United States v. Lewis

11 F. App'x 482
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 21, 2001
DocketNo. 99-6341
StatusPublished
Cited by2 cases

This text of 11 F. App'x 482 (United States v. Lewis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lewis, 11 F. App'x 482 (6th Cir. 2001).

Opinion

ZATKOFF, Chief District Judge.

Gregory Lewis, a federal prisoner, appeals his sentence pursuant to 28 U.S.C. § 1291. On September 23, 1999, Lewis was convicted by a jury on one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, three counts of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Lewis to 360 months in prison, plus five years super[483]*483vised release. Lewis’s conviction in the instant case is not at issue in this appeal, but rather Lewis contends the district court improperly sentenced him as a career offender under the United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1. Lewis argues that his two prior convictions are “related” and should be considered a single offense for sentencing purposes. If the two prior convictions are deemed to be related, Lewis would not meet the definition of a career offender and his sentence could be reduced. The Government contends Lewis’s attorney waived his right to appeal this sentencing issue by not raising the issue on the record. For the reasons set forth below, we AFFIRM the decision of the district court.

I. STATEMENT OF FACTS

On September 23, 1999, Lewis was sentenced by the United States District Court for the Western District of Tennessee to 360 months in prison, plus five years supervised release based on his designation as a career offender. None of the facts pertaining to Lewis’s conviction in the instant case are in dispute. The district court found Lewis to be a career offender as a result of his prior state convictions on two counts of unlawful delivery of cocaine. Lewis was convicted of both state offenses on January 20, 1990 in the 363rd Judicial District Court in Dallas, Texas. Lewis sold an ounce of cocaine to an undercover narcotics officer on January 11, 1990. He then sold another three ounces of cocaine to the same officer on January 16, 1990. Lewis was charged separately for each transaction. Lewis pled no contest to one charge and guilty to the other and received an order of probation for ten years without adjudication of guilt, plus a $1,000 fine, on each offense.

II. LEGAL STANDARDS

A. Career Offender

Pursuant to U.S.S.G. § 4B1.1, a defendant is a career offender if (1) he was at least eighteen years old at the time of committing the offense, (2) the offense is a felony “that is either 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.” There is no dispute as to the first two requirements of U.S.S.G. § 4B1.1. Lewis argues, however, that his previous convictions are related and should be considered one offense for sentencing purposes. If Lewis’s prior convictions are considered related, he would not qualify as a career offender based on the third prong of U.S.S.G. § 4B1.1.

According to Application Note 3 of U.S.S.G. § 4A1.2, “prior sentences are considered related if they resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.” Lewis focuses his argument on the second and third prongs of Application Note 3. Lewis contends his prior offenses should be considered related because they were either part of a single common scheme or plan or they were consolidated for sentencing.

B. Standard of Review

In order to avoid career offender status under the U.S.S.G., Lewis has the burden to prove his two prior convictions were part of a single common scheme or plan. See United States v. Cowart, 90 F.3d 154, 159 (6th Cir.1996). The district court made a factual determination that Lewis’s two prior convictions were not related by a single common scheme or plan. The standard of review for this factual determination is the clearly erroneous standard. See [484]*484United States v. Irons, 196 F.3d 634, 638 (6th Cir.1999). Additionally, “an appellate court is to give due deference to the District Court’s application of the Sentencing Guidelines to the particular facts of the case.”1 United States v. Coleman, 964 F.2d 564, 566 (6th Cir.1992).

III. ANALYSIS

A. Waiver of Appeal

The Government argues that Lewis waived the issue of whether he was a career offender by not raising the issue at the district court or presenting evidence regarding his prior offenses. At Lewis’s sentencing hearing, his attorney specifically objected to his classification as a career offender. Lewis’s attorney also referred to evidence of Lewis’s prior offenses presented in the presentence report, and described the prior offenses at the sentencing hearing. According to the record, Lewis’s attorney specifically noted the objection to career offender status for appeal purposes. As a result, Lewis did not waive his right to appeal.

B. Common Scheme or Plan

The phrase “common scheme or plan” is not adequately defined in the Sentencing Guidelines. However, in United States v. Irons, the Sixth Circuit joined the holdings of the Third, Fifth, Seventh, and Ninth Circuits with regard to the meaning of the phrase “single common scheme or plan.” Irons, 196 F.3d at 638. The term “ ‘scheme’ and ‘plan’ are words of intention, implying that the offenses have been jointly planned, or at least that ... the commission of one would entail the eommission of the other as well.” Id. (quoting United States v. Ali, 951 F.2d 827, 828 (7th Cir.1992)). “Courts have consistently held that crimes are not ‘related’ merely because each was committed with the same purpose or common goal.” Id. at 639 (citing United States v. Velazquez-Overa, 100 F.3d 418, 423 (5th Cir.1996)).

Lewis contends that the two prior convictions are part of a common plan because the offenses were committed over a five day period, the same undercover agent purchased the cocaine from Lewis, and both offenses were part of a single criminal investigation. Lewis primarily relies on United States v. Robinson, a Fifth Circuit case. See United States v. Robinson, 187 F.3d 516 (5th Cir.1999). The Robinson case contains some factual similarities to the instant case. In Robinson,

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11 F. App'x 482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lewis-ca6-2001.