United States v. Kirk D. Garecht

183 F.3d 671, 1999 U.S. App. LEXIS 15008, 1999 WL 458776

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 7, 1999
• Docket: 98-3295
• Status: Published

Opinions

MANION, Circuit Judge.

Kirk Garecht participated in a conspiracy to distribute marijuana from 1988 to 1993. He pleaded guilty, and was sentenced to 96 months of incarceration. He had previous convictions of battery and cocaine distribution. Garecht appeals, claiming that the conviction for the marijuana distribution, the “instant offense,” was related to the same conspiracy that resulted in his cocaine conviction, and that the related cocaine conviction could not be counted as a “prior felony conviction” for career offender purposes. We conclude that the computations of criminal history under § 4A1.2 apply to the counting of convictions for a career criminal under § 4B1.1. Because the marijuana conviction, the conviction under review, is related to the earlier cocaine conviction, the cocaine conviction cannot be counted as a separate conviction. Thus we remand for resentencing.

I.

Between 1988 and 1993, Garecht bought and resold cocaine and marijuana in Illinois and Texas. In October 1993, Garecht was arrested after receiving a shipment of several pounds of marijuana. He began cooperating with the authorities and was not indicted until July 1997. Garecht pleaded guilty to conspiracy to possess marijuana with intent to distribute. 21 U.S.C. §§ 841, 846. Significantly, this conviction was for conspiracy for conduct occurring from 1988-1993.

A Pre-Sentence Report (PSR) was prepared, which concluded that Garecht should be sentenced as a career offender. A defendant is subject to being sentenced as a career offender once he is convicted of his third violent or drug-related felony. U.S.S.G. § 4B1.1. The PSR counted a 1981 aggravated battery conviction in Illinois state court as the first conviction, and a 1992 Texas conviction for possession of cocaine with intent to distribute (the “cocaine conviction”) as the second.¹ As a result, Garecht’s offense level was increased from 21 to 31, and his criminal history category was raised from Category IV to Category VI.²

Garecht, objected to his classification as a career offender. He argued that because the two drug convictions arose out of the same drug conspiracy, the 1992 Texas cocaine conviction was related to his current marijuana conviction, and therefore could not be counted as a prior conviction for career offender purposes. If the cocaine conviction is not counted as a conviction for career offender purposes, then Garecht would have only one prior conviction and could not be sentenced as a career offender.

The district court found that the 1992 cocaine conviction was unrelated to the marijuana conviction, and sentenced Ga-recht as a career offender. We agree with Garecht that his 1992 cocaine conviction cannot be counted as a prior conviction for career offender purposes, and therefore, we reverse and remand for resentencing.

II.

This appeal presents itself in an unusual posture. Garecht contends that the cocaine conviction and the marijuana conviction are related, and that the district court clearly erred in holding otherwise. The government does not dispute this. Rather, it argues that under the Sentencing Guidelines, even if a prior conviction is related to the charged offense it is still counted for career offender purposes. Therefore, even if Garecht’s 1992 cocaine conviction is related to his marijuana conviction, the government contends that the district court properly sentenced Garecht as a career offender.

Nevertheless, although the government does not really dispute the issue, this court still needs to ascertain whether Garecht’s cocaine conviction is related to his marijuana conviction. If they are related, then we must address whether a conviction related to the charged offense may be counted for career offender purposes.

A. Are the cocaine and marijuana convictions related offenses?

Whether the convictions are related depends on whether the cocaine conviction would be considered “relevant conduct” to the marijuana conviction. See U.S.S.G. § 4A1.2, Application Note 1 (“Conduct that is part of the instant offense means conduct that is relevant conduct to the instant offense under the provisions of § 1B1.3 (Relevant Conduct).”).³ Commentary and Application Notes to the Sentencing Guidelines are not mere legislative history. They are binding on the courts unless they contradict the plain meaning of the text of the Guidelines. Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Under U.S.S.G. § 1B1.3, a criminal offense constitutes relevant conduct to another offense if the two offenses are part of a common scheme or plan, connected by at least one common factor (for example, a common victim or purpose). See U.S.S.G. § 1B1.3, Application Note 9. The government offers no argument why the cocaine conviction is not relevant conduct to the marijuana conviction, and our own review of the record persuades us that it is in fact relevant conduct. Garecht obtained both cocaine and marijuana from the same supplier, Augustine Bosquez. Additionally, the marijuana and cocaine conspiracy occurred during the same time frame. Garecht resold marijuana from his Texas connections between 1988 and 1993, and he was found to have cocaine and marijuana from Bosquez when he was arrested in 1991. Thus, the conduct underlying both convictions occurred during the same time frame, relied on the same drug supplier, and involved a common purpose (the resale of controlled substances for profit). These commonalities are more than sufficient to warrant a finding of relevant conduct. See, e.g., United States v. Wyss, 147 F.3d 631, 632 (7th Cir.1998) (cocaine purchased for resale is relevant conduct to conviction for possession of marijuana with intent to distribute).

The government notes that according to Application Note 8 to U.S.S.G. § IB 1.3, if two offenses are separated by an intervening sentence, one cannot be relevant conduct to the other offense. This Note gives two examples: a defendant sells cocaine, and is arrested, convicted and sent to state prison. Immediately upon release, the same defendant sells cocaine under identical circumstances. The Application Note indicates that the first crime is not part of the same course of conduct as the second, despite their similarity. However, the Note also states where the defendant makes two cocaine sales, and is charged in federal court for one and state court for the other, the state court conviction would be relevant conduct to the federal charge and is not a prior sentence under U.S.S.G. § 4A1.2(a)(1).⁴

Garecht seems to fall somewhere between the two examples provided in the Application Note. The federal indictment charged Garecht with conspiracy to sell marijuana both before he was arrested and jailed in Texas for the cocaine violation, and after he was released from the Texas prison. As the government charged Garecht with conspiracy beginning in 1988, three years before he in fact possessed the cocaine underlying the Texas conviction, we cannot conclude that Garecht was arrested for the cocaine offense prior to committing the marijuana offense. Thus, Garecht’s cocaine conviction is relevant conduct to the marijuana conviction, and the district court clearly erred in holding otherwise.

B. Is a prior conviction related to the instant offense counted as a prior felony conviction for career offender purposes?

Garecht contends that because the cocaine conviction was related to the marijuana conviction, it should not be counted as a prior conviction for career offender purposes. As we noted in United States v. Coleman, 38 F.3d 856, 860 (7th Cir.1994), “the same rules apply” to § 4A1.1 (criminal history) and § 4B1.1 (career offender). When a conviction results in a higher criminal history score, it also may serve as a prior felony conviction for determining career offender status. But a conviction related to the crime for which the defendant is being sentenced does not change the criminal history score. See United States v. Berkey, 161 F.3d 1099, 1103 (7th Cir.1998). Therefore, the prior, related conviction could not serve as a prior felony conviction. Because Garecht’s cocaine conviction is related to his marijuana conviction, Garecht contends he has only one prior felony conviction (the Illinois assault conviction).

The leading case to address the relationship between U.S.S.G. § 4A1.2 (Definitions and Instructions for Computing Criminal History) and the career offender provisions in § 4B1.1 and § 4B1.2 is United States v. Belton, 890 F.2d 9 (7th Cir.1989). We stated:

Belton notes that the definition of “two prior convictions” refers to Part A of Chapter 4 of the guidelines, where we read that in adjusting a defendant’s sentence for his prior criminal history the judge may use as a “prior sentence” only a “sentence previously imposed ... for conduct not part of the instant offense.” § 4A1.2(a)(l). Therefore, as the first application note to section 4A1.2 makes explicit, “a sentence imposed after the defendant’s commencement of the instant offense, but prior to the sentencing on the instant offense, is a prior sentence [only] if it was for conduct other than conduct that was part of the instant offense.” If Belton were being sentenced under Part A of Chapter 4, the California conviction and sentence would not be a part of his criminal history usable to enhance his sentence.

Id. at 11 (alteration in original). The Bel-ton court had good reason to conclude that § 4A1.2(a)(1) did not apply. At the time Belton was argued, Application Note 4 [now 3] to U.S.S.G. § 4B1.2 read:

The provisions of § 4A1.2(e) (Applicable Time Period), § 4A1.2(h) (Foreign Sentences), and § 4A1.2(j) (Expunged Convictions) are applicable to the counting of convictions under § 4B1.1. Also applicable is the Commentary to § 4A1.2 pertaining to invalid convictions.

Because § 4A1.2(a)(l) did not then apply to the career offender analysis under § 4B1.1, the offense could be used as a prior offense for career offender purposes, although it was not part of Belton’s criminal history. However, after Amendment 268 to the United States Sentencing Guidelines became effective on November 1,1989, this Application Note reads:

The provisions of § 4A1.2 (Definitions and Instructions for Computing Criminal History) are applicable to the counting of convictions under § 4B1.1.

Amendment 268 purports to “clarifiy] that all pertinent definitions and instructions in § 4A1.2 apply to this section.” When Bel-ton was argued, § 4A1.2(a) was not included as one of the sections applicable to the counting of convictions. Thus, Belton acknowledged that if § 4A1.2(a) had applied, then the conviction would not have been counted as a prior felony conviction for career offender purposes. Subsequently, the Application Note, which as noted above is not mere legislative history, see Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), incorporated all of § 4A1.2 into the career offender analysis. Now, because Amendment 268 incorporates § 4A1.2(a)(1) (among other provisions) into the career offender analysis, Garecht’s cocaine conviction, not included in his prior criminal history, also cannot be used as a prior 'felony conviction for career offender purposes.⁵

Each step in the above analysis is supported by case law. In United States v. Berkey, 161 F.3d at 1103, we held that conduct relevant to the charged offense is not included in the criminal history score calculated under U.S.S.G. § 4A1.1. This confirms Belton’s acknowledgment regarding the potential effect of § 4A1.2(a)(1). Thus, the only remaining question is whether the methodology for counting convictions in Part A of Chapter 4 applies to Part B of Chapter 4.

In United States v. Linnear, 40 F.3d 215, 223 (7th Cir.1994), a defendant challenged the counting of convictions for career offender status. Linnear first cited the above Application Note 3 (which was Application Note 4 at the time but otherwise identical), and then analyzed the defendant’s convictions under § 4A1.2. Id. at 223 n. 6. Linnear ultimately concluded that Linnear’s prior conviction could be counted for career offender status because “Linnear ... presented no evidence that his conviction on the 1990 offense was in any way related to his conviction in the instant case.” Id. at 223. It is apparent from this discussion that had Linnear’s 1990 offense been related to the conviction for which he was being sentenced, it would not have been a “prior felony conviction” for career offender purposes. If we apply this conclusion to Garecht’s situation, where the prior cocaine offense and the instant marijuana offense are related, then the cocaine conviction could not serve as a prior felony conviction for career offender purposes. See also United States v. Coleman, 38 F.3d at 860.

Additionally, the Eighth Circuit has specifically addressed whether conduct which is part of the instant offense may serve as a prior felony conviction for career offender purposes. In United States v. Kenyon, 7 F.3d 783, 787 (8th Cir.1993), the district court relied on a prior cocaine conviction to support a finding of career offender status in sentencing the defendant for conspiracy to distribute cocaine. The Eighth Circuit found that the first cocaine conviction constituted “part of the instant offense,” and could not be counted for criminal history purposes. Id. It further noted that, by virtue of Application Note 3 to U.S.S.G. § 4B1.2, a conviction must be includable in a criminal history calculation before it could be counted as a “prior felony conviction” for career offender purposes. Accordingly, the Eighth Circuit remanded the case for resentencing. Given that Ga-recht’s cocaine conviction is related to his marijuana conviction, Garecht’s case is indistinguishable from Kenyon.

Like Linnear, Coleman, and Kenyon, many courts have held that the definitions in § 4A1.2 also apply to the career offender analysis. In United States v. Bankston, 121 F.3d 1411, 1413 (11th Cir.1997), the Eleventh Circuit was faced with the question of whether a plea of guilty but mentally ill could be counted as a predicate offense for career offender status. The Eleventh Circuit cited Application Note 3 to § 4B1.2, and then analyzed this claim under § 4A1.2(a)(4). See also United States v. Vea-Gonzales, 999 F.2d 1326, 1331 (9th Cir.1993) (“No doubt, the district court must apply the provisions of § 4A1.2 in determining whether a defendant’s prior conviction counts towards career offender status. U.S.S.G. § 4B1.2, Application Note 4 [now 3].”); United States v. Peck, 161 F.3d 1171, 1173 (8th Cir.1998) (“For Peck to meet the career offender requirements he would have had to have two prior felonies involving violence or controlled substances for which he had been sentenced within ten years of the commencement of the current offense. See U.S.S.G. § 4A1.2(e)(2).”); United States v. Covington, 133 F.3d 639, 642 (8th Cir.1998) (applying § 4A1.2(e)(1) to career offender, citing U.S.S.G. § 4B1.2, Application Note 4 [now 3] in support); United States v. Brewster, 137 F.3d 853, 858 (5th Cir.1998) (career offender analysis relies on § 4A1.2(a)(2) to determine whether offenses are related); and United States v. Hobbs, 136 F.3d 384, 388 (4th Cir.1998) (same).

The government advances United States v. Marrone, 48 F.3d 735 (3d Cir.1995), as supporting its position. Marrone involved convictions for RICO violations by members of the Genovese Crime Family. The district court included predicate acts to the RICO violation in one defendant’s criminal history score and in another defendant’s career offender analysis. The Third Circuit found that the predicate acts were properly included in the criminal history score, see U.S.S.G. § 2E1.1, Application Note 4, which provides the RICO predicate convictions are not part of the instant offense under § 4A1.2(a)(1). In other words, RICO presents an exception to the general rule of § 4A1.2(a)(1). Turning to the career offender analysis, Marrone first noted that the RICO exception in U.S.S.G. § 2E1.1 applied in the career offender analysis just as it did in the criminal history analysis. The Marrone court also reiterated Belton’s holding, but did so without discussing § 4B1.2, Application Note 3, and without referring to Kenyon’s discussion of this issue. As such, Marrone is principally about a Guideline exception to § 4A1.2(a)(l), and thus, has little relevance for cases not involving this exception.

With the incorporation of the § 4A1.2 criminal history definitions in place, we now examine the particular language of the career offender guideline. Section 4B1.2 defines a prior felony conviction as a sentence “counted separately under § 4A1.1(a), (b) or (e).” The dissent posits that this phrase must refer to either relatedness between the prior convictions or relatedness between a prior conviction and the instant offense. If we had to choose between these two propositions, the dissent’s position would make sense. But in fact, the Guidelines refer to both relatedness between the prior convictions and relatedness between a prior conviction and the instant offense. U.S.S.G. § 4A1.2(a)(1) & (a)(2).

The phrase “counted separately under § 4A1.1(a), (b), or (c)” first requires the district court to ask whether a sentence would be “counted” at all under § 4A1.1 as part of the criminal history score. Examples of sentences which are not counted at all include sentences for conduct which is “part of the instant offense,” and sentences for foreign, juvenile, or certain military convictions. U.S.S.G. § 4A1.2(a)(1), (d), (g) & (h). Because these sentences are not counted, they are not prior felony convictions for § 4B1.1. If the sentence is counted, the second inquiry is whether the sentence is counted separately or grouped together with other offenses for criminal history purposes. Two or more prior, related convictions increase the criminal history score, and therefore, are “counted,” but they are only counted as one sentence — they are not “counted separately.” Thus, only one such prior sentence can serve as a prior felony conviction for career offender purposes.

This step-by-step interpretation involves each relevant part of the Guidelines. It comports with § 4B1.2, Application Note 3, which we must follow as law. See Stinson, 508 U.S. at 38, 113 S.Ct. 1913. Neither the appellees nor the dissent have offered an alternative interpretation of Application Note 3 explaining why § 4A1.2(a)(1), which plainly excludes convictions related to the instant offense, has not been incorporated. This interpretation also accords with most appellate cases addressing § 4A1.2 and § 4B1.1, including Linnear and Coleman. Importantly, it also harmonizes the parallel inquiries under the criminal history and career offender provisions, so that only defendants with significant criminal history could be sentenced as career offenders.

III.

“Three strikes and you’re out” is the catch-phrase behind the career offender sentence enhancement. See Thomas N. Whiteside, The Reality of Federal Sentencing: Beyond the Criticism, 91 Nw. U.L.Rev. 1574, 1582 (1997). After each strike, a felon has the chance to stop committing crimes and to turn his life around. If a felon wastes that opportunity twice, the Sentencing Guidelines dramatically increase his sentence for the third strike. Because Garecht’s possession of cocaine was part of his conspiracy to. distribute marijuana and thus related by applying the criminal history computation, he had only two strikes. The government’s decision to indict Garecht for marijuana conduct that was related to his 1992 cocaine conviction precludes the government from using the cocaine conviction as a prior felony conviction. The judgment is vacated and the case remanded for resentencing consistent with this opinion.

1 . Garecht was arrested for possession of cocaine in 1991, and convicted in the Texas state court in 1992. He served only six months of a ten-year sentence before being released on parole and returning to the drug distribution conspiracy.

2 . In the absence of the career offender status, it appears that Garecht’s Guideline range would have been 57-71 months, instead of 188-235 months. The district court sentenced Garecht at the bottom of the Guideline range and also gave him a 50% downward departure for an extraordinary physical impairment, involving Garecht's heart condition.

3 . As discussed below, the parties dispute whether § 4A1.2 applies to § 4B1.1, the career offender provision. We rely oil Application Note 3 to § 4B1.2 as significant guidance to the conclusion that § 4A1.2 does apply.

4 . Application Note 3 to § 4A1.2 adopts a similar rule: "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 offense prior to committing the second offense).” This Note only addresses the relationship between the prior sentences; U.S.S.G. § 4A1.2(a)(1) clarifies that the prior sentences must be for conduct that is not related to the charged offense.

5 . Because this opinion holds that Amendment 268 changes the rule set out in United States v. Belton, 890 F.2d 9 (7th Cir.1989), the opinion was circulated among all of the judges of this court in regular active service, pursuant to Circuit Rule 40(e). A majority of the full court voted not to rehear en banc.