United States v. Adams

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-50461 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SPENCE LANE ADAMS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. SA-96-CR-249 - - - - - - - - - -

April 21, 1998

Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges,

PER CURIAM:*

Spence Lane Adams appeals his guilty-plea conviction and

sentence for bank robbery. He argues that 1) the district court

erred in sentencing him as a career offender, 2) his plea was

involuntary based on the erroneous advice of counsel that Adams

fit the Sentencing Guidelines’ definition of career offender, and

3) he received ineffective assistance of counsel for his

attorney’s failure to adequately object to Adams being sentenced

as a career offender.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 97-50461 -2-

This circuit reviews de novo the sentencing court’s

application of the career offender provisions of the guidelines

and whether a defendant’s prior convictions are related. United

States v. Garcia, 962 F.2d 479, 481 (5th Cir. 1992). A defendant

is a career offender if “(1) the defendant was at least eighteen

years old at the time of the instant offense, (2) the instant

offense of conviction is a felony that is a crime of violence or

a controlled substance offense, and (3) the defendant has at

least two prior felony convictions of either a crime of violence

or a controlled substance offense.” U.S.S.G. § 4B1.1. In

determining whether there are “two prior felony convictions,”

“[t]he provisions of § 4A1.2 . . . are applicable to the counting

of convictions under § 4B1.1.” U.S.S.G. § 4B1.2 comment. (n.4).

Section 4A1.2 explains that “[p]rior sentences imposed in

unrelated cases are to be counted separately,” while “[p]rior

sentences imposed in related cases are to be treated as one

sentence.” § 4A1.2(a)(2). “[P]rior sentences are considered

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.” § 4A1.2

comment. (n.3).

Adams concedes that he is unable to show that his prior

robbery offenses “occurred on the same occasion” or “were

consolidated for trial or sentencing.” His only claim is that

because both offenses were similar in nature (robbery of

pharmacies for prescription drugs) and committed in close

proximity and time to each other, they should be considered part No. 97-50461 -3-

of a common scheme or plan.

Adams’s arguments are virtually the same as those rejected

by the court in Garcia. In Garcia, the defendant had two prior

convictions for drug trafficking involving the same type of drug,

in the same location, and within days of each other. Rejecting

Garcia’s claim that these similarities demonstrated that the

offenses were part of the same scheme or plan, this court stated

that such an argument “would lead to the illogical result that a

defendant who is repeatedly convicted of the same offense on

different occasions could never be considered a career offender

under the guidelines.” 962 F.2d at 482 (internal citation

omitted). Adams’s argument is without merit.

Adams’s attorney’s advice regarding the applicability of the

Guideline’s career offender provision was not erroneous. Adams’s

attorney’s performance was not deficient for failing to raise a

meritless and futile objection to the sentencing of Adams as a

career offender. See Koch v. Puckett, 907 F.2d 524, 527 (5th

Cir. 1990).

The judgment is AFFIRMED.