United States v. Wakeem Butler, Stanley Harris, and Marcellus Thomas

JON O. NEWMAN, Circuit Judge,

concurring:

Under the sentencing guidelines, a decision to sentence a defendant as a career offender usually results in a significant increase in the sentence. In the pending appeal, Marcellus Thomas would be sentenced to an extra 12 years of non-parole time if he were sentenced as a career offender. In United States v. Chartier, 970 F.2d 1009 (2d Cir.1992) (Chartier II), decided this day, career offender sentencing results in an extra 14 years of non-parole time. Obviously, incremental punishments of that magnitude must be considered with care.

Career offender sentencing turns on both a legal interpretation of the relevant guideline and a factual assessment of the defendant’s prior offenses. The legal issue concerns the standards for determining when prior offenses are sufficiently “related” so that they may not be counted separately in aggregating the two or more predicate offenses for career offender sentencing. The factual assessment concerns the particulars of the prior offenses alleged to be suffi *1028 ciently “unrelated” to satisfy the career offender guideline. In the pending appeal, the 12-year career offender increment for Marcellus Thomas turns on whether his two prior robberies of two gas stations, committed within 15 minutes of each other, in each of which less than $100 was obtained, were “related.” The District Court concluded factually that these prior robberies were not “part of a single common scheme or plan,” which is one of three criteria for “related” sentences explicitly set forth in the commentary to section 4A1.2. The unstated premise of the District Court’s decision was that these three criteria are the exclusive tests of “relatedness.” That premise would give the career offender guideline a needlessly harsh interpretation that leads to bizarre results.

Judge Kearse’s opinion for the Court declines to assume that the three criteria in the Commission’s commentary are exclusive and remands Thomas’s sentencing for further consideration as to whether his two prior robberies were part of a single common scheme or plan “or whether some other circumstance made them ‘related’ for purposes of career offender status.” I concur in Judge Kearse’s opinion and add these additional views to elaborate the considerations that bear upon the legal standard of “relatedness” for purposes of career offender sentencing. A full understanding of the sentencing issue raised by this appeal requires some explication of the relevant statutory and guideline provisions.

To put the issue in perspective, it is useful to consider the problem faced by the Sentencing Commission in drafting a guideline to implement the career offender provision of the Sentencing Reform Act, 28 U.S.C. § 994 (h) (1988). Congress said it wanted high sentences for a person convicted of a crime of violence “who has previously been convicted of two or more” crimes of violence. Id. As we pointed out in United States v. Chartier, 933 F.2d 111, 113-14 (2d Cir.1991) (Chartier I), the Sentencing Commission had to decide whether to count any two prior crimes of violence or to count only those crimes of violence that occurred in the sequence of crime-conviction-crime-conviction-crime. The latter situation covers the person who has twice failed to “learn his lesson,” that is, he has twice committed an offense after being convicted of a prior offense. New York State follows that approach. See N.Y.Penal L. § 70.10(l)(c) (McKinney 1987). The Commission chose not to require a sequence of convictions between each predicate offense, yet the Commission also did not go all the way to the other extreme of just counting every pair of prior crimes of violence.

Instead, the Commission chose to count only prior crimes of violence in “unrelated cases.” See U.S.S.G. § 4B1.2(3). The Commission carried out that choice by incorporating for the career offender guideline the standards applicable to counting sentences for purposes of determining the criminal history category. Thus, subsection 4B1.2(3) of the career offender guideline defines the requisite “ ‘two prior felony convictions’ ” to mean offenses for which “the sentences are counted separately under the provisions of § 4Al.l(a), (b), or (c)” of the criminal history category guideline, and subsection 4A1.2(a)(2) of that guideline requires that “[p]rior sentences in unrelated cases are to be counted separately.”

There is no guideline that defines “unrelated cases” as used in subsection 4A1.2(a)(2) and hence no guideline that defines “unrelated cases” for purposes of the career offender guideline. There is only the commentary to section 4A1.2, which, in note 3, says two things. First, it says that prior sentences “are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense).” Second, it says, “Otherwise, 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.”

Obviously, these four circumstances do not cover all circumstances concerning pri- or sentences. Two prior sentences may have been imposed for offenses that were not separated by an intervening arrest, yet these sentences might not be within the *1029 three identified categories of related sentences. The issue in the pending appeal is whether the three identified categories in the commentary are exclusive. The introductory word “[otherwise” suggests that the Commission may have expected the categories to be exclusive. Yet the word does not compel that conclusion. The usage could simply mean, “If the offenses underlying prior sentences are not separated by an intervening arrest and the sentences do fall within the three categories, they are related.” That does not tell us whether a pair of sentences that are (a) imposed for offenses not separated by an intervening arrest and (b) not within the three categories might nonetheless also be “related.” Even if the Commission intended the three categories of note 3 to be exclusive, that determination is not contained in a guideline, but only in a commentary. Courts need not accept the implications of commentary, especially when doing so yields indefensible results. The governing statute obliges courts to consider the guideline ranges and “any pertinent policy statement,” 18 U.S.C. § 3553 (a)(4), (5); it does not require unswerving adherence to “commentary.”

Since application of the career offender guideline usually results in an enormous increase in the sentence, we should be careful in deciding when that guideline applies. Some guidance may be obtained from the Commission’s three explicit categories, especially the third. By including as “related” sentences those that are consolidated for sentencing, the Commission has shown that it is not requiring any precise relationship between the prior sentences to preclude them from being counted for career offender sentencing. There is no precise standard that courts use in deciding whether to consolidate cases for sentencing. It is normally no more than a matter of convenience. If one court has jurisdiction to impose sentences for various offenses, it is far more convenient to package the sentencing in one proceeding. Indeed, the very ease with which consolidation can be accomplished has persuaded a panel of the Ninth Circuit that this category of note 3 should be disregarded as inequitable and contrary to public policy. See United States v. Gross, 897 F.2d 414, 416-17 (9th Cir.1990). Whether or not that decision is sound (it has been discarded in the Ninth Circuit, see United States v. Fine, 946 F.2d 650, 653-54 (1991), reh’g in banc granted, 963 F.2d 1258 (9th Cir.1992), following an in banc reversal of its premise that commentary may be disregarded, see United States v. Anderson, 942 F.2d 606, 613-14 (9th Cir.1991) (in banc)), the broad sweep of the “consolidation for sentencing” category indicates that the Commission is taking a fairly generous view of what constitutes “related” sentences for purposes of career offender sentencing and suggests that the three categories are not exclusive.

If the three categories in note 3 were deemed exclusive, some very odd consequences would result. The first is the one noted by the Ninth Circuit in Gross : two defendants who may have committed the same current offense and the identical two prior offenses, receive widely disparate sentences because the prior offenses of one of them were consolidated for sentencing. If the three categories are not exclusive, then, at least in some circumstances, a court can avoid the anomaly that troubled the Ninth Circuit. If the two prior offenses are factually related, a court can decline to impose career offender punishment on the person whose prior offenses were consolidated and can also reach the same result for the other person by ruling that his prior offenses, even though not consolidated for sentencing, are sufficiently “related” to avoid career offender sentencing.

The second anomaly of considering the three categories exclusive is illustrated by the problem we encounter in the pending appeal and our colleagues encounter in Chartier II. Chartier II also considers whether prior offenses are “part of a single common scheme or plan.” If that category and the other two categories of the commentary are exclusive, we end up saying that the calculating criminal who wakes up one day and carefully conceives an elaborate plan to commit three robberies in a month and makes detailed preparations for his crimes is not punished as a career offender, but the drug addict who needs money for his habit and commits a robbery, *1030 finds that the cash m the store he has chosen is not enough to buy drugs for that day, and then, 15 minutes after the first robbery, decides to commit a second robbery, is punished as a career offender. This makes no sense. This anomaly can readily be avoided by declining to consider the three categories of note 3 to be exclusive.

Since the guideline uses only the undefined standard of “unrelated cases,” it makes more sense to construe this phrase in light of the sensible, middle-ground choice the Commission made in not requiring convictions to intervene between each sentence and also in not counting all prior violent crimes. The Commission was entitled to forgo the “learned a lesson twice” approach, but the guidelines should nevertheless be understood to authorize career offender punishment only for those who, on two prior occasions, have been convicted of offenses that really are “unrelated,” even though not separated by an intervening conviction.

The facts of Thomas’s two prior robberies present a strong case for a finding of sufficient relatedness to preclude career offender sentencing. Indeed, it is difficult to understand what meaning would be left of the word “related” if it did not apply to two robberies with the following common characteristics: (a) the crimes were committed by the same person, (b) the perpetrator acted alone, (c) the robberies both occurred at gas stations, (d) the crimes occurred within 15 minutes of each other, (e) the crimes occurred in the same jurisdiction, (f) less than $100 was obtained in both crimes, (g) the crimes were prosecuted in the same jurisdiction, and (h) concurrent sentences were imposed. Though no single factor necessarily establishes “relatedness,” commonality of time, place, perpetrator, victims, means, results; prosecution, and punishment combine to make a finding of relatedness virtually inevitable. The Court rejects the finding of unrelatedness on the ground that the District Judge erred in assuming that robberies that are temporally separated cannot be related. The matter is returned for reconsideration to determine, without the incorrect assumption, whether the robberies were part of a common scheme or plan or were otherwise related so as to preclude career offender sentencing. Such reconsideration is well warranted in this case.

Equally warranted would be further consideration by the Sentencing Commission of the criteria for considering offenses to be related for purposes of career offender sentencing. If a New York court had consolidated for sentencing Thomas’s two gas station robberies, it would not make sense to reduce Thomas’s sentence by 12 years solely because of that fortuity. It makes no more sense to subject Thomas to the possibility of a 12-year increase in his sentence because the two robberies were not consolidated and might not be found to have been part of “a common scheme” or otherwise “related.” Whatever sentence is ultimately imposed on Thomas, the imposition of 12 years of flat time should not turn on fact-finding that has little if any relevance to moral culpability. The Sentencing Commission should give renewed consideration to the definition of “related offenses” for purposes of career offender sentencing and make sure that the severe sentences required for “career offenders” are imposed only on those who plainly deserve them.