United States v. Horn

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 United States v. Horn No. 02-5668

ELECTRONIC CITATION: 2004 FED App. 0026P (6th Cir.)

File Name: 04a0026p.06 William Cohen, ASSISTANT UNITED STATES

ATTORNEY, Nashville, Tennessee, for Appellee.

UNITED STATES COURT OF APPEALS _________________

FOR THE SIXTH CIRCUIT OPINION

_________________ _________________

UNITED STATES OF AMERICA , X ALICE M. BATCHELDER, Circuit Judge. Defendant-

appellant Gregory Steven Horn appeals the sentence imposed

Plaintiff-Appellee, - following his conviction on one count of bank robbery in

-

- No. 02-5668 violation of 18 U.S.C. §§ 2113(a) and (d). Horn contends

v. - only that the district court erred in sentencing him as a career

> criminal under USSG § 4B1.1. In particular, Horn argues that

, his prior felony convictions for robbery were related offenses

GREGORY STEVEN HORN , -

Defendant-Appellant. - under Section 4B1.1, and that they therefore should not have

been counted as separate offenses for purposes of career

N offender enhancement. Because we find that defendant’s

Appeal from the United States District Court prior felony convictions were not related offenses under

for the Middle District of Tennessee at Nashville. Section 4B1.1, we will AFFIRM the district court.

No. 01-00142—Thomas A. Wiseman, Jr., District Judge.

I.

Argued: September 16, 2003

Gregory Steven Horn pleaded guilty to one count of bank

Decided and Filed: January 20, 2004 robbery in violation of 18 U.S.C. § 2113(d) after robbing the

SunTrust Bank in Nashville, Tennessee. Horn filed

Before: SILER, BATCHELDER, and COOK, Circuit objections to the Presentence Report, objecting among other

Judges. things, to the Report’s recommendations that his two prior

armed robbery convictions should be considered separate

_________________ offenses for purposes of calculating his sentence, and that he

should be sentenced as a career offender. Horn argued that

COUNSEL these prior offenses had been effectively consolidated for

sentencing by the state court, and that they were part of a

ARGUED: Hugh M. Mundy, FEDERAL PUBLIC common scheme or plan.

DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant.

William Cohen, ASSISTANT UNITED STATES The first of the prior convictions was for the armed robbery

ATTORNEY, Nashville, Tennessee, for Appellee. of the manager of a Giant Food Store in Anne Arundel

ON BRIEF: C. Douglas Thoresen, FEDERAL PUBLIC County, Maryland, on January 6, 1998. Horn, accompanied

DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. by an accomplice, approached the manager in the store

1

No. 02-5668 United States v. Horn 3 4 United States v. Horn No. 02-5668

parking lot, shoved a handgun into the manager’s ribs and robbery convictions as separate offenses and sentencing Horn

threatened to shoot him. The manager gave the robbers his as a career criminal under USSG § 4B1.1.

car keys and his wallet containing credit cards. The second

conviction was for an armed robbery which occurred on II.

January 26, 1998, in the parking lot of a different grocery

store in another town in Anne Arundel County, Maryland. Horn contends that his prior felony convictions for robbery

During the latter robbery, the defendant, this time acting were related offenses under Section 4B1.1, and that they

alone, robbed a different victim of cash, several credit cards, therefore should not have been counted as separate offenses

and his driver’s license. The defendant once again used a for the purpose of career offender enhancement. If the

handgun in commission of the robbery. On January 27, 1998, offenses are treated as related, Horn’s total offense level

Horn attempted to rob a third person, who was able to identify would be 26, rather than 31, the level that the district court

part of the license tag on Horn’s vehicle. He was arrested used in sentencing him to 204 months’ incarceration. The

later that day for having stolen tags, and on March 19, 1998, government concedes that this Court has jurisdiction over this

he was charged in a multi-count information with, among appeal.

other theft offenses, the January 6, 1998 robbery. On

March 23, 1998, he was charged in another multi-count In reviewing a sentence imposed under the Sentencing

information with the January 27, 1998, robbery and attempted Guidelines, we are required by statute to “accept the findings

robbery. Horn made his initial appearance in state court as to of fact of the district court unless they are clearly erroneous

each information on March 30, 1998, and waived his right to and [to] give due deference to the district court’s application

a preliminary hearing in each case. The cases were set for the of the guidelines to the facts.” 18 U.S.C. § 3742(e). This

same trial date, and Horn was represented by the same deferential standard applies at least to the first aspect of the

counsel in both. On June 16, 1998, he entered guilty pleas to question of relatedness before us here: whether the district

both of the robbery charges and to the attempted robbery court erred in determining that Horn’s prior offenses were not

charge, and on September 11, 1998, he was sentenced for “effectively consolidated” and are therefore not “related

each of these offenses. The cases were docketed separately, cases” as that term is defined for purposes of determining

however, and no order was entered by the court to consolidate career offender status under USSG § 4B1.1. See Buford v.

the cases for either trial or sentencing. United States, 532 U.S. 59, 66 (2001) (holding that “in light

of the fact-bound nature of the legal decision,” deferential

In the present case, the district judge overruled Horn’s rather than de novo review was appropriate for the district

objections to the Presentence Report and adopted the findings court’s determination that particular prior convictions are

and calculations contained in it. The court held that the two separate and not “functionally consolidated”).

prior state court robbery convictions were not related cases as

that term is defined in USSG § 4A1.2, and that Horn is a Whether Buford’s deferential standard applies to all aspects

career offender under USSG § 4B1.1. The district court of the relatedness question is not clear in this circuit. In

sentenced him to 204 months’ incarceration, to run United States v. Carter, for example, citing pre-Buford cases

concurrently with a State of Maryland sentence that he was and mentioning neither Buford nor the statutory standard of

obligated to fulfill. The only question presented upon appeal review set out in 18 U.S.C.§ 3742(e), we held that in

is whether the district court erred in counting Horn’s prior reviewing the district court’s decision that prior offenses were

not part of a common scheme or plan, we review the

No. 02-5668 United States v. Horn 5 6 United States v. Horn No. 02-5668

sentencing court’s findings of fact for clear error and its but not deciding, that Buford’s deferential standard would

application of the guidelines de novo. United States v. apply to review of the district court’s application of USSG

Carter, 283 F.3d 755, 757 (6th Cir. 2002). On the other hand, § 2K2.1(b)(5)). In light of the reasoning of Buford and the

we have held that Buford has a much broader and more ensuing case law in this circuit, we are satisfied that we must

general application. In United States v. Jackson-Randolph, review deferentially, that is, for clear error, the entirety of the

282 F.3d 369 (6th Cir. 2002), we reviewed the reasoning of district court’s determination that Horn’s prior robbery

Buford, and concluded that the district court’s application of convictions were not related.

USSG § 3C1.1 is to be reviewed deferentially because, like

the determination of whether felony convictions are “related,” Under USSG § 4A1.2, “prior sentences are considered

the determination of whether particular conduct constituted related if they resulted from offenses that (A) occurred on the

obstruction of justice is a fact-bound decision in which same occasion, (B) were part of a single common scheme or

“‘factual nuance may closely guide the legal decision, with plan, or (C) were consolidated for trial or sentencing.” USSG

legal results depending heavily upon an understanding of the § 4A1.2, cmt. n.3. Although conceding that no formal order

significance of case-specific details.’” Jackson-Randolph, of consolidation was entered by the state court hearing those

282 F.3d at 389 (quoting Buford, 532 U.S. at 65). We noted cases, Horn first argues that the two prior armed robbery

further that like the determination at issue in Buford, the convictions were “effectively consolidated,” because he was

question of whether particular conduct constitutes obstruction arrested and charged with the robberies at the same time; he

of justice is a matter within the special competence of district made an initial appearance as to both offenses at the same

court judges and the conclusion reached on the matter has time; the cases were set for trial on the same date; the same

little precedential value because of the case-specific and fact- counsel represented defendant as to both offenses; a guilty

bound circumstances. Id. at 389-90. Accordingly, we plea was entered for each offense on the same day; and

concluded, “the clear error standard is also appropriate for defendant was sentenced for both offenses on the same day

reviewing sentencing decisions under § 3C1.1 where the sole with sentences to run concurrently.

issue before the district court is a fact-bound application of

the guideline provisions.” Id. at 390. See also United States At oral argument of this case, Horn urged upon us the

v. Webb, 335 F.3d 534, 537 (6th Cir. 2003) (holding that the proposition that this Court has never explicitly held that prior

district court’s application of the guidelines to the facts offenses must be formally consolidated in order that they may

should not be disturbed unless clearly erroneous); United be found to be related for purposes of USSG § 4A1.2, and

States v. Lang, 333 F.3d 678, 682 (6th Cir. 2003) (holding therefore, no formal order of consolidation is required for

that we review under the “clearly erroneous” standard the such a finding. Defendant’s reliance on this lacuna is

district court’s application of USSG § 3B1.3 where the misplaced. We have stated several times that “cases are not

application is fact-bound); United States v. Ennenga, 263 consolidated when offenses proceed to sentencing under

F.3d 499, 502 (6th Cir. 2001) (noting that Buford “suggests separate docket numbers, cases are not factually related, and

that our standard of review even with regard to these there was no order of consolidation.” United States v.

questions of law should instead be deferential,” and holding, McAdams, 25 F.3d 370, 374 (6th Cir 1994); United States v.

in light of the analysis in United States v. Hardin, 248 F.3d Coleman, 964 F.2d 564, 567 (6th Cir. 1992). “The fact that

489, 495 (6th Cir. 2001), that the district court’s application judgment was pronounced on the same day with sentences to

of USSG § 2K2.1 is to be reviewed deferentially); United run concurrently, without more, does not establish that [the

States v. Hardin, 248 F.3d 489, 495 (6th Cir. 2001) (opining, cases] were in fact consolidated.” Carter, 283 F.3d at 758;

No. 02-5668 United States v. Horn 7 8 United States v. Horn No. 02-5668

Coleman, 964 F.2d at 566. Those cases make it clear that we were committed to achieve a similar objective, such as the

require some explicit indication that the trial court intended to support of a drug habit. See United States v. Gonzales, 21

consolidate the prior convictions. In each of those cases, Fed. Appx. 393, 397 (6th Cir. 2001) (citing Brown, 209 F.3d

there was no order from the trial court consolidating the at 1024) (holding that prior convictions are not “related”

earlier offenses, nor was there any statement by the trial court simply because the crimes used the same modus operandi,

implying they should be considered consolidated. We hold were part of a crime spree, or were motivated by the need to

that the contemporaneous treatment of Horn’s state court support a drug habit)).

robbery offenses notwithstanding, the district court correctly

held that Horn was charged with, tried for, and convicted of Finally, offenses are not necessarily related merely because

separate unrelated offenses. they were committed within a short period of time. In United

States v. Oldham, 13 Fed. Appx. 221, 226-27 (6th Cir. 2001),

Horn next argues that the prior offenses arose from a single we affirmed a district court’s sentencing a defendant as a

common scheme or plan. He argues that both robberies were career offender based upon the defendant’s two convictions

motivated by his addiction to drugs; that his modus operandi for burglarizing—with the same accomplice—houses in two

in both cases was almost identical; and that the robberies Kentucky counties within hours of each other. We held that

occurred less than three weeks apart. The defendant bears the the crimes “did not take place on the ‘same occasion’ because

burden of proving the two prior felony convictions were part they occurred at different times, in different locations, and

of a single common plan or scheme. United States v. Irons, were committed against different victims.” Id. at 227.

196 F.3d 634, 638 (6th Cir. 1999); United States v. Cowart, Similarly, we held in United States v. Gonzales that six armed

90 F.3d 154, 159 (6th Cir. 1996). Horn has failed to meet this robberies of convenience stores within a two-week

burden. In Irons, we held that crimes are part of the same period—which were part of a “drug-induced crime spree” and

scheme or plan only if the offenses are jointly planned, or, at involved the use of the same starter pistol—were not related.

a minimum, the commission of one offense necessarily Gonzales, 21 Fed. Appx. at 394-99. Other circuits that have

requires the commission of the other. Irons, 196 F.3d at 638; considered this issue have reached similar conclusions. See

see also Carter, 283 F.3d at 758; United States v. Ali, 951 United States v. Mapp, 170 F.3d 328, 339 (2d Cir. 1999)

F.2d 827, 828 (7th Cir. 1992) (finding the words “scheme” (finding no error in district court’s conclusion that two

and “plan” to be words of intention, “implying that [offenses] robberies, committed on consecutive days and against

have been jointly planned, or at least that . . . the commission different victims, were not related); United States v. Keller,

of one would entail the commission of the other as well”). “It 58 F.3d 884, 894-95 (2d Cir. 1995) (affirming a district

is beyond question that the simple sharing of a modus court’s finding that defendant’s attempts to commit robberies,

operandi cannot alone convert [separate offenses] into one four days apart, at different locations and involving different

offense by virtue of their being a single common scheme or victims, were not related); Brown, 209 F.3d at 1024 (finding

plan.” Cowart, 90 F.3d at 160; see also United States v. three armed robberies of stores within a two month period not

Brown, 209 F.3d 1020, 1024 (7th Cir. 2000) (“merely similar, related); United States v. Brown, 962 F.2d 560, 564-65 (7th

seriatim robberies fall short of qualifying as a ‘single Cir. 1992) (finding two bank robberies committed eight days

common scheme or plan’”). This Court has further held that apart not related).

merely because crimes are part of a crime spree does not

mean that they are related. Irons, 196 F.3d at 638; Carter, The crimes at issue in the present case were committed

283 F.3d at 758. Nor are such offenses related because they weeks apart at different locations; the offenses involved

No. 02-5668 United States v. Horn 9

different victims; and the defendant had an accomplice in the

first offense but not the second. There is no evidence, nor

does appellant even allege, that the two armed robberies were

jointly planned or that the commission of the first robbery

entailed the commission of the second. Accordingly, the

district court did not err in finding that these two robberies

were not part of a common scheme or plan.

CONCLUSION

Because the district court did not err in holding that Horn’s

state court robbery convictions were not related as that term

is defined in USSG § 4A1.2, and therefore did not err in

holding that Horn was a career offender under USSG § 4B1.1,

we AFFIRM the judgment of the district court.