United States v. Ferrell , 231 F. App'x 432 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0329n.06
Filed: May 10, 2007
No. 06-5927
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
United States of America, )
)
Plaintiff-Appellee ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
Bobby Earl Ferrell, )
)
Defendant-Appellant. )
BEFORE: MARTIN and SUTTON, Circuit Judges, and GRAHAM,* District
Judge.
GRAHAM, District Judge. Defendant-appellant Bobby Earl
Ferrell was indicted by a grand jury in the Middle District of
Tennessee for one count of bank robbery in violation of 18 U.S.C.
§ 2113(a). Defendant entered a guilty plea to that offense on
February 6, 2006. A sentencing hearing was held on July 3, 2006.
Defendant objected to the probation officer’s conclusion in the
presentence report (”PSR”) that he was a career offender within the
meaning of § 4B1.1 of the United States Sentencing Guidelines
(“U.S.S.G.”). The district judge denied defendant’s objections and
found that defendant was a career offender. The district judge
also denied defendant’s motion for a sentence below the advisory
guideline range and sentenced defendant to a term of incarceration
of 151 months, a sentence at the bottom of the advisory guideline
range. Defendant then filed the instant appeal contesting the
district court’s determination of his career offender status.
*
The Honorable James L. Graham, United States District Judge for the
Southern District of Ohio, sitting by designation.
This court reviews a district court’s interpretation of the
sentencing guidelines de novo. United States v. Carter, 283 F.3d
755, 757 (6th Cir. 2002). Findings of fact made by the district
court are reviewed for clear error. United States v. McAdams, 25
F.3d 370, 374 (6th Cir. 1994).
The definition for “career offender” in the Guidelines is as
follows:
A defendant is a career offender if (1) the defendant was
at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either
a crime of violence or a controlled substance offense;
and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance.
U.S.S.G. § 4B1.1(a). The meaning of the phrase “two prior felony
convictions” is found in U.S.S.G. §4B1.2. U.S.S.G. §4B1.1,
comment. (n. 1). Under this definition, at least two of the
previous felony convictions for a crime of violence must be counted
separately under the provisions of U.S.S.G. § 4A1.1(a-c), which
assign criminal history points for convictions involving a “prior
sentence of imprisonment.” U.S.S.G. §§ 4B1.2(c), 4A1.1(a-c).
Prior sentences imposed in unrelated cases are counted separately,
and prior sentences imposed in related cases are treated as one
sentence. U.S.S.G. § 4A1.2(a)(2). “[P]rior sentences are
considered related if they resulted from offenses that (A) occurred
on the same occasion, (B) were part of a single common scheme or
plan, or (C) were consolidated for trial or sentencing.” U.S.S.G.
§ 4A1.2, comment. (n. 3).
Defendant had seven previous convictions for aggravated
burglary. On February 24, 2001, defendant and Josh Kolbecki
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committed an aggravated burglary in Rutherford County, Tennessee.
PSR, ¶ 30. On March 5, defendant and Josh Kolbecki committed four
aggravated burglaries in Rutherford County, Tennessee. PSR, ¶¶ 28,
31-33. On February 27, 2001, defendant and Josh Kolbecki committed
an aggravated burglary in Rutherford County, Tennessee. PSR, ¶ 29.
On that same date, defendant, Josh Kolbecki, and April Kolbecki
committed an aggravated burglary in Bedford County, Tennessee.
PSR, ¶ 34.
The six aggravated burglaries committed in Rutherford County
were charged in a single indictment filed in the Rutherford County
Criminal Court under Case No. F-50627A. No order of consolidation
was entered. The defendant was sentenced on all of these charges
on July 13, 2001. A separate judgment and sentence order was
entered on each offense, and separate sentences were imposed on
each count of conviction. The aggravated burglary committed in
Bedford County was charged by indictment filed under Case No. 15017
in the Bedford County Criminal Court. Defendant was sentenced on
that charge on May 2, 2002. The probation officer determined that
the Rutherford County aggravated burglaries and the Bedford County
aggravated burglary constituted at least two prior qualifying
felony convictions for crimes of violence, and that defendant was
therefore a career offender within the meaning of U.S.S.G. § 4B1.1.
PSR, ¶ 19.
Defendant testified at the sentencing hearing that he was
accompanied by Josh Kolbecki on all seven burglaries. Jt. Appx.,
p. 44. Josh’s sister, April Kolbecki, was also with them when they
committed the burglary in Bedford County. Defendant and Josh did
not plan on her participation, but she insisted on coming with them
3
that morning. Jt. Appx., p. 45. Defendant testified that he and
Josh committed the burglaries to obtain money and property to
finance their drug habits, and that they were both high on
marijuana during the burglaries. Jt. Appx., p. 46. He stated that
they found houses at random, driving around and smoking pot until
they found a house that was secluded. Jt. Appx., pp. 47-48. They
would then knock loudly at the doors. If someone answered,
defendant would ask for a person or a nearby road. If no one
answered, they would kick in the door. Jt. Appx., p. 48.
Defendant agreed with counsel’s statement that he and Josh
Kolbecki had a “thought-out scheme and plan to do these
burglaries.” Jt. Appx., p. 50. They used the same method to
commit all the burglaries. Jt. Appx., p. 56. However, he also
stated that they didn’t have a list of houses they had decided to
break into. He agreed with the prosecutor’s statement that they
were living day to day, and that when they ran out of money for
drugs, they would break into another house. Jt. Appx., p. 52.
At the sentencing hearing, defense counsel argued that the two
aggravated burglaries which occurred on the same date should be
considered related because they occurred on the same occasion. He
further argued that the aggravated burglaries were related because
they were committed as part of a single common scheme or plan.
Defense counsel also argued that the offenses in Rutherford County
were effectively consolidated for trial, and that since the Bedford
County burglary would have been consolidated with the other
burglaries but for the fact that it was committed in another
county, an “accident of geography,” it should also be considered a
related case.
4
The district court found that the aggravated burglaries did
not occur on the same occasion because they occurred in different
counties and on three different dates. Jt. Appx., pp. 65-66.
Defendant does not contest this finding on appeal. The district
court also found that the Rutherford County burglaries were
consolidated for trial or sentencing, but that the Bedford County
case was not consolidated with the Rutherford County case. Jt.
Appx., p. 67. Finally, the district court found that the offenses
were not all part of a single common scheme or plan. Jt. Appx., p.
68. The district court noted defendant’s testimony that there
wasn’t a single plan “to target specific houses and create crimes
in a specific way but rather a generalized plan on those days to
ride around, find unoccupied houses to break into, steal from the
houses, sell the contraband, buy drugs and then consume drugs[.]”
Jt. Appx., p. 68. The district court further stated that “there
are really three groups of crimes of opportunity” which represented
“a crime spree on three different dates, and they are related only
to the extent that they all involved the general concept” of
breaking into houses to commit thefts. Jt. Appx., pp. 68-69. The
court found that this was not sufficient to make the burglaries
related cases. Jt. Appx., p. 69.
On appeal, defendant argues that the seven aggravated
burglaries were all a part of the same common scheme or plan. He
urges the application of the test advanced in United States v.
Breckenridge, 93 F.3d 132 (4th Cir. 1996). In that case, the Fourth
Circuit noted:
In deciding whether offenses are part of a common scheme
or plan, courts have looked to whether the crimes were
committed within a short period of time, in close
geographic proximity, involved the same substantive
5
offense, were directed at a common victim, were solved
during the course of a single criminal investigation,
shared a similar modus operandi, were animated by the
same motive, and were tried and sentenced separately only
because of an accident of geography.
Id. at 138.
While it is far from clear that the defendant could show error
even with respect to this iteration of the relevant factors, the
fact remains that this circuit has articulated the list of relevant
factors somewhat differently. In this circuit, crimes are part of
the same scheme or plan only if the offenses were jointly planned
at the inception, or the commission of one offense necessarily
required the commission of the other. Carter, 283 F.3d at 758;
United States v. Irons, 196 F.3d 634, 637 (6th Cir. 1999). Offenses
are not necessarily a part of the same scheme or plan merely
because they were committed within close geographic or temporal
proximity, or were part of a crime spree. United States v. Alford,
436 F.3d 677, 684 (6th Cir. 2006); Irons, 196 F.3d at 638, 640. The
mere fact that the offenses were committed using the same modus
operandi, or were committed to achieve a common goal or similar
objective, such as to obtain money to support a drug habit, is also
insufficient in itself to render them a part of the same scheme or
plan. See United States v. Horn, 355 F.3d 610, 614 (6th Cir. 2004);
Irons, 196 F.3d at 639; United States v. Cowart, 90 F.3d 154, 160
(6th Cir. 1996). Defendant bears the burden of establishing that
his prior offenses were jointly planned or that the commission of
one entailed the commission of the other. Irons, 196 F.3d at 639.
The parties dispute whether the district court found that any
of the aggravated burglaries were committed as part of a common
scheme or plan. The government argues that the district judge
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found that the offenses were not related by a single common scheme
or plan. The record shows that the district court clearly
concluded that the “single common scheme or plan” definition of
relatedness did not apply in this case. At the sentencing hearing,
the district judge never specifically found that a single common
scheme or plan existed among any of the offenses.1 However,
defendant notes that during the sentencing hearing, the district
court grouped the prior offenses by date into three groups or crime
sprees. He argues that the district court thereby found that all
offenses committed on the same date were committed pursuant to a
common scheme or plan. Even if this argument is accepted,
defendant is still left with three unrelated groups of offenses,
since the district judge never found that the three groups of
offenses were related to each other through a single common scheme
or plan.
Defendant also argues that the district court should have
regarded all of the aggravated burglaries as being functionally
consolidated. This court has held that although a formal
consolidation order is not always required for cases to be
functionally consolidated for sentencing, United States v.
Hazelwood, 398 F.3d 792, 797 (6th Cir. 2005), there is no functional
consolidation when the offenses proceeded to sentencing under
separate docket numbers, the cases were not factually related, and
there was no order of consolidation. United States v. Carson, 469
F.3d 528, 531 (6th Cir. 2006); McAdams, 25 F.3d at 374. The fact
1
Defendant also refers to written findings prepared by the district court which
allegedly demonstrate that the district court found the aggravated burglaries committed
in Rutherford and Bedford Counties on February 27, 2001, to be related. However, those
written findings are not in the record before this court.
7
that judgment was pronounced on the same day on multiple offenses
does not establish that the offenses were consolidated. Carter,
283 F.3d at 758. There must be “some explicit indication that the
trial court intended to consolidate the prior convictions.” Horn,
355 F.3d at 614.
In the instant case, the district judge found that the
Rutherford County aggravated burglaries were consolidated because
they were indicted under a single case number. However, in truth,
no order of consolidation was entered in the case. Even though
sentence was imposed on the same date on all of the Rutherford
County burglaries, those sentences were imposed separately on each
count. The sentences of incarceration on the aggravated burglary
charges were not concurrent sentences. Tennessee does not have a
rule regarding consolidation of sentences, and each aggravated
burglary conviction would be considered a separate conviction. See
United States v. Mays, 100 Fed.Appx. 468, 470, 2004 WL 1277033 (6th
Cir. 2004).
The record also fails to show that all of the Rutherford
County offenses were factually related. The mere fact that
defendant occasionally committed burglaries using the same modus
operandi in order to finance his drug habit does not establish that
offenses committed on separate dates, in different locations, and
involving different victims were factually related. See Carson,
469 F.3d at 532. The record contains no express or implicit
evidence that the state court judge intended that the Rutherford
County burglaries be consolidated for purposes of sentencing. See
id.
Regardless of whether the district court correctly concluded
8
that the jointly indicted Rutherford County offenses were
consolidated, the district court was correct in concluding that the
Bedford County aggravated burglary was not consolidated with the
offenses prosecuted in Rutherford County. The Bedford County
charge was brought in a different county under a different docket
number, and the sentence on that charge was imposed separately on
a different date. The sentence imposed in that case was not to be
served concurrently with the Rutherford County sentences. There is
no evidence of a consolidation order, nor is there any evidence
that the state courts intended for the Bedford County charge to be
consolidated with the Rutherford County charges. Thus, at the very
least, defendant’s Bedford County conviction is not related through
consolidation to his Rutherford County convictions for purposes of
the career offender enhancement.
Defendant argues that the Bedford County charge should be
considered as being functionally consolidated with the Rutherford
County charges since those charges were prosecuted and sentenced in
separate counties only because of an “accident of geography.”
Defendant relies on Breckenridge to support this argument.
However, the court in Breckenridge used the phrase “accident of
geography” in discussing whether offenses were related because they
were committed pursuant to a common scheme or plan. Breckenridge,
93 F.3d at 138. The gist of the discussion was that the mere fact
that offenses are separately prosecuted due to their commission in
different counties will not preclude a finding, otherwise supported
by the evidence, that the offenses were committed as part of a
common scheme or plan. See also United States v. Houser, 929 F.2d
1369, 1374 (9th Cir. 1990)(offenses were related where there was
9
significant evidence before the sentencing judge that two drug
sales were part of a single common scheme or plan, even though
offenses occurred in two different counties and were prosecuted
separately), abrogated on other grounds by Buford v. United States,
532 U.S. 59, 64, 121 S. Ct. 1276, 149 L. Ed. 2d 197 (2001)).
These cases address the “single common scheme or plan” branch
of the relatedness test, not the consolidation branch, and thus
they do not support defendant’s functional consolidation argument.
In United States v. Rivers, 929 F.2d 136 (4th Cir. 1991), the Fourth
Circuit reviewed the district court’s finding that the defendant’s
prior offenses committed in two separate jurisdictions were related
because they would have been consolidated for trial and/or
sentencing if both offenses had occurred in the same jurisdiction.
The Fourth Circuit held that the district court’s finding that the
offenses were related because only an accident of geography
precluded consolidation for trial and sentencing was clearly
erroneous, noting that the offenses were committed in different
jurisdictions on different dates, were adjudicated and sentenced
separately, and were not consolidated for trial or sentencing. Id.
at 139-40.2
Defendant also urges this court to consider his prior
convictions as being related to avoid sentencing disparity. In
Carter, this court recognized that the use by the various circuits
of different tests for interpreting the definition of “common
scheme or plan” might undermine the goal of sentencing uniformity
2
Defendant’s “accident of geography” theory likewise does not assist defendant’s
“single common scheme or plan” argument, because defendant has not met his burden of
showing that the offenses were jointly planned or that the commission of one offense
involved the commission of the others.
10
sought by the Guidelines, and urged the Sentencing Commission to
review U.S.S.G. §4A1.2(a)(2). Carter, 283 F.3d at 759-61. Despite
these concerns, we are bound by Sixth Circuit precedent to use the
standards previously established in this circuit in applying these
Guideline provisions. See United States v. Smith, 73 F.3d 1414,
1418 (6th Cir. 1996).
Finally, defendant argues that we should apply the transitive
rule of logic in determining whether his prior convictions are
related. Defendant did not make this argument before the district
court. Thus, defendant can only prevail on appeal if the district
court’s failure to employ this rule constitutes plain error. See
United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L. Ed. 2d
508 (1993).
We are not free to substitute a general rule of logic for the
rules of interpretation or application for the relevant guideline
provisions previously established in this circuit. However, even
if the transitive rule is applied to the facts of this case, it
would not assist the defendant. The transitive law in logic is
demonstrated by the statement “that if A bears some relation to B
and B bears the same relation to C, then A bears it to C.” 11 New
Encyclopaedia Britannica, “transitive law,” 897 (15th ed.
2007)(Ready Reference). The rule requires that the nature of the
relation be the same in both cases. For example, if A is a full
brother of B, and B is a full brother of C, then A must be a full
brother of C. However, if A is a half brother of B because they
share the same mother, and B is a half brother of C because they
share the same father, it does not necessarily follow that A is
related to C because the precise nature of the relationship between
11
A and B is different from the nature of the relationship between B
and C.
In this case, defendant argues that because the district court
found that the Bedford County burglary was related to the
Rutherford County burglary committed on the same day due to a
common scheme or plan, and further found that the Rutherford County
robberies were related because they were consolidated in the same
indictment, then the Bedford County burglary must also be related
to all of the Rutherford County burglaries. Ignoring for the
moment the problems with the district court’s findings discussed
above, it is apparent that the manner in which the Bedford County
burglary is allegedly related to the Rutherford County burglary of
February 27, 2001, namely, sharing the same common scheme or plan,
is different from the manner in which the February 27th Rutherford
County burglary is allegedly related to the other Rutherford County
burglaries, specifically, the consolidation of all the Rutherford
County burglaries in the same indictment. The Bedford County
burglary does not share the same date of commission or a common
scheme or plan with the other five Rutherford County burglaries,
and it was not included in the same indictment with the Rutherford
County burglaries. Since the nature of the alleged relationships
between the burglaries is not the same, the transitive rule does
not require a finding of relatedness between the Bedford County
burglary and the other five Rutherford County burglaries.
For the foregoing reasons, we hold that the district court
properly concluded that defendant qualified as a career offender
under the Guidelines. The sentence imposed by the district court
12
is hereby AFFIRMED.
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