United States v. Perez Allen Mann

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 8, 2009
No. 08-13716
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 07-00070-CR-A-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEREZ ALLEN MANN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(April 8, 2009)
Before CARNES, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Perez Allen Mann appeals his 96-month sentence for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), possession of a
sawed-off shotgun, in violation of 26 U.S.C. § 5861(d), and possession of body
armor by a person previously convicted of a felony that is a crime of violence, in
violation of 18 U.S.C. § 931(a)(1). Mann contends that the district court erred in
calculating his criminal history under the Sentencing Guidelines because it
counted two of his previous convictions, which were separated by an intervening
arrest but consolidated for sentencing, as two separate offenses.
I.
We review a district court’s determination that prior convictions are not
related under U.S.S.G. § 4A1.2 only for clear error. United States v.
Hernandez-Martinez, 382 F.3d 1304, 1306 (11th Cir. 2004). According to the
2006 version of the Guidelines, prior sentences imposed in unrelated cases are
counted separately in calculating the criminal history category. U.S.S.G. §
4A1.2(a)(2) (2006). When determining whether prior sentences are related, the
commentary to the Guidelines instructed that:
Prior sentences are not considered related if they were for 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 related if they resulted from
offenses that (A) occurred on the same occasion, (B) were part of a
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single common scheme or plan, or (C) were consolidated for trial or
sentencing.
U.S.S.G. § 4A1.2, comment. (n.3) (2006).
We have previously held that “[t]he language of Note 3 is clear. In
determining whether cases are related, the first question is always whether the
underlying offenses are separated by an intervening arrest. This inquiry is
preliminary to any consideration of consolidated sentencing . . . .” United States v.
Hunter, 323 F.3d 1314, 1322-23 (11th Cir. 2003). When there is an intervening
arrest, prior convictions are counted separately in determining criminal history
score. Id. at 1323. While the 2007 Guidelines eliminated Advisory Note 3, it did
not change the substance of the rule. Instead, the 2007 Guidelines make clear that
the initial inquiry is to be “whether the prior sentences were for offenses that were
separated by an intervening arrest[,] . . . [and i]f so, they are to be considered
separate sentences, counted separately, and no further inquiry is required.”
U.S.S.G. App. C, amend. 709 (Reason for Amendment). See also U.S.S.G.
§ 4A1.1.2 (a)(2) (2007) (instructing that “[p]rior sentences always are counted
separately if the sentences were imposed for offenses that were separated by an
intervening arrest”).
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What all of this means is that the district court did not clearly err in counting
two of Mann’s previous convictions separately because an intervening arrest did
separate the two criminal acts for which Mann was assigned criminal history
points.
AFFIRMED.
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