United States of America, Plaintiff-appellee, v. Brian Joseph Mahoney, Defendant-appellant, 39 F.3d 1189 (9th Cir. 1994)

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US Court of Appeals for the Ninth Circuit - 39 F.3d 1189 (9th Cir. 1994)

Argued and Submitted Sept. 16, 1994. Decided Nov. 2, 1994


Before: FEINBERG* , SCHROEDER and KOZINSKI, Circuit Judges.


MEMORANDUM** 

Appellant claims that the district court improperly failed to treat his prior state and federal sentences for armed robbery as related sentences under U.S.S.G. Sec. 4A1.2(a) (2). The federal sentence was imposed prior to the state sentence; however, after state sentencing, the federal court amended its Judgment and Commitment Order to recommend that appellant's federal sentence run concurrent and coterminous with the state sentence. Ultimately, two robberies were prosecuted in state court and one was prosecuted in federal court.

The only reason the state and federal sentences were not consolidated for prosecution was the informal policy adopted by local state and federal prosecutors of splitting prosecutions between them. In determining whether prior sentences should be treated as having been consolidated for sentencing, we ignore this sort of random distinction. See United States v. Houser, 929 F.2d 1369, 1374 (9th Cir. 1990) (vacating appellant's sentence where career offender status was based on two prior offenses prosecuted separately merely because of geography and not because of the nature of the offenses). Accordingly, the district court should have treated all three prior sentences as related cases.

REMANDED FOR RESENTENCING.

 *

The Honorable Wilfred Feinberg, Senior United States Circuit Judge, United States Court of Appeals for the Second Circuit, sitting by designation

 **

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