                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JUN 13 2003
                                TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 02-3409
          v.                                   (D.C. No. 01-CR-40087-SAC)
 BRYANE C. MENDENHALL aka                                (D. Kansas)
 Christopher Bryane Mendenhall,

               Defendant-Appellant.


                           ORDER AND JUDGMENT           *




Before EBEL , HENRY , and HARTZ , Circuit Judges.


      Defendant Bryane C. Mendenhall pleaded guilty to one count of attempting

to manufacture methamphetamine, in violation of 21 U.S.C. § 846, and one count

of possessing methamphetamine with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1). The district court sentenced him under the career-offender



      *
        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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.   This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
provisions of the Sentencing Guidelines, which apply when “the defendant has at

least two prior felony convictions of either a crime of violence or a controlled

substance offense.” USSG § 4B1.1(a)(3) (formerly USSG § 4B1.1(3)). The

district court found Defendant eligible for career-offender status in light of his

two prior state-court convictions for (1) burglary of a residence and (2)

possession of cocaine with intent to sell. On appeal Defendant challenges his

classification as a career offender, arguing that his prior offenses were “related”

and therefore should have been treated as a single prior felony conviction under

the Guidelines. See USSG § 4A1.2(a)(2). We exercise jurisdiction under 18

U.S.C. § 3742 and affirm.

      The narrow issue presented in this appeal is whether the district court erred

in finding that Defendant’s prior convictions for burglary and for possession of

cocaine with intent to sell were unrelated. Prior felony convictions for a crime of

violence or a controlled-substance offense whose sentences “are counted

separately under the provisions of § 4A1.1(a), (b), or (c)” may be used for career-

offender enhancement. USSG § 4B1.2(c)(2). “Prior sentences imposed in

unrelated cases are to be counted separately.” USSG § 4A1.2(a)(2). But “[p]rior

sentences imposed in related cases are to be treated as one sentence for purposes

of § 4A1.1(a), (b), and (c).” Id. To determine whether prior sentences are

related, application note 3 to § 4A1.2 instructs:


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      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.

Id. § 4A1.2, comment. (n.3).

      It is undisputed that Defendant’s prior offenses for burglary and for

possession of cocaine with intent to sell were not separated by an intervening

arrest, and Defendant does not contend that the offenses occurred on the same

occasion or were consolidated for trial or sentencing. Instead, he argues that the

offenses are related because they “were part of a single common scheme or plan.”

The district court rejected this argument and so do we.

      Although “[t]he meaning of the word ‘related’ is a legal issue that we

review de novo,” we “review the district court’s factual determination that the

cases were unrelated under a clearly erroneous standard.” United States v. Gary,

999 F.2d 474, 479 (10th Cir. 1993). “[I]n considering whether prior convictions

arose from a common scheme or plan, the focus should be on ‘factual

commonality.’” United States v. Wiseman, 172 F.3d 1196, 1219 (10th Cir. 1999)

(quoting United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir. 1991)).

“Factors such as temporal and geographical proximity as well as common victims




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and a common criminal investigation are dispositive.” Shewmaker, 936 F.2d at

1129.

        None of these factors is present with respect to Defendant’s prior offenses.

There is neither temporal nor geographic proximity between the crimes, which

occurred more than three weeks and approximately 50 miles apart, in different

Kansas counties. Cf. United States v. Ciapponi, 77 F.3d 1247, 1252 (10th Cir.

1996) (two drug offenses occurring one week apart not part of single common

scheme or plan). The two offenses did not have the same victim. And although

Defendant argues that there was a common criminal investigation because “law

enforcement officers were searching [Defendant’s] residence for drugs [when]

they found evidence of the burglary,” Aplt’s Br. at 9, the document upon which

Defendant relies to support this contention indicates that the police found

evidence of the burglary during the search due to happenstance, not a common

investigation. To the extent that Defendant is arguing that the offenses are

related because “the complaints were filed on the same day and one probation

revocation hearing was conducted in both cases,” id. at 5, he does not explain

how these facts are relevant to a determination that the offenses were part of a

single common scheme or plan.

        Finally, Defendant asserts that the offenses of burglary and possession of

cocaine with intent to sell were part of a single common scheme or plan because


                                          -4-
they were “animated by the same motive”— “[t]he burglary. . . was committed to

obtain money with which to buy drugs for distribution.” Id. at 9, 10. The

problem with this contention is that it is not supported by the record. Defendant

testified that when he committed the burglary at issue, he was “high on drugs,”

and committed the crime “as a joy thing.” R., Vol. III, Doc. 80, at 14. Two days

later, after police searched his residence, Defendant decided to take the stolen

property from his house to Texas to avoid detection and to sell it in order to

purchase drugs. From this testimony, it appears that Defendant did not formulate

the plan to sell the stolen property to purchase drugs until some time after he

committed the burglary. There is no “single common scheme or plan” under these

circumstances. See Wiseman, 172 F.3d at 1219 (no single common scheme or

plan among escape and robbery offenses, where “defendant has not even alleged

that when he fled the prison in Idaho he was already planning a series of grocery

store robberies in several states. To the contrary, in his confession defendant

related forming the idea with [a companion] some time after the escape.”); cf.

United States v. Kinney, 915 F.2d 1471, 1472 (10th Cir. 1990) (three bank

robberies over three-month period not related where the “only evidence of a

common scheme was defendant’s own testimony about [obtaining money to]

support[] his drug habit”).




                                         -5-
      Accordingly, we conclude that the district court’s finding that Defendant’s

prior offenses were unrelated was not clearly erroneous. We AFFIRM the

judgment of the district court.

                                      ENTERED FOR THE COURT



                                      Harris L Hartz
                                      Circuit Judge




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