United States v. Wood , 526 F.3d 82 ( 2008 )

OPINION OF THE COURT

THOMPSON, District Judge.

Gary Wood (“Wood”) appeals the sentence imposed by the District Court in August 2006, following his guilty plea for bank robbery in violation of 18 U.S.C. § 2113(a). His appeal challenges the computation of his criminal history score based on the “relatedness” of certain of his prior convictions. For the reasons below, we will affirm the sentence imposed by the District Judge.

When Wood pled guilty and was sentenced for the instant offense of bank robbery in violation of 18 U.S.C. § 2113(a), his Presentence Investigation Report (“PSR”) revealed in paragraphs 33, 34, and 35 that he had previously been convicted of three crimes that Probation considered to be “related” for purposes of § 4A1.2(a)(2). These three convictions are at the center of this appeal, and we briefly summarize each one.

A. Criminal Conspiracy

Wood was arrested in November 1993 for conspiring with another person to receive stolen handguns on two separate dates in August of 1993. He pled guilty to two counts of criminal conspiracy in February 1994. He was sentenced to two years’ probation; he violated the probation terms and was later resentenced to 6 to 24 months in custody. (PSR ¶ 33.)

B. Burglary of a Residence

Some time between July 31, 1993 and August 1, 1993, Wood broke open a rear window of a residence, and stole a stereo and an answering machine. For this, he received a sentence of 8 to 24 months in custody. (PSR ¶ 34.)

C.Burglary of a Commercial Office

Some time between August 20, 1993 and August 23, 1993, Wood entered an office of a business through a rear window, and removed a bag of cash totaling approximately $2,429. For this, he was sentenced to 8 to 24 months in custody. (PSR ¶ 35.)

Wood was charged separately for the above offenses. In the charging instruments, the Erie County prosecutor provided notice that the two burglaries would be tried together, though no formal consolidation order was ever entered. In February 1994, Wood pled guilty to all three offenses before a judge in the Erie County Court of Common Pleas. In March 1994, the same judge sentenced Wood consecutively for the offenses.

When preparing the PSR for the instant offense, the Probation officer deemed the above convictions “related,” and assigned them an aggregate of three criminal history points. Next, the PSR added one point because Probation determined the burglary of the commercial office at ¶ 35 to be a crime of violence. A prior conviction for larceny that is not the subject of this appeal was assigned another point. Finally, the PSR added two points because Wood committed the instant offense less than two years after his release from custody for a parole violation. Thus, the PSR calculated Wood’s criminal history score to be seven points, which placed Wood in Category IV. This, in conjunction with an offense level of 19, gave Wood a Guidelines range of 46 to 57 months. The Government, however, objected, contending that the three convictions were for unrelated offenses, and that each should be assigned three criminal history points. The Government’s revision would place Wood in Category V. Wood also objected to the PSR, contending that a burglary of a non-dwelling should not be considered a crime of violence. The PSR was subsequently revised to credit Wood’s argument, and reject the Government’s objection, and reduced Wood’s criminal history points to six. This placed Wood in Category III. This, in conjunction with his offense level of 19, projected a custodial range of 37 to 46 months.

At sentencing, a defense attorney who was familiar with state court procedures and document notations in Erie County indicating consolidation of criminal cases, testified that the burglary charges effectively were consolidated. Nevertheless, the District Court agreed with the Government that the offenses were not related primarily because they had separate victims, different facts, and lacked a consolidation order. The District Judge concluded that the pleas and sentencing were handled together for administrative convenience and likely for Wood’s benefit. The District Court assigned three criminal history points to Wood for each of thesé offenses, placing him in Category V. This, computed against an offense level of 19 for the instant offense, resulted in a Guidelines range of 57 to 71 months. Therefore, the District Court sentenced Wood to 60 months, to be followed by a three-year term of supervised release, and ordered him to pay $1410 in restitution.

Wood now appeals the District Court’s computation of his criminal history score under § 4A1.2(a)(2) of the Guidelines, based on its finding that his prior offenses were not related, and asks this Court to vacate his sentence and remand for resentencing. During the pendency of this appeal, the United States Sentencing Commission promulgated an amendment to § 4A1.2(a)(2) (the “Amendment”), which took effect on November 1, 2007. Following oral argument, the Court asked the parties to provide supplemental briefing on the impact of the Amendment on the computation of Wood’s criminal history score, and the issue of whether the Amendment applied retroactively to Wood’s sentence.

STANDARD OF REVIEW

When reviewing a sentence, an appellate court first ensures that the district court “committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.... ” Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (U.S. Dec. 10, 2007). Assuming that no significant procedural error has occurred, the appellate court then considers the substantive reasonableness of the sentence by reviewing it for abuse of discretion. Id. Where, as here, a challenge is made to the calculation of the Guidelines range, the Court reviews the District Court’s interpretation of the Sentencing Guidelines de novo, United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir.2005), and scrutinizes any findings of fact used in the calculation for clear error. United States v. Wise, 515 F.3d 207, 217 (3d Cir.2008).

CALCULATION OF CRIMINAL HISTORY SCORE

Wood argues that the District Court disregarded the plain language of § 4A1.2(a)(2) and its corresponding Application Note 3 in determining that his prior convictions were not “related.” He contends that, because he was sentenced for all three offenses on the same date, before the same judge, the offenses should be considered “consolidated” for the purposes of sentencing within the meaning of Application Note 3. Further, he argues that the Amendment should apply retroactively. The Government contends that the District Court properly used a functional consolidation analysis, in accordance with case law, in determining whether Wood’s prior convictions were related, and that the Amendment effects a substantive change in the calculation of the criminal history score, and, therefore, should not be applied retroactively.

Generally, we review a sentence under the version of the Guidelines in effect at the time of sentencing. Id. at 220 (citing United States v. Diaz, 245 F.3d 294, 300-01 (3d Cir.2001)). However, a subsequent revision to the Guidelines may be applied on review if it “ ‘merely clarifies the law in existence at the time of sentencing,’ as opposed to working a substantive change in the law.” Id. (quoting Diaz, 245 F.3d at 301).

A. GUIDELINE AT THE TIME OF SENTENCING

The relevant provision of the version of the Guidelines in effect at the time of Wood’s sentencing states:

Prior sentences imposed in unrelated cases are to be counted separately. Pri- or sentences in related cases are to be treated as one sentence for purposes of § 4Al.l(a), (b), and (c).

U.S.S.G. § 4A1.2(a)(2). Application Note 3 defines “related” cases:

Related Cases. Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest.... Otherwise, prior 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. The court should be aware that there may be instances in which this definition is overly broad and will result in a criminal history score that underrepresents the seriousness of the defendant’s criminal history and the danger he presents to the public.

U.S.S.G. § 4A1.2, comment, n. 3. Based on the record before the Court, it is undisputed that Wood’s commission of the prior offenses at issue was not separated by intervening arrests, nor did they occur on the same occasion or as part of the same scheme or plan. Therefore, the only issue we have to consider is whether the District Court properly applied § 4A1.2(a)(2) in finding that Wood’s prior convictions were not “consolidated” despite the fact that he was sentenced for these offenses on the same day before a single judge.

Other courts that have addressed this issue have concluded that, absent a formal consolidation order, factually and temporally distinct offenses are not considered related, notwithstanding the fact that a defendant may have been sentenced for the offenses at the same time. See United States v. Coma, 114 F.3d 314, 317 (1st Cir.1997) (requiring “actual order of consolidation or ... some other persuasive indicium of formal consolidation apparent on the face of the record which is sufficient to indicate that the offenses have some relationship to one another beyond the sheer fortuity that sentence was imposed by the same judge at the same time.”); United States v. Allen, 50 F.3d 294, 297 (4th Cir.1995) (holding that Application Note 3 required either formal consolidation order or factual relationship among prior offenses); United States v. McAdams, 25 F.3d 370, 375-76 (6th Cir.1994) (affirming district court’s finding that factually distinct offenses, prosecuted under different docket numbers, were not consolidated despite simultaneous imposition of sentences); United States v. Lopez, 961 F.2d 384, 386-87 (2d Cir.1992) (holding that two prior convictions were not related notwithstanding the fact that same judge sentenced defendant concurrently on the same date). To consider only whether sentences for multiple convictions were handed down the same day by the same judge, as Wood urges us to do, would place those defendants whose offenses were sentenced together in a far better position with respect to calculation of their criminal history scores under the Guidelines than those who did not enjoy similar fortuity. Such a disparity between otherwise similarly situated, repeat offenders, would appear to be without any rational justification.

Thus, we adopt the approach utilized by other circuits and by the District Court in this case, and hold that, the imposition of sentences for multiple offenses at the same time by the same judge does not render the cases “consolidated for sentencing,” and, therefore, related within the meaning of § 4A1.2(a)(2), in the absence of either a formal consolidation order or a close factual relationship between the offenses.

Here, the District Court found that the three prior convictions at issue were factually distinct. They were different crimes involving separate victims, different types of goods stolen, and occurred on separate dates. The offenses were charged under distinct instruments, bearing different docket numbers. No formal consolidation order was ever issued. Further, the Erie County judge imposed consecutive sentences. We do not find the District Court’s findings of fact with respect to Wood’s prior convictions to be in error.

B. AMENDED GUIDELINE

The Amendment now provides, in part:

(2) If the defendant has multiple prior sentences, determine whether those sentences are counted separately or as a single sentence ... If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence.

U.S.S.G. § 4A1.2(a)(2). Application Note 3 now reads:

Upward Departure Provision. — Counting multiple prior sentences as a single sentence may result in a criminal history score that underrepresents the seriousness of the defendant’s criminal history and the danger that the defendant presents to the public. In such a case, an upward departure may be warranted.

Wood argues that the Amendment merely clarifies the method a court uses to determine whether prior offenses are related, and eliminates any ambiguities inherent in the prior version of the Guidelines by requiring only that the sentences be imposed on the same day. Thus, Wood argues that we should apply the Amendment retroactively, and that we need not inquire into whether a formal consolidation order was issued in prior proceedings. The Government, on the other hand, argues that the Amendment effects a substantive change in the calculation of criminal history scores. Far from clarifying ambiguous terms, the Amendment replaces previously undefined terms such as “related cases” with “prior sentences,” which the Government argues has the effect of implementing a new approach to assessing a defendant’s criminal background.

We compare the texts of the prior Guideline provision and the Amendment in order to analyze the effect, if any, the latter has on computing a defendant’s criminal history score. The provision in effect at the time of Wood’s sentencing distinguishes between unrelated and related cases, and defines relatedness with respect to similarity in either time, facts, or judicial economy. In contrast, the Amendment has not incorporated the concept of “related” offenses into the main body of § 4A1.2(a)(2). Instead, the Amendment contemplates that prior sentences are to be considered as one if the underlying-offenses either share the same charging instrument or were sentenced together on the same day. Absent from the Amendment is any consideration of whether the offenses in question share any temporal proximity or factual relationship. The Amendment also fails to mention the notion of consolidation. While the upward departure provision contained in the new Application Note 3 provides a sentencing judge with discretion to count prior sentences separately if the score does not accurately capture the severity of a defendant’s history, we find that, on the whole, the Amendment introduces a new treatment of prior convictions that does not turn on relatedness, but rather on factors that would be obvious from the record, such as whether the offenses were charged together or were sentenced together. Therefore, we hold that the amended version of § 4A1.2(a)(2) effects a substantive change, and, therefore, we will not apply it retroactively to Wood’s sentence.

Having found no error in the District Court’s interpretation of § 4A1.2(a)(2) at the time of sentencing or with its findings of fact with respect to Wood’s prior convictions, we will affirm the sentence.