United States v. Melayne R. Danekas , 32 F. App'x 780 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-3213
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Melayne R. Danekas, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 28, 2002
Filed: January 31, 2002
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Before HANSEN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Melayne R. Danekas pleaded guilty to conspiring to distribute and possess with
intent to distribute methamphetamine, in violation of 21 U.S.C. § 846. Over
Ms. Danekas’s objections, the district court1 applied a career-offender enhancement,
see U.S.S.G. § 4B1.1, because she had a prior state conviction for possession of LSD
with intent to deliver and a prior federal conviction for conspiracy to distribute
methamphetamine; the court then sentenced her to 151 months imprisonment and
1
The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
3 years supervised release. On appeal, Ms. Danekas challenges the court’s career-
offender determination, arguing that her two prior drug convictions were related. We
affirm.
Although Ms. Danekas committed the LSD offense within the prior
methamphetamine conspiracy’s time frame, and both offenses may have involved
some of the same persons, the district court did not clearly err in finding the two
offenses were not part of a single common scheme or plan. See U.S.S.G.
§ 4A1.2(a)(2) & comment. (n.3) (prior sentences imposed in unrelated cases are to be
counted separately, while those imposed in related cases are to be treated as one
sentence for purposes of calculating criminal history; related sentences include those
resulting from offenses that were part of “single common scheme or plan”); United
States v. Maza, 93 F.3d 1390, 1400 (8th Cir. 1996) (standard of review), cert. denied,
519 U.S. 1138 and 520 U.S. 1160 (1997); United States v. Brown, 962 F.2d 560, 564
(7th Cir.1992) (“a relatedness finding requires more than mere similarity of crimes”).
The two prior offenses involved different drugs and occurred in different cities; and
the LSD offense was not even considered relevant conduct in the conspiracy case.
See United States v. Berry, 212 F.3d 391, 394-95 (8th Cir.) (“common scheme or
plan” under U.S.S.G. § 1B1.3(a)(1)(A) (relevant conduct) is defined more broadly
than “single common scheme or plan” under § 4A1.2(a)(2) (emphasis added)), cert.
denied, 531 U.S. 907 (2000); Maza, 93 F.3d at 1399-1400 (prior convictions for
selling cocaine were unrelated, in part because sales took place in different states);
United States v. Garcia, 962 F.2d 479, 482 (5th Cir.) (two distinct, separate drug
deliveries were not part of common scheme even though crimes were temporally
alike), cert. denied, 506 U.S. 902 (1992), abrogated on other grounds, Buford v.
United States, 532 U.S. 59 (2001). Ms. Danekas’s argument--that her LSD
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transaction furthered the conspiracy offense by providing money to get
methamphetamine--lacks evidentiary support, and even if money-making was a
motive, “[m]otive may be one factor . . . to consider in a single common plan or
scheme determination, but it is not conclusive in every case.” See United States v.
Lowe, 930 F.2d 645, 647 (8th Cir. 1991).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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