                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 05a0369n.06
                                  Filed: May 9, 2005

                                             No. 04-1786

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

        Plaintiff-Appellee,

                v.                                                     On Appeal from the United
                                                                       States District Court for the
SHAWNDA NINETTA GOROSTIETA,                                            Western District of Michigan

        Defendant-Appellant.


                                                                /

Before: GUY, BATCHELDER, and GIBSON, Circuit Judges.*

        PER CURIAM. Defendant Shawnda Ninetta Gorostieta appeals from the sentence

imposed following a plea of guilty to one count of conspiracy to distribute at least 100

kilograms of marijuana in violation of 21 U.S.C. §§ 841(b)(1) and 846. Defendant argues

that the district court erred in its calculation of her criminal history score by adding one point

for a conviction for driving while impaired. On appeal and through a Rule 28(j) letter brief,

defendant also argues that her sentence should be vacated and the case remanded for

resentencing in light of United States v. Booker, 125 S. Ct. 738 (2005). Defendant then filed

an emergency motion for immediate remand for resentencing in reliance on United States v.



        *
        The Honorable John R. Gibson, United States Court of Appeals Judge for the Eighth Circuit, sitting
by designation.
No. 04-1786                                                                                 2

Barnett, 398 F.3d 516, reh’g denied, 400 F.3d 481 (6th Cir. 2005), claiming plain error from

the mandatory application of the guidelines. No response was filed by the government, but

the government opposed resentencing in its Rule 28(j) letter brief.

       Our review of the record leads us to conclude that the district court did not err in

determining defendant’s criminal history score, but we agree with defendant that Booker

requires us to VACATE her sentence and REMAND to the district court for resentencing.

                                              I.

       Defendant, who lived in Virginia at the time, was recruited by a friend, Diana Lucht,

to help transport marijuana from California to Grand Rapids, Michigan. In late 1999 or early

2000, defendant made her first trip to California with Lucht’s mother and returned to Grand

Rapids with marijuana hidden in the car. Defendant returned to Virginia and, in November

2000, was contacted again about transporting marijuana from California to Michigan. On

November 12, 2000, while on her way to Grand Rapids to make this second trip, defendant

was stopped near South Haven, Michigan, and arrested for driving under the influence of

alcohol. Defendant was picked up from the jail by Lucht and taken to Grand Rapids. On

November 13, 2000, they left for California in a rental car. On the return trip, defendant and

Lucht decided to steal the marijuana for themselves. Defendant had no further involvement

in the conspiracy.

       Defendant and three others were indicted for conspiracy to distribute at least 100

kilograms of marijuana. In February 2004, defendant pleaded guilty pursuant to a Rule 11

plea agreement that stipulated (1) that she was directly accountable for 40 to 60 kilograms

of marijuana, and (2) that she was a “minor participant” within the meaning of U.S.S.G. §
No. 04-1786                                                                                  3

3B1.2(b). There was no agreement with respect to her criminal history. The presentence

report recommended a total offense level of 15 (base offense level of 20, minus two points

for minor role and three points for acceptance of responsibility). Defendant received four

criminal history points, only one of which is at issue on appeal. As calculated in the

presentence report, the guideline range was 24 to 30 months.

       At sentencing, defendant renewed her objection to the inclusion of one point in her

criminal history score based on the November 12, 2000 conviction for driving while

impaired. Without this point, defendant’s criminal history score would have placed her in

Category II instead of Category III. The district court overruled this objection, agreeing with

the probation department that the sentence was imposed in an “unrelated case” and should

be counted separately under U.S.S.G. § 4A1.2(a)(2).

       The government moved for downward departure under U.S.S.G. § 5K1.1, based on

the defendant’s cooperation. The district court granted the motion and determined that a two-

level departure in the offense level was appropriate, which lowered the guideline range to 18

to 24 months. After noting defendant’s post-conviction rehabilitation efforts, the district

court imposed a sentence of 18 months’ imprisonment to be followed by a three-year term

of supervised release. Defendant is currently scheduled for release in October 2005, and has

already been transferred to a Community Corrections Center.

                                              II.

A.     U.S.S.G. § 4A1.2(a)(2)

       Under U.S.S.G. § 4A1.2(a)(2), “[p]rior sentences imposed in unrelated cases are to

be counted separately,” while sentences imposed in “related” cases are to be treated as one
No. 04-1786                                                                                   4

sentence for criminal history purposes. The application notes specifically provide that:

“Convictions for driving while intoxicated or under the influence (and similar offenses by

whatever name they are known) are counted.” U.S.S.G. § 4A1.2, comment. (n.5) (2003).

“Related” is also defined in the application notes as follows:

       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.

U.S.S.G. § 4A1.2, comment. (n.3) (2003). Only if there was no intervening arrest may the

court consider the factors that may “otherwise” render prior sentences “related.” United

States v. Bradley, 218 F.3d 670, 673 (7th Cir. 2000); see also United States v. Wells, No. 02-

3419, 2004 WL 1263126, (6th Cir. June 4, 2004) (unpublished decision). We review for

clear error a district court’s determination of whether prior convictions are “related.” United

States v. Horn, 355 F.3d 610, 612-15 (6th Cir.), cert. denied, 124 S. Ct. 2436 (2004).

       The district court first found that there was an intervening arrest because defendant

was arrested on the impaired driving offense “prior to the onset of the actual implementation

of the conspiracy.” That is, although the events that brought her to Michigan were

“conspiratorial in intention, . . . the events of unfolding of the conspiracy had not yet

occurred.” Defendant contests this finding and argues that there was no “intervening” arrest

because the drug conspiracy began before and continued after the impaired driving arrest.

       There is no question that if the defendant had been charged with the substantive

offense of possession with intent to distribute marijuana, her arrest for driving while impaired
No. 04-1786                                                                                               5

would have intervened between the driving offense and the drug offense. See United States

v. Liles, No. 03-5745, 2004 WL 1326064 (6th Cir. June 10) (unpublished decision), cert.

denied, 125 S. Ct. 104 (2004) (sentences were not “related” where defendant was arrested

for drug possession and two days later arrested for drug sale because offenses were separated

by an arrest). As the government concedes, however, the courts have not addressed the issue

in a case where the second offense was a conspiracy to distribute drugs. The government

argues that the result should be the same because the drug conspiracy was not completed until

after the impaired driving arrest. We need not resolve this novel issue because we are

satisfied that even if there was no intervening arrest, the prior sentence was not “otherwise”

related.

        Despite the ongoing nature of the drug distribution conspiracy, the offense of driving

while impaired was coincidental to the fact that defendant was traveling to meet her

coconspirators. Offenses are not related simply because they are part of a crime spree, or are

motivated by a common purpose or goal. United States v. Irons, 196 F.3d 634, 639 (6th Cir.

1999); see also Horn, 355 F.3d at 614-15 (two robberies and one attempted robbery within

a month were not related despite common motive and modus operandi). To establish that

the offenses were part of a single common scheme or plan, a defendant must show that the

crimes were jointly planned, or that the commission of one entails commission of the other.

Irons, 196 F.3d at 638-39. Defendant is unable to show the drug conspiracy and driving

while impaired offenses were “related.”1

        1
         The government argues for the first time on appeal that the correct inquiry is whether the impaired
driving conviction resulted in a “prior sentence” as defined in U.S.S.G. § 4A1.2(a)(1) (“‘prior sentence’
means any sentence previously imposed upon adjudication of guilt . . . for conduct not part of the instant
No. 04-1786                                                                                              6

          Accordingly, we find the district court did not clearly err in finding that the sentence

for driving while impaired should have been included in the defendant’s criminal history

score. That does not end our discussion, however, as defendant asks that we vacate her

sentence in light of United States v. Booker, 125 S. Ct. 738 (2005).

B.        Booker

          It appears from defendant’s Rule 28(j) letter brief and her motion for remand in light

of Booker, that defendant does not claim her sentence violated the Sixth Amendment as

construed in Booker. Rather, defendant asserts for the first time on appeal that the district

court erred when it sentenced her in the belief that the guidelines were mandatory. Our

review of this claim is for plain error. Booker, 125 S. Ct. at 769 (noting that whether new

sentencing hearing is required depends on “ordinary prudential doctrines,” such as “whether

the issue was raised below and whether it fails the ‘plain-error’ test”).

          In Barnett, we found it was plain error for the district court to have sentenced

defendant under a mandatory sentencing guideline regime that has now been held to be

advisory. Addressing whether this error affected the defendant’s substantial rights, this court

also held that a sentence to confinement at the bottom of the guideline range supports an

inference of prejudice, and that ordinarily prejudice should be presumed. Barnett, 398 F.3d

at 527.

          The government conceded at oral argument that it was not able to rebut the

presumption in this case. The district court granted a downward departure and sentenced


offense”) (emphasis added); see also United States v. Beddow, 957 F.2d 1330, 1338 (6th Cir. 1992) (carrying
concealed weapon during money laundering offense). Defendant never argued that the sentence for driving
while impaired did not constitute a “prior sentence,” only that the prior sentence was not “related.”
No. 04-1786                                                                                 7

defendant at the bottom of the guideline range, stating: “I’m going to sentence on the low

end of this guideline from which I’m pretty well confined to 18 months in the custody of the

Bureau of Prisons with three rather strategic recommendations.” (Emphasis added). In

connection with one of those recommendations, the district court stated that it had “no

objection to an early furlough of this custodial treatment so long as a home detention or a

halfway house placement will ensure that the legal requirements of this sentence are

satisfied.” We presume prejudice since the record shows that the district court might have

exercised its discretion to impose a lower sentence had it known the guidelines were

advisory. Barnett, 398 F.3d at 529. This being the case, we also conclude that an exercise

of our discretion is warranted to correct this error. Id. at 529-30.

       Accordingly, although we find no clear error in the calculation of defendant’s criminal

history score, we VACATE defendant’s sentence and REMAND for resentencing in light

of Booker.
No. 04-1786                                                                                8

       Alice M. Batchelder, Circuit Judge, Concurring. I concur in the court’s opinion,

including its remanding this case for re-sentencing pursuant to this circuit’s post-Booker

precedents. I write separately, however, merely to note my disagreement with our decision

in United States v. Barnett, 398 F.3d 516 (6th Cir. 2005), and its unwarranted departure from

traditional plain error review. See United States v. Jones, No. 03-5123, 2005 WL 900870,

at *5 n.1 (6th Cir. Apr. 19, 2005) (Batchelder, J.).
