United States v. Shepard

40 F. App'x 142
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 3, 2002
DocketNo. 00-6612
StatusPublished

This text of 40 F. App'x 142 (United States v. Shepard) 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. Shepard, 40 F. App'x 142 (6th Cir. 2002).

Opinion

COHN, District Judge.

This is a criminal case. Defendant-Appellant Randall Shepard (Shepard) appeals from his sentence following his guilty plea to: (1) armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d); and (2) carrying a firearm during the robbery in violation of 18 U.S.C. § 924(c)(1). Shepard was sentenced to a custody term of 68 months for the armed bank robbery offense and 60 months for the firearm offense with the sentences to run consecutively.

For the reasons that follow, we affirm the district court’s sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts supporting Shepard’s guilty plea are described in the record as follows:

That on or about February 9, 1998 in Letcher County, Kentucky [the] defendant aided and abetted by Danny Neil Yonts, former Police Chief of Fleming-Neon, Kentucky, and Ernie Yonts did rob the Community Trust Bank of Fleming-Neon in Letcher County, Kentucky.
Specifically, a handgun was provided by Ernie Yonts to Randall Shepard for the purpose of robbing the aforestated bank. [The] defendant was driven by Ernie Yonts in a vehicle to a location near the bank and let out.
During this bank robbery said weapon was displayed and brandished by [the] defendant. The defendant acknowledges that said weapon was not loaded at the time of the bank robbery. [The] defendant was driven from the area by Ernie Yonts while Danny Yonts went to bank in a ruse that he was investigating the robbery.
The total amount of money taken from said establishment was $22,189.00. This bank was insured by the Federal Deposit Insurance Corporation.

J.A. 25.

The Presentence Investigation Report (PIR), assessed Shepard four criminal history points for prior convictions resulting in not less than 60 days incarceration. U.S.S.G. § 4A1.1. The PIR also assessed two criminal history points for each of two contempt of court sentences.1 U.S.S.G. § 4A1.2(c) & 4A1.1. The inclusion of these four criminal history points placed Shepard’s criminal history at level 12 and in category V. Coupled with an offense level of 20, the Sentencing Guidelines called for a sentence of 63 to 78 months.

[144]*144Shepard argued at sentencing that the two contempt of court sentences were imposed on the same day that he was sentenced on a driving under the influence (DUI) offense and operating a vehicle while on a suspended license offense. Therefore, Shepard argued, because he was sentenced to 90 days in jail on these four offenses running concurrently, the two contempt of court sentences should not have been counted separately as sentences “of imprisonment of at least sixty days.” U.S.S.G. § 4Al.l(b). The district court held that the two contempt of court sentences were separate sentences of at least sixty days of imprisonment and, therefore, assessed two criminal history points for each of the contempt offenses in the calculation of Shepard’s criminal history.

At sentencing, Shepard also argued that his criminal history category of V seriously overstated his criminal record and requested a downward departure under U.S.S.G. § 5K2.0. The district court denied Shepard’s request for a downward departure.

The district court sentenced Shepard to a custody term of 68 months on the armed robbery count and a custody term of 60 months on the firearm count with the sentences to run consecutively.

II. ANALYSIS

A. Standard of Review

This Court reviews for clear error a district court’s factual findings in its application of the Sentencing Guidelines. United States v. Jones, 159 F.3d 969, 980 (6th Cir.1998) (citing United States v. Winston, 37 F.3d 235, 240 (6th Cir.1994)). Further, this Court reviews the “district court’s findings of fact in regard to whether convictions were consolidated for sentencing under a clearly erroneous standard.” United States v. McAdams, 25 F.3d 370, 374 (6th Cir.1994). However, the district court’s legal application of the guidelines is reviewed de novo. United States v. Moses, 106 F.3d 1273, 1277 (6th Cir.1997).

B. Inclusion of the prior contempt sentences

1.

Under the Sentencing Guidelines prior sentences of imprisonment are accounted for in establishing a defendant’s criminal history category. U.S.S.G. § 4A1.1. Only sentences for which a defendant has actually served a period of imprisonment are considered prior sentences of imprisonment under § 4A1.1. U.S.S.G. § 4A1.2 cmt. 2.

Section 4A1.2(a)(2) instructs the district court to assess criminal history points for prior sentences. of imprisonment as follows:

Prior sentences imposed in unrelated cases are to be counted separately. Pri- or sentences imposed in related cases are to be treated as one sentence .... Use the longest sentence of imprisonment if concurrent sentences were imposed and the aggregate sentence of imprisonment imposed in the case of consecutive sentences.

U.S.S.G. § 4A1.2(a)(2).

Further, “prior sentences are considered related if they resulted from offenses that ... were consolidated for trial or sentencing.” U.S.S.G. § 4A1.2 cmt. 3.

Shepard argues that the district court erred in applying two criminal history points under U.S.S.G. §§ 4Al.l(b) and 4A1.2(e)(l) for each of the two prior contempt of court sentences.

2.

First, Shepard argues that the sentences on the contempt offenses were con[145]*145solidated with the sentences on his DUI offense and driving with a revoked license offense. Accordingly, Shepard argues, the offenses are related and only count as one sentence of 90 days under § 4Al.l(a)(2). Shepard argues, therefore, the district court erred in assessing two criminal history points for each of the contempt of court sentences as sentences “of imprisonment of at least sixty days.” U.S.S.G. § 4Al.l(b).

The district court concluded that, while Shepard was sentenced simultaneously on the four offenses and was sentenced to 90 days of imprisonment to run concurrently on each offense, Shepard was sentenced to 90 days of imprisonment on each of the offenses. The district court explained its decision to treat each contempt of court offense as a separate offense with a sentence of 90-days imprisonment on each as follows:

The sentence that he received was a 90-day concurrent sentence on each of the DUI’s and contempt.... All concurrent to each other but, nonetheless, received a 90-day sentence on that term. In other words, he could have had all those stacked on top of 90 days if they hadn’t run concurrent, he could have served x times 90.... They ran a concurrent 90 days on each.

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Related

United States v. Davis Lamar McAdams
25 F.3d 370 (Sixth Circuit, 1994)
United States v. Lummie Sanders
97 F.3d 856 (Sixth Circuit, 1996)
United States v. Dewain Moses
106 F.3d 1273 (Sixth Circuit, 1997)
United States v. Climmie Jones, Jr.
159 F.3d 969 (Sixth Circuit, 1998)

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40 F. App'x 142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shepard-ca6-2002.