U.S. v. Ford, 92-8396

• Decision Date: 12 July 1993
• Docket Number: No. 92-8396,92-8396
• Citation: 996 F.2d 83
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Keith Allen FORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 83

996 F.2d 83

UNITED STATES of America, Plaintiff-Appellee, v. Keith Allen FORD, Defendant-Appellant.

No. 92-8396.

United States Court of Appeals Fifth Circuit.

July 12, 1993.

J. Marlin Blackledge, Waco, TX (Court-appointed), for defendant-appellant.

Diane Kirstein, Asst. U.S. Atty., Richard L. Durbin, Jr., John A. Phinizy, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

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

Before REAVLEY, KING and GARWOOD, Circuit Judges.

REAVLEY, Circuit Judge:

This is another appeal of the application of the sentencing guidelines.

Keith Allen Ford fatally shot Joe Coffman when the latter showed up at a mutual friend's house with a gun, "looking for" Ford. Ford, who had previously been convicted of four controlled substances offenses, pled guilty to one count of possession of a firearm by a convicted felon. 18 U.S.C. § 924(e). Ford was sentenced to 400 months imprisonment and five years supervised release, based in part on the district court's characterization of his possession of a firearm as a "crime of violence" for purposes of U.S.S.G. § 4B1.1.

On prior appeal, this court held that the district court erred by characterizing Ford's possession of a firearm as a "crime of violence" for purposes of computing his base offense level, and vacated and remanded the case for resentencing. On remand, the district court determined that Ford's base offense level was 34 (not 37, as it had previously determined). U.S.S.G. § 4B1.4(b)(3)(A). Combined with his criminal history category VI, this yielded a guideline imprisonment range of 262 to 327 months. After upwardly departing on the grounds that (1) Coffman was killed by the firearm in Ford's possession, and (2) Ford's criminal history category underrepresented his actual criminal behavior and recidivism, ¹ the district court sentenced Ford to 360 months imprisonment, plus five years supervised release. Ford appeals the district court's sentencing on remand. We affirm.

I. DISCUSSION

Ford's sentence must be upheld unless it was imposed in violation of the law, resulted from an incorrect application of the sentencing guidelines, or is unreasonable and outside the range of the applicable guidelines. 18 U.S.C. § 3742(f); United States v. Garcia, 962 F.2d 479, 480-81 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 293, 121 L.Ed.2d 217 (1992). Interpretation of the guidelines is a question of law, subject to de novo review. Garcia, 962 F.2d at 481. Factual findings made in the course of applying the guidelines are subject to review only for "clear error." 18 U.S.C. § 3742(e); Garcia, 962 F.2d at 481.

A. FORD'S BASE OFFENSE LEVEL.

Section 4B1.4(b)(3) provides that:

The offense level for an armed career criminal is the greate[r] of:

....

(A) 34, if the defendant used or possessed the firearm or ammunition in connection with a crime of violence or controlled substance offense, as defined in § 4B1.2(1), or if the firearm possessed by the defendant was of a type described in 26 U.S.C. § 5845(a); or

(B) 33, otherwise.

On remand, the district court determined that Ford's base offense level, under § 4B1.4(b)(3)(A), was 34 because he had possessed the firearm "in connection with a crime of violence." Id. This determination was in accord with dicta in our prior panel's opinion.

Ford challenges this determination, based upon U.S.S.G. § 4B1.2 (Definitions of Terms Used in Section 4B1.1) Application Note 2, which reads, in part:

The term "crime of violence" does not include the offense of unlawful possession of a firearm by a felon. Where the instant offense is the unlawful possession of a firearm by a felon ... and ... the defendant is sentenced under the provisions of 18 U.S.C. § 924(e), § 4B1.4 (Armed Career Criminal) will apply.

Ford argues that our prior holding that his charged conduct did not constitute a "crime of violence," coupled the fact that there were no controlled substances nor § 5845(a) firearms involved, requires a finding that his base offense level is 33, as provided by § 4B1.4(b)(3)(B).

We disagree. While § 4B1.1 explicitly calculates the base offense level based on "the instant offense of conviction," § 4B1.4(b)(3) does not. The language used in the latter section is "if the defendant used ... the firearm ... in connection with a crime of violence ..." (emphasis added). Here, while Ford's "instant offense of conviction"--possession of a firearm by a felon--did not constitute a "crime of violence" for purposes of § 4B1.1, his possession of the Mossberg shotgun was certainly "in connection with a crime of violence"--to wit, the fatal shooting of Joe Coffman. Therefore, we hold that the district court properly applied U.S.S.G. § 4B1.4(b)(3)(A) and correctly calculated Ford's base offense level at 34.

B. FORD'S CRIMINAL HISTORY SCORE.

This court will review de novo the district court's finding that Ford's prior convictions were unrelated. See Garcia, 962 F.2d at 481; see also United States v. Lopez, 961 F.2d 384, 385 (2d Cir.1992); United States v. Houser, 929 F.2d 1369, 1373 (9th Cir.1990).

The PSR and the district court both determined that Ford had a criminal history score of 20, placing him well above the minimum score for Category VI, the highest possible category. Twelve of the 20 points thus assessed were a result of the district court treating four prior state-court methamphetamine delivery convictions as "[p]rior sentences imposed in unrelated cases" for purposes of § 4A1.1(a).

Section 4A1.2(a)(2) provides: "Prior sentences imposed in unrelated cases are to be counted separately. Prior sentences imposed in related cases are to be treated as one sentence for purposes of § 4A1.1(a), (b), and (c)." The official commentary to § 4A1.2 states:

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). 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 app. note 3.

Ford argues that his four prior state-court methamphetamine delivery convictions should be considered "related" for purposes of §§ 1B1.3 and 4A1.2(a) & n. 3. Based upon Garcia, supra, we disagree.

In Garcia, this court considered the "relatedness" of two prior state-court convictions. There, both convictions were for separate instances of heroin delivery over a nine-day period "in the same vicinity." In addition, the two indictments had consecutive numbers and were filed on the same day, the same attorney represented Garcia in both causes, the causes were heard in the same court at the same time, the plea agreements for each cause referred to the other, and the ten-year sentences for each conviction were concurrent. This court found little merit to Garcia's argument that the transactions were part of a "common scheme or plan":

Although the facts surrounding the cases may be similar, similar crimes are not necessarily related crimes....

Garcia executed two distinct, separate deliveries of heroin. Although the crimes may have been temporally and geographically alike, they were not part of a common scheme or plan....

962 F.2d at 482 (citations omitted). As for Garcia's arguments that the two convictions were "related" because they were "consolidated for trial and sentencing," this court concluded:

This court has already rejected the proposition that cases must be considered consolidated simply because two convictions have concurrent sentences. Likewise, we also rejected the notion that sentencing on two distinct cases on the same day necessitates a finding that they are consolidated....

Although the concurrent sentences and sentencing on the same day are factors to consider when evaluating whether cases are consolidated, we see little reason automatically to consider cases to be consolidated where state law is to the contrary. Instead, a district court must determine for itself whether the crimes in fact were related.... [T]he evidence does not establish that the state cases were consolidated for trial or sentencing. The state did not move to consolidate the cases; and the state court treated the two convictions separately, entering separate sentences, judgments and plea agreements.

Id. at 482-83 (citations and footnote omitted).

Garcia disposes of most of Ford's complaints. And, to the extent that Ford's situation in distinguishable from that in Garcia, that distinction is not significant enough to find that the prior convictions were "related." While all four of Ford's charges arose from sales to the same undercover officer during a six-day period, whereas Garcia made two sales to two different officers over a nine-day period, and two of Ford's four sales occurred on the same date and at the same motel, whereas Garcia's sales occurred in distinct locations, these are distinctions without a difference. Each sale was a separate transaction, separated by hours, if not days. The fact that the buyer was the same did not make the sales "related" any more than if Ford made four separate trips to the same H.E.B. in one week to buy groceries--there was no common scheme or plan, simply convenience and experience.

C. PROPRIETY OF THE DISTRICT COURT'S UPWARD DEPARTURE.

The sentencing court may impose sentences outside the range established by the sentencing guidelines in cases presenting "aggravating or mitigating circumstance[s] of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553; U.S.S.G. § 5K2.0; United States v. Fitzhugh, 984 F.2d 143, 147 (5th Cir.1993). The district court must state on...