Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1975)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 1137 (9th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,v.Juan FLORES-MUNOZ, Defendant-Appellant.

No. 90-50446.

United States Court of Appeals, Ninth Circuit.

Submitted March 20, 1991.* Decided March 22, 1991.

Appeal from the United States District Court for the Southern District of California; No. CR-89-1127-01-WBE, William B. Enright, District Judge, Presiding.

S.D. Cal.

AFFIRMED.

Before CYNTHIA HOLCOMB HALL, DAVID R. THOMPSON and RYMER, Circuit Judges.


MEMORANDUM** 

Juan Flores-Munoz appeals his sentence imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following his guilty plea to one count of unlawful use of a communication facility in committing a controlled substance offense in violation of 21 U.S.C. § 841(a) (1). Flores-Munoz contends that two of his prior convictions were related under U.S.S.G. Sec. 4A1.2(a) (2) because the sentences for the convictions were ordered to run concurrently, and thus the district court erred by awarding three criminal history points for each conviction. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Whether prior convictions are related within the meaning of U.S.S.G. Sec. 4A1.2(a) (2) is a mixed question of law and fact which we review de novo. United States v. Davis, 922 F.2d 1385, 1387 (9th Cir. 1991).

U.S.S.G. Sec. 4A1.1(a) provides that in determining a defendant's criminal history category, the sentencing court should add three points for each prior unrelated sentence of imprisonment exceeding one year and one month. Sentences imposed in prior unrelated cases are to be counted separately, while those imposed in prior related cases are to be treated as one. U.S.S.G. Sec. 4A1.2(a) (2). The commentary suggests that " [c]ases are considered related if they (1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing." U.S.S.G. Sec. 4A1.2(a) (2), comment. (n. 3). We have previously held, however, that cases are not related merely because they are consolidated for sentencing. United States v. Gross, 897 F.2d 414, 416 (9th Cir. 1990). Sentences imposed in different jurisdictions by different judges are not "consolidated" even if the sentences are ordered to run concurrently. Davis, 922 F.2d at 1390-91; see United States v. Smith, 905 F.2d 1296, 1303 (9th Cir. 1990). Factually unrelated cases cannot be related under section 4A1.2(a) (2). Davis, 922 F.2d at 1389.

Here, Flores-Munoz was convicted of manslaughter on February 19, 1974 in a state prosecution in San Diego Superior Court, resulting in a sentence of six months to fifteen years imprisonment. On April 21, 1975, Flores-Munoz was convicted of conspiracy to possess with intent to distribute marijuana in the United States District Court for the Southern District of California. For that offense, he was sentenced to three years imprisonment to run concurrent with the sentence for the state conviction. At sentencing for the instant offense, the district court counted the prior convictions separately, calculating three criminal history points for each one. The two convictions were neither consolidated for sentencing nor related even though the federal sentence was ordered to run concurrent to the state sentence. Moreover, the two offenses are factually distinct. Thus, the district court did not err by refusing to count Flores-Munoz' two prior convictions as related for purposes of calculating his criminal history score. See Davis, 922 F.2d at 1390-91; Smith, 905 F.2d at 1303.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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