                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2004

USA v. Rodgers
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3497




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"USA v. Rodgers" (2004). 2004 Decisions. Paper 835.
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                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-3497


                           UNITED STATES OF AMERICA

                                          v.

                              ROMERELL RODGERS,
                                         Appellant




          ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW JERSEY
                        (D.C. Criminal No. 03-cr-00261)
                 District Judge: Honorable Garrett E. Brown, Jr.


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 2, 2004

               Before: ALITO, FISHER and ALDISERT, Circuit Judges.

                                (Filed April 14, 2004)


                             OPINION OF THE COURT


ALDISERT, Circuit Judge.

This appeal by Romerell Rodgers requires us to interpret the language of Commentary

Application Note 3 to Section 4A1.2 of the United States Sentencing Guidelines. More

specifically, we must decide whether the word “offense” means “conviction.” The
district court did not accept Appellant’s version. Neither do we. We will affirm.

       Application Note 3 provides:

       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). Otherwise, 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 . . .

USSG § 4A1.2, Commentary Application Note 3.

       If there was “an intervening arrest” between the prior offenses, the sentences for

those offenses are not related and there is no further analysis. United States v. Hallman,

23 F.3d 821, 825 n.3 (3d Cir. 1994) (explaining that where there is an intervening arrest,

the court may not consider alternatives for determining whether the pair of sentences are

related).

       The issue comes to us from an incident when the Newark Police were conducting a

reverse sting operation, in which the officers arrested Rodgers and found a silver .38

caliber handgun on Rodgers. Rodgers pleaded guilty to a felon in possession of a firearm.

Prior to committing the instant offense, Rodgers committed, and was convicted for, three

separate robberies and related offenses.

       Rodgers argues that the district court erred in finding his base offense level to be

24 instead of 20. He contends that the error was premised on the court’s determination

that three of his prior convictions were not related, so that USSG 2K2.1(a)(2) applies

instead of USSG 2K2.1(a)(4). Rodgers contends that his three prior convictions should

                                              2
have been considered related, because they were sentenced at the same time and ran

concurrent. And, he argues that his arrests were not “intervening” because no “offense”

had been adjudicated before the new arrest.

       The guidelines define offense as:

       [T]he offense of conviction and all relevant conduct under § 1B1.3
       (Relevant Conduct) unless a different meaning is specified or is otherwise
       clear from the context. The term “instant” is used in connection with
       “offense,” “federal offense,” or “offense of conviction,” as the case may be,
       to distinguish the violation for which the defendant is being sentenced from
       a prior or subsequent offense, or from an offense before another court (e.g.,
       an offense before a state court involving the same underlying conduct).

USSG § 1B1.1.

       We cannot accept the notion that this definition regards an “offense” as

synonymous with a “conviction” as Rodgers suggests. For example, such a reading

would produce the guideline’s definition of offense to be “the conviction of conviction.”

As Application Note 3 to USSG § 4A1.2 explains, “offenses” are “separated by an

intervening arrest” when “defendant is arrested for a first offense prior to committing the

second offense.” It is beyond cavil that defendants are not “arrested” for a “conviction”

nor do they commit a “conviction.” Similarly, a defendant is not convicted for an offense

without being first arrested for that offense.

       We have considered all contentions raised by the parties and conclude that no

further discussion is necessary.

       The judgment of the district court will be affirmed.



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