                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-1-2008

USA v. Wood
Precedential or Non-Precedential: Precedential

Docket No. 06-3812




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"USA v. Wood" (2008). 2008 Decisions. Paper 1097.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1097


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                          PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                       No. 06-3812


             UNITED STATES OF AMERICA

                             v.

                     GARY WOOD,
                        Appellant


        Appeal from the United States District Court
          for the Western District of Pennsylvania
             (D.C. Criminal No. 05-cr-00057E)
       District Judge: Honorable Sean J. McLaughlin


                 Argued January 28, 2008
     Before: SCIRICA, Chief Judge, and RENDELL,
     Circuit Judges and THOMPSON, *District Judge.




        * Honorable Anne E. Thompson, Senior Judge of the
United States District Court for the District of New Jersey,
sitting by designation.
                      Filed: May 1, 2008


Karen S. Gerlach, Esq. [ARGUED]
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
   Counsel for Appellant

Robert L. Eberhardt, Esq.
Laura S. Irwin, Esq. [ARGUED]
Office of U. S. Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
   Counsel for Appellee


                 OPINION OF THE COURT


THOMPSON, District Judge.

       Gary Wood (“Wood”) appeals the sentence imposed by
the District Court in August 2006, following his guilty plea for
bank robbery in violation of 18 U.S.C. § 2113(a). His appeal
challenges the computation of his criminal history score based
on the “relatedness” of certain of his prior convictions. For the
reasons below, we will affirm the sentence imposed by the
District Judge.

                               2
       When Wood pled guilty and was sentenced for the instant
offense of bank robbery in violation of 18 U.S.C. § 2113(a), his
Presentence Investigation Report (“PSR”) revealed in
paragraphs 33, 34, and 35 that he had previously been convicted
of three crimes that Probation considered to be “related” for
purposes of § 4A1.2(a)(2). These three convictions are at the
center of this appeal, and we briefly summarize each one.

A.     Criminal Conspiracy

       Wood was arrested in November 1993 for conspiring
with another person to receive stolen handguns on two separate
dates in August of 1993. He pled guilty to two counts of
criminal conspiracy in February 1994. He was sentenced to two
years’ probation; he violated the probation terms and was later
resentenced to 6 to 24 months in custody. (PSR ¶ 33.)

B.     Burglary of a Residence

       Some time between July 31, 1993 and August 1, 1993,
Wood broke open a rear window of a residence, and stole a
stereo and an answering machine. For this, he received a
sentence of 8 to 24 months in custody. (PSR ¶ 34.)

C.     Burglary of a Commercial Office

      Some time between August 20, 1993 and August 23,
1993, Wood entered an office of a business through a rear
window, and removed a bag of cash totaling approximately
$2,429. For this, he was sentenced to 8 to 24 months in custody.
(PSR ¶ 35.)

                               3
        Wood was charged separately for the above offenses. In
the charging instruments, the Erie County prosecutor provided
notice that the two burglaries would be tried together, though no
formal consolidation order was ever entered. In February 1994,
Wood pled guilty to all three offenses before a judge in the Erie
County Court of Common Pleas. In March 1994, the same
judge sentenced Wood consecutively for the offenses.

       When preparing the PSR for the instant offense, the
Probation officer deemed the above convictions “related,” and
assigned them an aggregate of three criminal history points.
Next, the PSR added one point because Probation determined
the burglary of the commercial office at ¶ 35 to be a crime of
violence. A prior conviction for larceny that is not the subject
of this appeal was assigned another point. Finally, the PSR
added two points because Wood committed the instant offense
less than two years after his release from custody for a parole
violation. Thus, the PSR calculated Wood’s criminal history
score to be seven points, which placed Wood in Category IV.
This, in conjunction with an offense level of 19, gave Wood a
Guidelines range of 46 to 57 months. The Government,
however, objected, contending that the three convictions were
for unrelated offenses, and that each should be assigned three
criminal history points. The Government’s revision would place
Wood in Category V. Wood also objected to the PSR,
contending that a burglary of a non-dwelling should not be
considered a crime of violence. The PSR was subsequently
revised to credit Wood’s argument, and reject the Government’s
objection, and reduced Wood’s criminal history points to six.
This placed Wood in Category III. This, in conjunction with his
offense level of 19, projected a custodial range of 37 to 46

                               4
months.

       At sentencing, a defense attorney who was familiar with
state court procedures and document notations in Erie County
indicating consolidation of criminal cases, testified that the
burglary charges effectively were consolidated. Nevertheless,
the District Court agreed with the Government that the offenses
were not related primarily because they had separate victims,
different facts, and lacked a consolidation order. The District
Judge concluded that the pleas and sentencing were handled
together for administrative convenience and likely for Wood’s
benefit. The District Court assigned three criminal history
points to Wood for each of these offenses, placing him in
Category V. This, computed against an offense level of 19 for
the instant offense, resulted in a Guidelines range of 57 to 71
months. Therefore, the District Court sentenced Wood to 60
months, to be followed by a three-year term of supervised
release, and ordered him to pay $1410 in restitution.

        Wood now appeals the District Court’s computation of
his criminal history score under § 4A1.2(a)(2) of the Guidelines,
based on its finding that his prior offenses were not related, and
asks this Court to vacate his sentence and remand for
resentencing. During the pendency of this appeal, the United
States Sentencing Commission promulgated an amendment to
§ 4A1.2(a)(2) (the “Amendment”), which took effect on
November 1, 2007. Following oral argument, the Court asked
the parties to provide supplemental briefing on the impact of the
Amendment on the computation of Wood’s criminal history
score, and the issue of whether the Amendment applied
retroactively to Wood’s sentence.

                                5
                  STANDARD OF REVIEW

        When reviewing a sentence, an appellate court first
ensures that the district court “committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range . . . .” Gall v. United States,
— U.S. —, 128 S. Ct. 586, 597 (U.S. Dec. 10, 2007). Assuming
that no significant procedural error has occurred, the appellate
court then considers the substantive reasonableness of the
sentence by reviewing it for abuse of discretion. Id. Where, as
here, a challenge is made to the calculation of the Guidelines
range, the Court reviews the District Court’s interpretation of
the Sentencing Guidelines de novo, United States v. Pojilenko,
416 F.3d 243, 246 (3d Cir. 2005), and scrutinizes any findings
of fact used in the calculation for clear error. United States v.
Wise, 515 F.3d 207, 217 (3d Cir. 2008).

    CALCULATION OF CRIMINAL HISTORY SCORE

       Wood argues that the District Court disregarded the plain
language of § 4A1.2(a)(2) and its corresponding Application
Note 3 in determining that his prior convictions were not
“related.” He contends that, because he was sentenced for all
three offenses on the same date, before the same judge, the
offenses should be considered “consolidated” for the purposes
of sentencing within the meaning of Application Note 3.
Further, he argues that the Amendment should apply
retroactively. The Government contends that the District Court
properly used a functional consolidation analysis, in accordance
with case law, in determining whether Wood’s prior convictions
were related, and that the Amendment effects a substantive

                               6
change in the calculation of the criminal history score, and,
therefore, should not be applied retroactively.

       Generally, we review a sentence under the version of the
Guidelines in effect at the time of sentencing. Id. at 220 (citing
United States v. Diaz, 245 F.3d 294, 300-01 (3d Cir. 2001)).
However, a subsequent revision to the Guidelines may be
applied on review if it “‘merely clarifies the law in existence at
the time of sentencing,’ as opposed to working a substantive
change in the law.” Id. (quoting Diaz, 245 F.3d at 301).

A.     GUIDELINE AT THE TIME OF SENTENCING

        The relevant provision of the version of the Guidelines in
effect at the time of Wood’s sentencing states:

       Prior sentences imposed in unrelated cases are to
       be counted separately. Prior sentences in related
       cases are to be treated as one sentence for
       purposes of § 4A1.1(a), (b), and (c).




U.S.S.G. § 4A1.2(a)(2). Application Note 3 defines “related”
cases:

       Related Cases. Prior sentences are not considered
       related if they were for offenses that were
       separated by an intervening arrest . . . . Otherwise,
       prior sentences are considered related if they
       resulted from offenses that (A) occurred on the

                                7
       same occasion, (B) were part of a single common
       scheme or plan, or (C) were consolidated for trial
       or sentencing. The court should be aware that
       there may be instances in which this definition is
       overly broad and will result in a criminal history
       score that underrepresents the seriousness of the
       defendant’s criminal history and the danger he
       presents to the public.




U.S.S.G. § 4A1.2, comment. n.3. Based on the record before
the Court, it is undisputed that Wood’s commission of the prior
offenses at issue was not separated by intervening arrests, nor
did they occur on the same occasion or as part of the same
scheme or plan. Therefore, the only issue we have to consider
is whether the District Court properly applied § 4A1.2(a)(2) in
finding that Wood’s prior convictions were not “consolidated”
despite the fact that he was sentenced for these offenses on the
same day before a single judge.

       Other courts that have addressed this issue have
concluded that, absent a formal consolidation order, factually
and temporally distinct offenses are not considered related,
notwithstanding the fact that a defendant may have been
sentenced for the offenses at the same time. See United States
v. Correa, 114 F.3d 314, 317 (1st Cir. 1997) (requiring “actual
order of consolidation or . . . some other persuasive indicium of
formal consolidation apparent on the face of the record which is
sufficient to indicate that the offenses have some relationship to
one another beyond the sheer fortuity that sentence was imposed

                                8
by the same judge at the same time.”); United States v. Allen, 50
F.3d 294, 297 (4th Cir. 1995) (holding that Application Note 3
required either formal consolidation order or factual relationship
among prior offenses); United States v. McAdams, 25 F.3d 370,
375-76 (6th Cir. 1994) (affirming district court’s finding that
factually distinct offenses, prosecuted under different docket
numbers, were not consolidated despite simultaneous imposition
of sentences); United States v. Lopez, 961 F.2d 384, 386-87 (2d
Cir. 1992) (holding that two prior convictions were not related
notwithstanding the fact that same judge sentenced defendant
concurrently on the same date). To consider only whether
sentences for multiple convictions were handed down the same
day by the same judge, as Wood urges us to do, would place
those defendants whose offenses were sentenced together in a
far better position with respect to calculation of their criminal
history scores under the Guidelines than those who did not enjoy
similar fortuity. Such a disparity between otherwise similarly
situated, repeat offenders, would appear to be without any
rational justification.

       Thus, we adopt the approach utilized by other circuits and
by the District Court in this case, and hold that, the imposition
of sentences for multiple offenses at the same time by the same
judge does not render the cases “consolidated for sentencing,”
and, therefore, related within the meaning of § 4A1.2(a)(2), in
the absence of either a formal consolidation order or a close
factual relationship between the offenses.

      Here, the District Court found that the three prior
convictions at issue were factually distinct. They were different
crimes involving separate victims, different types of goods

                                9
stolen, and occurred on separate dates. The offenses were
charged under distinct instruments, bearing different docket
numbers. No formal consolidation order was ever issued.
Further, the Erie County judge imposed consecutive sentences.
We do not find the District Court’s findings of fact with respect
to Wood’s prior convictions to be in error.

B.     AMENDED GUIDELINE

       The Amendment now provides, in part:

       (2) If the defendant has multiple prior sentences,
       determine whether those sentences are counted
       separately or as a single sentence . . . If there is no
       intervening arrest, prior sentences are counted
       separately unless (A) the sentences resulted from
       offenses contained in the same charging
       instrument; or (B) the sentences were imposed on
       the same day. Count any prior sentence covered
       by (A) or (B) as a single sentence.




U.S.S.G. § 4A1.2(a)(2). Application Note 3 now reads:

       Upward Departure Provision. - Counting multiple
       prior sentences as a single sentence may result in
       a criminal history score that underrepresents the
       seriousness of the defendant’s criminal history
       and the danger that the defendant presents to the
       public. In such a case, an upward departure may

                                 10
       be warranted.

       Wood argues that the Amendment merely clarifies the
method a court uses to determine whether prior offenses are
related, and eliminates any ambiguities inherent in the prior
version of the Guidelines by requiring only that the sentences be
imposed on the same day. Thus, Wood argues that we should
apply the Amendment retroactively, and that we need not
inquire into whether a formal consolidation order was issued in
prior proceedings. The Government, on the other hand, argues
that the Amendment effects a substantive change in the
calculation of criminal history scores. Far from clarifying
ambiguous terms, the Amendment replaces previously undefined
terms such as “related cases” with “prior sentences,” which the
Government argues has the effect of implementing a new
approach to assessing a defendant’s criminal background.

        We compare the texts of the prior Guideline provision
and the Amendment in order to analyze the effect, if any, the
latter has on computing a defendant’s criminal history score.
The provision in effect at the time of Wood’s sentencing
distinguishes between unrelated and related cases, and defines
relatedness with respect to similarity in either time, facts, or
judicial economy. In contrast, the Amendment has not
incorporated the concept of “related” offenses into the main
body of § 4A1.2(a)(2). Instead, the Amendment contemplates
that prior sentences are to be considered as one if the underlying
offenses either share the same charging instrument or were
sentenced together on the same day. Absent from the
Amendment is any consideration of whether the offenses in
question share any temporal proximity or factual relationship.

                               11
The Amendment also fails to mention the notion of
consolidation. While the upward departure provision contained
in the new Application Note 3 provides a sentencing judge with
discretion to count prior sentences separately if the score does
not accurately capture the severity of a defendant’s history, we
find that, on the whole, the Amendment introduces a new
treatment of prior convictions that does not turn on relatedness,
but rather on factors that would be obvious from the record,
such as whether the offenses were charged together or were
sentenced together. Therefore, we hold that the amended
version of § 4A1.2(a)(2) effects a substantive change, and,
therefore, we will not apply it retroactively to Wood’s sentence.

        Having found no error in the District Court’s
interpretation of § 4A1.2(a)(2) at the time of sentencing or with
its findings of fact with respect to Wood’s prior convictions, we
will affirm the sentence.




RENDELL, Circuit Judge - dissenting.

        As is acknowledged by the majority opinion, Wood was
sentenced on the same day for all three offenses. Two of the
offenses were consolidated for trial.          All three were
consolidated for plea and sentencing. The District Court found
that the three offenses were consolidated for sentencing in state
court. Both the government and the defendant agree that the
offenses were consolidated. Notwithstanding this, the majority
concludes that the offenses were somehow not consolidated and
therefore not “considered related” under the Guideline. I

                               12
respectfully disagree.

       At issue here is U.S.S.G. § 4A1.2(2), which provides that
“[p]rior sentences imposed in unrelated cases are to be counted
separately. Prior sentences imposed in related cases are to be
treated as one sentence for purposes of § 4A1.1(a), (b), and (c).”
The Application Note 3 to U.S.S.G. § 4A1.2(2) defines
“[r]elated cases.” Provided there is not an intervening arrest
separating the offenses, “prior 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.” U.S.S.G. §
4A1.2, cmt. n.3 (emphasis added). The Application Note
continues:

       The court should be aware that there may be
       instances in which this definition is overly broad
       and will result in a criminal history score that
       underrepresents the seriousness of the defendant’s
       criminal history and the danger that he presents to
       the public. For example, if a defendant was
       convicted of a number of serious non-violent
       offenses committed on different occasions, and the
       resulting sentences were treated as related
       because the cases were consolidated for
       sentencing, the assignment of a single set of
       points may not adequately reflect the seriousness
       of the defendant's criminal history or the
       frequency with which he has committed crimes.
       In such circumstances, an upward departure may
       be warranted.

                               13
Id. (emphasis added).

        In coming to the conclusion that the third definition of
“relatedness,” namely that the cases were consolidated for trial
or sentencing, was not fulfilled, the majority opinion ignores the
record. With respect to U.S.S.G. § 4A1.2(2)’s application to the
present case, the District Court here was presented with
unrebutted testimony that, in Pennsylvania, consolidation is the
rule, not the exception, and the procedure that is followed in
order to consolidate cases does not include an actual court order
of consolidation. On the issue of whether the offenses had been
consolidated for trial or sentencing, the Court heard from John
Moore, an attorney who has engaged in criminal practice in Erie
County for almost thirty years and represented Wood with
regard to these three prior convictions. He testified that, when
the District Attorney’s office gives notice pursuant to
Pennsylvania Rule of Criminal Procedure 582(B)(1) (formerly
Rule 1127(B)(1)) that an offense in one information will be tried
with offenses in a separate information, the two cases are joined
for trial. An order of consolidation is never entered. Under
Pennsylvania rules, a signed order is not required to consolidate
cases where notice of consolidation is filed with the clerk and
served on the defendant prior to arraignment. Rather, the
consolidation is accomplished by way of a checkoff notice of
joint trial and/or sentencing. Informations Nos. 2749 and 2750
were checked off to give notice under Rule 1127(B)(1) that the
offenses in PSR paras. 34 and 35 would be tried together. If
there had been a trial, the two cases would have kept their
separate docket numbers, although tried together. If notice is
not given by the time of arraignment, the Commonwealth of
Pennsylvania would still have the right to consolidate the

                               14
charges, but Moore had never seen a case where that was done.
Moore testified that he had never seen a separate order by an
Erie County Court of Common Pleas judge indicating that cases
would be tried together.

        In Erie County Court of Common Pleas, it is standard
procedure to consolidate all cases which are pending in that
court against a single defendant for plea and/or sentencing.
Moore testified that the routine method for consolidating cases
for plea or sentencing is through a plea agreement that lists all
informations in one agreement, sets the standards for the plea,
and schedules sentencing in front of the same judge. The judge
then signs the plea sheet, approving and accepting the plea.
Under Pennsylvania Rule of Criminal Procedure 701, the
defendant has a right to plead guilty to other offenses that he
committed within the jurisdiction of the sentencing court;
consolidation for sentencing is mandatory upon the defendant’s
request. The comment to the Rule states that “[t]he objective of
this rule is to enable consolidation of all outstanding charges
within the jurisdiction of the sentencing court for sentencing at
one time.” Pa. R. Crim. Pro. 701 cmt.

        The District Court accepted this testimony, noting that
“the two burglary convictions were in fact consolidated under
Pennsylvania practice” and that the state court judge’s “approval
of the plea agreement by virtue of which the gun charge was
lumped with the burglary charges at sentencing represented a
‘consolidation’ for sentencing purposes.” (App. 309). That
should have ended the inquiry. The Application Note directs the
court to consider “related” offenses that were “consolidated for
trial or sentencing.” Once a determination has been made that

                               15
the offenses were consolidated, they must be “considered
related” and counted as one.

       However, the District Court then proceeded to consider
whether the offenses were in fact functionally or factually
related, concluding they were not. The judge stated “I believe
it is appropriate for the court to critically examine, in the
absence of a formal consolidation order, the relatedness of
crimes ‘that were consolidated for sentencing.’ [sic] To
determine whether the crimes were lumped together for
administrative convenience or other purposes quite unrelated to
any factual or legal similarities between them.” (App. 308-09).


        I submit that this last step was error. The plain language
of the provision makes clear that the test is not whether offenses
were consolidated because they are related. Rather, offenses are
“considered related” for the purpose of the Guideline because
they were consolidated for trial or sentencing. The District
Court here added a “purpose” requirement, such that where
offenses have been consolidated because they are adequately
factually similar, they are “related,” but if they have been
consolidated for administrative convenience, they are not
“related.” This interpretation reads the “or” in the Application
Note’s definitions of what qualifies offenses as “related” as an
“and,” incorrectly requiring that at least two of the three tests are
met. This defies the plain language of the provision, invites
unwarranted speculation and conjecture as to the reasoning
behind each consolidation, and complicates an otherwise simple
inquiry.


                                 16
       The District Court here acknowledged that the offenses
were indeed consolidated for sentencing. The Court erred,
however, in insisting upon an order of consolidation in a court
system which does not effectuate consolidation through an
order, and in looking beyond the issue of consolidation to
determine actual “relatedness.” The majority’s opinion has
compounded that error by disregarding the District Court’s
finding here–that the cases had in fact been consolidated.
Moreover, the majority’s opinion penalizes any defendant who
has had factually dissimilar offenses consolidated for trial or
sentencing in the Commonwealth of Pennsylvania, because, by
contrast to courts in other states, there will never be a formal
order of consolidation.

        As the majority opinion notes, it seems strange that the
fact that many offenses were consolidated for sentencing would
result in a lower criminal history score. However, the Guideline
itself acknowledges this and notes: “there may be instances in
which this definition is overly broad and will result in a criminal
history score that underrepresents the seriousness of the
defendant’s criminal history and the danger that he presents to
the public.” U.S.S.G. § 4A1.2, cmt. n.3. I submit that the only
way the definition could be “overly broad” is if it includes
offenses as related that would otherwise be viewed as separate
and quite different. Admittedly, counting offenses consolidated
for trial or sentencing as “related” is a necessarily artificial test
that may well group very different offenses and conduct. The
Guideline recognizes this. It makes very explicit that an upward
departure may be warranted in some situations precisely because
“if a defendant was convicted of a number of serious
non-violent offenses committed on different occasions, and the

                                 17
resulting sentences were treated as related because the cases
were consolidated for sentencing,” his criminal history score
may not reflect his criminal past. U.S.S.G. § 4A1.2, cmt. n.3.
The interpretation adopted by the majority effectively reads this
commentary out of the provision.

        Since Wood’s sentencing, the Guideline has been
amended to make clear that: “If there is no intervening arrest,
prior sentences are counted separately unless (A) the sentences
resulted from offenses contained in the same charging
instrument; or (B) the sentences were imposed on the same day.”
While I agree that the amendment to this Guideline was
substantive in that it did more than clarify, nonetheless its
language and the reason for its adoption tend, I believe, to
support my view that the test for considering offenses to be
related is a straightforward one, to be applied without
consideration of how “related” the offenses are. Specifically,
the rationale for its adoption was the significant amount of
litigation and confusion over the meaning of “related” and the
consolidation provision in particular. U.S.S.G. § 4A1.2, 2007
Amendments, Reason for Amendment (effective Nov. 1, 2007).
Notwithstanding this, the majority’s analysis perpetuates the
confusion over the term “related.” I submit the Guideline was
clear before and is even clearer now.

        Consolidated means consolidated.          Once a court
determines that the offenses were consolidated under the laws
of the relevant jurisdiction, the inquiry comes to an end. Here,
in light of the District Court’s determination that the cases were
consolidated for trial and sentencing, the offenses should have
been considered related pursuant to U.S.S.G. § 4A1.2(2).

                               18
