United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 21, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-51116
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELICIA MONIQUE DUNN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Felicia Dunn appeals her sentence for possession of cocaine
with intent to distribute and aiding and abetting the same. She
argues that two prior shoplifting convictions used to enhance her
sentence were “related” under the Sentencing Guidelines, yielding
a smaller enhancement, because the underlying offenses occurred at
two stores in the same mall at about the same time and resulted in
contemporaneous pleas and identical concurrent sentences. We
vacate and remand for resentencing.
I
Felicia Dunn pleaded guilty to possession of cocaine with
intent to distribute, and aiding and abetting the same, pursuant to
a plea agreement. The pre-sentence report recommended offense
level twenty-five after a three-level reduction for acceptance of
responsibility. It then recommended eleven criminal history
points, which resulted in criminal history category V. The
resulting Sentencing Guidelines range was 100-125 months of
imprisonment.
Dunn, in objecting to the PSR, argued that she should receive
a two-level minor participant reduction. She also objected to
receiving four criminal history points for two shoplifting offenses
that had occurred on the same day; she argued that these offenses
should be considered “related” under the Sentencing Guidelines,
resulting in only two points.1
The facts of those two offenses are as follows: Dunn was
arrested on March 17, 1994 for shoplifting from The Limited
Clothing Store in Post Oak Mall in College Station. An
“investigation” found that she had stolen from at least three other
stores, but only The Limited and another store pressed charges.
She was charged with two separate informations naming two separate
complainants and two separate, but sequential, cause numbers. She
was sentenced for both offenses on the same day and received the
same sentence for each, running concurrently.
At sentencing in the present case, the district court granted
1
She also objected that another four criminal history points should have
been only two points because the underlying two shoplifting offenses were
“related,” but this objection was later dropped.
2
a two-level reduction for Dunn's minor role in the offense. Dunn
renewed her objection that her two shoplifting offenses were
related and should yield only two points. The district court
overruled this objection, explaining that it was “familiar with a
case where an individual committed burglaries of two adjoining
buildings in a strip center . . . [which were considered] separate
offenses and I don’t see how this would be any different.”2 The
court sentenced Dunn to 84 months of imprisonment and four years of
supervised release. Dunn filed a timely notice of appeal,
challenging only the district court’s refusal to consider her two
same-day shoplifting offenses “related.”
II.
Section 4A1.2(a)(2) of the Sentencing Guidelines provides that
“[p]rior sentences imposed in unrelated cases are to be counted
separately. Prior sentences imposed in related cases are to be
treated as one sentence for purposes of [assigning criminal history
points.]” The Sentencing Guidelines commentary provides the
following explanation of the term “related:”
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
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from offenses that (A) occurred on the same occasion, (B) were part
of a single common scheme or plan, or (C) were consolidated for
trial or sentencing.3
2
The district court did not provide a name or citation for this case, and
we have not been able to determine its identity.
3
Section 4A1.2, cmt. 3.
3
Dunn argues that her two shoplifting offenses are “related” under
any of the three tests. Reviewing de novo,4 we conclude that her
offenses “occurred on the same occasion.”
This court in United States v. Moreno-Arredondo held that,
because the Sentencing Guidelines do not define “related,”
“occurred,” or “occasion,” these terms should be defined by their
“common sense, conversational meanings.”5 The court noted that
“[t]here is not a surfeit of jurisprudence construing the ‘same
occasion’ prong of the test for relatedness, but most opinions on
the subject emphasize the temporal aspect and rely only to a lesser
degree on the geographical or spatial aspect.”6 “Only the extent
of temporal separation between commissions can be controlling for
purposes of the same-occurrence prong, and even then such
separation must be viewed in light of other factors such as spatial
separation, identity or non-identity of offenses, and the like.”7
As a result, it held that “sequential commissions of offenses
affecting different victims can comprise a single occurrence.”8
The court concluded that Moreno-Arredondo’s two prior offenses had
occurred on the “same occasion:” the offenses were the same, they
4
United States v. Moreno-Arredondo, 255 F.3d 198, 205 (5th Cir. 2001).
5
Id. at 204.
6
Id. at 205.
7
Id.
8
Id. at 207.
4
occurred in the same location (the couch in the house where the
defendant lived), and they occurred within minutes of each other
and without interruption.9
In a later unpublished opinion, United States v. Becerra, this
court cited Moreno-Arredondo but concluded that the defendant’s
offenses did not occur on the “same occasion.”10 Becerra
burglarized two different vehicles, which were parked about one
block apart on the same street, on the same evening. When the
police arrested him several weeks later, they found on him an item
identified as stolen from one of the vehicles. After releasing
him, the police arrested him again after determining that another
item in his possession at the time of his initial arrest had been
stolen from the second vehicle. The court determined that,
although the offenses had occurred on the same day, they were two
separate acts of theft involving two different victims and two
different arrests. The court also noted that, although both
offenses had occurred on the same street, they occurred in
different locations on that street. It concluded that these facts
rendered Becerra’s case distinguishable from Moreno-Arredondo and
United States v. Johnson,11 where this court held that it was
“evident” that the offenses of DWI, driving with a suspended
9
Id.
10
No. 00-51022 (5th Cir. Aug. 23, 2001) (unpublished opinion).
11
961 F.3d 1188, 1188 (5th Cir. 1992).
5
license, and failure to identify oneself to a police officer
occurred on the same occasion when the defendant presumably was
arrested while doing all three. And it held that Becerra’s case
was similar to United States v. Cain,12 where this court held that
the offenses of escape from prison, stealing a car, breaking and
entering, and attempting to steal another car committed over the
course of a five-day prison break did not occur on the same
occasion.
We think that this case is more similar to Moreno-Arredondo
than Becerra. As in Moreno-Arredondo, the offenses were the same
and occurred on the same day, apparently minutes apart - temporal
proximity being the key factor.13 Although there were two separate
acts and two separate victims, Dunn was not arrested twice, unlike
the defendant in Becerra. And a mall is more easily considered a
single location than the wide-open street in Becerra. Only if Dunn
had stolen from the same store could one see her offenses as having
occurred more clearly on the “same occasion;” that distinction is
insufficient here to make a difference.
For the foregoing reasons, we VACATE Dunn’s sentence and
REMAND the case for resentencing.
12
10 F.3d 261, 263 (5th Cir. 1993); see also United States v. Garcia, 962
F.2d 479, 481 (5th Cir. 1992), abrogated on other grounds, Buford v. United
States, 532 U.S. 59 (2001) (holding, in a case where the defendant committed two
heroin deliveries in the same place but nine days apart, that although the facts
surrounding the cases may be similar, similar crimes are not related crimes).
13
Moreno-Arredondo, 255 F.3d at 205.
6