Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1991)

MEMORANDUM^** 

Jose Valentin-Cazares appeals his sentence imposed under the United States Sentencing Guidelines ("Guidelines") following his conviction by guilty plea for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. Valentin-Cazares contends that the district court erred in finding that two prior convictions were not related for the purpose of calculating his criminal history category pursuant to U.S.S.G. Sec. 4A1.2. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.

This court reviews de novo whether prior convictions are related for purposes of section 4A1.2. United States v. Gross, 897 F.2d 414, 416 (9th Cir. 1990). Underlying factual determinations made by the district court will be reviewed for clear error. Id. A defendant bears the burden of proof in establishing that prior convictions are factually related. See United States v. Davis, No. 90-30137, slip op. 43, 52 (9th Cir. January 4, 1991).

In this circuit, " 'factually unrelated' cases cannot be 'related' under section 4A1.2(a) (2) of the Sentencing Guidelines." Davis, slip op. at 49, 52. Accordingly, we reject Valentin-Cazares's argument that two prior state charges against him were related for purposes of section 4A1.2(a) (2) simply because they were resolved at the same time. See also id. at 54; Gross, 897 F.2d at 417.

Prior convictions are factually related for purposes of Guidelines section 4A1.2 if they are part of a single common scheme or plan. Davis, slip op. at 48; U.S.S.G. Sec. 4A1.2 comment. (n. 3). However, a common modus operandi is not, in itself, sufficient to establish that two prior convictions are related under the Guidelines. Davis, slip op. at 51, 55. In a letter to the district court, and at the sentencing hearing, Valentin-Cazares argued that two prior convictions were factually related for three reasons: (1) "they arose out of virtually identical arrests for delivery and possession of a controlled substance, heroin, in the Old Town section of Portland," (2) " [t]hey involved the same arresting officers," and (3) " [i]n both cases, small amounts of heroin were seized." Valentin-Cazares offered no evidence in support of these assertions.

Even assuming that it was proper for the district court to consider the unsubstantiated statements of Valentin-Cazares's attorney, see U.S.S.G. Sec. 6A1.3 (" [w]ritten statements of counsel ... may be adequate under many circumstances"), it was not clear error for the district court to find that these assertions showed nothing more than a common modus operandi between the two incidents underlying the prior convictions, see Davis, slip op. at 52. The five-month gap between the two incidents and the absence of any evidence that Valentin-Cazares was subject to a single, ongoing criminal investigation bolster our conclusion. See id. at 52 (thirteen-month gap and absence of continuing investigation indicated lack of common scheme or plan), 54-55 (noting six-month gap between crimes in case where Fifth Circuit concluded that two prior convictions were "not factually tied in any way").¹ 

AFFIRMED.