U.S. v. Gallegos-Gonzalez

• Decision Date: 16 July 1993
• Docket Number: GALLEGOS-GONZALE,No. 92-50599,D,92-50599
• Citation: 3 F.3d 325
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eduardoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 325

3 F.3d 325

UNITED STATES of America, Plaintiff-Appellee, v. Eduardo GALLEGOS-GONZALEZ, Defendant-Appellant.

No. 92-50599.

United States Court of Appeals, Ninth Circuit.

Submitted July 16, 1993. ^*

Decided Aug. 24, 1993.

Cesar E. Trevino, San Diego, CA, for defendant-appellant.

John P. Pierce, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: FLOYD R. GIBSON, ^** HALL and KLEINFELD, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Eduardo Gallegos-Gonzalez appeals his sentence under the Sentencing Guidelines for his guilty plea conviction of distribution of phencyclidine in violation of 21 U.S.C. Sec. 841(a)(1). The district court had jurisdiction under 18 U.S.C. Sec. 3231, and this Court has jurisdiction over Gallegos' timely appeal pursuant to 18 U.S.C. Sec. 3742. We affirm.

I

Gallegos was convicted of selling $200 worth of phencyclidine (PCP) in violation of 21 U.S.C. Sec. 841(a)(1). Finding that Gallegos had two previous felony convictions, the district court sentenced him as a "career offender" under section 4B1.1 of the Sentencing Guidelines. Accordingly, the court set Gallegos' base offense level at 32 and his criminal history category at VI and sentenced him to 168 months in prison.

The district court relied on two 1989 convictions to establish Gallegos' career offender status. Gallegos was arrested for selling PCP on September 12, 1989 and was eventually released on bail. He was later arrested for assault with a deadly weapon, a charge stemming from an incident that occurred on September 25, 1989. He pled guilty to the drug and assault charges on December 11, 1989 and December 26, 1989, respectively. He was sentenced for both offenses at the same proceeding on February 14, 1990, and in accordance with his plea bargain he received two concurrent three-year prison terms.

II

Gallegos challenges his designation as a career offender. We review de novo the district court's interpretation of the career offender provisions of the Sentencing Guidelines. United States v. Morrison, 972 F.2d 269, 270 (9th Cir.1992).

In order to qualify as a career offender, a defendant must have at least two prior felony convictions of either a crime of violence or a controlled substance offense. United States Sentencing Commission, Guidelines Manual Sec. 4B1.1 (Nov. 1991). Moreover, at least two of these prior convictions must have sentences which are counted separately--that is, sentences imposed in unrelated cases. U.S.S.G. Secs. 4B1.2(3), 4A1.2(a)(2).

Gallegos contends that he was improperly designated a career offender because the 1989 cases were consolidated for sentencing, are therefore "related," and are not counted separately as required to qualify for career offender sentence enhancement. He relies on application note 3 to section 4A1.2, which this Court has not considered since it was amended in November, 1991. ¹

The first half of Note 3 reads:

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 ... (3) were consolidated for trial or sentencing.

U.S.S.G. Sec. 4A1.2 comment. (n.3.). Focusing on the last sentence of the quoted language, Gallegos argues that all cases consolidated for sentencing must be considered to result in "related" sentences.

This interpretation ignores the plain language and structure of Note 3. In determining whether cases are related, the first question is always whether the underlying offenses were punctuated by an intervening arrest; by the logic and ordering of Note 3, that inquiry is preliminary to any consideration of consolidated sentencing. The use of the word "otherwise" indicates that sentence consolidation is relevant only in the absence of intervening arrests. Properly read, Note 3 instructs that whenever offenses are separated by intervening arrests, the sentences for those offenses are unrelated regardless of whether sentencing was consolidated.

In addition to its role in the career offender inquiry, the definition of related cases in Note 3 also affects the calculation of criminal history points for non-career offenders. The second half of Note 3 explains that related sentences may sometimes lead to a criminal history score that underrepresents the seriousness of a defendant's past crimes:

For example, if a defendant was convicted of a number of serious non-violent offenses committed on different occasions, and the resulting sentences were treated as related because the cases were consolidated for sentencing, the assignment of a single set of points may not adequately reflect the seriousness of the defendant's criminal history or the frequency with which he has committed crimes. In such circumstances, an upward departure may be warranted.

Id. Gallegos claims that since the sentences in the hypothetical were treated as related, Note 3 implicitly embraces the rule that consolidated sentences are always related.

This reading is flawed because the hypothetical describes a situation in which there were no intervening arrests. Not only does the hypothetical fail to mention separate arrests, but that element was specifically removed from the example by the 1991 amendment. In the previous version of Note 3, the hypothetical defendant committed "a number of offenses on independent occasions separated by arrests." U.S.S.G. Sec. 4A1.2 comment. (n. 3) (Nov. 1990). ² The phrase "separated by arrests" was omitted from the amended version, presumably so that the hypothetical would conform to the new rule that sentences separated by intervening arrests are never related. Neither half of Note 3, then, stands for what Gallegos claims. ³

Gallegos also cites decisions of this circuit holding that sentences from cases consolidated for sentencing are related under section 4A1.2. See United States v. Bachiero, 969 F.2d 733, 734 (9th Cir.1992); United States v. Chapnick, 963 F.2d 224, 228 (9th Cir.1992); United States v. Fine, 946 F.2d 650, 653-54 (9th Cir.1991), superceded in nonpertinent part, 975 F.2d 596 (9th Cir.1992) (en banc); see also United States v. Delvecchio, 920 F.2d 810, 812-13 (11th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 156, 121 L.Ed.2d 106 (1992). While acknowledging that these cases interpret pre-1991 versions of Note 3, Gallegos nevertheless urges us to follow them. We decline to do so in this case for two reasons. First, we are not here concerned with whether Gallegos' two prior cases were "consolidated for sentencing," but rather whether they are unrelated in spite of that fact. ⁴ Second, the 1991 amendments have changed the meaning of Note 3 significantly. Prior to 1991, Note 3 arguably appeared to define all cases consolidated for sentencing as "related." As explained above, Note 3 no longer permits that interpretation. The intervening arrest language was added "to provide that cases separated by an intervening arrest for one of the offenses are not treated as related cases." U.S.S.G.App. C (n. 382). Consequently, the cases to which Gallegos refers do not apply.

The one case Gallegos cites which addresses the 1991 amendments to the Guidelines is United States v. Woods, 976 F.2d 1096 (7th Cir.1992). Woods actually contradicts Gallegos' interpretation of Note 3. The Seventh Circuit view under the pre-1991 Guidelines was that consolidated sentences were not necessarily related. United States v. Elmendorf, 945 F.2d 989 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 990, 117 L.Ed.2d 151 (1992). Woods refused to extend that interpretation to sentences imposed under the Guidelines as amended in 1991, finding that "[g]iven [the] additions to the Guidelines text and the application notes, a defendant's prior sentences that have been consolidated for trial or sentencing must be considered related under Section 4A1.2." Woods, 976 F.2d at 1101. At the same time, Woods explicitly recognized an exception to its new rule where there are intervening arrests: "Note 3 also states (in another sentence added in the November 1991 amendments) that if the criminal conduct is separated by arrests, the ensuing convictions are never considered related even if consolidated for trial or sentencing." Id. at 1102. Woods further weakens Gallegos' interpretation of Note 3.

We conclude that sentences for offenses separated by an intervening arrest are always unrelated under section 4A1.2 as amended in 1991, regardless whether the cases were consolidated for sentencing. Under the Guidelines as amended, Gallegos' 1989 convictions are clearly unrelated, as he was arrested and released for the drug offense two weeks prior to committing the assault, and would be counted separately under section 4A1.1. Accordingly, his two prior felony convictions meet the definitional requirements of section 4B1.2(3) and his classification as a career offender under section 4B1.1 was proper.

III

Gallegos argues next that his 1989 state drug conviction is not a felony and cannot be used to establish career offender status under section 4B1.2(3). Specifically, he claims that the evidence was insufficient to convict him of that offense; that his guilty plea was made under the coercive pressure of his subsequent arrest for assault with a deadly weapon; and that his actual conduct underlying the state conviction should be construed as a misdemeanor for sentencing purposes because it would not qualify...