Unpublished Disposition, 919 F.2d 146 (9th Cir. 1989)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 919 F.2d 146 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Phillip Anthony PAGNOTTA, Defendant-Appellant.

No. 89-30329.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1990.* Decided Nov. 29, 1990.

Before WALLACE, DAVID R. THOMPSON and TROTT, Circuit Judges.


Phillip Anthony Pagnotta appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines), following his guilty plea to one count of bank robbery in violation of 18 U.S.C. § 2113(a). Pagnotta contends the district court erred by refusing to count as "related cases" three prior convictions in calculating his criminal history score. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the sentence.

We review de novo a district court's construction of the Guidelines. United States v. Gross, 897 F.2d 414, 416 (9th Cir. 1990). We have rejected "that part of Application Note 3 [to Guidelines Sec. 4A1.2(a) (2) ] that suggests that cases consolidated for sentencing are to be deemed related." Id.

Pagnotta was convicted in state court in 1984 for failure to appear, in 1985 for forgery, and in 1987 for theft. Initially, he received probation for all three state convictions. On July 27, 1988, he was indicted by a federal grand jury in three counts of bank robbery. The following month, on August 29, 1988, he stipulated in state court to violations of his probation, and was sentenced to three consecutive terms of imprisonment. Pagnotta pleaded guilty to Count II of the federal indictment on September 14, 1988. In calculating Pagnotta's criminal history score for purposes of sentencing, the district court refused to consider the three state convictions "related cases" within the meaning of Guidelines Sec. 4A1.2(a) (2), and thus assigned three criminal history points to each. This calculation dictated a sentencing range of 51 to 63 months, instead of 37 to 46 months, which would have been the range had the prior convictions been deemed "related." On October 1, 1989, Pagnotta was sentenced to 51 months incarceration and three years of supervised release.

The district court did not err. Pagnotta's state convictions involved three different offenses occurring in three different years. For simple expedience, his probation was revoked and sentences imposed for all three crimes in the same proceeding. The district court properly refused to consider these three prior convictions "related cases" for sentencing purposes. See Gross, 897 F.2d at 416. The sentence is



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


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