                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-10-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3459




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"USA v. Cashwell" (2003). 2003 Decisions. Paper 469.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/469


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 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                     NOT PRECEDENTIAL



       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                     NO. 02-3459


           UNITED STATES OF AMERICA

                          v.

     KEITH CASHWELL, a/k/a Richard Cashwell,
                 Appellant



    On Appeal From the United States District Court
            For the District of New Jersey
        (D.C. Crim. Action No. 01-cr-00469)
       District Judge: Honorable Joel A. Pisano


    Submitted Pursuant to Third Circuit LAR 34.1(a)
                    June 3, 2003

BEFORE: ALITO, ROTH and STAPLETON, Circuit Judges

            (Opinion Filed: June 10, 2003)




              OPINION OF THE COURT
STAPLETON, Circuit Judge:

              Appellant Keith Cashwell pled guilty to possession of a firearm by a

convicted felon. He was sentenced to a term of 60 months. This resulted from the fact that

the District Court increased his base offense level and criminal history score based upon

its determination that his two prior drug convictions were not related cases under

Application Note 3 of U.S.S.G. § 4A1.2 He contends that this determination was in error.

              On November 9, 1988, Cashwell was arrested by state authorities following a

drug raid. On November 11, 1989, he was convicted of conspiring to possess cocaine with

intent to distribute from March 21, 1988, through December 21, 1988 (hereinafter the

“state offense”).

              Federal agents arrested Cashwell on August 6, 1990, and he ultimately pled

guilty to a count charging him with conspiring to distribute cocaine and marijuana from

March 1, 1987, through January 1, 1990 (hereinafter the “federal offense”). That count

included allegations that in furtherance of the conspiracy Cashwell “engaged in a series of

assaults and shootings to intimidate rival drug dealers,” including the attempted murder of

one Ricky Williams in January of 1989. Cashwell admitted in an interview conducted

during the presentence investigation that he had shot Williams.

              U.S.S.G. § 4A1.2(a)(2) provides that “[p]rior sentences in unrelated cases are

to be treated separately. Prior sentences imposed 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 to § 4A1.2 elaborates on the meaning of the term “related cases,” providing:

                                              2
              Prior sentences are not considered related if they were
              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 relating 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.

U.S.S.G. § 4A1.2, Application Note 3 (emphasis added).

              The District Court concluded that Cashwell “was arrested for the first

offense prior to committing the second offense,” App. at 133, and, accordingly, that the

prior state and federal offenses were not related for purposes of U.S.S.G. § 4A1.2,

Application Note 3. We agree.

              The state offense was committed between March 21, 1988, and December

21, 1988. Cashwell was arrested in connection with that offense on November 9, 1988.

While Cashwell’s commission of the federal offense commenced prior to that arrest, his

commission of that offense continued well after that arrest until January 1, 1990, including

the shooting of Williams in furtherance of the conspiracy in January of 1989.

              The rationale behind the “intervening” arrest rule is that an offender who

engaages in serious criminal conduct after having been called to account for a prior serious

offense is “less likely to mend his ways.” United States v. Springs, 17 F.3d 192, 196 (7th

Cir. 1994); United States v. Coleman, 38 F.3d 856 (7th Cir. 1994). Where, as here, a

defendant has been arrested in connection with a drug conspiracy and thereafter continues

criminal conduct, “his continued involvement in the drug conspiracy after the


                                              3
. . . arrest supports the inference that [he] is not one likely to ‘mend his ways’.” United

States v. Bradley, 218 F.3d 670, 674, n.4 (7th Cir. 2000) (quoting from United States v.

Springs, supra) (finding two drug offenses to be unrelated under U.S.S.G. § 4A1.2,

Application Note 3, on materially indistinguishable facts).

              The judgment of the District Court will be affirmed.




                                              4
TO THE CLERK:

          Please file the foregoing Not Precedential Opinion.



                                        Walter K. Stapleton
                                        Circuit Judge




                                        5
