United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1621
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United States of America, *
*
Plaintiff - Appellee, *
*
v. * Appeal from the United States
* District Court for the
Orville Dean Myers, * District of Nebraska.
*
Defendant - Appellant. *
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Submitted: February 12, 2010
Filed: March 16, 2010
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Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Orville Dean Myers pled guilty to one count of failing to register as a sex
offender in violation of 18 U.S.C. § 2250(a). The district court1 sentenced him to 24
months imprisonment. Myers appeals his sentence, arguing that the court engaged in
impermissible double-counting by using a prior felony conviction to calculate his base
offense level and the criminal history category under the Sentencing Guidelines.
Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms.
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
I.
In May 2000, Myers pled guilty to sexually assaulting a nine-year-old girl in
Colorado in 1996. In July, he was sentenced to probation, but in December his
probation was revoked, and he was sentenced to eight years incarceration. Released
in December 2007, he was notified of his duty to register as a sex offender. Myers did
not register in Colorado. In January 2008, he moved to Nebraska and also did not
register. In December 2008, Myers pled guilty to failing to register as a sex offender
under 18 U.S.C. § 2250(a).
As for the base offense level under § 2A3.5, the district court calculated it at
level 16, because Myers was required to register as a Tier III offender. (Myers does
not contest that he is a Tier III offender.) A Tier III offender is one previously
convicted of a sex offense punishable by more than a year in prison, and involving a
victim under the age of 13. U.S.S.G. § 2A3.5 App. Note 1; 42 U.S.C. § 16911(4).
As for the criminal history category under § 4A1.1, three points were assessed
for Myers’s conviction for sexually assaulting the nine-year-old in Colorado because
it was a “prior sentence of imprisonment exceeding one year and one month.”
U.S.S.G. § 4A1.1(a). An additional two points were assessed because his instant
offense of failing to register as a sex offender was committed less than two years after
release from prison. U.S.S.G. § 4A1.1(e). With an additional two points added for
a prior conviction for violation of a restraining order, Myers’s seven criminal history
points put him in category IV. His Guideline range was 24 to 30 months, and he was
sentenced to 24 months. Myers argues that the district court impermissibly double-
counted his conviction for sexually assaulting a nine-year-old by including it in both
his base offense level and the criminal history category.
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II.
This court reviews “de novo whether the district court’s application of the
sentencing guidelines amounts to impermissible double counting.” United States v.
Peck, 496 F.3d 885, 890 (8th Cir. 2007). “Double counting occurs when one part of
the Guidelines is applied to increase a defendant’s punishment on account of a kind
of harm that has already been fully accounted for by application of another part of the
Guidelines.” United States v. Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997)
(quotations omitted); United States v. Donelson, 450 F.3d 768, 774 (8th Cir. 2006).
Even if the court finds double-counting, it is permissible where “(1) the [Sentencing]
Commission intended the result and (2) each statutory section concerns conceptually
separate notions related to sentencing.” Hipenbecker, 115 F.3d at 583.
A.
In determining Myers’s sentence for failing to register as a sex offender, one
part of the Guidelines, § 2A3.5(a)(1), was applied to increase his base offense level
on account of the nature of the predicate felony of sexually assaulting a nine-year-old.
This felony was also accounted for by application of another part of the Guidelines,
§ 4A1.1, in Myers’s criminal history points. The question is whether the harm of his
prior conviction was fully accounted for in one of the two Guidelines. This court
concludes it was not, and therefore, no double-counting occurred.
The offense level for failing to register as a sex offender is based on the nature
of the sexual conduct in the prior conviction. The apparent rationale is that the
seriousness of not registering is increased by the severity of the underlying sex
offense. Myers’s offense level for failing to register was higher because the victim
in his prior conviction was under 13 years old.
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On the other hand, the criminal history is not based on the nature of the prior
conviction (age of the victim), but based solely on the length of incarceration and the
conviction’s recency. The harm of his prior conviction was not fully accounted for
by either Guideline alone, so no double-counting occurred. See United States v.
Phillips, 506 F.3d 685, 688 (8th Cir. 2007) (The “base offense level and criminal
history provisions address conceptually separate sentencing notions. One addresses
the gravity of the particular offense. The other addresses the need to deter future
criminal activity by this defendant.”).
B.
Even if double-counting occurred in this case, it was permissible because the
Commission intended the result, and the offense level and criminal history sections
address different concerns. The General Application Principles in the Sentencing
Guidelines instruct a sentencing court to determine the base offense level
independently of the criminal history category. U.S.S.G. § 1B1.1. The Application
Notes further clarify: “Absent an instruction to the contrary,” enhancements to the
base offense level and determinations of the criminal history guidelines “are to be
applied cumulatively.” U.S.S.G. § 1B1.1 App. Note 4(B). Myers points to
application notes in other Guidelines, which specifically say that a predicate
conviction can be used to calculate both the base offense level and the criminal history
category. See U.S.S.G. § 2A6.2 App. Note 3 (stalking or domestic violence); § 2K1.3
App. Note 9 (receipt, possession, or transportation of explosives); § 2K2.1 App. Note
10 (felon in possession of a firearm); § 2L1.1 App. Note 4 (smuggling, transporting,
or harboring unlawful alien); § 2L1.2 App. Note 6 (illegal re-entry following felony
conviction); § 2L2.1 App. Note 4 (trafficking in false immigration documents); §
2L2.2 App. Note 2 (fraudulently acquiring or using false immigration documents).
Myers argues that because the Application Notes to § 2A3.5 do not also
specifically say that his predicate sexual assault can be used in both calculations, the
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Commission did not intend that result. This interpretation turns the application
instructions upside down. The application principles state that “absent an instruction
to the contrary,” the sentencing court must calculate the base offense level and
criminal history cumulatively. Therefore, because the Commission did not instruct
to the contrary in either § 2A3.5 or § 4A1.1, its intent was for the base offense level
and criminal history to be applied cumulatively to Myers. The fact that other
Guidelines expressly state that a predicate felony can be used for both calculations
does not require a different application here. See United States v. Thomas, 930 F.2d
12, 14 (8th Cir. 1991) (stating that where the Guidelines do not contain a specific
exception to the application of an enhancement, the Commission intends for that
enhancement to apply). See also United States v. Kenney, 283 F.3d 934, 938 (8th Cir.
2002) (“[T]he Commission intended to include enhancements for every applicable
aspect of the criminal conduct, to be added together cumulatively, unless the
Guidelines themselves direct otherwise.”) (emphasis added); United States v.
Wyckoff, 918 F.2d 925, 927 (11th Cir. 1990) (before the application note to § 2K2.1
was amended to specifically permit it, holding no impermissible double-counting by
using predicate felony in calculation of base offense level and criminal history);
United States v. Hawkins, 69 F.3d 11, 14 (5th Cir. 1995) (“Double counting is
prohibited only if the particular guidelines at issue specifically forbid it.”). Therefore,
the Commission intended for Myers’s predicate sexual assault to be used to calculate
both his base offense level and the criminal history category.
Finally, as discussed, the base offense level and criminal history calculations
address different sentencing goals. See, e.g., United States v. Saffeels, 39 F.3d 833,
836 (8th Cir. 1994) (“[W]hile the base offense inquiry reflects the seriousness of the
offense, the criminal history score assesses the offender and the need to deter him
from further criminal activity.”); United States v. Alessandroni, 982 F.2d 419, 423
(10th Cir. 1992); Wyckoff, 918 F.2d at 927.
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Myers contends that § 4A1.1 excludes his prior sentence from the criminal
history calculation because it was for conduct that is part of his offense of failing to
register. He cites Application Note 1 to § 4A1.2, which defines a “prior sentence” as
“a sentence imposed prior to sentencing on the instant offense, other than a sentence
for conduct that is part of the instant offense.” U.S.S.G. § 4A1.2 App. Note 1.
“Conduct that is part of the instant offense” means “relevant conduct to the instant
offense under the provisions of § 1B1.3 (Relevant Conduct).” Id. U.S.S.G. §
1B1.3(a)(2) defines “relevant conduct” to include acts “that were part of the same
course of conduct or common scheme or plan as the offense of conviction.” Relevant
conduct also includes “offense conduct associated with a previously imposed sentence
[that is] expressly charged in the offense of conviction.” U.S.S.G. § 1B1.3 App. Note
8.
Myers’s act of sexually assaulting a child in 1996 in Colorado is not “part of
the same course of conduct or common scheme or plan” as his act of failing to register
as a sex offender in 2008 in Nebraska. Myers’s indictment charges his status as a
person required to register as a sex offender; it does not charge his conduct of sexual
assault. Therefore, his prior sexual assault is not relevant conduct to his failure to
register, and his prior sentence is not for conduct that is part of the instant offense.
See Alessandroni, 982 F.2d at 421 (holding it is not the conduct of committing a prior
felony that is an element of being a felon in possession of a firearm, rather it is the
status of being a convicted felon).
III.
The judgment of the district court is affirmed.
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