Appeal from the United States District Court for the District of Oregon. D.C. No. CR 92-186(FR). Owen M. Panner, District Judge, Presiding
Before: Stephen Reinhardt, Melvin Brunetti and Ferdinand Fernandez, Circuit Judges.
Oregon prisoner Payton Thomas was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and sentenced to 64 months imprisonment. Thomas argues on appeal that the district court 1) improperly used an unconstitutionally obtained prior conviction in calculating his offense level and criminal history under the United States Sentencing Guidelines, and 2) improperly treated as unrelated two prior convictions in calculating his criminal history pursuant to U.S.S.G. § 4A1.2(a) (2), where both cases were joined for sentencing in the same hearing. Based upon these objections, Thomas argues that his sentence properly falls within a 37 to 46 month range, and that his 65 month sentence is excessive.
We affirm the district court. Thomas' prior conviction was supported by the evidence and was thus obtained constitutionally. Thomas' prior convictions, moreover, were properly treated as unrelated. Application Note 3 to § 4A1.2 provides expressly that prior sentences are not related where the defendant was arrested for the first offense prior to committing the second offense. Application Note 3 clearly applies to the facts of this case: There is no question that Thomas' 1987 robbery arrest preceded the occurrence of his 1989 assault. The two convictions were consolidated for sentencing due solely to Thomas' failure to appear for trial on the robbery charge and are not "related" under § 4A1.2.
Facts and Proceedings in Thomas' Firearms Conviction
On August 19, 1992, Payton Marcell Thomas pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The presentence report indicated that Thomas had three prior convictions -- one count of third-degree robbery and two counts of assault -- which resulted in an assessment of six criminal history points. The presentence report also recommended an additional three criminal history points because Thomas was on parole and had been out of custody less than two years at the time of his guilty plea on the weapons charge.
Thomas objected to the assessment of three criminal history points for his robbery conviction, arguing that this conviction had been obtained unconstitutionally and therefore could not be used to enhance his criminal history score. Thomas also argued that the district court's use of his prior conviction for robbery improperly raised his offense level.*fn1 Under Thomas' argument, his total offense level without the robbery conviction would have been 19 (rather than 22) and his criminal history category would have dropped from IV to III.
Thomas also objected to the separate assessment of criminal history points for his robbery and assault convictions, arguing that they were related" pursuant to U.S.S.G. § 4A1.2(a) (2). The robbery and assault incidents occurred on separate dates, but the sentences were imposed in the same hearing by the same Judge and were ordered to run concurrently. Thomas argued that only three points, and not six, should have been given for the two offenses, and that his proper criminal history category was III.*fn2 Based upon these two objections, Thomas argued that he should have been sentenced within a guideline range of 37 to 46 months.*fn3
The district court ruled that Thomas' robbery conviction was constitutional and that his assault and robbery convictions were unrelated. The court determined that the offense level was 22, the criminal history category was IV and the applicable guideline range was 57 to 71 months. The court sentenced Thomas to 65 months.
Facts and Proceedings in Thomas' Prior Convictions
Thomas was arrested in 1987 for robbing beer from a 7-Eleven store. He was released after his arraignment and failed to appear for trial. In 1989, while in fugitive status, Thomas got into a brawl at another 7-Eleven store and stabbed two people. He was arrested for the stabbings and for his failure to appear for trial on the 1987 robbery charge. Thomas was tried for the 1987 crime and convicted of third degree robbery. He pleaded guilty to the stabbings, as two separate charges of felony assault. The cases were consolidated for sentencing. Thomas received concurrent sentences.
In this appeal, Thomas asserts that his conviction on the 1987 robbery charge was obtained unconstitutionally. The evidence presented at his trial on this charge was that three men went into the 7-Eleven store, and one of them, the short one (Thomas), grabbed chips and Coors beer and attempted to leave without paying. When the clerk tried to stop him, the clerk was confronted by the three men, who used threatening and abusive language. The clerk testified that the robbers said "Get out of the way you fucking honky -- What is your problem, asshole?" The clerk was hit in the head, and then pushed to the ground. The clerk testified that he believed that someone other than Thomas hit him, but that he did not actually see who hit him, or who pushed him to the ground. The clerk testified that after he was hit in the head, Thomas said to him "Fuck you" before he left the store. All three men fled with the beer.
Shortly thereafter, three men meeting the description of the robbers were found by police under an overpass near the store, drinking Coors beer. They were taken into custody and transported back to the 7-Eleven where they were identified by two store clerks.*fn4
Thomas was charged with second degree robbery. To find Thomas guilty of second degree robbery, the state court had to find that Thomas threatened or used force in the theft and was aided by another person actually present. See Or. Rev. Stat. § 164.405(b). Third degree robbery is a lesser offense which covers the use or threat of force, or aiding and abetting in the use of threat of force, to prevent or overcome resistance to ...