Unpublished Disposition, 905 F.2d 1541 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Robert Gordon LOCKWOOD, Defendant-Appellant.

No. 89-50439.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 1990.Decided June 28, 1990.

Before REINHARDT and LEAVY, Circuit Judges, and BRUCE R. THOMPSON, District Judge¹ .

MEMORANDUM² 

Defendant appeals his sentence for armed bank robbery on August 7, 1989, alleging violations of the sentencing guidelines. We have jurisdiction pursuant to 28 U.S.C. § 1291. Originally, there were three assignments of error: (1) that two points should not have been added to his criminal history score because he was on summary probation (unsupervised probation) at the time of the instant offense; (2) that a prior conviction on March 22, 1988 for being a felon in possession of a firearm should not have been scored as a separate offense from the armed bank robbery; and (3) that the district court did not exercise any discretion in ruling that his sentence would run consecutively to other unexpired sentences.

Respecting the standard of review, we review sentencing judgments based on findings of fact on a clearly erroneous standard, United States v. Wills, 881 F.2d 823, 827 (9th Cir. 1989), and sentencing judgments attacked as legally unsound on a de novo standard, United States v. Anderson, 895 F.2d 641 (9th Cir. 1990).

At oral argument defense counsel conceded that summary probation should be counted as a criminal justice act sentence under Section 4A1. (d) of the Sentencing Guidelines because of the intervening decision in United States v. McCrudden, 894 F.2d 338 (9th Cir.), cert. denied, 110 S. Ct. 1534 (1990), so holding.

On the second issue, when the probation office calculated Lockwood's total criminal history score to be 13, it included in that total 3 points for Lockwood's March 22, 1988 conviction of felon in possession of a firearm. The Sentencing Guidelines in Section 4A1.1(a) require that three (3) points be added to a defendant's criminal history score for each prior sentence of imprisonment exceeding one year and one month. Lockwood had been sentenced to two years for the firearms charge. Section 4 of A1.2(a) (1) of the Sentencing Guidelines defines a "prior sentence" as "any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense." (Emphasis added). In addition, the commentary to Sec. 4A1.2 states that: " [A] sentence imposed after the defendant's commencement of the instant offense, but prior to sentencing on the instant offense, is a prior sentence if it was for conduct other than conduct that was part of the instant offense."

It is Lockwood's contention that the January 20, 1988 armed bank robbery and the February 19, 1988 firearm possession were part of the same offense and that as a result, the court should not have added an additional 3 points to his criminal history score. In support of this claim Lockwood states that the nine millimeter semi-automatic pistol from the firearm possession conviction was the same weapon that he used in the bank robbery and that the two offenses were part of a single scheme or plan.

Lockwood then refers to the Multiple Counts section of the Guidelines Manual and its introductory commentary which he asserts should be looked to for guidance. That section expresses the Commission's policy of avoiding "double counting" and states that " [s]ome offenses that may be charged in a multiple-count indictment are so closely intertwined with other offenses that conviction for them ordinarily would not warrant increasing the guideline range." Lockwood did not testify at the sentencing hearing nor did he offer any evidence to support his position. In fact, the only evidence presented, the testimony of the bank teller regarding the weapon, does not identify the weapons as similar.

In its brief, the government correctly points out that when each element of a crime has occurred, the crime is complete. According to Title 18 of the United States Code, the crime of armed bank robbery has occurred when:

(a) [A person], by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association ...

and when, in committing or attempting to commit the above offense that person "(d) ... assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device...." 18 U.S.C. §§ 2113(a), (d).

It is clear that immediately following the January 20th bank robbery the crime of armed bank robbery was completed and the later firearm possession crime of February 19th cannot be considered to be a necessary element of the January 20th crime. At the sentencing hearing, the district court judge was unable to conclude that both crimes involved the same weapon but the court did determine that the armed bank robbery and defendant's possession of the semi-automatic pistol were not part of a common scheme or plan.

This determination by the district court is subject to reversal only if it was clearly erroneous. Here, the defendant produced no evidence to support his claim that the two crimes were indeed part of a common scheme or that the weapon in each crime was the same. The two events occurred a month apart. Finally, as the March 22, 1988 conviction for possession of a firearm clearly falls within the guideline definition of a prior conviction, the district court's determination should be upheld.

It is clear from the record that the district judge believed she was compelled by section 5G1.3 of the Sentencing Guidelines to impose consecutive sentences. This misconception was dispelled by this court in United States v. Wills, 881 F.2d 823 (9th Cir. 1989). That decision had not been filed at the time of this sentencing. In briefing and at oral argument the government conceded that, because of the Wills decision, this case should be remanded for resentencing so that the district judge may exercise discretion with respect to whether the sentence imposed should run concurrently or consecutively with any other unexpired sentence. By this remand we do not intend to intimate in any way in what manner we believe such discretion should be exercised.

REMANDED.