U.S. v. Villarreal, 91-2102

• Decision Date: 23 March 1992
• Docket Number: No. 91-2102,91-2102
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alejandro VILLARREAL, Jr. Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 117

960 F.2d 117

UNITED STATES of America, Plaintiff-Appellee, v. Alejandro VILLARREAL, Jr. Defendant-Appellant.

No. 91-2102.

United States Court of Appeals, Tenth Circuit.

March 23, 1992.

William D. Fry, Asst. Federal Public Defender, Las Cruces, N.M., for defendant-appellant.

Don J. Svet, U.S. Atty., and Judith A. Patton, Asst. U.S. Atty., Las Cruces, N.M., for plaintiff-appellee.

Before LOGAN, BARRETT and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Defendant pled guilty in the United States District Court for the District of New Mexico to the charge of possession with intent to distribute less than fifty kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1), and 841(b)(1)(D). The court found him guilty and sentenced him as a career offender under U.S.S.G. § 4B1.1, finding that (a) Defendant was at least eighteen years old at the time of the charged offense; (b) the charged offense was in violation of the Controlled Substances Act; and (c) Defendant had two previous felony convictions for violent crimes in the state courts of Texas. He appeals, arguing that his two prior convictions for crimes of violence were consolidated for sentencing and thus should be considered as "related" rather than discrete crimes. ¹ For the reasons stated below, we affirm.

Under the sentencing guidelines, in order to be sentenced as a career offender,

(1) the defendant [must be] at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction [must be] a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant [must have] at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1 (in pertinent part). Defendant concedes that the first two requirements are satisfied. The only issue is whether Defendant's criminal history satisfies the third requirement. We review the district court's application of the sentencing guidelines to the facts of a particular case with due deference, while reviewing questions of law de novo. United States v. Shewmaker, 936 F.2d 1124, 1126 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 884, 116 L.Ed.2d 788 (1992). "Regarding factual determinations made by the district court, we apply a 'clearly erroneous' standard of review." Id.

The district court made a factual finding that:

defendant has two prior felony convictions which are crimes of violence as follows: On December 5, 1986, in the 282nd Judicial District Court of Dallas County, Texas, the defendant's previously imposed term of seven years probation for the offense of burglary of a habitation which occurred on April 28, 1986, was revoked and the defendant was sentenced to five years incarceration in the Texas Department of Corrections. On December 5, 1986, in the 282nd Judicial District Court of Dallas County, Texas, the defendant was sentenced to serve 15 years incarceration in the Texas Department of Corrections in two separate cause numbers of Burglaries of a Habitations [sic], which occurred on October 15, 1986.

R. Vol. I, tab 5 at 2. This factual determination is not clearly erroneous. The presentence report reveals that on April 28, 1986, Defendant was arrested for one burglary. Six months later he was arrested for two other burglaries which occurred the same day (six months after the first arrest) at an apartment complex. On December 5, 1986, he was sentenced for the first burglary to seven years probation, the probation was immediately revoked, and he was sentenced to five years incarceration. On the same date, he was sentenced for the later charges to concurrent fifteen-year prison terms. R. Vol. II (Presentence Report) at 7-8. ²

Defendant relies on the definition of "related" crimes in challenging his status as a career offender. ³ The meaning of the word "related" is a legal issue that we review de novo. The defendant looks to U.S.S.G. § 4B1.2, which states in pertinent part that:

The term "two prior felony convictions" means (A) the defendant committed the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense ..., and (B) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of Part A of this Chapter.

To determine whether the prior convictions are to be counted separately, U.S.S.G. § 4A1.2(a)(2) provides that "[p]rior 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 the criminal history." Application note 3 to that section of the sentencing guidelines in effect when Defendant was sentenced interprets the word "related" in this way: "Cases are considered related if they (1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing."

Applying the facts of this case to these provisions of the sentencing guidelines narrows our inquiry regarding Defendant's career offender status to a very specific issue. We must determine whether the fact that Defendant was sentenced to probation, probation revocation, and imprisonment for one offense on the same date that he was sentenced for other nonrelated violent offenses causes the two sentences to be "related" for the purpose of determining career offender status under the sentencing guidelines in effect on the date of Defendant's federal criminal sentencing. See United States v. Saucedo, 950 F.2d 1508, 1513 (10th Cir.1991) ("Generally, a court is required to apply the guidelines, including 'any pertinent policy statement issued by the Commission,' that are in effect on the date the defendant is sentenced.").

As noted above, the version of U.S.S.G. § 4A1.2, application note 3 effective on March 28, 1991, Defendant's federal district court sentencing date, counsels that offenses can be considered "related" if they have been consolidated for sentencing. ⁴ However, "consolidation for sentencing" is a term which lacks specific definition, and the consolidation of two cases for sentencing can occur for a variety of reasons. For example, sentencing could be ordered to be consolidated because the offenses for which a defendant is being sentenced are related so closely that double sentencing claims could arise from separate sentencing. By contrast, two sentences may be imposed at the same time simply to further judicial economy. Sentencing one defendant on the same date for otherwise unrelated crimes avoids bringing the same parties before the same court on separate occasions for sentencing resulting from separate and distinct convictions or guilty pleas.

Commentators noted the vagueness inherent in the definition of related cases contained in § 4A1.2, application note 3, see Thomas W. Hutchison and David Yellen, Federal Sentencing Law and Practice 309, anno. 2 (1989), and subsequent court decisions bore out their observation, as different circuits applied the section in different ways. See, e.g., United States v. Gross, 897 F.2d 414, 416-17 (9th Cir.1990) (rejecting application note 3 of § 4A1.2(a)(2)), ⁵ cited with approval in United States v. Elmendorf, 945 F.2d 989, 997 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 990, 117 L.Ed.2d 151 (1992); United States v. Metcalf, 898 F.2d 43 (5th Cir.1990):

[W]e do not believe that sentencing on two distinct cases on the same day necessitates a finding that they are consolidated. Here, the 1982 and 1983 offenses proceeded to sentencing under separate docket numbers and there was no order of consolidation. The two cases were not factually tied in any way. ... [O]n these particular facts, the 1982 and 1983 offenses were not consolidated for trial or sentencing.

Id. at 46 (explicitly rejecting the Ninth Circuit's analysis in Gross ); cf., United States v. Houser, 929 F.2d 1369, 1374 (9th Cir.1990) (drug convictions stemming from same investigation and sales to same agent within short period of time but across county lines treated as related and "part of a single common scheme or plan" although handled in different counties; "[t]he guidelines require a sentencing judge to look behind the mere number of prior convictions to examine the circumstances of the convictions when determining whether or not they are related."); United States v. Chartier, 933 F.2d 111, 115-16 (2d Cir.1991) (rejecting argument that two separate concurrent sentences should be considered the "functional equivalent of consolidation" because they might have been consolidated for sentencing had they all occurred in one jurisdiction).

The Tenth Circuit approached this issue in United States v. Jones, 898 F.2d 1461 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 111, 112 L.Ed.2d 81 (1990). In Jones, the defendant was convicted of an assault which occurred in August 1984 and later in a separate proceeding he was convicted of a 1985 drug offense. After serving some time on both sentences, he was released on probation on both sentences. While on probation, he committed a further offense which caused his two earlier probation terms to be revoked. Under the terms of the revocation, he was sentenced to two years imprisonment in the state prison for the 1984 assault and three years in the state prison for the 1985 drug sale, with the two sentences to run concurrently. Id. at 1462. The issue in the case was whether the prior convictions were "related" under U.S.S.G. § 4A1.2(a)(2) so as to relieve the defendant of career offender status in subsequent federal sentencing. This court held that the defendant was properly sentenced as a career offender, reasoning that the mere fact of the concurrent probation revocation and sentencing upon revocation did not convert the separate convictions into a "related" crime.

[A]ction taken by the sentencing court at a probation revocation hearing does not change the...