United States of America, Plaintiff-appellee, v. James D. Cox, Defendant-appellant, 114 F.3d 1196 (9th Cir. 1997)

Before: BROWNING, and SCHROEDER, Circuit Judges and RESTANI, Judge^** .

MEMORANDUM^***

The district court erred in holding Cox's prior convictions unrelated. The plain language of Application Note 3 establishes that prior sentences should be deemed related if "consolidated for trial or sentencing." U.S.S.G. § 4A1.2, Application Note 3. Moreover, Circuit precedent holds that neither a formal consolidation order nor a factual relationship is necessary to meet the "consolidated for sentencing" requirement. United States v. Chapnick, 963 F.2d 224, 228-29 (9th Cir. 1992); United States v. Smith, 991 F.2d 1468, 1469, 1473 (9th Cir. 1993). Although Smith involved offenses docketed under the same number, that factor alone is not dispositive. This case presents a stronger case than Smith for finding relatedness because Cox entered a single plea agreement and his sentences were concurrent.

In light of established Ninth Circuit precedent, the out-of-Circuit authority cited by the Government is not helpful. Nor are the Government's policy arguments persuasive. The Government ignores the deference to be accorded to prior proceedings, see Chapnick, 963 F.2d at 229, and the Sentencing Commission's decision to address possible underrepresentation of criminal history through upward departures.

We vacate Cox's prior sentence and remand for imposition of the 240-month sentence previously determined by the district court to be appropriate should Cox's prior convictions be deemed related.

VACATED and REMANDED.