                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                                       PUBLISH
                                                                              MAR 16 1998
                    UNITED STATES COURT OF APPEALS
                                                                          PATRICK FISHER
                                                                                   Clerk
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,
 v.
                                                            No. 97-5138
 ROBERT EARL CUTHBERTSON,

        Defendant - Appellant.


                  Appeal from the United States District Court
                    for the Northern District of Oklahoma
                         (D.C. No. 96-CR-173-001-BU)


Submitted on the briefs: *

Stephen C. Lewis and Ann Dooley, Office of the U.S. Attorney, Tulsa, Oklahoma,
for Plaintiff-Appellee.

Stanley Monroe, Tulsa, Oklahoma, for Defendant-Appellant.


Before BALDOCK, EBEL and MURPHY, Circuit Judges.


EBEL, Circuit Judge.




       * After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause therefore is ordered
submitted without oral argument.
      In May of 1994, Appellant Robert Earl Cuthbertson (“Cuthbertson”) drove

from Florida to Oklahoma to pick up his sister’s three children for the purpose of

transporting them back to Florida to stay with him for the summer. Among the

three children was Cuthbertson’s 11-year-old niece, E.H., whom Cuthbertson had

subjected to sexual molestation two years prior. After molesting E.H. in a Tulsa,

Oklahoma motel room, Cuthbertson transported E.H. and her siblings to his home

in Florida, where he continued to molest E.H. through the course of the summer.

The following year, in May of 1995, Cuthbertson again traveled to Oklahoma,

again molested E.H. in a Tulsa motel room, and again transported E.H. to his

home in Florida where he proceeded to regularly molest her over the course of the

summer. Upon returning home to Oklahoma, in fear that Cuthbertson was

planning to turn his sexual attentions to her younger sister the following year,

E.H. informed her parents of the abuse.

      Cuthbertson was arrested in Florida, and brought before the Santa Rosa

County Court. Based on his 1995 molestation of E.H., he pled no contest to the

charge of Sexual Battery while in a Position of Custodial Authority, in violation

of Fla. Stat. Ch. 794.011. He was sentenced to 80 months imprisonment.

Cuthbertson was then indicted in the United States District Court for the Northern

District of Oklahoma with five federal criminal counts, all based upon his conduct

in traveling from Florida to Oklahoma with the intent and purpose of molesting

                                          -2-
E.H. in 1994 and 1995. Cuthbertson, as per his plea agreement with the

Government, pled guilty to Count Three, traveling in interstate commerce, in

1994, for the purpose of engaging in illegal sexual acts with a juvenile, in

violation of 18 U.S.C. § 2423(b) (West Supp. 1997). All other counts were

dropped.

      The Presentence Report (“PSR”) prepared by the Probation Office

recommended, inter alia, that Cuthbertson be given three criminal history points

for his Florida sentence, as per U.S.S.G. § 4A1.1(a), thus placing him in criminal

history category II. Cuthbertson filed an objection to the recommendation. At

sentencing, the district court considered Cuthbertson’s objection and decided to

adopt the PSR’s findings. The court calculated Cuthbertson’s offense level to be

30; combined with a criminal history category of II, Cuthbertson was subject to a

sentencing range of 108-135 months. The district court sentenced Cuthbertson to

120 months imprisonment, the maximum permitted under 18 U.S.C. § 2423. As

per Cuthbertson’s plea agreement, the sentence was imposed to run consecutively

to his Florida sentence.

      Cuthbertson’s sole issue on appeal concerns the district court’s decision to

assign him to criminal history category II based on his Florida sentence for the

1995 molestation of E.H. Cuthbertson argues that the court erred in considering

his 1995 sentence to be a “prior sentence” and not “relevant conduct.” Because


                                         -3-
the district court did not err in determining that Cuthbertson’s Florida sentence

fits the Guideline definition of “prior sentence,” his challenge of the court’s

determination of his prior criminal history fails.

      This court reviews a district court's legal interpretation of the guidelines de

novo, and we review its underlying findings of fact for clear error. See United

States v. Pappert, 112 F.3d 1073, 1078 (10th Cir. 1997). The determination of

whether a conviction is groupable with other convictions is a question of law,

reviewable de novo, whereas determination of whether prior conduct is relevant

conduct is a pure question of fact for the district court to determine. See United

States v. Moore, 130 F.3d 1414, 1417 (10th Cir. 1997).

      We begin our inquiry by looking at U.S.S.G. § 4A1.1(a) (1995), which

directs the sentencing court to “[a]dd three points for each prior sentence of

imprisonment exceeding one year and one month.” It is uncontested that the

length of imprisonment element of this Guideline is satisfied by Cuthbertson’s

Florida sentence. As for the definition of the term “prior sentence,” the

commentary following § 4A1.1(a) directs us to § 4A1.2(a). That section defines

“prior sentence” as “any sentence previously imposed upon adjudication of guilt,

whether by guilty plea, trial, or plea of nolo contendre, for conduct not part of the

instant offense.” U.S.S.G. § 4A1.2(a)(1) (emphasis added). It is well established

that “sentences imposed after commission of an offense for which a criminal


                                         -4-
history score is being calculated constitute ‘prior sentences’ for purposes of that

calculation.” United States v. Walling, 936 F.2d 469, 471 (10th Cir. 1991) (citing

United States v. Smith, 900 F.2d 1442, 1445 (10th Cir. 1990)). Thus, under §

4A1.2 “the chronology of sentencing rather than the commission of the crimes”

controls the analysis. Id. Because Cuthbertson’s Florida sentence was imposed

prior to the sentence in his federal conviction, it qualifies as a “prior sentence”

unless it can be shown that the 1995 conduct which served as the basis for his

Florida conviction was conduct that was “part of” the 1994 conduct for which he

was convicted in federal court.

       “Conduct that is part of the instant offense” for purposes of § 4A1.2(a) is

defined in § 1B1.3 “Relevant Conduct.” See U.S.S.G. § 4A1.2(a) cmt. 1. Under

§ 1B1.3(a)(1), relevant conduct is conduct “that occurred during the commission

of the offense of conviction . . . .”   Cuthbertson urges this court to analyze this

question using the “same course of conduct or common scheme or plan” approach

set out in U.S.S.G. § 1B1.3(a)(2). Much case law has been created on the “same

course of conduct or common scheme or plan” language of § 1B1.3(a)(2).

However, § 1B1.3(a)(2) only applies to offenses that are specifically groupable

under U.S.S.G. § 3D1.2(d). Because Cuthbertson’s federal offense falls under

U.S.S.G. § 2A3.1, and because § 2A3.1 is specifically excluded from § 3D1.2(d),

in this case § 1B1.3(a)(2) does not apply. Instead, we must limit our analysis to


                                           -5-
the terms of § 1B1.3(a)(1), namely, whether the conduct underlying Cuthbertson’s

Florida conviction “occurred during the commission of the offense of” his federal

conviction.

      The commentary to § 1B1.3 advises us that “[s]ubsections (a)(1) and (a)(2)

adopt different rules because offenses of the character dealt with in subsection

(a)(2) (i.e. to which § 3D1.2(d) applies) often involve a pattern of misconduct that

cannot be readily broken into discrete identifiable units that are meaningful for

purposes of sentencing.” U.S.S.G. § 1B1.3, backg’d. The commentary indicates

that § 1B1.3(a)(2) is intended to prevent “double counting” in cases in which

quantities are key to sentencing, such as embezzlement and drug offenses. See id.

Also key to our analysis is the commentary following § 3D1.2:

              [C]ounts that were part of a single course of conduct
              with a single criminal objective and represent essentially
              one composite harm to the same victim are to be grouped
              together, even if they constitute legally distinct offenses
              occurring at different times. This provision does not
              authorize grouping of offenses that cannot be considered to
              represent essentially one composite harm (e.g. robbery of the
              same victim on different occasions involves multiple,
              separate instances of fear and risk of harm, not one composite
              harm).

U.S.S.G. § 3D1.2 cmt. 4 (emphasis added). See also U.S.S.G. § 1B1.3, backg’d

(“[W]hen § 3D1.2(d) does not apply . . . convictions on multiple counts are

considered separately . . . .”)



                                         -6-
      This case is not a case involving quantities of drugs or money. Instead, this

case involves two distinct offenses, namely a 1994 federal offense of transporting

a juvenile in interstate commerce with intent to engage in criminal sexual activity

and a 1995 state offense of sexual battery while in a position of custodial

authority. 1 Granted, both of these offenses involved similar conduct against the

same victim. But because these two acts occurred on different occasions,

separated by a temporal gap of almost a year, and involved “multiple, separate

instances of fear and harm” they cannot be considered to be “part of” one

another. 2 Cf. United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir. 1993)

      1
         Although not determinative of this question, it is of interest to note that
not only are the elements of the two crimes different, but the criminality of the
act(s) giving rise to a violation of 18 U.S.C. § 2422(b) is defined by federal, not
state, law.
      2
         While a temporal gap of almost one year between two acts does not
definitively prevent two acts from being relevant conduct, the longer the temporal
gap, the less likely the two acts are to qualify as relevant conduct. See United
States v. Hill, 79 F.3d 1477, 1483-84 (6th Cir. 1996)(collecting cases).
       Cuthbertson argues that the temporal gap in his case should not count
because he was forced by circumstances, and not by choice, to limit his
molestation of E.H. to the summer months. We acknowledge that some courts
have held that a temporal gap is inapplicable to the relevant conduct analysis
when circumstances beyond the defendant’s control force a break in the pattern of
behavior at issue. See, e.g. Cedano-Rojas, 999 F.2d at 1180 (“A respite is
unlikely to be fatal in the finding of a course of conduct if the interruption was
not the choice of the players. In such circumstances, the lapse does not indicate
that the course was abandoned but only that, in spite of the efforts of the
participants, the venture was inadvertently put on hold.”) Simply because
Cuthbertson chose to molest E.H. during the summer months does not mean that,
up until the time E.H. reported the molestation, he was prevented from doing the
                                                                         (continued...)

                                         -7-
(“[T]emporal proximity [although not dispositive] is a significant consideration in

finding a course of conduct . . . .”).

      The district court heard arguments on this issue, then adopted the findings

of the PSR in ruling that Florida conviction did not qualify as part of the offense

“as defined or set forth in the guidelines.” Cuthbertson argues that because the

PSR treats his Florida conduct as part and parcel of the same conduct for which

he was convicted in federal court, and because he was initially indicted in federal

court for his 1995 misconduct as well as his 1994 activity, it was error for the

district court to fail to treat his 1995 Florida conviction as part of his 1994 federal

offense. We reject both of these arguments. First, Cuthbertson offers no

authority for his proposition that acts that may have been included together in an

indictment must be treated as relevant conduct for sentencing purposes. It is a

matter of common sense that a single indictment may contain any number of

charges of unrelated offenses. Second, while it is true that the presentence report



      2
        (...continued)
same at any other time of the year. Of course, if he had arrived in Oklahoma
during the school year and had asked to take E.H. to Florida with him, this
behavior would have run him the risk of raising some suspicion on the part of
E.H.’s parents.
       We simply refuse to see E.H.’s school schedule as a force majeure acting
to interrupt Cuthbertson’s ongoing offense, in spite of his efforts. Cuthbertson
was never “forced to put the venture ‘on hold.’” Hill, 79 F.3d at 1483. Instead,
Cuthbertson used E.H.’s school schedule to gain access to E.H., without arousing
suspicion, on repeated yet entirely separate occasions.

                                         -8-
lists Cuthbertson’s Florida conviction as a “related case,” we note that under the

section entitled “The Offense Conduct” the presentence report discusses only

Cuthbertson’s traveling from Oklahoma to Florida in 1994 for the purpose of

taking E.H. back to Florida and sexually molesting her. Later, in a section

entitled “Offense Conduct Not Part of Relevant Conduct” the PSR describes

Cuthbertson’s separate acts of molestation of E.H. in 1992 and 1995. The PSR

then lists Cuthbertson’s Florida conviction as a separate adult criminal conviction.

       As presented in the PSR, the harm underlying Cuthbertson’s Florida

sentence was sufficiently separate from that underlying his federal conviction to

allow the two to be “readily broken into discrete identifiable units that are

meaningful for purposes of sentencing.” U.S.S.G. § 1B1.3, backg’d. The district

court did not abuse its discretion in adopting the PSR’s findings and holding that

Cuthbertson’s Florida conviction was not part of his federal conviction, thus




                                         -9-
qualifying it as a prior sentence. 3 For this reason, the district court’s sentence is

AFFIRMED.




      3
         As the Government points out, were Cuthbertson to prevail, he would be
subject to a guideline range of 97 to 121 months, as opposed to a range of 108 to
135 months. We also note that at sentencing the judge indicated that he was
restrained by the statute from sentencing Cuthbertson to a sentence longer than
120 months. The Government argues that even under Cuthbertson’s desired
guideline, it is clear that the court would have given him the same sentence, thus
any error the court may have committed in calculating Cuthbertson’s guideline
range was harmless error. See United States v. Simpkins, 953 F.2d 443, 446 (8th
Cir. 1992). Because we find that the court applied the correct guideline, we need
not reach this question.

                                         - 10 -
