No. 92-5509.United States Court of Appeals, Fourth Circuit.Argued May 7, 1993.
Decided September 30, 1993.
C. Winston Gilchrist, Asst. Federal Public Defender, Raleigh, NC, argued for defendant-appellant.
Robert Daniel Boyce, Asst. U.S. Atty., Raleigh, NC, argued (Margaret Person Currin, U.S. Atty., on brief), for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of North Carolina.
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Before WIDENER, Circuit Judge, MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation, and CLARKE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
[1] OPINION
WIDENER, Circuit Judge:
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downward departures based on Fonville’s youth or lack of youthful guidance or the disparity of the sentences between the two defendants.[3] The district court found that Fonville’s prior convictions for common law robbery and breaking and entering a residence were not related. The district court also rejected the defendant’s claim that the career offender provisions violate the equal protection component of the Fifth Amendment in so far as they utilize state-defined adult convictions sustained by offenders prior to the age of eighteen.
I.
[6] Fonville contends that the district court had the authority to grant a downward departure in his sentence pursuant to 18 U.S.C. § 3553(a)(6), which states that sentencing courts shall consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” The defendant argues that a downward departure based on the disparity of sentences for similarly situated co-defendants is warranted, since both co-defendants are guilty of the armed bank robbery and were involved in the same two prior offenses that led to Anthony’s qualifying as a career offender. The defendant asserts that the only difference between the two defendants is that Paul was not convicted of the common law robbery, whereas Anthony was convicted and this conviction served to qualify him as a carrier offender under U.S.S.G. § 4B1.1[4]
Both Fonville and the Government agree that the district court refused to depart because it felt it had no authority to do so on the basis of sentencing disparity.[5] Therefore, Fonville’s appeal on this issue is reviewable. See United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, 498 U.S. 819, 111 S.Ct. 65, 112 L.Ed.2d 39 (1990). The district court’s determination of its departure authority is a legal decision; therefore, our review is de novo. See United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992).
[8] Hall, 977 F.2d at 864. Therefore, we held in Hall that where two co-defendants or coconspirators receive sentences within the guidelines, disparity is not unwarranted, within the meaning of 18 U.S.C. § 3553(a)(6). Hall, 977 F.2d at 865 n. 4.national uniformity in the sentencing of similar defendants for similar federal offenses which Congress sought to ensure is undermined when a departure from a defendant’s guideline range is based on the sentence imposed on a codefendant or a coconspirator, regardless of whether that sentence was imposed in a federal or state forum. . . .
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[9] This case fits squarely within the holding and rationale of both Ellis and Hall. We are of opinion that the sentencing disparity in this case is not unwarranted and no downward departure would be justified. Differing career offender status between co-defendants results in different sentences and will always be based on the fact of prior convictions, or lack thereof, on co-defendants’ respective criminal records. The guidelines are clear that it is only prior convictions, i.e. judicial determinations of guilt, not prior unconvicted criminal conduct, which determine career offender status under § 4B1.1. Indeed, given the fact that Paul could not be declared a career offender because there was no common law robbery conviction on his record, the disparity of sentence between Anthony and Paul is not unwarranted.[7] Furthermore, U.S.S.G. § 4A1.3(e) demonstrates that the Sentencing Commission considered unconvicted criminal conduct and provided only for an upward departure where the criminal history category of a defendant does not “adequately reflect the seriousness of the defendant’s past criminal conduct,” based on “prior similar adult criminal conduct not resulting in a criminal conviction.” It would be an anomaly if the same factor (unconvicted conduct) that the Sentencing Guidelines use to justify an upward departure for one defendant would be allowed to justify a downward departure for a co-defendant, should the upward departure not be given. II.
[10] We are of opinion that the district court refused a downward departure based on the defendant’s lack of youthful guidance because it felt that no departure was warranted and not, as Fonville contends, because it believed it had no authority to depart on that basis. Thus, the district court’s discretionary refusal to depart is not reviewable on appeal. Bayerle, 898 F.2d at 29-31.
III.
[11] The district court sentenced Fonville as a career offender, pursuant to U.S.S.G. § 4B1.1, based on his two prior violent adult felony convictions in North Carolina for the common law robbery committed on October 6, 1988 and the breaking and entering of a residence committed on October 14, 1988.[8]
Fonville contends that the district court erred in counting these two prior convictions separately and argues that they should be considered related offenses pursuant to U.S.S.G. § 4A1.2.[9]
Fonville considers the crimes related because they were close in time and place, involved the same defendants and motive (financial support), were solved by a single police investigation, received concurrent sentences, and would have been consolidated for sentencing if Fonville had not proceeded to trial on the robbery charge. The claim that his two prior offenses are related under § 4A1.2 has no merit. They were committed on separate occasions, were not in fact consolidated for trial or sentencing, and did not involve similar substantive offenses. The fact that they had concurrent sentences, a common motivation, and the same participants does not make these two prior offenses related. In United States v. Rivers, 929 F.2d 136, 140 (4th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 431, 116 L.Ed.2d 451 (1991), this court rejected a contention that consolidation for the purpose of plea bargaining was the functional equivalent of consolidation for sentencing under
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§ 4A1.2 and held that partially concurrent sentences do not make prior convictions related.
[12] Furthermore, similar motivation does not convert prior convictions into related offenses for purposes, of sentencing United States v. Sanders, 954 F.2d 227, 232 (4th Cir. 1992). Fonville’s assertion that the two prior convictions resulted from a single investigation and his reliance on United States v. Houser, 929 F.2d 1369 (9th Cir. 1990), is misplaced. In Houser,a single police investigation targeted the defendant for drug activity, which resulted in two undercover drug buys by a single government agent in separate counties. Thus, the defendant was “charged and convicted of two offenses merely because of geography and not because of the nature of the offenses.”Houser, 929 F.2d at 1374. Without deciding whether a single police investigation is relevant to a determination of the relatedness of prior convictions, several important factors distinguish Houser from the instant case. Houser involved convictions of the same substantive offenses in separate jurisdictions. In such a case, inquiry into whether both substantive offenses were the primary target of a single police investigation might have helped to determine if the similar crimes were, in fact, related.[10] In contrast, Fonville’s two prior convictions involved different substantive offenses. Furthermore, Fonville’s arresting officers found out about the robbery only after arresting both Fonvilles for breaking and entering. Fonville’s prior convictions are not related merely because, by accident, they were solved by the same police officers.
IV.
[13] Fonville argues that his career offender status violates equal protection guarantees embodied in the Fifth Amendment, insofar as his predicate offenses included state convictions obtained before Fonville was eighteen years old.[11] Since Fonville was proceeded against as an adult under North Carolina law, that point is also without merit. We do not believe that Congress must prescribe a uniform age at which to consider criminals adults, for federal sentencing purposes, under state law to escape an equal protection challenge.
. . . [Y]ou have touched upon the problems of sentencing guidelines, and the Fourth Circuit, unfortunately from my view, does not accord the sentencing judge the authority to take disparity among defendants into account.
[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. . . .
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