                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                               Nos. 99-1440/99-1441
                                   ___________

United States of America,           *
                                    *
     Appellant/Cross-Appellee,      *
                                    * Appeals from the United States
     v.                             * District Court for the District
                                    * of Minnesota.
Gregory Allen Peters,               *
                                    *
     Appellee/Cross-Appellant.      *
                               ___________

                             Submitted: February 15, 2000

                                  Filed: June 21, 2000
                                   ___________

Before BEAM and JOHN R. GIBSON, Circuit Judges, and PRATT,1 District Judge.
                            ___________

BEAM, Circuit Judge.

      Gregory Allen Peters was convicted of bank robbery in violation of 18 U.S.C.
§ 2113(a), and sentenced to seventy-two months with three years of supervised release.
Both the United States and Peters appeal the sentence. We reverse and remand.

      On May 7, 1998, Peters robbed the Twin Cities Federal Bank located within Cub
Foods in Blaine, Minnesota, taking approximately $1700. Peters was arrested the next

      1
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa, sitting by designation.
day and confessed to the robbery, stating that he did it to help a friend who needed
money. Following a jury trial, Peters was convicted.

       At sentencing, the district court determined that the base offense level for a
violation of 18 U.S.C. § 2113(a) is twenty. The district court added two levels because
the property of a financial institution was taken. The district court declined to adjust
the level for acceptance of responsibility or for career offender status making the total
offense level twenty-two. The district court also determined that Peters had eighteen
criminal history points which made his criminal history category VI. Thus, Peters's
imprisonment range was eighty-four to 105 months. The district court sentenced Peters
to seventy-two months, giving him a two-level departure under United States
Sentencing Guidelines § 5K2.0, based on Peters's mental and physical health.

       The United States appeals contending that the district court should have
enhanced Peters's sentence because he is a career offender under the guidelines. The
United States also asserts that the district court abused its discretion in granting the
departure on the basis of Peters's health. Finally, Peters appeals the district court's
decision to deny his reduction for acceptance of responsibility.

      The United States contends that Peters is a career offender under the Sentencing
Guidelines. To be a career offender under section 4B1.1 three requirements must be
met: (1) the defendant must be at least eighteen at the time the instant offense was
committed; (2) the instant offense must be a crime of violence or a controlled substance
offense; and (3) the defendant must have at least two prior felony convictions for
crimes of violence or controlled substance offenses. Peters was forty-four when he
committed the robbery and bank robbery is a crime of violence under the guidelines.
See U.S.S.G. § 4B1.2. Peters, however, disputes the third prong.

       Peters has three prior Minnesota felony convictions that could qualify him as a
career offender, namely: third-degree assault; first-degree burglary; and conspiracy to

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sell a simulated controlled substance. Neither party disputes that the assault conviction
counts as one of the two needed for career offender purposes. Additionally, the district
court determined conspiracy to sell a simulated controlled substance, in this case
baking soda, did not qualify as a controlled substance offense under the guidelines and
the government does not appeal this determination. This leaves only the burglary
offense as a possible second felony for career offender purposes.

      Although we have held that burglary is a crime of violence under section
4B1.2(a), that does not end our inquiry. See United States v. Reynolds, 116 F.3d 328,
329-30 (8th Cir. 1997). To qualify as a "prior felony" for career offender purposes, the
felony must receive criminal history points under subsection (a), (b), or (c) of 4A1.1.
See U.S.S.G. § 4B1.2(c). It is not clear in this case whether Peters's conviction for
burglary would receive criminal history points under any of these sections.

       In 1988, Peters was initially charged with receiving and concealing stolen
property. Later, it was determined Peters had also committed burglary and he was so
charged in three counts. On May 4, 1989, Peters was sentenced to concurrent terms
on all the counts. Because these counts were consolidated for sentencing purposes,
they are deemed related cases under the sentencing guidelines and "are to be treated
as one sentence for purposes of § 4A1.1(a), (b), and (c)." U.S.S.G. § 4A1.2 and App.
Note. 3. If relating the cases in this manner results in an under representation of the
seriousness of the defendant's crime then additional criminal history points can be given
under section 4A1.1(f). See U.S.S.G. § 4A1.2 App. Note 3.

       Peters asserts that probation offices and district courts should be required to list
the offenses within a group of related cases in the order that they were charged for the
purpose of assigning criminal history points. If we did that with Peters's 1989
convictions, the charge for receiving stolen property would be listed first and would
receive three criminal history points under section 4A1.1(a). The district court could
then assign the burglary charges each one point under 4A1.1(f). If we chose to follow

                                           -3-
Peters's recommendation, Peters would not qualify as a career offender because
receiving stolen property is not a crime of violence, and the burglaries did not receive
criminal history points under section 4A1.1(a), (b), or (c) so they are not "prior
felonies" within the meaning of the guidelines.

       Peters made this argument to the district court and asserted the baking soda sale
was not a controlled substance offense. When the district court addressed career
offender status it decided the controlled substance issue, but it made no finding on the
burglary charges even though they were listed first in the presentence report.
Therefore, we believe the district court may have overlooked these offenses.
Additionally, neither the sentencing guidelines nor the case law directly addresses the
issue of how crimes should be listed in either the presentence report or by the district
court.

       In a situation such as this, the district court should be given the first opportunity
to use its discretion in applying the sentencing guidelines to the facts of the case. The
district courts have an institutional advantage over the appellate courts in these
situations because they see many more guidelines cases than the appeals courts and
therefore have a better vantage point from which to determine the norm. See Koon v.
United States, 518 U.S. 81, 98-99 (1996). Accordingly, we remand this case to the
district court for resentencing.2

       A true copy.

              Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.


       2
       We do not address either the acceptance of responsibility or the downward
departure in light of the remand for resentencing.

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