I conviction in King County for buying a pickup truck with a bad check. However, Davis has never maintained that the checks were written during the same time period or that they were drawn on the same closed bank account.

Although Davis's two crimes were of a similar type and shared the same modus operandi, they nevertheless constituted two separate crimes which he apparently perpetrated thirteen months apart. The Eleventh Circuit has held, and we agree, that a common modus operandi is not enough to demonstrate a single common scheme or plan....