United States of America, Plaintiff-appellee, v. Domingo Gomez-lopez, Defendant-appellant, 993 F.2d 885 (9th Cir. 1993)

MEMORANDUM^* 

Domingo Gomez-Lopez appeals from the twenty-four month sentence he received following his guilty plea to illegal re-entry after deportation subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a). He contends the district court improperly calculated his criminal history category because three prior convictions should have been treated as "related cases," thereby reducing his criminal history from Category V to Category IV.

We agree. Each of the three cases was sentenced by the same state court judge on the same day, in the same proceeding. Therefore, the cases were consolidated for sentencing and are considered related for purposes of U.S.S.G. § 4A1.2(a) (2) & comment. (n. 3) as it existed on the date Gomez-Lopez was sentenced. United States v. Smith, No. 91-50029, slip op. at 4044 (9th Cir. April 22, 1993) (cases related where defendant received consecutive sentences imposed in same proceeding by same judge under same docket number); see also, United States v. Hummasti, 986 F.2d 337, 339 (9th Cir. 1993) (cases considered consolidated for sentencing, even though no formal consolidation order entered, and therefore related where defendant was sentenced to identical concurrent sentences in separate cases with different case numbers by the same court in one proceeding); United States v. Bachiero, 969 F.2d 733, 734 (9th Cir. 1992) (same); United States v. Chapnick, 963 F.2d 224, 228-29 (9th Cir. 1992) (same). The three prior cases should have been counted as one conviction.

We deferred submission of this case on February 19, 1993, in order to permit the panel considering the Smith case to complete its review of the impact of Bachiero and Chapnick. The amended opinion in Smith was filed on April 22, 1993, and its treatment of consecutive sentences controls here. Since the sentencing issue was the only issue raised by Gomez-Lopez, and he has already served seventeen months of his sentence, expedited handling of his case is required in order that he have the benefit of resentencing.

The sentence imposed by the district court in this case is VACATED and the case is REMANDED for resentencing. The mandate shall issue forthwith.