                  UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                           No. 00-51022
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,


                              VERSUS


                        DAVID BECERRA, JR.,

                                                 Defendant-Appellant.




           Appeal from the United States District Court
         For the Western District of Texas, Waco Division
                           (00-CR-39-1)
                          August 23, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

      Appellant David Becerra, Jr. pleaded guilty to possession of

a stolen firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2).

On September 28, 2000 the district court sentenced Becerra to a 51-

month term of imprisonment, a three-year period of supervised


  *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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release, a $100 mandatory assessment, and a $2,500 fine.    The court

based the sentence on a total offense level of seventeen and a

criminal history of V, which the district court reached in part by

adding two criminal history points for each of Becerra’s 1996 theft

convictions. Becerra argues on appeal that these offenses involved

thefts that were related pursuant to section 4A1.2(a)(2) of the

United States Sentencing Guidelines and that the district court

should not have counted the offenses separately.      See U.S.S.G. §

4A1.2(a)(2).

                              I. Facts

     On May 24, 1996, a witness reported suspicious activity near

his home in Waco, Texas at 3:17 a.m.     Police officers responded to

the call and discovered a pick-up truck with a missing window at

3612 Kenwood.     The owner of the truck reported a missing case

filled with ten compact discs and a missing portable compact disc

player. Another complainant reported the theft of a cellular phone

from a motor vehicle at 3501 Kenwood.      On June 11, 1996, Becerra

was arrested and found to be in possession of the stolen cellular

telephone and portable compact disc player.     Because the identity

of the compact disc player was unknown at the time of the June 11

arrest, police arrested Becerra again on July 4, 1996 for the theft

from the truck.   Becerra pleaded guilty to two counts of theft over

$50 and under $500.   He was sentenced to 120 days in jail.

     On May 11, 2000, a grand jury indicted Becerra for possession



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of a stolen firearm.    Becerra pleaded guilty to the charge on June

15, 2000.    Based on a total offense level of seventeen and a

criminal history of V, the presentence report (“PSR”) recommended

forty-six   to   fifty-seven    months   imprisonment.   Becerra   filed

objections to the PSR, arguing that the thefts were related and

that the court should assess only two points for both convictions.

At sentencing, the district court rejected Becerra’s argument and

imposed a sentence based on a criminal history of V.     Becerra filed

a timely notice of appeal.

                               II. Discussion

     Section 4A1.2(a)(2) of the Sentencing Guidelines state that

“[p]rior sentences imposed in related cases are to be treated as

one sentence . . ..”    U.S.S.G. § 4A1.2(a)(2).      Related cases are

defined in the commentary as 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.”          Id., comment.

(n.3).   Becerra argues that the offenses he committed on May 24,

1996 occurred on the same occasion or were part of a single common

scheme or plan.    We review the district court’s application of the

sentencing guidelines de novo.           See United States v. Moreno-

Arredondo, No. 00-50603, 2001 WL 694083, at *7 n.10 (5th Cir. June

19, 2001) (holding that the Supreme Court’s recent decision in

Buford v. United States, 121 S.Ct. 1276 (2001), which applied a

deferential standard of review to “functional consolidation” cases,


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does not extend to cases involving whether offenses occurred on the

same occasion or were part of a single common scheme or plan).

     This Court addressed whether offenses occurred on the same

occasion in United States v. Johnson, 961 F.2d 1188 (5th Cir.

1992), United States v. Cain, 10 F.3d 261, 263 (5th Cir. 1993), and

more recently in United States v. Moreno-Arredondo, 2001 WL 694083,

at *1.   In Johnson, the defendant was convicted of driving while

intoxicated, driving with a suspended license, and failing to

identify himself to a police officer.      See Johnson, 961 F.3d at

1188.    All three offenses occurred on the same day.        See id.

Without explanation, we stated, “It seems evident that the three .

. . convictions were for offenses which ‘occurred on a single

occasion.’” Id.

     In Cain, the defendant committed a series of offenses over a

five-day period in connection with his escape from prison.       See

Cain, 10 F.3d at 262.    The defendant argued that his convictions

for the escape, stealing a motor vehicle, breaking and entering,

and attempting to steal another vehicle were committed on the same

occasion.   See id. at 263.   We held that the district court did not

err in finding that the claims were unrelated.

     In Moreno-Arredondo, the defendant was convicted of illegal

re-entry into the United States in violation of 8 U.S.C. § 1326.

Moreno-Arredondo, 2001 WL 694083, at *1.     The government obtained

an enhancement of his sentence under § 1326(b)(2) based on his pre-

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deportation convictions in Texas on two felony counts of aggravated

indecency with a child.   Id.   On appeal, the defendant argued that

his state convictions for inappropriately touching two young girls,

within moments, on the same day, and without ever leaving the couch

on which he sat while touching the girls, were for offenses that

occurred on the same occasion and were thus related for purposes of

U.S.S.G. § 4A1.2(a)(2).    Id. at *1, *4.   We agreed, finding that

the district court’s failure to treat the two cases as related

resulted in an erroneously high sentencing range, vacated the

defendant’s sentence, and remanded the case for resentencing.    Id.

at *7.

     Becerra’s string of car thefts on May 24, 1996 more closely

resembles the crime spree in Cain than the offenses relating to the

traffic violations in Johnson or the offenses relating to the

child indecency convictions in Moreno-Arredondo.    Presumably, the

offenses in Johnson occurred within a short period of time and

related to one arrest.    See Johnson, 961 F.2d at 1188.   Likewise,

only moments separated the two offenses in Moreno-Arredondo.     See

Moreno-Arredondo, 2001 WL 694083, at *1 (“In both Johnson and

Moreno, offenses were committed sequentially, albeit with but

momentary temporal separations in each case.”).        Moreover, in

Moreno-Arredondo, both offenses “took place in precisely the same,

small place: the same seat, on the same couch, in the same room, in

the same house.”   Id. at *5.

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     Becerra’s crimes, while occurring on the same day, involved

two separate acts of theft.             Unlike the traffic violations in

Johnson,    Becerra’s      crimes    involved        two    different    victims   and

resulted in two arrests. Also, unlike the child indecency offenses

in Moreno-Arredondo, Berreca’s offenses occurred in two different

locations, though on the same street. Becerra’s offenses therefore

did not occur on the same occasion.                   See also United States v.

Williams,   187     F.3d   429   (4th   Cir.        1999)     (holding   that   crimes

committed while police were pursuing a defendant were not committed

on the same occasion even though the offenses occurred only fifteen

minutes apart); United States v. Jones, 899 F.2d 1097 (11th Cir.

1990), overruled on other grounds, United States v. Morrill, 984

F.2d 1136 (11th Cir. 1993) (concluding that the offenses of bank

robbery and attempted bank robbery did not occur on the same

occasion even though the crimes were committed only ninety minutes

apart).

     Becerra also argues that the offenses were related because

they were part of a single common scheme or plan.                        “[T]he term

‘common    scheme    or    plan’    .   .       .   mean[s]    more   than   repeated

convictions for the same criminal offense.” United States v.

Robinson, 187 F.3d 516, 520 (5th Cir. 1999).                    “The fact that [a]

defendant repetitiously commits the same offense, in and of itself,

is insufficient to establish a common scheme for the purposes of

U.S.S.G. § 4A1.2(a)(2).”           United States v. Mota-Aguirre, 186 F.3d


                                            6
596, 600 (5th Cir. 1999).      Even if crimes are committed on the same

day, at the same place, and involve the same participants, they are

not necessarily part of a common scheme or plan.                  See United States

v. Ford, 996 F.2d 83, 86 (5th Cir. 1993) (citing United States v.

Garcia, 962 F.2d 479 (5th Cir.), cert denied, 506 U.S. 902 (1992)).

“[O]ffenses are part of a common scheme or plan where ‘commission

of one crime entailed the commission of the other,’ i.e., the

second offense could not have occurred but for the first offense.”

United States v. Salter, 241 F.3d 392, 396 (5th Cir. 2001) (quoting

Robinson, 187 F.3d at 520).

     Becerra argues that the thefts on May 24, 1996 were part of a

single plan to steal items from cars in the same neighborhood

during   the   same   day.      He     claims       that    the    only    reasonable

explanation is that the offenses were part of a common scheme or

plan. Although Becerra’s offenses occurred on the same day, on the

same street, and for the same objective, the first theft did not

necessarily    entail    the   commission       of    the    second.        Becerra’s

offenses on May 24, 1996 therefore did not occur on the same

occasion    and   were   not    part     of     a    common       scheme   or   plan.

Accordingly, we affirm Becerra’s sentence.

AFFIRMED.




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