United States v. Justice , 58 F. App'x 6 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4370
ARTHUR GRAHAM JUSTICE,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, Chief District Judge.
(CR-01-234-1)
Submitted: December 16, 2002
Decided: January 15, 2003
Before WILKINS, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, Steven R. Comp-
ton, Special Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.
2 UNITED STATES v. JUSTICE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Arthur Graham Justice pled guilty to conspiring to possess with
intent to distribute oxycodone and was sentenced to a term of 105
months imprisonment. Justice appeals his sentence, alleging that the
district court erred in finding that the sentences for two of his prior
convictions were not consolidated for sentencing and thus were not
related cases pursuant to U.S. Sentencing Guidelines Manual
§ 4A1.2(a)(2), comment. (n.3) (2001). We affirm.
Justice had two prior federal convictions: one for conspiracy to dis-
tribute cocaine, oxycodone and hydromorphone, charged by indict-
ment in December 1992, and one for receipt of a stolen vehicle,
charged in an information filed on May 10, 1993, the day Justice pled
guilty to both offenses. The information was assigned the same
docket number as the indictment. Justice received concurrent sen-
tences for those convictions from the same judge who imposed the
sentence for the instant offense. In the presentence report for the
instant offense, three criminal history points were assigned for each
prior sentence. Justice objected that both sentences should be counted
as one because the cases were related by reason of having been con-
solidated for sentencing. USSG § 4A1.2(a)(2), comment. (n.3). How-
ever, after reviewing the sealed plea agreement, presentence report,
and memorandum of sentencing hearing in the prior cases, the district
court determined that, despite the common docket number, the cases
could not be considered related because no formal consolidation order
had been entered, as required under United States v. Allen, 50 F.3d
294, 297-99 (4th Cir. 1995).
Justice contends on appeal that his prior cases met the Allen
requirement because they were charged under the same docket num-
ber, thus making them one case, while the prior convictions in Allen
carried different docket numbers. When the facts are undisputed, the
UNITED STATES v. JUSTICE 3
issue of whether prior convictions and sentences are related cases is
a legal one and is reviewed de novo. Id. at 296. Allen rejected the
view that informal consolidation of factually unrelated offenses for
sentencing may make them related cases under USSG § 4A1.2. Allen,
50 F.3d at 298.
Justice relies on United States v. Huskey, 137 F.3d 283, 288 (5th
Cir. 1998), which held that, "when factually distinct offenses are
charged in the same criminal information under the same docket num-
ber, those offenses have been ‘consolidated’ (even in the absence of
a formal consolidation order) and are therefore related." Apart from
the fact that Justice’s prior offenses were not charged in the same
charging document, Huskey explicitly differs with this Court’s hold-
ing in Allen that a formal order of consolidation is necessary for a
finding that prior cases were consolidated for sentencing and are
related pursuant to § 4A1.2. Id. Quite naturally, we do not find it to
be persuasive authority.
Although Allen did not specifically address a situation where prior
cases were factually distinct and were charged separately, but under
the same docket number, we conclude that Allen requires that the dis-
trict court’s decision in this case be affirmed. Allen does not suggest
that the presence or absence of separate docket numbers is the factor
which should determine whether prior cases are related. The rule set
out in Allen requires "either a factual relationship between prior
offenses or a consolidation order. . . ." 50 F.3d at 297. Neither is pres-
ent here.
Allen notes that, while cases may be consolidated for trial only if
the offenses "are of the same or similar character or are based on the
same act" or on several acts that are part of a common scheme or
plan, see Fed. R. Crim. P. 8, factually unrelated cases may be for-
mally consolidated for sentencing and such cases should be consid-
ered related. 50 F.3d at 298. Allen specifically holds that cases
informally consolidated for sentencing are not to be treated as related
cases. Id. Justice’s prior convictions were informally consolidated for
sentencing. Therefore, the district court properly treated them as sepa-
rate cases for criminal history purposes.
Accordingly, we affirm the sentence imposed by the district court.
We dispense with oral argument because the facts and legal conten-
4 UNITED STATES v. JUSTICE
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED