U.S. v. Miller, s. 89-2765
| Decision Date | 30 May 1990 |
| Docket Number | Nos. 89-2765,s. 89-2765 |
| Citation | 903 F.2d 341 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Timothy MILLER, Defendant-Appellant. to 89-2769 Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Roland E. Dahlin, II, Federal Public Defender, Marjorie A. Meyers, Asst. Federal Public Defender, Houston, Tex., for defendant-appellant.
Kathlyn G. Snyder, Paula C. Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.
On May 9, 1988, John Timothy Miller was arrested after robbing a bank in Phoenix, Arizona. He subsequently not only pleaded guilty to robbing that bank but also confessed to having robbed seven other financial institutions. On August 2, 1988, Miller was sentenced to 46 months' imprisonment for the Arizona robbery. He later entered a plea of guilty to six of the other robberies, while the seventh count was dismissed.
At his sentencing for the six bank robberies, the district court placed the base offense level at 19 for each robbery. Under the grouping provision of Sentencing Guidelines Sec. 3D1.4, the court increased the offense level by one for each robbery beyond the first, producing an offense level of 24. After a two-point reduction for acceptance of responsibility, the court reached a total offense level of 22. Miller does not challenge this result.
The district court also assessed three criminal history points under section 4A1.1(a) for the prior sentence of imprisonment for the Arizona robbery. This gave Miller eleven criminal history points and thus placed Miller in criminal history category V. Consequently, the applicable sentencing range was 77 to 96 months. The court chose to depart from the guideline range and imposed a sentence of 105 months to be served consecutively to the previous 46-month sentence. Miller challenges (1) the assessment of the three criminal history points for the Arizona robbery, (2) the ordering of the new sentence to run consecutively to the prior sentence, and (3) the departure from the guidelines.
First, Miller contends the district court erred in awarding three criminal history points for the sentence based upon the Arizona bank robbery. He maintains that that robbery was "intimately related" to the other six robberies to which he pleaded guilty and was part of a common scheme or plan (despite the fact that the nearest of the other robberies occurred in Colorado). Miller argues that as a consequence the district court should not have assessed any separate criminal history points for the Arizona robbery because that robbery, along with the other robberies, are all "related cases" under section 4A1.2(a)(2).
However, section 4A1.2 deals only with how the guidelines treat prior convictions. Under that section, prior convictions that are deemed "related" to one another are not counted separately. Section 4A1.2, however, does not permit the aggregation of prior convictions with those convictions for which the defendant is presently being sentenced. While section 3D1.4 does control how to aggregate the six crimes for which the court was sentencing Miller, the court properly awarded three criminal history points for the Arizona bank robbery under section 4A1.1(a). Because the other six bank robberies did not result in prior convictions, section 4A1.2 does not apply to the instant case.
Miller next asserts that the court erred in imposing the sentence for the six other bank robberies consecutively to, rather than concurrently with, the sentence for the Arizona robbery. When the court sentenced Miller, Guidelines Sec. 5G1.3 read as follows:
Convictions on Counts Related to Unexpired Sentences
If at the time of sentencing, the defendant is already serving one or more unexpired sentences, then the sentences for the instant offense(s) shall run consecutively to such unexpired sentences, unless one or more of the instant offense(s) arose out of the same transactions or occurrences as the unexpired sentences. In the latter case, such instant sentences and the unexpired sentences shall run concurrently, except to the extent otherwise required by law. [Emphasis added.]
This section reflects the statutory presumption that sentences imposed at different times ordinarily run consecutively. See 18 U.S.C. Sec. 3584(a). This presumption does not apply when the new counts arise out of the same transaction or occurrence as a prior conviction.
Departure would be warranted when independent prosecutions produce anomalous results that circumvent or defeat the intent of the guidelines.
First, we determine that the language emphasized above does not apply to the instant case. We agree with the district court that none of the six bank robberies now before this court "arose out of the same transactions or occurrences as the unexpired sentence" imposed for the Phoenix bank robbery. 1 As the Phoenix robbery occurred neither on the same day nor in the same state as any of the other robberies, there was no proximity in time or space between the Phoenix robbery and the other robberies. Under the applicable version of section 5G1.3, in order to be aggregated, the crimes must be part of the "same transaction or occurrence." While the guidelines themselves do not define that phrase in section 5G1.3 or its commentary, the Sentencing Commission interprets similar language elsewhere in the guidelines in a manner indicating that the Phoenix robbery would not be considered part of any transaction or occurrence that also involved the other bank robberies.
For example, Guidelines Sec. 3D1.2(b) groups counts together for sentencing purposes "[w]hen counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan...." In interpreting that clause, example (7) of application note 3 to section 3D1.2 read, at the time of Miller's sentencing, (emphasis in original).
Since example (7) above presumes the same victim, it can only be interpreting the meaning of the phrase "two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan." Applying a similar reading of "same transaction or occurrence" in section 5G1.3 to the instant case leads us to the conclusion that the Phoenix robbery, which occurred on a different day from any of the other robberies, was not part of the same transaction or occurrence.
In fact, in United States v. Washington, 898 F.2d 439 (5th Cir.1990), we considered, under the sentencing enhancement provisions of 18 U.S.C. Sec. 924(e), the breadth of the phrase "single criminal transaction" and held that even two robberies of the same convenience store separated only by a few hours were different criminal transactions for sentencing purposes. Therefore, we easily find that the exception under section 5G1.3 for sentences arising out of the same transaction or occurrence does not apply to the instant case.
We now consider to what extent the district court believed that the law mandated consecutive sentences in the instant case. The presentence investigation report (PSI), paragraph 83, reads,
Guideline Provisions: Based on a total offense level of 22 and a criminal history category of V, the guideline imprisonment range is from 77-96 months. Pursuant to 5G1.3 this sentence will be consecutive to the unexpired sentence which the defendant is serving for the 5/9/88 bank robbery in the District of Arizona.
Finding inapplicable, as we have, the exception for offenses arising out of the same transactions or occurrences, the probation officer apparently concluded that section 5G1.3 mandated consecutive sentences. At the sentencing hearing, the court expressly adopted paragraphs 1 through 112 of the PSI, including "both the findings and the conclusions and the applicability of the guidelines." The only other statement from which we might divine whether the district court believed that section 5G1.3's directive that the sentences "shall run consecutively" left it without discretion to impose concurrent sentences is the one in which the court explains,
I might add that understanding that had the Government not agreed to a Rule 20 transfer, that this man would be facing mandatorily a sentence up to 120 years. Because all of them would have to be consecutive sentences, as I understand the law. It's just because the situation has arisen that we are here, and he is not subjected to that, and I don't say that he should be.
Therefore, it appears that the district court did not believe that it had any discretion to impose concurrent sentences and assumed that, as a matter of law, where sentences were imposed in separate proceedings, those sentences were required to be consecutive. The court made the second statement, like the first, in the context of an extended sentencing hearing at which everything was evaluated with reference to the guidelines. Thus, when the court observed, "[A]ll of them would have to be consecutive sentences, as I understand the law," we can assume the court's understanding to be that, under the guidelines, consecutive sentences were mandatory.
On the other hand, we find nothing to support an inference that the court believed the legal requirement was so absolute that no departure from the guideline rule was permitted. Indeed, the commentary to section 5G1.3 specifically authorizes departures for the purpose of imposing concurrent sentences in certain circumstances. Moreover, the court was obviously familiar with the general possibility of departure from the guidelines, as it did depart upward in the...
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