United States v. Cain ( 1993 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 93-4037
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BRUCE ALLEN CAIN,
Defendant-Appellant.
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Appeal from the United States District Court
For the Western District of Louisiana
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(December 15, 1993)
Before HIGGINBOTHAM, DAVIS and JONES, Circuit Judges.
PER CURIAM:
Bruce Cain appeals his sentence following his plea of guilty
and conviction of conspiracy to transport a stolen motor vehicle in
interstate commerce and of interstate transportation of a stolen
motor vehicle. We affirm.
I.
In September 1992, Bruce Cain and two others were charged in
a two-count bill of information with conspiracy to transport a
stolen motor vehicle in interstate commerce in violation of 18
U.S.C. § 371 and § 2312 and with interstate transportation of a
stolen motor vehicle and aiding and abetting in violation of 18
U.S.C. § 2312 and § 2. Cain pled guilty to both counts of the bill
pursuant to a written plea agreement.
The presentence investigation report (PSR) indicated a
criminal history level of five. The PSR reported that Cain was
convicted and sentenced in 1977 under the Wisconsin Youthful
Offender Act to two years imprisonment for the burglary of a
sporting goods store and theft of several firearms, for which he
received three criminal history points.
On October 29, 1977, Cain escaped from the Oakhill
Correctional Institution and embarked on a five-day crime spree in
Michigan and Wisconsin. This activity resulted in convictions for
stealing a motor vehicle, breaking and entering, and attempting to
steal another motor vehicle. The presentence investigation report
assigned three points for his convictions arising out of activity
in Michigan, two points for his escape conviction in Wisconsin, and
three points for his conviction for unauthorized use of a motor
vehicle in Wisconsin.
The district court overruled all of Cain's objections to the
presentence investigation report and accepted the report's total
offense level of ten and criminal history category of five. We
consider Cain's arguments below
II.
Cain first argues that his criminal history level is incorrect
because it includes a sentence that is over ten years old. Cain
was assessed two criminal history points based on his conviction
following a guilty plea 1985 to the escape that occurred in 1977.
Cain was sentenced to one year of imprisonment, but he was given
credit for time served in 1980 and served no additional prison
time. Cain argues that because he completed his one year sentence
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over ten years before the commencement of the instant offense, the
prior sentence should not have been included in his criminal
history.
The Guidelines provide that prior sentences of less than one
year and one month should be counted only if the prior sentence
"was imposed within ten years of the defendant's commencement of
the instant offense..." § 4A1.2(e)(2). The term "prior sentence"
means any sentence previously imposed upon adjudication of guilt.
§ 4A1.2(a)(1).
Cain argues that the term "imposed" is different from the
"pronouncement of sentence in court." He argues that the one year
he served in 1980 constitutes imposition of sentence because it was
the penalty imposed by the court, even though it was not pronounced
until 1985. However, this interpretation ignores the words that
follow the term "imposed" in § 4A1.2(a)(1); namely, "upon
adjudication of guilt." Adjudication of guilt can only occur when
the court pronounces the defendant's guilt. The sentence was not
imposed until 1985 following Cain's plea of guilty, and the court's
acceptance of the plea and pronouncement of Cain's guilt. Thus,
the court "imposed" sentence on Cain in 1985 even though it gave
him credit against this sentence for time served in 1980.
Therefore, the court did not err in assigning two points for
appellant's 1985 escape conviction.
Cain next contends that the convictions resulting from
offenses committed while he was on escape status should be grouped
with his escape conviction and counted as only one offense for
purposes of his criminal history. Cain argues that the escape, car
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theft, burglary and attempted car theft were all part of a single
common plan and therefore were "related cases" that should be
grouped under U.S.S.G. § 4A1.2(a)(2). This section provides that
"[p]rior sentences imposed in related cases are to be treated as
one sentence for purposes of the criminal history." The
Commentary to this section provides that cases are related if they
"1) occurred on the same occasion, 2) were part of a single common
scheme or plan, or 3) were consolidated for trial or sentencing."
These crimes did not occur on the same occasion, nor were they
consolidated for trial. Therefore, the question narrows to whether
they were part of a single common scheme or plan. For a number of
reasons, we agree with the district court that these multiple
crimes were not part of a single scheme or plan. The victims were
different. The crimes occurred in different states. As far as the
record shows, these were random crimes without any overall scheme
or plan.
Finally, Cain argues that the district court erred in not
departing downwards from the sentencing guidelines' range. All of
appellant's prior crimes occurred in 1977 when he was nineteen
years old. He was released from prison in 1982 and had no
infractions until 1992. He points out that the passage of just a
few months before the instant crime was committed would have put
Cain in criminal history one or two rather than five. For all of
these reasons, Cain argues that the court should have departed
downwards.
When the district court has sentenced within the guidelines,
appellate review is limited to determining whether the guidelines
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were correctly applied. U.S. v. Soliman, 954 F.2d 1012 (5th Cir.
1992). Generally, a claim that the district court refused to
depart from the guidelines and imposed a lawful sentence provides
no ground for relief. U.S. v. Keller, 947 F.2d 739, 741 (5th Cir.
1991) (citations omitted). The district court did not abuse its
discretion in refusing to grant Cain a downward departure. All of
defendant's prior offenses were felonies, and his prior offenses
included theft of an automobile, the same type of offense as the
instant offense.
For all of the foregoing reasons, we affirm the sentence
imposed by the district court.
AFFIRMED.
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