United States Court of Appeals
For the First Circuit
No. 06-1421
UNITED STATES,
Appellee,
v.
STEVEN WESLEY BELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
Lipez, Circuit Judge.
J. Hilary Billings, with whom Law Office of J. Hilary Billings
was on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
May 9, 2007
STAHL, Senior Circuit Judge. Appellant Steven Wesley
Bell pled guilty to and was sentenced for committing a credit union
robbery, in violation of 18 U.S.C. § 2113(a). He now contends that
at the time of his sentencing, the district court committed clear
error in calculating his criminal history points. Specifically,
Bell argues that his eight prior juvenile crimes were consolidated
into two groups for sentencing, and as a result he should have
received just three criminal history points for those prior
offenses, rather than the thirteen points actually assessed by the
district court. Because we conclude that the district court did
not commit clear error in calculating Bell's criminal history
points, we affirm the sentence imposed by the lower court.
I. Background
A. The Federal Sentence
Bell pled guilty to robbing a credit union in Bangor,
Maine, on April 4, 2005. In committing the robbery, Bell entered
the credit union office and handed a note to a teller that read:
"THIS IS A HOLDUP!! I HAVE A GUN. PUT 100'S, 50'S AND 20'S IN A BAG
AND YOU WILL NOT GET HURT." Notwithstanding the note, Bell, only
19 years old at the time of the crime, did not have a weapon with
him. In response to Bell's demand, the teller gave him $2,210,
after which Bell fled the credit union.
On February 21, 2006, the district court sentenced Bell
to 77 months in prison, three years of supervised release,
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restitution in the amount of $2,210, and a $100 special assessment.
The sentence imposed was at the low end of the 77- to 96-month
sentencing guideline range calculated by the district court. In
determining Bell's sentencing range, the district court began by
calculating a base offense level of 20, and added a two-level
enhancement because the offense involved the property of a
financial institution. Finding that Bell made a threat of death in
the course of committing the robbery, the court imposed an
additional two-level enhancement under USSG § 2B3.1(b)(2)(F)
(2006), thus resulting in a total offense level of 24. The court
then applied a two-level reduction for acceptance of
responsibility, under USSG § 3E1.1(a), and a one-level reduction
under USSG § 3E1.1(b), for timely entry of a guilty plea. These
adjustments yielded a final offense level of 21. The court also
assessed 13 criminal history points based on Bell's eight prior
convictions, placing him in Criminal History Category VI. On
appeal, Bell contests the imposition of the 13 criminal history
points.
At his sentencing hearing for the credit union robbery,
Bell argued that his eight previous convictions, all of which were
adjudicated by Maine's juvenile justice system, were actually two
clusters of crimes that were consolidated by the juvenile court
into two groups for sentencing purposes. Therefore, Bell argued
that he should receive only three criminal history points, under
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USSG § 4A1.2(d)(2), instead of the thirteen points the court
ultimately imposed upon him. Had the district court accepted
Bell's argument that the prior convictions merited only three
points, he would have been put in Criminal History Category II,
which would have yielded a guideline range of 41 to 51 months. The
district court, in rejecting Bell's argument on this point,
concluded that there was no indication apparent on the face of the
record that the juvenile court had consolidated his crimes for
sentencing.
B. The Juvenile Crimes
Bell's juvenile crimes occurred in two temporal clusters.
The first cluster (Cluster A) consisted of three crimes committed
between October 12, 2000, and October 26, 2000. In Cluster A, Bell
was convicted of terrorizing, for leaving a bomb threat in the
bathroom of his high school; of petty theft, for stealing $55 from
a tip tray on the counter of a local restaurant; and of criminal
threatening with a dangerous weapon, for brandishing a knife and
demanding money and cigarettes at a local convenience store. Bell
was arrested for all three offenses at the same time, on October
31, 2000. Each charged offense was assigned a separate docket
number. The three charges were resolved at a unified dispositional
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hearing on April 6, 2001. Separate sentences were imposed for each
crime,1 and the sentences were made to run concurrently.2
The second cluster of juvenile crimes (Cluster B)
consisted of five crimes committed by Bell between December 17,
2001 and March 28, 2002. In Cluster B, Bell was convicted of
disorderly conduct, for kicking a wall at his high school; of petty
theft, for stealing three posters from a comic book store; of nine
counts of burglary, theft, and aggravated criminal mischief, for
burglarizing five summer cottages; of forgery and theft, for
attempting to negotiate a falsely made check in the name of his
mother's roommate; and of possession of alcohol by a minor and
escape. Each of the five crimes was assigned a separate docket
number; these separate docket numbers were retained for the
duration of the legal proceedings. All five charges were resolved
at a unified dispositional hearing on May 16, 2002, before the same
juvenile judge who had presided over the Cluster A sentencing.
There is some inconsistency among the court records
regarding the sentences imposed for the Cluster B crimes. The
1
The sentences imposed for the Cluster A offenses were as
follows. On the terrorizing charge, Bell received a suspended
sentence until age 18 and one month of probation. On the petty
theft charge, Bell received 30 days of juvenile detention and one
year of probation. On the threatening with a dangerous weapon
charge, Bell received 30 days of juvenile detention.
2
Maine's juvenile code requires that sentences of commitment
to a juvenile correctional facility be served concurrently. See
Me. Rev. Stat. Ann. tit. 15, § 3314(1)(H).
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court issued a unified Judgment and Commitment order, carrying the
docket numbers of all five crimes, imposing a sentence of
commitment in a juvenile detention facility until Bell reached age
19.3 This document might be read to suggest that, because of the
imposition of one unified sentence, the crimes were consolidated
for sentencing purposes. However, the court also maintained
separate docket numbers and individual docket sheets for each of
the charged crimes, and the docket sheets indicate that the court
actually imposed separate, concurrent sentences as to each offense,
as there were variations among the sentences imposed for each
crime. For example, restitution of $5,200 was ordered for the
disorderly conduct charge, restitution of $17 was ordered for the
petty theft charge, and the commitment period imposed for the
alcohol and escape charges was set to run only until Bell reached
age 18.
On a separate issue, the district court found that there
were no intervening arrests between the first four crimes in
Cluster B, but that there was an intervening arrest between the
3
One of the docket numbers listed on the Judgment and
Commitment order is 02-27, which does not correspond to any of the
docket numbers assigned to Bell's offenses. In their briefs, both
parties seem to have concluded that the 02-27 docket number was a
typographical error intended to be 02-57, which corresponds to
Bell's alcohol and escape charges. This is a sensible conclusion,
which we adopt.
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fourth and fifth crimes.4 Because the sentencing guidelines state
that sentences are not "related" where they are separated by an
intervening arrest, see USSG § 4A1.2, cmt. n.3, the district
court's conclusion meant that the fifth crime in Cluster B could
not be "related" to the other crimes in that cluster.
Bell timely appealed the district court's rejection of
his claim of consolidation.
II. Discussion
A. Standard of Review
The Supreme Court has held that an appellate court must
"deferentially" review a lower court's assessment of whether a
defendant's prior crimes were consolidated for sentencing. Buford
v. United States, 532 U.S. 59, 64 (2001). This is so because "a
district judge sees many more 'consolidations' than does an
appellate judge. . . . [and] a district judge is likely to be more
familiar with trial and sentencing practices in general." Id. at
4
The fifth crime in Cluster B was charged as possession of
alcohol by a minor and escape. Police had been alerted by motel
employees that minors in possession of alcohol had been spotted in
the area. When police arrived, they encountered Bell, and asked
him if he had been drinking. He responded in the negative. The
police contacted Bell's probation officer, who told them that Bell
should be taken to the police station for a blood alcohol test,
which was permitted as a condition of his probation. The officers
requested that Bell accompany them to the police station for such
a test. When he agreed, they placed him in the backseat of the
police cruiser. While the police were speaking with other minors
also suspected of possessing alcohol, Bell's friend opened the
police cruiser door, and Bell and the friend fled. This was the
basis for the escape charge.
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64. Thus, "'where there is more than one plausible view of the
circumstances, the sentencing court's choice among supportable
alternatives' is not clearly erroneous and a reviewing tribunal
cannot disturb it." United States v. Correa, 114 F.3d 314, 317
(1st Cir. 1997) (quoting United States v. Ruiz, 905 F.2d 499, 508
(1st Cir. 1990)). "However, to the extent that an alleged error
involves the district court's interpretation of a sentencing
guideline, it presents a question of law warranting plenary
review." Id.
B. The Sentencing Guidelines
The Sentencing Guidelines assess criminal history points
for "each prior sentence." See USSG § 4A1.1. However, sentences
imposed in "related cases" are treated as one sentence for purposes
of calculating a defendant's criminal history points. See id. §
4A1.2(a)(2). Note 3 of the commentary to USSG § 4A1.2 explains
that sentences are deemed related if "they resulted from offenses
that (1) occurred on the same occasion, (2) were part of a single
common scheme or plan, or (3) were consolidated for trial or
sentencing." Bell's claim rests on the third definition of
relatedness -- namely, that his juvenile crimes were consolidated
for sentencing into two groups.
This circuit has established a categorical rule for
determining whether charges were consolidated for sentencing:
"charges . . . should not be regarded as having been consolidated
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(and, therefore, 'related') unless the original sentencing court
entered an actual order of consolidation or there is some other
persuasive indicium of formal consolidation apparent on the face of
the record which is sufficient to indicate that the offenses have
some relationship to one another beyond the sheer fortuity that
sentence was imposed by the same judge at the same time." Correa,
114 F.3d at 317. Correa identified several documents to which the
courts might look for formal indicia of consolidation, including
the indictment, docket entries, docket numbers, and the judgment of
conviction. Id.
C. Assessing Bell's Criminal History Points
Bell asks us to review the district court's determination
that his eight juvenile offenses were not consolidated into two
clusters for sentencing.5 Maine law does not provide a formal
5
Bell also seeks review of the district court's finding that
the fourth and fifth crimes in Cluster B were separated by an
intervening arrest, meaning that the fifth crime was not "related"
under USSG § 4A1.2(a)(2). See supra note 4. The district court
concluded that because Bell was charged with escape, he must have
been under arrest when he was placed in the back of the police
cruiser. As the court said, "[I]t seems inescapable that you don't
get charged with escape unless you're under arrest." However, this
conclusion does not appear to be supported by Maine law, which
defines "escape" as leaving "official custody" without permission.
See Me. Rev. Stat. Ann. tit. 17-A, § 755(1). Further, "official
custody" is defined not only as arrest but also as custody on the
way to a police station. Id. at § 755(3). We need not resolve
this issue definitively, however, because the record contains
sufficient grounds to conclude that the fifth crime in Cluster B,
like the other crimes in that cluster, was not consolidated for
sentencing. See Estate of Soler v. Rodriguez, 63 F.3d 45, 53 (1st
Cir. 1995) ("An appellate court is not limited to the legal grounds
relied upon by the district court, but may affirm on any
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mechanism for consolidation of charges for sentencing.6 Therefore,
we must look at the face of the record to determine whether we
detect any formal indicia of consolidation. See Correa, 114 F.3d
at 317.
As to Cluster A, Bell argues that consolidation is
evidenced by: (1) the Conditions of Probation order bearing the
docket numbers for the terrorizing and petty theft charges; (2) the
unified dispositional hearing for all three charges; (3) a single
offer sheet from the District Attorney's office; (4) the
involvement of the same prosecutor, district attorney, and judge in
all three matters; and (5) "the comprehensive approach to
sentencing that saw a structured sentence designed with a view
toward its collective impact." In contrast, the government points
out that there was no formal order of consolidation or docket entry
suggesting consolidation, all three charges retained their distinct
docket numbers, and different sentences were imposed for each
crime.
independently sufficient grounds.").
6
The district court suggested that Rule 8(a) of the Maine
Rules of Criminal Procedure would permit a court to consolidate
separate charges for sentencing. See Me. R. Crim. P. 8(a).
However, that rule is directed toward joinder of charges for trial,
not sentencing. Further, the prosecution's sole witness at the
sentencing hearing, the assistant district attorney who had
responsibility for all of Bell's charges, stated that he was not
aware of a procedure for formal consolidation for sentencing, and
that, in his experience, consolidation for sentencing was
accomplished informally by the court, rather than formally.
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Bell's arguments as to Cluster A are unpersuasive given
the categorical approach adopted by this circuit. Indeed, the only
potential indicium of formal consolidation on the face of the
record is the Conditions of Probation order bearing the docket
numbers of two of the crimes. However, the fact that the
Conditions of Probation order governed two of the three offenses is
not sufficient evidence of consolidation where each crime retained
its original docket number and received a distinct sentence. This
is particularly so where our standard of review is clear error.
Therefore, we affirm the district court's conclusion that no
consolidation occurred as to Cluster A.
Bell has a stronger argument that the Cluster B crimes
were consolidated for sentencing. His most persuasive evidence of
formal consolidation is the Judgment and Commitment order bearing
the docket numbers of all five crimes, which mandated a unified
sentence of confinement until age 19. However, as noted above,
there is contradictory evidence in the record as well. For
example, each crime retained its original docket number throughout
the adjudication. In addition, the individual docket sheets
indicate that the court imposed separate, concurrent sentences as
to each crime, and that somewhat different sentences were imposed
as to three of the crimes. Given this contradictory evidence, it
would be difficult to conclude that the district court was clearly
erroneous had it reached either result -- either that the charges
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were or were not consolidated for sentencing. Therefore, given our
deferential standard of review, we decline to assign error to the
judge's conclusion as to Cluster B.
III. Conclusion
For the foregoing reasons, we affirm the district court's
calculation of Bell's criminal history points, and therefore also
affirm the sentence imposed on the appellant.
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