U.S. v. Hoy, 90-30254

• Decision Date: 06 May 1991
• Docket Number: No. 90-30254,90-30254
• Citation: 932 F.2d 1343
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Phares HOY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1343

932 F.2d 1343

UNITED STATES of America, Plaintiff-Appellee, v. Robert Phares HOY, Defendant-Appellant.

No. 90-30254.

United States Court of Appeals, Ninth Circuit.

Submitted May 6, 1991. ^*

Decided May 14, 1991.

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

Mark R. Bailey, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

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

Before PREGERSON, BRUNETTI and T.G. NELSON, Circuit Judges.

PER CURIAM:

Defendant-appellant Robert Hoy was sentenced under the Federal Sentencing Guidelines to 78 months in custody for robbing the Security Pacific Bank in Portland, Oregon. After the robbery, but before he was sentenced on the robbery charge, Hoy committed two other offenses which resulted in state court sentences. The district court counted these state sentences as "prior sentences" in calculating Hoy's criminal history under the guidelines.

Hoy argues that the district court erred in counting the state sentences as "prior sentences" under the guidelines because the conduct for which the sentences were imposed occurred after the offense for which he is presently being sentenced. We reject Hoy's argument, and conclude the state sentences were "prior sentences" that were properly included in Hoy's criminal history under the guidelines.

BACKGROUND

On September 2, 1989, Robert Hoy robbed the Security Pacific Bank in Portland, Oregon. Hoy immediately fled to Idaho, where he falsely obtained merchandise and lodging. Hoy then returned to Oregon. On September 15, 1989, he was arrested and found with a stolen vehicle. On October 23, 1989, Hoy was convicted in Oregon state court of attempted unauthorized use of a motor vehicle and sentenced to thirty days in jail. On the same date, Hoy was extradited to Idaho to face charges of grand theft of use of property. Hoy pled guilty to two counts of grand theft on the Idaho charges. On January 15, 1990, the Idaho state court sentenced Hoy to three years in prison.

On January 24, 1990, the federal grand jury for the District of Oregon returned a one-count indictment charging Hoy and his brother, Christopher Marion Hoy, with armed bank robbery in connection with the Portland Security Pacific Bank holdup. ¹ On May 7, 1990, Hoy pled guilty to the bank robbery charge. On July 9, 1990, the United States District Court for the District of Oregon sentenced Hoy pursuant to the guidelines to 78 months in custody and five years supervised release. The district court ordered that the sentence be served concurrently with the Idaho grand theft sentence.

In calculating Hoy's criminal history under the guidelines, the district court counted the Idaho grand theft and the Oregon stolen vehicle convictions as "prior sentences." ² Hoy argues that the district court erred in counting the state convictions as "prior sentences" because the sentences--as well as the conduct for which they were imposed--occurred after the Portland bank robbery. Hoy maintains that including the sentences in his criminal history contravenes the guidelines by promoting disparity in sentencing. ³ We reject Hoy's contentions and affirm the sentence.

DISCUSSION

We review de novo a district court's determination that a prior conviction falls within the scope of the guidelines. United States v. Gross, 897 F.2d 414, 416 (9th Cir.1990).

Guidelines Sec. 4A1.1 instructs a sentencing court to add three points to a defendant's criminal history total for each prior sentence of imprisonment exceeding one year and one month, and to add one point for each prior sentence not counted under other provisions of the section. U.S.S.G. Sec. 4A1.1(a) & (c). The guidelines direct a court to count (1) "[a]ny prior sentence of imprisonment exceeding one year and one Under the plain language of the guidelines, Hoy's sentences for the Idaho theft and the Oregon stolen car were properly included in calculating his sentence on the bank robbery charge. Both sentences were imposed before Hoy's July 9, 1990 sentencing on the bank robbery charge, and within the time periods specified by the guideline. Both sentences thus fall squarely within the definition of "prior sentence" as defined by the relevant provisions of Sec. 4A1.2.

                month that was imposed within fifteen years of the defendant's commencement of the instant offense," and (2) "[a]ny other prior sentence that was imposed within ten years of the defendant's commencement of the instant offense."    U.S.S.G. Sec. 4A1.2(e).  Section 4A1.2(a)(1) defines "prior sentence" as "any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense."    United States v. Mackbee, 894 F.2d 1057, 1058 (9th Cir.1990), cert. denied, --- U.S. ----, 110 S.Ct. 2574, 109 L.Ed.2d 755 (1990)
                

The commentary to Sec. 4A1.2 supports our conclusion. It provides:

"Prior sentence" means a sentence imposed prior to sentencing on the instant offense, other than a sentence for...