United States v. Adams ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50461
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SPENCE LANE ADAMS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-96-CR-249
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April 21, 1998
Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges,
PER CURIAM:*
Spence Lane Adams appeals his guilty-plea conviction and
sentence for bank robbery. He argues that 1) the district court
erred in sentencing him as a career offender, 2) his plea was
involuntary based on the erroneous advice of counsel that Adams
fit the Sentencing Guidelines’ definition of career offender, and
3) he received ineffective assistance of counsel for his
attorney’s failure to adequately object to Adams being sentenced
as a career offender.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 97-50461
-2-
This circuit reviews de novo the sentencing court’s
application of the career offender provisions of the guidelines
and whether a defendant’s prior convictions are related. United
States v. Garcia, 962 F.2d 479, 481 (5th Cir. 1992). A defendant
is a career offender if “(1) the defendant was at least eighteen
years old at the time of the instant offense, (2) the instant
offense of conviction is a felony that is 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. In
determining whether there are “two prior felony convictions,”
“[t]he provisions of § 4A1.2 . . . are applicable to the counting
of convictions under § 4B1.1.” U.S.S.G. § 4B1.2 comment. (n.4).
Section 4A1.2 explains that “[p]rior sentences imposed in
unrelated cases are to be counted separately,” while “[p]rior
sentences imposed in related cases are to be treated as one
sentence.” § 4A1.2(a)(2). “[P]rior sentences are considered
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 trial or sentencing.” § 4A1.2
comment. (n.3).
Adams concedes that he is unable to show that his prior
robbery offenses “occurred on the same occasion” or “were
consolidated for trial or sentencing.” His only claim is that
because both offenses were similar in nature (robbery of
pharmacies for prescription drugs) and committed in close
proximity and time to each other, they should be considered part
No. 97-50461
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of a common scheme or plan.
Adams’s arguments are virtually the same as those rejected
by the court in Garcia. In Garcia, the defendant had two prior
convictions for drug trafficking involving the same type of drug,
in the same location, and within days of each other. Rejecting
Garcia’s claim that these similarities demonstrated that the
offenses were part of the same scheme or plan, this court stated
that such an argument “would lead to the illogical result that a
defendant who is repeatedly convicted of the same offense on
different occasions could never be considered a career offender
under the guidelines.” 962 F.2d at 482 (internal citation
omitted). Adams’s argument is without merit.
Adams’s attorney’s advice regarding the applicability of the
Guideline’s career offender provision was not erroneous. Adams’s
attorney’s performance was not deficient for failing to raise a
meritless and futile objection to the sentencing of Adams as a
career offender. See Koch v. Puckett, 907 F.2d 524, 527 (5th
Cir. 1990).
The judgment is AFFIRMED.