United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3722
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Ronald D. Charles, *
*
Appellant. *
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Submitted: March 14, 2000
Filed: April 24, 2000
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Before McMILLIAN and HEANEY, Circuit Judges, and BOGUE1, District Judge.
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HEANEY, Circuit Judge.
Ronald Charles pleaded guilty to possession of a stolen firearm in violation of
18 U.S.C. § 922(j) (1999). His presentence report (PSR) established a base offense
level of twenty-four and assessed four criminal history points for three prior
convictions. Over Charles’s objections, the district court adopted the PSR’s findings
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The Honorable Andrew W. Bogue, United States District Judge, for the District
of South Dakota, sitting by designation.
and sentenced Charles to eighty-four months imprisonment and three years supervised
release. We reverse and remand for resentencing.
FACTS
On March 22, 1994, Charles entered a convenience store in Jacksonville,
Arkansas, and took property valued at over $200.00. Nine days later, he again entered
the convenience store to take property, and was arrested by the Jacksonville Police.
Charles was charged with commercial burglary (count one) and theft of property (count
two) for the March, 22, 1994 incident and with commercial burglary (count three) for
the March 31, 1994 incident. On August 1, 1994, Charles pleaded guilty to all counts.
The counts were consolidated for sentencing, and Charles was sentenced to fifteen days
imprisonment and five years probation. Charles’s probation was revoked on May 8,
1995, and he was sentenced to two years in the state penitentiary.
On July 12, 1999, Charles pleaded guilty in federal district court to possession
of a stolen firearm. His PSR established a base offense level of twenty-four and
assessed four criminal history points for the three convictions. Charles objected, but
the district court overruled his objections and sentenced him to eighty-four months
imprisonment and three years supervised release. Charles appeals.
DISCUSSION
We review de novo the district court’s construction and interpretation of the
Sentencing Guidelines, but review the district court’s application of the Guidelines to
the facts only for clear error. See United States v. Holland, 195 F.3d 415, 416 (8th Cir.
1999).
A. Base Offense Level
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Charles first argues that his base offense level should have been twenty, not
twenty-four. Where a defendant is charged with the unlawful possession of a firearm
and has at least two prior felony convictions of a crime of violence or controlled
substance offense, the base offense level is twenty-four. See U.S.S.G. § 2K2.1(a)(2)
(1999).
Charles does not dispute that his two commercial burglary convictions are crimes
of violence. See generally United States v. Hascall, 76 F.3d 902, 906 (8th Cir. 1996)
(holding that burglary of commercial building is “crime of violence” under Guidelines).
He argues, however, that the convictions are not two prior felony convictions as
defined by the Guidelines because he received a single sentence of fifteen days
imprisonment and five years probation for the three counts. The government, on the
other hand, argues that Charles received three concurrent sentences of fifteen days
imprisonment and five years probation, which should be counted separately.
Under the Guidelines, two prior felony convictions means that: “(1) the
defendant committed the instant offense of conviction subsequent to sustaining at least
two felony convictions of either a crime of violence or a controlled substance offense
. . . , and (2) the sentences for at least two of the aforementioned felony convictions are
counted separately under the provisions of § 4A1.1(a), (b), or (c).” U.S.S.G. §
4B1.2(c) (emphasis added). The record reveals that Charles received fifteen days
imprisonment and five years probation on each of the three counts. In the Judgment
and Commitment Order, the sentencing court2 specifically noted next to each charge
that the sentence imposed was fifteen days. Moreover, the circuit judge could have
delineated on the Order that the sentences were to run consecutively. Because the
judge in this case did not so delineate, Charles’s sentences ran concurrently, resulting
in a total imprisonment term of fifteen days for the three charges.
2
Charles was sentenced on his state offenses by the Circuit Court of Pulaski
County, Arkansas.
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However, the fact that Charles was sentenced on each count does not necessarily
render his sentences separate under the Guidelines. Where prior sentences are imposed
in related cases, they are treated as one sentence for the purposes of § 4A1.1(a), (b),
or (c). See U.S.S.G. § 4A1.2(a)(2). Prior sentences are related if, among other things,
they were consolidated for trial or sentencing. See § 4A1.2, comment. (n.3).
In this case, the charges against Charles were consolidated for sentencing. Thus,
they are treated as a single sentence and, therefore, not counted separately. For this
reason, Charles’s commercial burglary convictions are not two prior felony convictions,
and he does not qualify for a base offense level of twenty-four.
B. Criminal History Points
Charles next argues that he should have received only three, rather than four,
criminal history points for the three convictions. He claims that his original sentence
should have been added to the sentence he received upon probation revocation and
counted together as a single sentence. As one sentence, he argues, a maximum of three
criminal history points could be assessed. The government contends that because the
cases were related, the three sentences rightly were counted as one, and the PSR
properly assessed three points for count one and an additional point for count three.
Interestingly, the government’s position that the sentences be counted as one to
determine Charles’s criminal history points directly contradicts that taken in its base
offense level argument.
When calculating criminal history points, the original term of imprisonment is
added to any sentence imposed upon revocation, which in this case equals two years
and fifteen days for each charge. See § 4A1.2(k)(1). Where a prior sentence of
imprisonment exceeds one year and one month, three points are added. See U.S.S.G.
§ 4A1.1(a). Thus, it would seem Charles should be assessed three points for each
charge. However, because the charges were consolidated for sentencing, they are
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treated as a single sentence, see § 4A1.2(a)(2), yielding a total of three criminal history
points.
This, nevertheless, does not end the calculation. Although the three sentences
are treated as one, a point must be added for each prior sentence not receiving any
points under § 4A1.1(a), unless the offenses occurred on the same occasion. See §
4A1.1(f). Charles’s sentence for count one exceeded one year and one month,
justifying the three point assessment without considering counts two and three.
Because counts one and two occurred on the same occasion, no additional point need
be added for count two. However, count three occurred several days later, so a point
must be added to the criminal history, making a total of four points. Hence, the PSR
correctly assessed four criminal history points for the three convictions.
CONCLUSION
Although the PSR correctly determined Charles’s criminal history points, it
incorrectly set his base offense level at twenty-four. Because the district court adopted
the PSR’s findings when sentencing Charles, we reverse and remand to the district
court for resentencing.
A true copy.
Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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