United States of America, Plaintiff-appellee, v. Dana Depew, Defendant-appellant, 996 F.2d 1228 (9th Cir. 1993)

MEMORANDUM^** 

Dana Depew appeals his sentence imposed after a guilty plea to one count of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). Depew argues that he was improperly classified as a career offender pursuant to U.S.S.G. § 4B1.1. We have jurisdiction under 28 U.S.C. § 1291, and we vacate Depew's sentence and remand for resentencing.

We review de novo the district court's interpretation and application of the Sentencing Guidelines. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990). To be eligible for sentencing as a career offender, a defendant must meet three requirements: (1) he must be at least 18 years old at the time of the instant offense; (2) the instant offense must be a felony that involves either violence or a controlled substance; and (3) the defendant must have "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1. In applying section 4B1.1(3), the district court relied on Depew's two September 21, 1981 convictions, following guilty pleas, one for possession of ingredients with intent to make a destructive device, in violation of Cal.Penal Code § 12312, and the other for possession for sale of methamphetamine, in violation of Cal.Health and Safety Code § 11378.¹ 

Depew contends that he lacks the requisite "two prior felony convictions" to support the district court's assignment of career offender status. Depew and the government agree that the issue is whether Depew's prior convictions for possession of ingredients with intent to make a destructive device and possession for sale of methamphetamine were "related" as defined in section 4A1.2(a) (2).²  Because " [p]rior sentences imposed in related cases are to be treated as one sentence," Depew argues that his two prior felonies must be considered related because they were "consolidated for ... sentencing." U.S.S.G. § 4A1.2(a) (2) & comment (n. 3); see United States v. Smith, No. 91-50029, slip op. 4033, 4044 (9th Cir. Apr. 22, 1993).

Depew is correct. "There is no need for a formal consolidation order for cases to be 'related' under section 4A1.2." Id. All prosecutions combined for trial or sentencing count as a single conviction. Id. (citations omitted). Depew's two prior convictions were assigned to the same state court judge for entry of pleas and for sentencing. Sentencing occurred on the same day, in the same combined proceeding, based on a single presentence report, and the judgment with respect to both was set forth on a single form. This satisfies section 4A1.2. Id. Further, that the sentences were imposed consecutively, rather than concurrently, is insufficient to undermine the state court's informal consolidation. Id. at 4036.

Because we conclude that Depew lacks two prior felony convictions, and thus was improperly designated a section 4B1.1 career offender, we need not determine whether possession of ingredients with intent to make a destructive device constitutes a "crime of violence" pursuant to section 4B1.2(1).

Depew's sentence is VACATED and the case is REMANDED for resentencing.