Unpublished Disposition, 937 F.2d 614 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 614 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Michael A. WEST, Defendant-Appellant.

No. 90-30213.

United States Court of Appeals, Ninth Circuit.

Submitted July 10, 1991.* Decided July 15, 1991.

Before GOODWIN, ALARCON and CYNTHIA HOLCOMB HALL, Circuit Judges.


MEMORANDUM** 

Michael Arvell West appeals the sentence imposed under the Federal Sentencing Guidelines ("guidelines") and contends that his criminal history was miscalculated following his guilty plea to a violation of 21 U.S.C. 841(a) (1). We affirm on the basis of United States v. Gross, 897 F.2d 414, 417 (9th Cir. 1990) (sentencing at single hearing for multiple convictions does not render those convictions related cases under the guidelines). Cf. United States v. Smith, 905 F.2d 1296, 1303 (9th Cir. 1990) (fact that defendant's sentences were to run concurrently has no legal effect for purposes of calculating criminal history score under Application Note 11).

This appeal relies upon the wording of Application Note 3. The Note provides that cases 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 (emphasis added).

West's record, which was extensive for a 21 year old, included a conviction for attempted assault on November 10, 1987, and one for unlawful possession of a firearm on January 24, 1989. His attorney was able to negotiate plea bargains for the two discrete offenses and sentences to be served concurrently.

West now claims that according to the "consolidated" language of clause (3) of the Application Note, he is entitled to have his two prior convictions treated as one. Under the guidelines, this treatment would reduce his criminal history score from 7 to 6 and make him a "category III" offender instead of a "category IV" offender; consequently, his guideline sentence would be reduced by approximately twelve months.

Our reading of Gross, as well as common sense, supports the trial court's refusal to treat West's two crimes as one. The two crimes were distinct and unconnected in time or circumstances. West was fortunate to put together a provident plea bargain that netted him concurrent sentences. To treat this happenstance as a single criminal conviction, however, would produce just the sort of whimsical result the guidelines were intended to avoid.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 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 Ninth Circuit Rule 36-3