United States v. Warren

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5382
SONYA E. WARREN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-94-52)
Submitted: January 30, 1996
Decided: September 12, 1996
Before LUTTIG and WILLIAMS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Stephen P. Lindsay, LINDSAY & HENSLEY, Asheville, North Caro-
lina, for Appellant. Mark T. Calloway, United States Attorney,
Thomas R. Ascik, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Sonya E. Warren entered a guilty plea to one count of aiding and
abetting William Jude in assaulting, resisting, or impeding a federal
officer in the performance of his duties (18 U.S.C.A. § 111(a) (West
Supp. 1995), 18 U.S.C. § 2 (1988)), and to one count of driving with
a revoked license (36 C.F.R. § 4.2 (1995), N.C. Gen. Stat. § 20-28(a)
(1994)). She appeals her sentence of 24 months, contending that the
district court erred in sentencing her as a career offender. United
States Sentencing Commission, Guidelines Manual § 4B1.1 (Nov.
1994). Warren also argues that the district court erred in finding that
her offense involved physical contact. USSG § 2A2.4(b)(1). Finding
no error, we affirm.
Warren was stopped by Park Ranger Edward West in a remote area
of the Great Smoky National Park because a brake light on her vehi-
cle was not operating. Warren was unable to perform sobriety tests
adequately and her license had been revoked. The owner of the car,
William Jude, was in the passenger seat. He also had been drinking
and had a revoked license. West decided to transport Warren to the
county jail for a breathalyzer test. Because he could not transport a
prisoner in the pickup truck he was driving, West radioed for Park
Ranger Al Miller to come to his assistance.
Ranger Miller did not arrive for about an hour. During that time,
Warren and Jude continued to drink beer and some other liquid. When
West tried to get them to stop, both Jude and Warren got out of their
car. Jude shouted profanities and invited West to shoot him. They
then got back in Jude's car, with Jude in the driver's seat, and drove
away at high speed. While following them, West informed Miller by
radio of their flight. Miller intercepted the pair and was able to force
their vehicle to stop by blocking the road with his vehicle.
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Jude got out of the car and struggled with both rangers, taking
Ranger Miller's revolver from him at one point. Warren got behind
the wheel of Jude's car, rammed Ranger Miller's patrol car, and tried
to push it out of the way. Miller sprayed Warren with pepper spray,
handcuffed her, and put her in his patrol car. Warren and Jude both
pled guilty to aiding and abetting each other to forcibly assault,
oppose, resist, and impede the rangers and to driving with revoked
licenses.
At the sentencing hearing, the district court initially enhanced War-
ren's offense level under USSG § 2A2.4, finding that there was physi-
cal contact between Warren and the rangers. The court then found that
Warren qualified as a career offender, thus making the first enhance-
ment moot. Warren's offense level was increased from 7 to 10 under
USSG § 4B1.1. She had 13 criminal history points, which put her in
criminal history category VI even before application of § 4B1.1. The
district court sentenced her to serve 24 months, the bottom of the
career offender guideline range.
On appeal, Warren first argues that her two prior felony convic-
tions for assault with a deadly weapon should have been treated as
one. To qualify as a career offender, a defendant must have two prior
felony convictions for either a crime of violence or a drug trafficking
offense. The provisions of USSG § 4A1.2 apply; consequently, cases
which were consolidated for trial or sentencing count as one. USSG
§ 4A1.2, comment, (n.3). However, unless there is a formal order of
consolidation, prior sentences are not considered consolidated merely
because they run concurrently or are imposed at the same time.
United States v. Allen, 50 F.3d 294, 297 (4th Cir.), cert. denied, ___
U.S. ___, 63 U.S.L.W. 3907 (U.S. June 26, 1995) (No. 94-9414);
United States v. Rivers, 929 F.2d 136, 140 (4th Cir.), cert. denied, 502
U.S. 964 (1991).
Although the sentence imposed on Warren on July 26, 1990, was
made concurrent to the sentence imposed on July 13, 1990, separate
judgments were entered in each case. There was no order of consoli-
dation. Therefore, the cases were not related and the district court
properly counted both prior sentences separately and found that War-
ren was a career offender. Because Warren was correctly sentenced
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as a career offender, we need not consider whether the district court
properly enhanced her offense level for physical contact.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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