UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES SHERMAN WALKER, DEFENDANT-APPELLANT

11th Cir. | 1990-09-25
No. 89-6143
Before TJOFLAT, Chief Judge, KRAVITCH and EDMONDSON, Circuit Judges.
912 F.2d 1365 Court of Appeals for the Eleventh Circuit (1990) Positive Treatment
Cited by 13 cases

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Holding

The court held that state sentences for crimes committed after the instant federal offense but before sentencing are properly included in the criminal history category.


Facts & Procedural History

Appellant committed four bank robberies, was convicted in state court for the third and fourth, and then pled guilty to the first two in federal court…

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Opinion of the Court
PER CURIAM:

PER CURIAM:

Durmg a two-month period m 1988, appellant, in an apparent effort to feed his drug habit, committed four bank robberies. He was convicted in state court for the third and fourth robberies and sentenced to prison terms of five and a half years. Following the imposition of these sentences, a federal grand jury indicted appellant for the first two robberies; he pled guilty, and the district court sentenced him to concurrent prison terms of sixty months. He now appeals these sentences. We affirm.

Appellant contends that the district court erroneously increased his criminal history category by 3 points, pursuant to Sentencing Guidelines § 4Al.l(a), based upon his convictions in state court for the third and fourth bank robberies. He claims that these robberies do not constitute prior criminal conduct, but rather subsequent criminal conduct not demonstrating a potential for recidivism.*

The Government contends that the district court correctly applied Sentencing Guidelines §§ 4A1.1 and 4A1.2 in arriving at its three-point increase in appellant's criminal history category based on his “pri-or sentences of imprisonment.” We agree with the Government that one need not look beyond the clear and unambiguous language of the guidelines to resolve this appeal.

Section 4Al.l(a) directs that in calculating the criminal history category, 3 points be added “for each prior sentence of imprisonment exceeding one year and one month.” The determination of an offender’s criminal history is governed by the definitions and instructions contained in section 4A1.2; therefore, sections 4A1.1 and 4A1.2 must be read together. See U.S.S.G. § 4A1.1 commentary. According to these sections, the term “prior sentence” means “any sentence previously imposed upon adjudication of guilt.” U.S.S.G. § 4A1.2(a)(l) (emphasis added). The commentary for section 4A1.2 is dispositive: “ ‘Prior sentence’ means a sentence imposed prior to sentencing on the instant offense, other than conduct that is part of the instant offense_ A sentence imposed after the defendant’s commencement of the instant offense, but prior to sentencing on the instant offense, is a prior sentence if it was for conduct other than conduct that was part of the instant offense.” U.S.S.G. § 4A1.2 commentary note 1. In sum, the guidelines fully support the district court’s consideration of appellant’s prior state court sentences in determining his criminal history category.

While this court has not previously addressed an issue similar to the one presented here, the Tenth Circuit has. In United States v. Smith, 900 F. 2d 1442 (10th Cir.1990), that court held that state sentences imposed for crimes committed after the date of the defendant’s federal offense of conviction but before the imposition of his sentence for that offense should be taken into account in arriving at the. defendant’s criminal history category. Relying on Sentencing Guidelines §§ 4A1.1 and 4A1.2, that court had little difficulty approving the district court’s decision, observing that “[t]he guidelines must be interpreted as if they were a. statute or a court rule.” Smith, 900 F. 2d at 1446 (citing Mistretta v. United States, 488 U.S. 361, 390-91, 109 S.Ct. 647, 664-65, 102 L.Ed.2d 714 (1989)).

In a case somewhat similar to the one before us, this court grappled with the question of how to treat post-plea offenses under the guidelines. See United States v. Fayette, 895 F. 2d 1375 (11th Cir.1990). In Fayette, we stated that

[p]ost-plea offenses, no less than offenses which occur prior to the entry of a plea, implicate the concerns which led to the creation of a criminal history category with guided departure provisions.... Post-plea offenses, like pre-plea offenses, involve additional criminal activity by the defendant. Moreover, both ... occur pri-or to sentencing and the entry of final judgment ..., [and both] make a defendant more culpable and suggest the like lihood of recidivism and future criminal behavior. Id. at 1380.

When reviewing a sentence imposed under the guidelines, we consider the district court’s application of the guidelines to the facts as questions of law. See United States v. Scroggins, 880 F. 2d 1204, 1206 n. 5 (11th Cir.1989). In this case, the district court’s determination of appellant’s criminal history category is consistent with the policy underlying the use of the defendant’s criminal history in fashioning a sentence, in that a “defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment_ [Rjepeated criminal behavior will aggravate the need for punishment with each recurrence.” U.S. S.G. ch. 4, pt. A intro, commentary. Appellant’s sentence is

AFFIRMED.

*

Appellant also suggests that the four robberies should be treated as a continuous, uninterrupted course of drug-induced criminal conduct. We reject this suggestion. See United States v. Jones, 899 F. 2d 1097, 1101 (11th Cir.1990) (robbery of one bank and attempted robbery of second bank unrelated though occurring approximately one and one-half hours apart)..


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Citator

Cited By

  • United States v. Garcon, 54 F.4th 1274 (11th Cir. 2022)
    …sis added). And § 4A1.2 and the commentary to § 4A1.1— which operate in tandem and must be read together-provide when sentences are counted or not counted for purposes of § 4A1.1(a)-(e). U.S.S.G. § 4A1.1 cmt. (n.1); see also United States v. Walker, 912 F.2d 1365, 1366 (11th Cir. 1990) (holding that "sections 4A1.1 and 4A1.2 must be read together”). Those rules provide that sentences of a certain age are not counted, U.S.S.G. § 4A1.2(e), and that multiple prior sentences imposed on the same day or stemming f…
  • United States v. Rockman, 993 F.2d 811 (11th Cir. 1993)
    …l, or plea of nolo contendere, for conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(l). The controlling language is: “ ‘prior sentence’ means any sentence previously imposed upon adjudication of guilt....” See United States v. Walker, 912 F. 2d 1365, 1366 (11th Cir.1990), cert. denied, 498 U.S. 1103, 111 S.Ct. 1004, 112 L.Ed.2d 1087 (1991). What follows this language are the means for reaching an “adjudication of guilt”: “whether by guilty plea, trial, or plea of nolo contendere.... ” U.S.S.G.…
  • United States v. HOY, 932 F.2d 1343 (9th Cir. 1991)
    …ced at different times does not require us to ignore the clear language of the guidelines in this ease. Finally, we note that two other circuits faced with the same issue now before us reached the same conclusion we do. See United States v. Walker, 912 F. 2d 1365 (11th Cir.1990) (state sentences previously imposed for bank robberies committed by defendant after the robberies for which he was prosecuted in federal court were "prior sentences" for purposes of determining defendant's criminal history category u…

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