UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 96-40693
(Summary Calendar)
_________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT ANTHONY TUFT,
Defendant - Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
(1:96-CR-9)
March 12, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Robert Anthony Tuft appeals his sentence for escape from an
institutional facility in violation of 18 U.S.C.§ 751(a);
specifically, Tuft challenges the district court’s treatment of two
past criminal convictions as “unrelated” under the Sentencing
Guidelines. Finding no error, we affirm.
*
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
Tuft began today’s journey in 1986 when he submitted a false
statement to a pawn shop in Austin, Texas in order to obtain a
firearm. Tuft failed to disclose a previous felony conviction for
unlawful possession of cannabis, in violation of federal law.
Later the same day in Lockhart, Texas, Tuft created a disturbance
in a bar. Lockhart police found Tuft intoxicated at the bar and
saw him discard something near a trash barrel. Searching near the
barrel, police recovered a .38 caliber pistol that Tuft later
acknowledged to be the firearm he had purchased in Austin. While
searching Tuft, police discovered a box of .38 caliber cartridges,
a silver spoon, three syringes, and three plastic bags of cocaine.
Police arrested Tuft for making a false statement in connection
with purchase of a firearm in violation of 18 U.S.C. 922(a)(6) and
for possession of illegal drugs.
The federal government charged Tuft with making a false
statement in order to obtain a firearm, but it did not pursue the
possession offense. Tuft pled guilty to making the false
statement, claiming that he had purchased the pistol in order to
protect his girlfriend from her ex-boyfriend. The court
transferred his sentencing to the Western District of Washington
under Fed. R. Crim. P. 20,2 and that court sentenced Tuft to six
2
The record does not reflect why the court transferred the case for
sentencing, or under which subsection of Fed. R. Crim. P. 20 the case was
transferred. The Rule generally provides that a defendant may plead guilty or
nolo contendere in the original district court, waive trial, and consent to
sentencing in another district court with an interest in the case.
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months in prison with two and a half years probation. Apparently
during this time Texas sought to prosecute Tuft for the possession
charge, and put out a warrant for his arrest.
A few months after Tuft’s release on probation, police in
Washington State arrested him for possession of drugs. They
discovered the outstanding warrant in Texas for the Lockhart
possession charge. Texas extradited Tuft and sentenced him to
seven years in prison, but paroled him four months after
sentencing. Two months after he began parole, Tuft robbed a bank
in Spokane, Washington. The Eastern District of Washington revoked
his parole for the false statement charge and sentenced him to an
eighteen-month term for violating parole, to be served consecutive
to his bank robbery sentence. During sentencing, and without
objection from the government, the district court apparently took
the recommendation of Tuft’s parole officer to count his prior
convictions for false statement and possession as a single offense
under the guidelines for purposes of calculating Tuft’s criminal
history. After serving sixty-three months for bank robbery, Tuft
began his sentence for breaking parole at the Land Manor community
correction center. About two weeks later, Tuft signed out of the
facility and did not return. Police found him hiding under a bed
in a house in Beaumont, Texas three weeks later.
Tuft pled guilty to one count of escape from an institutional
facility. Tuft’s pre-sentence report (“PSR”) assigned a base
offense level of thirteen, subject to a two-level decrease for
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acceptance of responsibility and a four-level decrease because he
was incarcerated in an unsecured community corrections center. The
PSR credited Tuft with nine criminal history points for past
criminal convictions, treating his conviction for cocaine
possession and his conviction for lying to obtain a firearm as
unrelated offenses. His final adjusted offense level was seven
with a criminal history category of V, resulting in a punishment
range from twelve to eighteen months. The district court sentenced
Tuft to eighteen months with a three-year term of supervised
release.
Tuft filed this timely appeal, arguing that the district court
improperly treated the possession and false statement charges as
unrelated for sentencing purposes. Because the number of
convictions increases criminal history points, and because the
United States Sentencing Guidelines Manual (“U.S.S.G.”)
§ 4A1.2(a)(2) (1995) treats related offenses as a single offense,
Tuft argues that the district court improperly computed his
criminal history. Further, Tuft points out that the district court
in the Eastern District of Washington, when sentencing him for bank
robbery, treated the offenses as related when calculating his
criminal history. Thus, contends Tuft, the government is
collaterally estopped from claiming the offenses are unrelated in
this action.
We review a district court’s application and interpretation of
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the sentencing guidelines de novo and the district court’s findings
of fact for clear error. United States v. Domino, 62 F.3d 716, 719
(5th Cir. 1995). Three characteristics support a finding that
prior convictions are “related” for purposes of the sentencing
guidelines: (1) the offenses occurred on the same occasion, (2) the
offenses were part of a single common scheme or plan, or (3) the
offenses were consolidated for trial or sentencing. U.S.S.G.
§ 4A1.2, comment. (n.3); United States v. Garcia, 962 F.2d 479, 480
(5th Cir.), cert. denied, 506 U.S. 902, 113 S. Ct. 293, 121 L. Ed.
2d 217 (1992). In this case, the two offenses are for drug
possession and for making a false statement to obtain a firearm.
One offense occurred in Lockhart, the other in Austin. Therefore
they did not occur on the same occasion, even though police
discovered the firearm during the same arrest in which they
discovered the cocaine. The two offenses were not part of a common
scheme or plan, since Tuft claimed that he purchased the pistol to
protect his girlfriend. Patently, the cocaine would do little to
further that plan. Finally, the offenses were not tried by the
same sovereign, much less consolidated for trial or sentencing.
The United States convicted Tuft for the false statement, whereas
Texas convicted him for the possession charge. Therefore we find
that the two offenses were not related for purposes of Tuft’s
criminal history under the sentencing guidelines.
We also find that the district court was not precluded by
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collateral estoppel from finding that the two offenses were not
related. Collateral estoppel, or issue preclusion, provides that
“when an issue of ultimate fact has once been determined by a valid
and final judgment, that issue cannot again be litigated between
the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S.
436, 443, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469 (1970); United
States v. Montes, 976 F.2d 235, 239 (5th Cir. 1992), cert. denied,
507 U.S. 1024, 113 S. Ct. 1831, 123 L. Ed. 2d 459 (1993).
Collateral estoppel therefore bars only the “reintroduction or
relitigation of facts already established against the government.”
Montes, 976 F.2d at 239 (quoting United States v. Mock, 604 F.2d
341, 343 (5th Cir. 1979)).
The issue of relatedness was never litigated in the district
court in the Eastern District of Washington. In that case, Tuft’s
probation officer assumed in Tuft’s PSR that the two offenses were
related under the guidelines. The government did not challenge
this assumption, and it was never raised during sentencing. The
court appears to have accepted the assumption, although it never
discussed the issue in its order. On this record, we find that the
issue of relatedness was never actually litigated or “established
against” the government. Had the government in the bank robbery
conviction contested the relatedness of the two prior offenses and
the court decided that issue in Tuft’s favor, the issue might
properly be considered litigated. But a court’s sub silentio
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ruling, consistent with uncontested recommendations of a PSR, is
neither a “factual finding” nor a determination on the merits. See
Montes, 976 F.2d at 239. Therefore, the district court’s
consideration of the question, and determination that the offenses
were not related, was the first true litigation of the issue. We
find that the relatedness of the two offenses was therefore not
“relitigated” in the district court below and that the court was
not precluded from making this determination. Id. AFFIRMED.
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