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 1996-03

United States v. Richard L. Neal ( 1996 )


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  •                                   _____________
No. 95-2730EM
_____________
United States of America,               *
*
Appellee,            *   Appeal from the United States
*   District Court for the Eastern
v.                                 *   District of Missouri.
*
Richard L. Neal,                        *   [UNPUBLISHED]
*
Appellant.           *
_____________
Submitted:    March 6, 1996
Filed: March 11, 1996
_____________
Before FAGG, BOWMAN, and HANSEN, Circuit Judges.
_____________
PER CURIAM.
Richard L. Neal challenges the career-offender sentence imposed by
the district court after he pleaded guilty to possessing at least 100
kilograms of marijuana with intent to distribute, in violation of
    21 U.S.C. § 841
    (a)(1).   We affirm.
In determining Neal's criminal history category, the presentence
report assigned a total of twelve criminal history points for four Indiana
state law convictions, for which Neal received concurrent sentences.    Neal
objected to the presentence report because the offenses were "consolidated
by a plea agreement for sentencing," were not separated by an intervening
arrest, and were thus "related" within the meaning of U.S.S.G. § 4A1.2,
comment. (n.3).    Neal contended he should have been assessed a total of six
criminal history points for these offenses.
At sentencing, Neal testified he entered into one plea
agreement that encompassed all of the Indiana offenses.            Neal stated he did
not know why he was sentenced by two different judges.                   The government
maintained the offenses were not consolidated for sentencing because there
were two different sentencing proceedings in front of different judges.
The district court overruled Neal's objection, and sentenced him to 188
months imprisonment and four years supervised release.             For reversal, Neal
argues the plea agreement was "tantamount to an order of consolidation,"
and the district court thus miscalculated his criminal history.                        We
disagree.
The Sentencing Guidelines provide:                  "Prior 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."                   U.S.S.G.
§ 4A1.2(a)(2).      As relevant here, earlier sentences are related "if they
resulted    from    offenses   that   .   .   .   were    consolidated   for   trial   or
sentencing."       U.S.S.G. § 4A1.2, comment. (n.3).           We review de novo the
district court's "decision regarding the legal interpretation of section
4A1.2(a)(2)," United States v. Watson,
    952 F.2d 982
    , 990 (8th Cir. 1991),
cert. denied,
    503 U.S. 994
     (1992), and review for clear error the district
court's "determinations with respect to the offenses in a criminal history
computation," United states v. Lowe,
    930 F.2d 645
    , 646-47 (8th Cir. 1991).
It is well-settled in this circuit that "two or more sentences
imposed at the same time 'are not related for purposes of U.S.S.G.
§ 4A1.2(a)(2) if the cases proceeded to sentencing under separate docket
numbers and there was no formal order of consolidation.'"                 United States
v. Klein,
    13 F.3d 1182
    , 1185 (8th Cir.) (quoting United States v. McComber,
    996 F.2d 946
    , 947 (8th Cir. 1993) (per curiam)), cert. denied,
    114 S. Ct. 2722
     (1994); accord United States v. Lewchuk,
    958 F.2d 246
    , 247 (8th Cir.
1992).
Here, the record does not include copies of the judgments
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entered for Neal's Indiana convictions.     Although the caption of the plea
agreement bears one docket number, the number is the same docket number
assigned to another of Neal's offenses for which he received a one-year
sentence to run concurrently with the other sentences at issue here, and
the plea agreement references each individual offense by its assigned
docket    number.      As in Klein, McComber, and Lewchuk, Neal's earlier
concurrent sentences were the result of different offenses committed at
different times and in different places, and were imposed on different
days.    Neal does not assert a formal order of consolidation was entered.
We thus conclude the district court properly treated Neal's earlier
sentences as unrelated for purposes of section 4A1.2(a)(2).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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