United States v. Hector Roy Watson , 239 F. App'x 519 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 14, 2007
No. 06-15535 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00046-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR ROY WATSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 14, 2007)
Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Hector Roy Watson appeals his 120-month sentence for drug trafficking
offenses. Specifically, Watson argues that he should not have received a career
offender enhancement, pursuant to United States Sentencing Guideline § 4B1.1(b),
contending that the three predicate offenses on which this enhancement was based
were related and should have counted as one predicate offense. We AFFIRM.
I. BACKGROUND
A federal grand jury indicted Watson on two counts of possessing with
intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(B)(iii), and 18 U.S.C. § 2. Watson pled guilty to these
charges, without the benefit of a plea agreement.
Before Watson’s sentencing, a probation officer prepared a presentence
investigation report (“PSI”), which initially set Watson’s base offense level at 26,
pursuant to U.S.S.G. § 2D1.1(c) (2005). The probation officer determined that
Watson was a career offender, pursuant to U.S.S.G. § 4B1.1(a). The PSI listed
Watson’s predicate offenses as: (1) a Florida state court conviction for aggravated
assault with a deadly weapon, stemming from an incident that occurred on 11 July
1994, in Case No. CF-941336; (2) a Florida state court conviction for aggravated
assault with a deadly weapon, stemming from an incident that occurred on 26 July
1994, in Case No. CF-941337; and (3) a Florida state court conviction for
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aggravated assault, stemming from an incident that occurred on 28 August 1994, in
Case No. CF-941338. Watson was arrested for each of these offenses on the same
day and was sentenced for each of these convictions on the same day. Based on
the determination that Watson qualified for career offender status, the PSI set his
enhanced base offense level at 34, pursuant to § 4B1.1(b), since the statutory
maximum for his instant offenses was 40 years of imprisonment, pursuant to 21
U.S.C. § 841(b)(1)(B). The PSI then applied a three level reduction for acceptance
of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b).
The PSI initially calculated Watson’s criminal history category at V. After
the probation officer determined that Watson was a career offender, his criminal
history category was set at VI, pursuant to § 4B1.1(b). Accordingly, with this
criminal history category and a total offense level of 31, Watson’s guideline
imprisonment range was 188-235 months of imprisonment.
In his objections to the PSI, Watson attacked his career offender
enhancement, arguing that his three prior convictions were related, such that they
comprised only one predicate offense. At his initial sentencing hearing, Watson
repeated his objection to his career offender enhancement. He asserted that his
prior convictions each stemmed from a dispute between his ex-girlfriend and her
family and friends, that there were no intervening arrests between the three
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incidents in question, and that he was sentenced on the same day for each prior
conviction. The government responded that the three incidents in question took
place several days apart and that the prior convictions were not formally
consolidated, were assigned different docket sheets, and received separate
judgments, such that they should count separately for career offender calculation
purposes. The district court overruled Watson’s objection, finding that the prior
convictions were not related because they did not arise from incidents occurring on
the same occasion, were not part of a single common scheme or plan, and were not
formally or functionally consolidated for sentencing because they were assigned
separate case numbers.
Watson also objected to the PSI’s factual description of his predicate
offenses. Watson argued that his ex-girlfriend and her family and friends
concocted those charges and that he was innocent of the charges. Watson asked
for an opportunity to present testimony on this argument. The government
responded that Watson’s sentencing for a different offense was “not the time or
place” to challenge his previous convictions. R3 at 20. The district court agreed,
stating that Watson’s innocence of those charges was irrelevant and that the
charges would not be re-litigated. When Watson urged the district court to hear
this testimony because it might influence the district court’s fashioning of a
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reasonable sentence, the district court again refused.
At the continuation of his sentencing hearing, Watson revisited the issue of
whether his predicate offenses were related, stating that he had obtained the state
court documents for these prior convictions and had learned that certain of them
were addressed on one scoresheet for state court sentencing purposes. Watson
argued that the fact that the convictions were sentenced using the same scoresheet
demonstrated that the cases were consolidated. The government reiterated its
previous arguments. The district found that the use of a single scoresheet was
insufficient to show that the cases were related and repeated its earlier finding that
the predicate offenses should count separately.
The state court documents for the prior convictions were submitted into
evidence. These exhibits demonstrate the following. The charges in Case Nos.
CF-941336, CF-941337, and CF-941338 each were contained in separate
informations. Watson pled nolo contendere to each charge. In Case No.
CF-941336, Watson was sentenced to 24 months of community control, to be
served consecutive to the sentence imposed in Case No. CF-941314. In Case No.
CF-941337, Watson was sentenced to 24 months of community control, to be
served concurrently with the sentence imposed in Case No. CF-941336. Finally, in
Case No. CF-941338, Watson was sentenced to five years of probation, to be
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served consecutive to the sentence imposed in case No. CF-941337. Theses
sentences were reflected in separate judgments. These state court documents also
included the scoresheet used at Watson’s sentencing. This scoresheet listed
Watson’s conviction for aggravated assault with no deadly weapon in Case No.
CF-941338 as his “primary offense” and his conviction for aggravated assault in
case No. CF-941337 as an “additional offense.” Exh. Folder 1, Exh. C at
unnumbered 5. In the bottom right-hand corner of the scoresheet, the person who
prepared it indicated that the scoresheet was “Paper No. 22” in “Case No.
[CF-941314].” Id.
The district court adopted the PSI, and stated that it had considered the §
3553(a) factors and found that a sentence of 120 months of imprisonment as to
each count, to be served concurrently, was sufficient but not greater than necessary
for the purposes of sentencing. In its statement of reasons, the district court stated
that this variance was granted to reflect Watson’s post-offense rehabilitation.
II. DISCUSSION
Watson argues that the three predicate offenses were related because they
stemmed from a series of altercations between himself and his ex-girlfriend’s
family and friends, who concocted charges against him in an effort to discredit
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him.1 As a result, he contends, he had only one predicate offense and, therefore,
was not a career offender. The government responds that the predicate offenses
properly were counted separately and the prior convictions were not related.
After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the
sentencing court first must correctly calculate the guideline imprisonment range
and then must treat that range as advisory and impose a reasonable sentence.2
United States v. Talley, 481 F.3d 784, 786 (11th Cir. 2006) (per curiam). “We
review a district court’s determination that prior convictions are not related under
U.S.S.G. § 4A1.2 for clear error.” United States v. Hernandez-Martinez, 382 F.3d
1304, 1306 (11th Cir. 2004) (per curiam) (citation and footnote omitted).
The career offender provision of the Sentencing Guidelines provides that
[a] defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the instant
offense of conviction; (2) the instant offense of conviction is a felony
1
The three predicate offenses were: (1) a Florida state court conviction for aggravated
assault with a deadly weapon, stemming from an incident that occurred on 11 July 1994; (2) a
Florida state court conviction for aggravated assault with a deadly weapon, stemming from an
incident that occurred on 26 July 1994; and (3) a Florida state court conviction for aggravated
assault, stemming from an incident that occurred on 28 August 1994.
2
Watson expressly declines to attack the reasonableness of his sentence on appeal. Aside
from his argument that his predicate offenses were related for career offender classification
purposes, Watson argues that the district court erred in failing to consider his arguments that he was
innocent of these predicate offenses. This argument is without merit, however, as we have held that
defendants in federal sentencing proceedings may not attack collaterally those state court
convictions used to support a § 4B1.1 career offender enhancement, except where the attack is based
on violations of the right to counsel. United States v. Farris, 77 F.3d 391, 397 (11th Cir. 1996)
(citation omitted).
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that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). Regarding the third prong of this test, the Guidelines provide
that whether prior convictions are counted separately depends on whether the
sentences imposed for those convictions were counted separately in calculating the
defendant’s criminal history category. See U.S.S.G. § 4B1.2(c). Pursuant to the
provisions that guide criminal history category calculation, criminal history points
are assigned for each prior sentence, but those prior sentences stemming from
“related” cases are “treated as one sentence.” U.S.S.G. §§ 4A1.1(a), (b), and (c)
and 4A1.2(a)(2).
The commentary to § 4A1.2 explains that prior sentences are unrelated if
they were for offenses that were “separated by an intervening arrest,” but that prior
sentences are related if they resulted from offenses that (1) occurred on the same
occasion, (2) were part of a single common scheme or plan, or (3) were
consolidated for sentencing. U.S.S.G. § 4A1.2, cmt. n.3. Consolidation for
sentencing generally requires a formal consolidation order. See United States v.
Smith, 385 F.3d 1342, 1345-46 (11th Cir. 2004) (per curiam), vacated on other
grounds, 543 U.S. 1181, 125 S. Ct. 1401 (2005) (vacating and remanding in light
of Booker); Hernandez-Martinez, 382 F.3d at 1307. In Buford v. United States,
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however, the Supreme Court approved of the Seventh Circuit’s holding that
predicate offenses are “functionally consolidated” for sentencing, and therefore
related, when they are “factually or logically related, and sentencing was joint.”
532 U.S. 59, 61, 121 S. Ct. 1276, 1278 (2001) (citation and quotation omitted).
Regarding whether predicate offenses were part of a common scheme or
plan, in United States v. Veteto, we held that this “is a highly fact-intensive
question.” 920 F.2d 823, 825 (11th Cir. 1991). In that case, the defendant’s prior
crimes consisted of a burglary of a residence and an armed robbery of a hotel,
which were committed over a month apart. Id. at 824. The defendant argued that
these prior crimes were part of a common scheme because he committed both in an
effort to collect money from individuals who had bought drugs from him
previously. Id. at 825. The district court there rejected this argument because
different crimes were involved on different days against different victims, and we
held that we could not say that the district court’s conclusion was clearly
erroneous. Id. at 826.
Regarding the effect of the use of a single state sentencing scoresheet on the
question of whether predicate offenses were consolidated, a Florida state court has
held that “[a] trial courts errs in failing to use a single scoresheet for each separate
case for which sentencing is pending, notwithstanding that the offenses are too
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unrelated to allow consolidation or joinder at trial.” Harris v. State, 619 So. 2d
1043, 1044 (Fla. 4th DCA 1993) (per curiam); Gallagher v. State, 476 So. 2d 754,
756 (Fla. 5th DCA 1985) (requiring the sentencing court “to assure that all of a
defendant’s cases pending for sentencing in a particular county at the time of that
defendant’s first sentencing hearing are disposed of using one scoresheet,” and,
accordingly, pending cases must be administratively transferred to a single
sentencing judge). Such “joint sentencing for administrative convenience,”
however, does not necessarily render convictions consolidated for sentencing
within the meaning of the commentary to § 4A1.2. See Smith, 385 F.3d at 1346.
Regarding whether predicate offenses were “functionally consolidated,” we
held in Hernandez-Martinez that the district court did not clearly err in declining to
apply this concept, even though the defendant received concurrent sentences and
was sentenced on the same day and by the same judge for his predicate offenses,
when these predicate offenses were assigned different docket numbers, the
defendant received separate judgments for each predicate offense, and the
defendant was represented by two different attorneys at the sentencing of each
predicate offense. 382 F.3d at 1306-1308. We likewise held in Smith that the
district court’s finding that this concept was not applicable was not clearly
erroneous, even though the defendant received concurrent sentences on the same
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day, by the same judge, and while being represented by the same attorney, when
the predicate offenses were assigned different docket numbers and the defendant
received separate judgments for each predicate offense. 385 F.3d at 1343, 1346.
As an initial matter, it is not disputed that Watson was at least 18 years old
when he committed the instant offense, that the instant offense is a controlled
substance violation, and that the predicate offenses were crimes of violence. See
U.S.S.G. § 4B1.1(a). Rather, the issue is whether Watson has one or three
predicate offenses. It is not disputed that the incidents giving rise to the prior
convictions were not separated by intervening arrests and did not occur on the
same occasion or that the Florida court did not issue a formal order of
consolidation. See U.S.S.G. § 4A1.2, cmt. n.3. Accordingly, the relevant
questions are whether Watson’s predicate offenses were part of a singe common
scheme or plan or functionally consolidated. See id.
Afer careful review of the record, we hold that the district court did not
clearly err in counting Watson’s predicate offenses separately. See Smith, 385
F.3d at 1344. The district court found that Watson’s predicate offenses did not
arise from incidents that were part of a single common scheme or plan. Watson
argues to the contrary that his predicate offenses stemmed from a series of
altercations between himself and his ex-girlfriend’s family and friends. We
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previously have rejected a similar argument where the defendant asserted that his
predicate offenses stemmed from a series of altercations between himself and
people who owed him drug money. See Veteto, 920 F.2d at 825. In fact, Watson’s
brief contends that it was his victims, and not Watson, that orchestrated a common
scheme (in an attempt to discredit him). Thus, there is nothing to suggest that the
district court’s finding was clear error. See Smith, 385 F.3d at 1344.
Also, the district court found that Watson’s prior convictions were not
functionally consolidated. In both Hernandez-Martinez and Smith, we upheld
similar conclusions when predicate offenses were reflected by different docket
numbers and in separate judgments, as here. See Hernandez-Martinez, 382 F.3d at
1306-08; Smith, 385 F.3d at 1343, 1346. In both of those cases, we were not
swayed by the facts that the defendants received concurrent sentences by the same
judge and on the same day to hold that the district court’s finding was clearly
erroneous. Id. Additionally, the fact that Watson was sentenced using a single
state sentencing scoresheet, alone, does not convince us. See Harris, 619 So. 2d at
1044; Smith, 385 F.3d at 1346. Thus, there is nothing to suggest that the district
court’s finding was clear error. See Smith, 385 F.3d at 1344.
III. CONCLUSION
We hold that the district court did not clearly err in counting Watson’s three
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predicate offenses separately. Therefore, we affirm Watson’s receipt of a
§ 4B1.1(b) enhancement and his sentence of 120 months of imprisonment.
AFFIRMED.
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