United States v. Berry

• Decision Date: 11 January 2000
• Docket Number: No. 99-2281,99-2281
• Citation: 212 F.3d 391
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. GRANT ARMIN BERRY, DEFENDANT - APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 391

212 F.3d 391 (8th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. GRANT ARMIN BERRY, DEFENDANT - APPELLANT.

No. 99-2281

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: January 11, 2000

Filed: May 4, 2000

Appeal from the United States District Court for the Eastern District of Missouri.

Before Bowman and Loken, Circuit Judges, and Alsop, ^* District Judge.

Loken, Circuit Judge.

In September 1998, St. Louis police officers discovered significant quantities of crack cocaine and powder cocaine while searching Grant Armin Berry's residence and vehicle. Berry pleaded guilty to two counts of possessing crack and powder cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1). Berry now appeals his 262-month sentence, challenging the district court's¹ finding that two prior sentences were unrelated to one another for purposes of determining his criminal history category under U.S.S.G. 4A1.2. The resulting two criminal history points placed Berry in criminal history category III, with a Guidelines sentencing range of 210-262 months. If the prior sentences were related, Berry would be in criminal history category II, his Guidelines range would be 188-235 months, and he would receive the applicable mandatory minimum sentence of 240 months under 21 U.S.C. 841(b)(1)(A), unless the district court were to depart upward under U.S.S.G. 4A1.3. We affirm.

The two prior sentences arose as follows. In December 1996, police officers saw Berry throw down a small bag containing what was later identified as crack cocaine. Berry fled to escape arrest, but a warrant search of his home uncovered drug paraphernalia and crack cocaine, and an arrest warrant issued. In November 1997, police officers executing a warrant to search the residence of Berry's uncle stopped Berry as he was leaving the residence and found crack cocaine on his person. The arrest warrant was still outstanding, and Berry was charged with drug trafficking on both occasions in two separate cases. He pleaded guilty to both felony charges in state court and was given concurrent suspended sentences plus two years' probation. The issue is whether those two sentences are "related" under 4A1.2.

Section 4A1.2(a)(2) provides that "[p]rior sentences imposed in unrelated cases are to be counted separately" in computing a defendant's criminal history for sentencing purposes. Application Note 3 defines the term "related cases." Prior sentences are always unrelated "if they were for offenses that were separated by an intervening arrest." There was no intervening arrest in this case because Berry successfully avoided arrest in December 1996. When there has been no intervening arrest, Application Note 3 provides that "prior sentences are considered related if they resulted from offenses that (1) occurred on the same occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing."

The district court found Berry's two prior sentences were unrelated, noting that eleven months separated the offenses and they were uncovered during different police investigations. On appeal, Berry concedes his two prior offenses occurred on different occasions and were not consolidated for trial or sentencing. He argues the sentences were related because they "were part of a single common scheme or plan." We review the district court's finding on this issue for clear error. See United States v. Bartolotta, 153 F.3d 875, 879 (8th Cir. 1998), cert. denied, 119 S. Ct. 850 (1999).

Our prior 4A1.2 decisions are uniformly contrary to Berry's position. For example, in United States v. Mau, 958 F.2d 234, 236 (8th Cir. 1992), we held that two drug sentences were unrelated, explaining:

Mau first argues that his 1985 and 1986 offenses were part of a common scheme or plan because they both involved distribution of a controlled substance and they occurred within a one-year period. Mau's argument, however, would lead to the illogical result that a defendant who is repeatedly convicted of the same offense on different occasions could never be considered a career offender under the guidelines. As this court has noted, "[s]imilar crimes are not necessarily related crimes."

See also United States v. Maza, 93 F.3d 1390, 1400 (8th Cir. 1996), cert. denied, 519 U.S. 1138, and cert. denied, 520 U.S. 1160 (1997); United States v. Lowe, 930 F.2d 645, 647-48 (8th Cir. 1991).

Berry parries the thrust of these adverse precedents with a legal argument we have not previously considered. Our prior cases went astray, he argues, in failing to give the phrase "common scheme or plan" in Application Note 3 to 4A1.2 the same meaning it has under the Guidelines' relevant conduct provision, U.S.S.G. 1B1.3(a)(2). ² We construe "common scheme or plan" in 1B1.3(a)(2) quite broadly in determining relevant conduct for sentencing purposes. See, e.g., United States v. Geralds, 158 F.3d 977, 979 (8th Cir. 1998), cert. denied, 526 U.S. 1031 (1999) (similar drug transaction eighteen months before the offense of conviction was relevant conduct because "both transactions were part of a regular pattern of drug distribution"). Applying this broad definition of common scheme or plan to the related sentences issue under 4A1.2, Berry argues that his two prior state court sentences involved a pattern of drug offenses sufficiently similar and close together in time to be considered related.

Some other circuits, like this court, have narrowly applied the "common scheme or plan" language in Application Note 3 to 4A1.2 without discussing whether the term has the same or a different meaning in the two Guidelines contexts. See, e.g., United States v. Irons, 196 F.3d 634, 638-39 (6th Cir. 1999), and cases cited; United States v. Chapnick, 963 F.2d 224, 226-27 (9th Cir. 1992). Three circuits have noted that the term is used in both 1B1.3 and 4A1.2, without discussing whether the relevant conduct definition of "common scheme or plan" should be applied to broaden the universe of related sentences under 4A1.2. See United States v. Cowart, 90 F.3d 154, 158-59 (6th Cir. 1996) (suggesting the 1B1.3 definition "is certainly not binding"); United States v. Mullens, 65 F.3d 1560, 1565 (11th Cir. 1995), cert. denied, 517 U.S. 1112 (1996) (referring to 1B1.3 but concluding offenses not related); United States v. Garcia, 962 F.2d 479, 481-82 (5th Cir.), cert. denied, 506 U.S. 902 (1992) (noting but not deciding the issue).

One panel of the Second Circuit expressly discussed the issue and found "no reason to conclude that [the term common scheme or plan] has a different meaning when used in Section 1B1.3" and Section 4A1.2. United States v. LaBarbara, 129 F.3d 81, 86 (2d Cir. 1997). Berry relies primarily on LaBarbara. However, in that decision, the Second Circuit rejected defendant's claim that two offenses were related, rejected an argument that relevant conduct should be broadly construed for these purposes, and expressly followed a prior decision that narrowly construed common scheme or plan in Application Note 3 to 4A1.2, see United States v. Chartier, 970 F.2d 1009, 1014-16 (2d Cir. 1992). Thus, while Berry can point to language in LaBarbara that supports his argument, we doubt whether the Second Circuit's approach to these 4A1.2 issues differs significantly from our prior cases.

Only the Seventh Circuit has squarely addressed whether LaBarbara was right to suggest that the 1B1.3 definition should guide the resolution of common-scheme-or-plan issues under 4A1.2. The Seventh Circuit had long applied a restrictive definition of related sentences, similar to that applied in our prior cases: prior sentences are unrelated absent proof that they "have been jointly planned, or at least that it have been evident that the commission of one would entail the commission of the other as well." United States v. Ali, 951 F.2d 827, 828 (7th Cir. 1992). In United States v. Joy, 192 F.3d 761, 771 n.7 (7th Cir. 1999), the court again applied this test, stating that it found LaBarbara "unpersuasive" and saw "no reason to depart from the settled law in this circuit." In...