United States v. Cashwell ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
6-10-2003
USA v. Cashwell
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3459
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"USA v. Cashwell" (2003). 2003 Decisions. Paper 469.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 02-3459
UNITED STATES OF AMERICA
v.
KEITH CASHWELL, a/k/a Richard Cashwell,
Appellant
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Crim. Action No. 01-cr-00469)
District Judge: Honorable Joel A. Pisano
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 3, 2003
BEFORE: ALITO, ROTH and STAPLETON, Circuit Judges
(Opinion Filed: June 10, 2003)
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Keith Cashwell pled guilty to possession of a firearm by a
convicted felon. He was sentenced to a term of 60 months. This resulted from the fact that
the District Court increased his base offense level and criminal history score based upon
its determination that his two prior drug convictions were not related cases under
Application Note 3 of U.S.S.G. § 4A1.2 He contends that this determination was in error.
On November 9, 1988, Cashwell was arrested by state authorities following a
drug raid. On November 11, 1989, he was convicted of conspiring to possess cocaine with
intent to distribute from March 21, 1988, through December 21, 1988 (hereinafter the
“state offense”).
Federal agents arrested Cashwell on August 6, 1990, and he ultimately pled
guilty to a count charging him with conspiring to distribute cocaine and marijuana from
March 1, 1987, through January 1, 1990 (hereinafter the “federal offense”). That count
included allegations that in furtherance of the conspiracy Cashwell “engaged in a series of
assaults and shootings to intimidate rival drug dealers,” including the attempted murder of
one Ricky Williams in January of 1989. Cashwell admitted in an interview conducted
during the presentence investigation that he had shot Williams.
U.S.S.G. § 4A1.2(a)(2) provides that “[p]rior sentences in unrelated cases are
to be treated separately. Prior sentences imposed in related cases are to be treated as one
sentence for purposes of § 4A1.1(a), (b), and (c).” U.S.S.G. § 4A1.2(a)(2). Application
Note 3 to § 4A1.2 elaborates on the meaning of the term “related cases,” providing:
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Prior sentences are not considered related if they were
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 relating 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, Application Note 3 (emphasis added).
The District Court concluded that Cashwell “was arrested for the first
offense prior to committing the second offense,” App. at 133, and, accordingly, that the
prior state and federal offenses were not related for purposes of U.S.S.G. § 4A1.2,
Application Note 3. We agree.
The state offense was committed between March 21, 1988, and December
21, 1988. Cashwell was arrested in connection with that offense on November 9, 1988.
While Cashwell’s commission of the federal offense commenced prior to that arrest, his
commission of that offense continued well after that arrest until January 1, 1990, including
the shooting of Williams in furtherance of the conspiracy in January of 1989.
The rationale behind the “intervening” arrest rule is that an offender who
engaages in serious criminal conduct after having been called to account for a prior serious
offense is “less likely to mend his ways.” United States v. Springs, 17 F.3d 192, 196 (7th
Cir. 1994); United States v. Coleman, 38 F.3d 856 (7th Cir. 1994). Where, as here, a
defendant has been arrested in connection with a drug conspiracy and thereafter continues
criminal conduct, “his continued involvement in the drug conspiracy after the
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. . . arrest supports the inference that [he] is not one likely to ‘mend his ways’.” United
States v. Bradley, 218 F.3d 670, 674, n.4 (7th Cir. 2000) (quoting from United States v.
Springs, supra) (finding two drug offenses to be unrelated under U.S.S.G. § 4A1.2,
Application Note 3, on materially indistinguishable facts).
The judgment of the District Court will be affirmed.
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TO THE CLERK:
Please file the foregoing Not Precedential Opinion.
Walter K. Stapleton
Circuit Judge
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