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


6-24-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4645




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"USA v. Neary" (2004). 2004 Decisions. Paper 584.
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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 03-4645


                       UNITED STATES OF AMERICA

                                        v.

                          CHRISTOPHER D. NEARY,
                                       Appellant


                  Appeal from the United States District Court
                           for the District of New Jersey
                       (D.C. Criminal No. 03-cr-00441-1)
                District Judge: Honorable Dennis M. Cavanaugh


                   Submitted Under Third Circuit LAR 34.1(a)
                                May 27, 2004

                Before: RENDELL and COWEN, Circuit Judges,
                       and SCHW ARZER*, District Judge.

                              (Filed: June 24, 2004)


                           OPINION OF THE COURT




*   Honorable William W Schwarzer, Senior District Judge for the Northern District
    of California, sitting by designation.
RENDELL, Circuit Judge.

       Christopher Neary raises two challenges to his sentence following his conviction

for bank robbery. Neary contends that the District Court erred by determining that he was

a career offender and by refusing to depart downward. We have jurisdiction to consider

Neary’s appeal under 28 U.S.C. § 1291. We will affirm.

       Because we write only for the parties, we need only briefly recount the relevant

facts and procedural history underlying this appeal. Neary was sentenced on November

17, 2003 to 170 months imprisonment and supervised release, and ordered to make

restitution for robbing approximately $5250 from the Hudson City Savings Bank in

Chester, New Jersey. The sentence was based on an offense level of 29 and a criminal

history category of VI. Neary’s criminal history category was based on previous bank

robberies that he committed between September and November of 1987, for which he

was convicted in Florida state and federal courts, and another in January of 1987, for

which he was convicted in a Washington state court. The District Court found that these

offenses were distinct from one another and were not “related” for purposes of section

4A1.1 (a), (b), and (c) of the Sentencing Guidelines. Given this criminal history, the

District Court determined that Neary was a career offender. Moreover, the Court refused

to downward depart. On appeal, Neary challenges both the career offender determination

and the District Court’s refusal to depart downward in his sentencing.

       First, Neary contends that the prior offenses that were considered in the



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determination of his career offender status were “related,” and, therefore, should be

treated as one offense for purposes of section 4A1.1(a), (b), and (c). See U.S.S.G.

§ 4A1.2(a)(2). We review the District Court’s application of the career offender

enhancement de novo, but where the application turns on factual findings, we review for

clear error. See United States v. Beckett, 208 F.3d 140, 148 (3d Cir. 2000).

       Application note 3 to section 4A1.2 describes what is meant by “related”

sentences:

                 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, cmt. n. 3; see also United States v. McQuilkin, 97 F.3d 723, 731 (3d Cir.

1996) (“Commentary in the guidelines is binding unless it runs afoul of the Constitution

or a federal statute, or is plainly erroneous or inconsistent with the section of the

guidelines it purports to interpret.”).

       The District Court correctly concluded that no intervening arrests took place with

respect to Neary’s prior convictions. As noted above, prior to the instant offense, Neary

had committed several other bank robberies, specifically a robbery of the Capital Savings

Bank in Kitsap, Washington, escaping with $2150, in January 1987; and three bank

robberies in southern Florida between September and October 1987. He was arrested for

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the Washington bank robbery and was convicted in January of 1990; he was convicted for

the Florida robberies on March 31, 1989.

       Having found that there were no intervening arrests between his prior bank

robbery offenses, the District Court considered the other factors set out in the application

note with respect to Neary’s three prior convictions. In so doing, it was easy for the

District Court to determine that Neary’s previous convictions, from Florida and

Washington, were not consolidated for trial or sentencing, and, therefore, the Court had to

determine whether the offenses arose from a common scheme or plan.

       Neary contends that a similar motive, target, modus operandi, and substantive

offense provide the necessary basis for a finding that the bank robberies were part of a

common scheme or plan. We disagree. As the government correctly argues, the finding

of a “common scheme or plan” is based upon something more than similarity of purpose,

motive and target. Indeed, this Court has held that offenses in a common scheme or plan

must “have been jointly planned, or at least that it would have been evident that the

commission of one would entail the commission of the other as well.” Beckett, 208 F.3d

at 147 (quoting United States v. Ali, 951 F.2d 827, 828 (7th Cir. 1992)). Neary’s mere

contention that there were several common aspects of the robberies is insufficient to

establish a common scheme or plan. It was Neary’s burden to show that the previous

robberies were part of a common scheme or plan, id., and the District Court did not err in

finding that he had failed to meet that burden.



                                            -4-
       The second issue raised by Neary, namely, denial by the District Court of

downward departure, is not an issue that is committed to our jurisdiction. The District

Court’s refusal to depart was discretionary, and our case law indicates that where a

district court understands that it has the discretion to depart but decides not to exercise it,

we lack jurisdiction to review the denial of downward departure. See United States v.

Ruiz, 536 U.S. 622 (2002); United States v. Georgiadis, 933 F.2d 1219 (3d Cir. 1991);

McQuilkin, 97 F.3d at 723.

       For the foregoing reasons, the Judgment and Commitment Order of the District

Court will be AFFIRMED.




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