United States Court of Appeals,
Eleventh Circuit.
No. 95-4461
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Vincent JOHNSON, a/k/a Wimpy, Defendant-Appellant.
July 16, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-571-CR-UUB), Ursula Ungaro Benages,
Judge.
Before KRAVITCH, EDMONDSON and BARKETT, Circuit Judges.
KRAVITCH, Circuit Judge:
Vincent Johnson appeals the 157-month sentence he received for
conspiracy to possess with intent to distribute cocaine, in
violation of 21 U.S.C. § 846. We affirm.
I.
Johnson pleaded guilty to conspiring to possess and distribute
cocaine. The drug ring in which Johnson was involved operated from
1986 to September 1993. In 1990, Johnson participated in several
jewelry store robberies in order to obtain capital to fund the drug
operation. Johnson was arrested for the robbery of one of the
jewelry stores and was convicted in Georgia state court, where he
received an eight-year prison term. While serving this sentence,
Johnson was indicted by federal authorities for his participation
in the drug conspiracy. As an overt act in furtherance of the
conspiracy, the indictment lists Johnson's participation in several
jewelry store robberies, including the robbery for which he was
convicted in Georgia. In addition, the indictment alleges that on
one occasion Johnson delivered cocaine in furtherance of the
conspiracy.
In determining Johnson's offense level, the presentence
investigation report relied solely on the weight of the narcotics
attributable to him and did not factor in his participation in the
robberies. Johnson's state court robbery conviction was
considered, however, in determining his criminal history category.
The district court overruled Johnson's objection on this point.
The court then ordered that Johnson's federal sentence run
concurrently with his state sentence on the robbery conviction, but
declined to credit Johnson for time already served in state prison.
On this appeal, Johnson argues that the robbery conviction
should not have been scored in determining his criminal history
category. He also argues that his federal sentence should have
begun running concurrently with the state sentence retroactive to
the beginning of that sentence.
II.
Because this case involves an application of the Sentencing
Guidelines to the facts, we review the district court's decision de
novo. United States v. Walker, 912 F.2d 1365, 1367 (11th
Cir.1990), cert. denied, 498 U.S. 1103, 111 S.Ct. 1004, 112 L.Ed.2d
1087 (1991).
Johnson claims that his robbery sentence should not have been
included in determining his criminal history category because his
participation in the robbery was part of the instant conspiracy
offense, and thus not a "prior sentence" as defined by U.S.S.G. §
4A1.2(a)(1).
Section 4A1.1 of the Guidelines instructs a sentencing court
to calculate a defendant's criminal history category by counting
certain prior sentences imposed for specified felony or misdemeanor
convictions. Section 4A1.2(a)(1) defines "prior sentence" as "any
sentence previously imposed upon adjudication of guilt ... for
conduct not part of the instant offense." According to an
amendment to the first application note to § 4A1.2 (added on
November 1, 1993), "[c]onduct that is part of the instant offense
means conduct that is relevant conduct to the instant offense under
the provision of § 1B1.3 (Relevant Conduct)." U.S.S.G. § 4A1.2,
comment. (n. 1).
Johnson argues that because the robbery for which he was
convicted was listed in the indictment as one of the overt acts
which provided the basis for his involvement in the conspiracy, it
is "relevant conduct" under U.S.S.G. § 1B1.3, which in turn makes
it part of the instant offense, and therefore not a "prior
sentence." The government responds that under § 1B1.3 the robbery
could not properly be included as "relevant conduct," and it is
therefore appropriate to consider the robbery conviction in
determining Johnson's criminal history category.
Section 1B1.3 explains what conduct is "relevant" in
determining a defendant's guideline range. Specifically, the
guideline instructs that "solely with respect to offenses of a
character for which § 3D1.2(d) would require grouping of multiple
counts, all acts and omissions ... that were part of the same
course of conduct or common scheme or plan as the offense of
conviction" are attributable to the defendant.1 U.S.S.G. §
1B1.3(a)(2). Conspiracy to distribute cocaine is an offense for
which Section 3D1.2(d) requires grouping of multiple counts.
U.S.S.G. § 3D1.2(d); United States v. Lawrence, 47 F.3d 1559, 1566
(11th Cir.1995). The guideline specifically states that counts
should be grouped "[w]hen the offense level is determined largely
on the basis of ... the quantity of a substance involved."
U.S.S.G. § 3D1.2(d). It is appropriate, therefore, to attribute to
Johnson the total amount of drugs he could reasonably foresee would
be involved in the conspiracy.2 Lawrence, 47 F.3d at 1566.
Whether the Georgia robbery would have been grouped with the
drug conspiracy had the robbery been a count in Johnson's federal
conviction, however, requires a closer examination of § 3D1.2.3
The purpose of this section is to group together all counts
1
" "Offenses of a character for which § 3D1.2 would require
grouping of multiple counts,' as used in subsection (a)(2),
applies to offenses for which grouping of counts would be
required under § 3D1.2(d) had the defendant been convicted of
multiple counts.... Subsection (a)(2) merely incorporates by
reference the types of offenses set forth in § 3D1.2(d)."
U.S.S.G. § 1B1.3, comment. (n. 3). In other words, it is not
necessary that a conviction actually occur. United States v.
Mullens, 65 F.3d 1560, 1564 (11th Cir.1995), cert. denied, ---
U.S. ----, 116 S.Ct. 1337, 134 L.Ed.2d 487 (1996).
2
Johnson does not challenge the amount of drugs attributed
to him.
3
The government argues that because robbery is not a
groupable offense under § 3D1.2(d), it may not be considered
relevant conduct. What § 3D1.2(d) means, however, is that
multiple counts of robbery may not be grouped together; it does
not mean that no other criminal act is groupable with a single
count of robbery. This is made clear in the commentary to the
guideline: "use of a firearm in a bank robbery and unlawful
possession of that firearm are sufficiently related to warrant
grouping of counts under this subsection." U.S.S.G. § 3D1.2,
comment. (n. 5); see United States v. Gelzer, 50 F.3d 1133,
1143-44 (2d Cir.1995).
involving "substantially the same harm":
Counts involve substantially the same harm within the meaning
of this rule:
(a) When counts involve the same victim and the same act
or transaction.
(b) When counts involve the same victim and two or more
acts or transactions connected by a common criminal
objective or constituting part of a common scheme or
plan.
(c) When one of the counts embodies conduct that is
treated as a specific offense characteristic in, or other
adjustment to, the guideline applicable to another of the
counts.
(d) When the offense level is determined largely on the
basis of the total amount of harm or loss, the quantity
of a substance involved, or some other measure of
aggregate harm, or if the offense behavior is ongoing or
continuous in nature and the offense guideline is written
to cover such behavior.
U.S.S.G. § 3D1.2.
Johnson's robbery does not fall under any of these
subsections. The victims of the jewelry store robbery were
distinct from the "victims" of the drug conspiracy;4 therefore
subsections (a) and (b) do not apply. Neither does subsection (c)
apply, because robbery is not a specific offense characteristic of
the possession or distribution of drugs. Finally, subsection (d)
is also inapplicable because the crime of robbery is not of the
"same general type" as the crime of conspiring to possess and
distribute drugs. U.S.S.G. § 3D1.2, comment. (n. 6); see, e.g.,
United States v. Harper, 972 F.2d 321, 322 (11th Cir.1992)
4
"For offenses in which there are no identifiable victims
(e.g., drug or immigration offenses, where society at large is
the victim), the "victim' for purposes of subsections (a) and (b)
is the societal interest that is harmed." U.S.S.G. § 3D1.2,
comment. (n. 2).
(rejecting grouping of drug trafficking and money laundering
because not "of the same general type" and, under the facts of the
case, not closely related).
Furthermore, the goal of § 3D1.2—"to limit the significance of
formal charging decision[s] and to prevent multiple punishment for
substantially identical offense conduct," U.S.S.G. Ch. 3 Pt.D,
intro. comment.—would not be advanced by grouping a 1990 robbery of
a jewelry store in Savannah, Georgia with a count of conspiracy to
possess and distribute cocaine throughout the southeastern United
States. See, e.g., United States v. Torres-Diaz, 60 F.3d 445, 448
(8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 432, 133 L.Ed.2d
347 (1995) ("defendant is not entitled to merge all criminal
activities simply because those activities occurred over a single
span of time, or out of a common base of operations"). This
determination is supported by a comparison of the crimes at issue
here to some examples of groupable crimes from the Guidelines:
forging and uttering the same check, three counts of unlicensed
dealing in firearms, one count of auto theft and one count of
altering the vehicle identification number of the stolen car, and
five counts of embezzling from a bank. Id. at (n. 3)-(n. 7).
We conclude that under the facts of this case the robbery
count would not be grouped with the drug conspiracy count under §
3D1.2. This is so despite the fact that the robbery that formed
the basis of Johnson's state court conviction was a factor in his
drug conspiracy indictment. Consequently, it is not "relevant
conduct" within the meaning of § 1B1.3, and by reference back to §
4A1.2(a)(1), it was not part of the "instant offense." Therefore,
because the robbery sentence was "imposed upon an adjudication of
guilt," it is a "prior sentence" within the meaning of §
4A1.2(a)(1) and may be used in determining Johnson's criminal
history category.5
III.
Johnson also argues that his sentence should run concurrently
with his Georgia state sentence retroactive to the beginning of
that sentence. He claims that by ordering that he serve his
federal sentence concurrently only with the unexpired term of his
state sentence, the district court violated U.S.S.G. § 5G1.3(b).
Section 5G1.3(b) applies when "the undischarged term of
imprisonment resulted from offense(s) that have been fully taken
into account in the determination of the offense level for the
instant offense." Because Johnson's robbery offense was not taken
into account in determining his offense level, subsection 3(b) does
not apply. Rather, subsection 3(c) is the relevant provision.
Under 3(c), the district court "shall impose a consecutive sentence
to the extent necessary to fashion a sentence resulting in a
reasonable incremental punishment for the multiple offenses." Id.
at § 5G1.3(c), comment. (n. 3). This the court did.
AFFIRMED.
5
This result is consistent with the purpose of the 1993
amendment to § 4A1.2, i.e., to avoid the double counting that
would occur if a defendant were punished under both the "relevant
conduct" and the "prior sentence" provisions of the guidelines.
U.S.S.G.App.C, ¶ 493.