United States v. Pasek

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 23 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 02-8085
v. (D.C. No. 02-CR-0044-02-J)
(D. Wyoming)
JAMES GREGORY PASEK,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before TACHA , Chief Judge , McKAY and McCONNELL , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the
*

doctrines of law of the case, res judicata, and collateral estoppel. The Court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 Defendant James Pasek was convicted by a jury in United States District

Court for the District of Wyoming on charges of conspiracy to commit bank

robbery, bank robbery and aiding and abetting a bank robbery, two counts of

using a firearm and aiding and abetting use of a firearm during a crime of

violence, theft of firearms and abetting the theft of firearms, conspiracy to use

firearms during and in relation to a crime of violence, and felon in possession of a

firearm. He was sentenced to 60 months imprisonment for the conspiracy to

commit bank robbery; 125 months on the bank robbery, theft of firearms,

conspiracy to use firearms during a crime of violence, and felon in possession

charges, to be served concurrently; and five and twenty-five years, respectively,

on the two counts of using a firearm during a crime of violence, to be served

consecutively to all other terms of conviction. In total, Defendant was sentenced

to 485 months imprisonment. Additionally, he was sentenced to a total of five

years of supervised release, $11,664.52 in restitution, and $700 in special

assessments.

Filing a brief pro se , Defendant challenges the calculation of his sentence

under the Sentencing Guidelines on several grounds relating to criminal history

and offense level points. In addition, his counsel has filed a brief pursuant to

Anders v. California , 386 U.S. 738 (1967), noting that in his view, after a careful

and conscientious review of the case, there were no meritorious grounds to go

-2-
forward with an appeal. Counsel moves to withdraw from the case, and

Defendant moves to dismiss counsel for ineffective assistance.

We GRANT counsel’s motion to withdraw, and AFFIRM the judgment of

the district court.

Factual Background

On March 8, 2002, less than two months after being released from prison

on a felony charge, Pasek and a confederate he met in prison, Randy Richardson,

broke into a pawn shop in Gillette, Wyoming, and stole two pistols from a display

case. The next day, they drove to Casper, where they stole a Chevy Tahoe from a

dealership, donned hooded sweatshirts, bandanas, and latex gloves, and entered

the East Casper Branch of the First Interstate Bank. Brandishing firearms, Pasek

and Richardson announced they were robbing the bank and ordered those present

to lie on the floor. They made various abusive and threatening statements. While

Richardson guarded the bystanders and employees who were on the floor, Pasek

removed currency from two teller stations and stuffed it in a paper bag. As they

fled from the scene of the crime, currency was falling out through a rip in the

paper bag. Bank personnel reported that Pasek and Richardson stole $28,425, all

but $9,991 of which was ultimately recovered.

While awaiting sentencing in this case, Pasek escaped from the Goshen

County Detention Center and allegedly stole another car from a dealership and

-3-
committed yet another bank robbery in Bozeman, Montana. He was subsequently

arrested in Belgrade, Montana. He is currently in the custody of the State of

Montana awaiting trial on charges stemming from the second bank robbery

incident.

Analysis

We review the district court’s factual findings for clear error and its

interpretation and application of the Sentencing Guidelines de novo . United

States v. Collins , 313 F.3d 1251, 1254 (10th Cir. 2002). Issues raised for the first

time on appeal are subject to a plain error standard. United States v. Bailey , 327

F.3d 1131, 1142 (10th Cir. 2003).

Defendant received four criminal history points on account of two

misdemeanor violations he committed as a minor in 1996, and two offense level

points for obstruction of justice on account of his escape from the Detention

Center while awaiting sentence in this case. Defendant argues that these

calculations were erroneous in three respects.

First, he argues that his two 1996 convictions should not have been treated

as separate convictions for purposes of his prior criminal history because these

sentences were imposed in a consolidated proceeding and based on a single guilty

plea. The district court’s finding that the two convictions were not related is

entitled to deference, Buford v. United States , 532 U.S. 59 (2001), and is not

-4-
clearly erroneous. According to the pre-sentence report (PSR), which was not

challenged below, his convictions were for different crimes, unauthorized use of

an automobile and obtaining property by false pretenses, and were committed

about a month apart. The crimes were in no way factually or legally related. Each

charge has its own docket number, which was retained throughout the sentencing

proceedings, and the record provides no indication that the cases were formally

consolidated. In light of these factors, and contrary to Defendant’s argument, the

fact that these charges were resolved in a single plea agreement does not make

them “related” offenses for purposes of the Guidelines. See United States v.

Alberty, 40 F.3d 1132, 1134-35 (10th Cir. 1994); see also United States v.

Stalbaum , 63 F.3d 537, 539 (7th Cir. 1995) (fact that sentencing occurred on same

day does not establish that cases were consolidated).

Second, Defendant argues that he was a minor at the time he committed

these prior offenses, that his arrest and conviction occurred more than five years

before the instant offense, and thus that these prior offenses should not have been

counted for his criminal history points. The relevant Sentencing Guideline,

U.S.S.G. § 4A1.2(d)(2)(A), which applies to offenses committed prior to age

eighteen, instructs the court to “add 2 points . . . for each adult or juvenile

sentence to confinement of at least sixty days if the defendant was released from

such confinement within five years of his commencement of the instant offense.”

-5-
Defendant did not raise this objection at the sentencing hearing, and therefore we

review for plain error. We find no error (let alone plain error) in the district

court’s calculation. Defendant was sentenced for these prior offenses on May 28,

1996, but his probation was revoked and he began to serve his two consecutive

six-month terms of imprisonment on January 7, 1997. Defendant committed his

bank robbery and related offenses on March 8-9, 2002, less than five years after

release.

Defendant challenges his two offense level points for obstruction of justice

on the ground that his escape from the Detention Center while awaiting trial did

not delay his sentencing hearing, and he has not been tried for escape. These

arguments are made for the first time on appeal, and Defendant did not object to

the district court’s reliance on the PSR; in any event, these arguments are

frivolous. Escape from custody plainly is an appropriate basis for an obstruction

of justice enhancement. U.S.S.G. § 3C1.1, cmt. n.4(e); see United States v.

Wiseman , 172 F.3d 1196, 1218 (10th Cir. 1999) (upholding two-level obstruction

of justice enhancement for attempted escape). That the sentencing hearing was

not delayed by his escape (since he was caught as the result of an alleged

commission of another bank robbery in another state) is of no avail to Defendant.

See United States v. Amos , 984 F.2d 1067, 1072 (10th Cir. 1993). Further, that

the alleged escape was not proven at trial is not significant, since if a defendant

-6-
fails to object to his PSR, barring a showing of plain error, he waives the right to

challenge the district court’s reliance on the PSR. United States v. Yarnell , 129

F.3d 1127, 1137-38 (10th Cir. 1997).

In support of each of his arguments, Defendant points out that his ability to

appeal effectively has been frustrated by lack of access to federal law materials.

He requested permission to be escorted from the Gallatin County Jail, where he

was detained, to the nearby Gallatin Law and Justice Center, which contains a law

library. He further states that his “appointed Montana lawyer is not certified in

Federal Law or familiar with my Appeal objections.” Br. 5. We do not agree. In

light of the fact that he was represented by counsel, that he previously escaped

from a detention facility, and that his arguments have been cogently presented in

his pro se brief in this Court, we conclude that denial of his request was neither in

error nor prejudicial. See United States v. Taylor , 183 F.3d 1199, 1205 (10th Cir.

1999) (Sixth Amendment is satisfied by offer of professional representation

alone; the defendant need not be provided with access to legal materials).

In addition to Defendant’s pro se brief, counsel filed an Anders brief in this

Court and has moved to withdraw. Defendant has filed a motion to dismiss

counsel for ineffective assistance. The fact that counsel has filed an Anders brief

puts a special duty on this Court to examine the proceedings below with care.

This we have done.

-7-
 Conclusion

We GRANT counsel’s motion to withdraw, and accordingly need not rule

on Defendant’s motion to dismiss counsel. We AFFIRM the decision of the

district court.

ENTERED FOR THE COURT

Michael W. McConnell
Circuit Judge

-8-