U.S.A v. Torres

• Decision Date: 07 July 1999
• Docket Number: No. 98-3006,98-3006
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALFREDO TORRES, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1156

182 F.3d 1156 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALFREDO TORRES, Defendant-Appellant.

No. 98-3006

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

July 7, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 97-CR-20034-01-EEO)

Submitted on the briefs:^*

Cenobio Lozano, Jr., Harrisonville, Missouri, for Defendant-Appellant.

Jackie N. Williams, United States Attorney for the District of Kansas, and Leon Patton, Assistant U. S. Attorney, Kansas City, Kansas, for Plaintiff-Appellee.

Before BRORBY, McKAY, and EBEL, Circuit Judges.

McKAY, Circuit Judge.

Appellant-Defendant, Alfredo Torres, challenges his sentence on conviction of conspiracy to distribute marijuana and cocaine in violation of 21 U.S.C. 846 and 841(a)(1). Mr. Torres contends that the district court misapplied certain provisions of the United States Sentencing Guidelines to improperly include three prior sentences in determining his criminal history category. We exercise jurisdiction under 28 U.S.C. 1291 and 18 U.S.C. 3742.

Mr. Torres, along with eleven other co-conspirators, operated a drug importation and distribution enterprise in the greater Kansas City area from 1994 until June 1996. The government indicted Mr. Torres for multiple drug-related offenses. He subsequently pleaded guilty to the charge of conspiracy to distribute marijuana and cocaine in violation of 21 U.S.C. 846. The presentence report established Mr. Torres' base offense level for the conspiracy conviction at 32. In addition, the report recommended a four-level increase under United States Sentencing Guidelines 3B.1.1(a) because of Mr. Torres' role as leader or organizer of a criminal activity involving five or more participants but allowed a three-level decrease for acceptance of responsibility under 3E1.1(b). These adjustments resulted in a final recommended total offense level of 33.

The presentence report also recommended the assessment of nine criminal history points against Mr. Torres, placing him in criminal history category IV. The report calculated Mr. Torres' criminal history points as follows: (1) one point for a thirty-day sentence imposed in 1992 for violating the terms of probation imposed in a 1985 juvenile conviction for driving while intoxicated; (2) two points for a ninety-day sentence imposed in 1986 for driving while intoxicated; (3) two points for a 132-day sentence for misdemeanor possession of marijuana in 1994; (4) one point for a two-year probationary sentence for felony possession of marijuana in 1995; (5) two points for committing the present offense while on supervised release and probation for other crimes; and (6) one point for committing the present offense less than two years after release from another term of imprisonment. Adopting the recommended total offense level of 33 and a criminal history category of IV, the district court sentenced Mr. Torres to 188 months in prison with a five-year term of supervised releasethe minimum allowable sentence within the guideline range. See U.S.S.G. Ch. 5, Pt. A.

Mr. Torres does not contest his conviction or the calculation of his total offense level. Instead, he raises two issues challenging the district court's criminal history assessment. First, Mr. Torres cites guideline provisions explicitly disallowing the double-counting that results from assessing criminal history points for prior sentences which are part of the present offense or that were already considered in setting the base offense level. Based on these rules, he contends that the court should not have considered his 1994 and 1995 sentences for possession of marijuana because they form part of the instant offense of conspiracy to distribute drugs and are not separate, unrelated prior sentences. In his second claim, Mr. Torres contends that the court improperly assessed one criminal history point against him for the thirty-day sentence he served in 1992. He argues that if the court had properly interpreted the applicable guideline sections, it would have used the date of his "original sentence" for the juvenile offense in 1985 as instructed in 4A1.2(k)(2)(B)(iii) instead of the "date of [his] last release from confinement," as instructed in 4A1.2(k)(2)(B)(ii), and thus would have decided that the prior sentence was beyond the five-year limitation for including the prior sentence in assessing his criminal history.

We first address Mr. Torres' claim of error with regard to the district court's assignment of three criminal history points for his 1994 and 1995 misdemeanor and felony marijuana possession sentences. A challenge to the district court's determination of whether the two prior offenses were part of the instant offense is a factual determination which we review for clear error. See United States v. Hopson, 18 F.3d 465, 467 (7th Cir. 1994) (reviewing for clear error the issue of whether district court correctly determined that prior state misdemeanor drug possession conviction was not related to present conspiracy charge); United States v. Beddow, 957 F.2d 1330, 1338 (6th Cir. 1992) (stating that the determination of whether a prior sentence and present offense are distinct or severable is necessarily a fact-specific inquiry reviewed for clear error). We review de novo the application of the Sentencing Guidelines. See United States v. Farnsworth, 92 F.3d 1001, 1007 (10th Cir. 1996).

Under the Sentencing Guidelines, criminal history points are given for each "prior sentence," which is defined as "any sentence previously imposed upon adjudication of guilt . . . for conduct not part of the instant offense." U.S.S.G. 4A1.2(a)(1). The commentary accompanying 4A1.2 provides that "[c]onduct that is part of the instant offense means conduct that is relevant conduct to the instant offense under the provisions of 1B1.3 (Relevant Conduct)." Id. 4A1.2, comment. (n.1). Thus, a prior sentence counts as criminal history if it does not involve relevant conduct under 1B1.3. In cases of jointly undertaken criminal activity such as the conspiracy charged in this instance, "relevant conduct" is defined to include both "acts and omissions committed . . . by the defendant . . . and . . . all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of . . . [and] in preparation for" the offense of conviction. Id. 1B1.3(a).

Courts have taken different approaches in determining whether a prior sentence constitutes relevant conduct for purposes of calculating criminal history. One approach asks whether the prior sentence was actually taken into account by the sentencing court in determining the total offense level. See, e.g., United States v. Crosson, 166 F.3d 1210, (4th Cir. 1998) (Table) (holding that trial court did not err in assigning a criminal history point for the prior sentence because it properly determined that the prior sentence "was not accounted for in computing [defendant's] offense level for the instant offense"); United States v. Oser, 107 F.3d 1080, 1086, 1088 (3d Cir.) (holding that because district court did not take prior offense into account in determining defendant's base offense level for instant offense, prior sentence was not relevant conduct under criminal history assessment), cert. denied, U.S. , 118 S. Ct. 206 (1997). In a similar vein, this court held that a district court did not commit plain error in counting a prior conviction as criminal history when the court did not include the conviction as relevant conduct in its calculation of the offense level. See United States v. Williamson, 53 F.3d 1500, 1526 (10th Cir. 1995) (relying on fact that only mention of the conviction was in criminal history section of the presentence report). Except in cases such as Williamson, which limit review to a plain error analysis, we find this approach to be flawed because it does not allow the appellate court to review the correctness of the underlying determination that the prior offense was not relevant conduct.

Other courts have approached this criminal history determination differently. These courts have simply analyzed whether the prior sentence constituted relevant conduct without inquiring whether the sentencing court took the sentence into account in determining the total offense level. In other words, these courts make an independent evaluation of whether the prior sentence constituted relevant conduct based on factors such as the similarity, temporal proximity, and regularity of the indicted offense and the prior offense. See, e.g., United States v. Walling, 936 F.2d 469, 471 (10th Cir. 1991) (reviewing district court's finding that prior conviction was not part of the instant offense by comparing prior and instant offenses without reference to calculation of base offense level); United States v. Phillips, 129 F.3d 118, (4th Cir. 1997) (Table) (reviewing and affirming district court determination that a prior conviction for distribution of crack cocaine was not relevant conduct for criminal history purposes without reference to offense level calculation).

Because this court has utilized both of these approaches, albeit under different standards of review, and because neither of the approaches seems sufficiently disciplined, standing alone, to prevent manipulation of the Sentencing Guidelines, we think that combining the two approaches provides a more appropriate analytic framework. Without explicitly so stating, this court recently utilized such a hybrid approach in United States v. Wiseman, 172 F.3d , 1196 (10th Cir. 1999) (affirming district court's criminal history calculation because presentence report clearly indicated that two prior convictions "were not treated as part of the instant offenses, either as 'relevant conduct' or in any other way," and because "differences in time, place, and victims made each of these robberies clearly discrete events"...