In United States v. Martin, No. 04-6428 (6th Cir. 2/21/06), the Court of Appeals has refused to find that four auto thefts in three weeks were related despite proof of similar modus operandi in the commission of the offenses. (Here, http://www.ca6.uscourts.gov/opinions.pdf/06a0067p-06.pdf) The court found that the commission of a series of individual, similar crimes does not mean that the resulting multiple convictions are combined for criminal history purposes. In his concurrence, however, Judge Martin argues that "the inquiry in these cases has become so narrow that it now exists only as a nebulous concept." He finds that about the only person who would benefit from the Guidelines’ definition of "related cases" would be Dr. Evil from the Austin Powers movies. (See extensive dialogue quotation in footnote 1 of the concurrence.) What could drive an otherwise mild-mannered jurist to not only quote Michael Meyers, but also beg the forgiveness of PETA for flogging a long-dead horse one more time? Perhaps a body of caselaw that renders impossible one provision of the Sentencing Guidelines.
Under the criminal history provisions of Chapter Four of the Guidelines, cases that are "related" to each other do not receive separate criminal history points. Application Note 3 to §4A1.2 defines "related cases" as any cases not separated by an intervening arrest and "that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing." (Emphasis added) Seems fairly straightforward. What could be so hard to apply?
In fact, not only have the cases contrived the most narrow possible reading of the above phrases, but, in one case, have also nullified one of the Commission’s categories.
A. Occurred on the Same Occasion
This category from the Application Note has received little to no attention in the Court of Appeals. This may perhaps be because as a practical matter it would be easier to determine whether or not prior convictions occurred "on the same occasion" and the resulting decisions don’t get appealed.
B. Part of a Single Common Scheme or Plan
In United States v. Irons, 196 F.3d 634 (6th Cir. 1999), defendant argued the his prior convictions for violating a protective order against his ex-girlfriend on one occasion and breaking-and-entering her house and stealing from her brother on another occasion were "related." The Court notes that "common scheme or plan" is not defined in the Guidelines and adopts the definition from other circuits that "‘"scheme" and "plan" are words of intention, implying that [offenses] have been jointly planned, or at least that ... the commission of one would entail the commission of the other as well.’" 196 F.3d at 638. Labeling defendant’s argument as being that the convictions are related because they are part of a crime spree, the Court goes on to note that, "‘We are not persuaded that the Commission intended criminal behavior prompted by the same root causes of criminal deviance, even a spree of such crimes, to constitute a "single common scheme or plan" as contemplated by §4A1.2.’" Id. "[C]rimes are not ‘related’ merely because each was committed with the same purpose or common goal. ... This is true even if the prior convictions have the same victim." 196 F.3d at 639.
Using this same logic, the Court decided in United States v. Alford, 436 F.3d 677 (6th Cir. 2006), that the defendant’s prior convictions for robbery were not "related" despite the fact that all occurred in a single night within blocks of each other. The Court held that the crimes could be part of the same scheme or plan only if the offenses are jointly planned, or, at a minimum, the commission of one of the offenses necessarily requires the commission of the other. Offenses are not necessarily related merely because they were committed within a short period of time or are part of a crime spree.) See, also, United States v. Horn, 355 F.3d 610 (6th Cir.), cert. denied, __ U.S. __, 124 S.Ct. 2436 (2004) (crimes are part of the same scheme or plan only if the offenses are jointly planned, or, at a minimum, the commission of one offense necessarily requires the commission of the other; the simple sharing of a modus operandi cannot alone convert separate offenses into one offense by virtue of their being a single common scheme or plan; merely because crimes are part of a crime spree does not mean that they are related); United States v. Hazelwood, 398 F.3d 792 (6th Cir. 2005) (for two convictions to be related due to having been part of a single common scheme or plan, they must have been jointly planned or the commission of one offense necessarily requires the commission of the other); United States v. (Terry Lee) Carter, 283 F.3d 755 (6th Cir. 2002) (cases cannot be considered as "part of a single common scheme or plan" because the three prior drug offenses were not jointly planned in the inception and the commission of one offense did not entail the commission of the others).
While the Guidelines list them as separate reasons for finding cases to be "related," the Court of Appeals’ caselaw on "single common scheme or plan" reads more like "occurred on the same occasion." Yet the fact that the Sentencing Commission included them in the alternative surely means that two offenses that didn’t occur on the same occasion could still be considered related if the were part of a common scheme or plan. It is difficult to see from the above cases just what that could be.
C. Consolidated for Trial or Sentencing
What should be the most straightforward of the three categories has likewise been limited out of existence.
While the Court of Appeals noted in United States v. Coleman, 964 F.2d 564 (6th Cir. 1992), that "[n]o federal court has provided an all-encompassing definition of the term "consolidated for sentencing", it refused to take such opportunity, stating, "and we do not purport to do so here." 964 F.2d at 566. Coleman had two prior convictions for armed robbery, one occurring the day after the other. They were charged separately, and Coleman went to trial in the first case and was convicted by a jury. He thereafter pleaded guilty in the other case, they were sentenced on the same day, and, apparently, concurrent sentences were imposed. In upholding the district court’s finding that the two prior cases were not "related," the Court of Appeals finds "that the two convictions were, at all relevant times, treated separately and distinctly. There was no order by the trial court expressly or implicitly consolidating the cases for sentencing. In each case, there was a separate criminal complaint and separate indictment. The cases proceeded under separate court numbers." Id.
In United States v. Odom, 199 F.3d 321 (6th Cir. 1999) (Norris, Keith, Clay, JJ.) Defendant appealed his career offender status, pursuant to § 4B1.1, arguing that his two prior felony convictions had been "consolidated" for sentencing as contemplated by Application Note 3 to § 4A1.2, and should, therefore, only count as one conviction as "related cases." Defendant, after being made aware that if his priors were consolidated he would not be a career offender, had asked his prior state counsel to file a motion to consolidate the two prior convictions and the state court signed an order of consolidation. Using Coleman, (above), as a guide, the convictions were found to be unrelated because they occurred over a period of months, involved different victims, did not constitute a "single common scheme or plan", were charged in five different indictments with different cases numbers and different (although concurrent) sentences. The Court discounted the order of the state court for consolidation because it did not indicate any nunc pro tunc effect, was obtained in an ex parte proceeding, did not indicate whether the prosecutor agreed to it, and did not indicate whether the judge had any background information on which to base his decision, and the Court recognized that the order was only given to the state court judge to help reduce defendant’s federal sentence. [in footnote 2, the Court states that such an order will have probative value if the record reflects that the prosecutor was apprised of the motion to consolidate and that the state court judge was aware of the circumstances of the case, as well as the significance of the order with respect to the pending federal sentence.]
Defendant in this child pornography case had three prior drug convictions occurring on 3 different days in a 17-day span. Despite the fact that the offenses were charged in separate indictments, they were all sentenced at the same time, the sentences were run concurrently, and the judgments each listed all 3 dates as the date that the events occurred, the Court in United States v. (Terry Lee) Carter, 283 F.3d 755 (6th Cir. 2002), held that the cases cannot be considered as "consolidated for trial or sentencing". The court’s rationale was that "the fact that judgment was pronounced on the same day with sentences to run concurrently, without more, does not establish that the offenses were consolidated. [cite omitted] Further, given the separate entries of judgment and the absence of on order of consolidation, the record below does not demonstrate an intention on the part of the trial court to consolidate the cases." Id. at 758.
The defendant in United States v. Horn, 355 F.3d 610 (6th Cir.), cert. denied, __ U.S. __, 124 S.Ct. 2436 (2004), faired no better. He was found to be a career offender in this bank robbery case based on 2 robbery convictions that had been charged in separate informations, set for the same trial date, to which guilty pleas were entered at the same time, and which had sentences imposed at the same time. The cases had been docketed separately and no order was entered consolidating the cases for trial or sentencing. The Court of Appeals held that cases are not consolidated when offenses proceed to sentencing under separate docket numbers, the cases are not facially related, and there was no order of consolidation. The fact that judgment was pronounced on the same day with sentences to run concurrently, without more, does not establish that the cases were in fact consolidated. "We require some explicit indication that the trial court intended to consolidate the prior convictions." See, also, United States v. (Edward) Carter, 374 F.3d 399 (6th Cir. 2004) (refusing to find prior convictions "related" despite the fact that they were pleaded and then sentenced together, citing Horn, and noting that there was no order of consolidation.)
In United States v. Hazelwood, 398 F.3d 792 (6th Cir. 2005), Hazelwood argued that his prior convictions for car theft and robbery offenses were ‘related’ under the Guidelines in part because there was no intervening arrest, and because they were effectively consolidated for sentencing. The Court held that although it was true that a formal consolidation order need not be entered in order for cases to be considered functionally consolidated for sentencing, sentences are not functionally consolidated ‘when offenses proceed to sentencing under separate docket numbers, cases are not related, and there was no formal order of consolidation.’" (This certainly appears to say that, although a formal consolidation order need not be entered in order for cases to be considered functionally consolidated, sentences cannot be considered functionally consolidated where there is no formal order of consolidation.)
This language of "functional consolidation" comes from Buford v. United States, 532 U.S. 59, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001). While the issue in that case was what was the appropriate standard of appellate review for cases questioning whether prior convictions were "related", the Supreme Court’s ruling stated, "[t]he district court is in a better position than the appellate court to decide whether a particular set of individual circumstances demonstrates ‘functional consolidation.’" 532 U.S. at 64, 121 S.Ct. at 1280. As can be seen from the above-cited cases, what the Sixth Circuit has done through its cases is to insist on literal consolidation; there is no room for "functional consolidation."
Despite the fact that the Guidelines provide for considering as related any cases that were "consolidated for ... sentencing," such a finding would be impossible under Horn and the other cases just described unless a number of other judicially-created hurdles could be overcome. Under the express language of the guideline commentary, three indictments charging the defendant with a series of drug sales which indictments are all arraigned together, are pleaded out on the same date, are sentenced on the same date and are ordered to run concurrently would clearly be functionally "consolidated for sentencing." Not in the Sixth Circuit, however.
Potential for Disparity
In United States v. (Terry Lee) Carter, 283 F.3d 755 (6th Cir. 2002), although upholding the district court in finding the prior convictions to be not "related" for §4A1.2 purposes, the Court discusses the large potential for sentencing disparity that can result from application of the principles that were used to affirm the district court. Specifically, the Court found that "charging decisions, rather than the criminal conduct itself," could determine whether or not prior convictions were "related," thus warranting an increase in criminal history. The Court notes with approval those other circuits that have adopted a definition of "common scheme or plan" from the "relevant conduct" provisions of the Guidelines, §1B1.3, in determining whether prior convictions are part of a "single common scheme or plan" for criminal history purposes. While this approach may, in fact, have some appeal, and is certainly a move in the right direction, it also addresses only that one category and doesn’t speak to the category ("consolidate for trial or sentencing") that is the most divorced from common sense and practice and, therefore, has the greatest potential for creating disparity.
So what does "consolidated for ... sentencing" mean? Although the Court of Appeals appears in Hazelwood to back off some from the requirement of an "order of consolidation," all of the earlier cases use the lack of such an order to justify finding cases that have otherwise proceeded through the criminal justice system together as not "related." However, when the defendant in Horn argued that the Court had never explicitly held that prior convictions must be formally consolidated in order to be "related," the Court stated, "We have stated several times that ‘cases are not consolidated when offenses proceed to sentencing under separate docket numbers, cases are not factually related, and there was no order of consolidation.’ [cites omitted] Those cases make it clear that we require some explicit indication that the trial court intended to consolidate the prior convictions. In each of those cases, there was no order from the trial court consolidating the earlier offenses, nor was there any statement by the trial court implying they should be considered consolidated." 355 F.3d at 614. This, of course, raises the question why isn’t the trial court’s handling of two cases on the same track, taking guilty pleas at the same time, imposing sentence at the same time, and/or imposing concurrent sentences not an implicit statement that the trial court considers the two cases to be considered consolidated? This is not explained.
What is this "order of consolidation" and how did such a requirement get grafted onto the definition in Application Note 3? This writer can only speculate, because such an order is unknown to the practice in Tennessee. (It also appears that the attempt in Hazelwood to get an "order of consolidation" was motivated by the Sixth Circuit’s insistence on having one before cases could be declared "related," and not because that was otherwise the practice.) Does this also mean that, since there is no such practice in Tennessee, defendants with Tennessee convictions will be punished more harshly than defendants with convictions from some jurisdiction which has an order by that name that is routinely used whenever cases are put together for plea and sentencing? It would seem likely to be true. Perhaps what is needed is proof in the record at sentencing about the local plea bargaining and sentencing practices in the state court system from which the defendant’s conviction come showing that for all intents and purposes, the prior cases were "consolidated for sentencing." Until something else happens, this category continues to be impossible to reach in this Circuit.