U.S. v. Dorsey, 88-8442
| Decision Date | 29 September 1989 |
| Docket Number | No. 88-8442,88-8442 |
| Citation | 888 F.2d 79 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alan Randall DORSEY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Sheila Tyler, Federal Defender Program, Inc., Atlanta, Ga., for defendant-appellant.
F. Gentry Shelnutt, Asst. U.S. Atty., Julie E. Carnes, Appellate Chief, Atlanta, Ga., for plaintiff-appellee.
Appeals from the United States District Court of the Northern District of Georgia.
Before RONEY, Chief Judge, FAY, Circuit Judge, and ALLEN *, Senior District Judge.
Alan Randall Dorsey pled guilty to four counts of bank robbery and one escape count occurring in three different states. The district court departed from the recommended federal guidelines sentence, found Dorsey to be a career offender, and sentenced him to 262 months in prison.
On appeal, Dorsey contends that (1) the guidelines unconstitutionally delegate congressional authority over criminal sanctions to the Sentencing Commission, (2) the presence of judges on the Commission violates the separation of powers doctrine, and (3) the guidelines were improperly applied in his case. We affirm.
Both the delegation and the separation of powers arguments were rejected recently by the United States Supreme Court in Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). To the extent Dorsey challenges the statutory validity of the guidelines, his argument has been rejected in this Circuit. United States v. Erves, 880 F.2d 376 (11th Cir.1989).
As to the improper application of the Guidelines, Dorsey contends the district court improperly departed from the sentence recommended by the sentencing guidelines in order to treat him as a career offender. Even if some upward departure was warranted, he argues, the substantial increase was an unreasonable one.
There appears to be some dispute as to the recommended guidelines sentence. The Government's brief states 51 to 63 months; Dorsey's brief places the range at 63 to 78 months. Because of the resolution of the appeal, we need not determine which calculation is correct.
According to the Presentence Report, prior to the bank robberies involved in this case, Dorsey was charged in 1982 with five bank robberies in New York and two bank robberies in Florida. Using Rule 20(a), as he did in this case, he pled guilty in Florida to two of the New York robberies and to the two Florida charges. 1 While serving his sentence on those charges, he escaped from the Community Treatment Center in Jacksonville, Florida, on November 19, 1987. On that same day, he robbed two Jacksonville banks; and in December 1987, he robbed a bank in Louisiana, and another bank in Atlanta, Georgia. These robberies were the subject of his guilty plea in this case.
In calculating the criminal history score under the guidelines, three points are assigned for each prior sentence exceeding 13 months that has been imposed in the 15 years preceding the offense being sentenced. Guidelines Sec. 4A1.2(a)(2) provides, however, that prior sentences in "related" cases shall be treated as one sentence. In defining "related" cases, Application Note 3 states that cases are related if, among other things, they were "consolidated for trial or sentencing." Thus, Dorsey's 1982 sentences were treated as one, giving him a criminal history score of three, because under Rule 20 he was able to plead guilty and be sentenced simultaneously for the four bank robberies, even though they occurred separately and in two different states.
But Application Note 3 recognizes that strict application of the related case criteria may not properly reflect a defendant's criminal history. It advises 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. For example, if the defendant commits a number of offenses on independent occasions separated by arrests, and the resulting criminal cases are consolidated and result in a combined sentence of eight years, counting merely three points for this factor will not adequately reflect either the seriousness of the defendant's criminal history or the frequency with which he commits crimes. In such circumstances, the court should consider whether departure is warranted.
Guidelines Sec. 4A1.3 authorizes a departure if "the criminal history category significantly underrepresents the seriousness of the defendant's criminal history or the likelihood that [he] will commit further crimes."
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