United States v. Walls
United States v. Walls
Opinion of the Court
ORDER
After Jill Walls pleaded guilty to two counts of methamphetamine distribution, 21 U.S.C. §§ 841(a)(1), (b)(1)(C), the district court imposed concurrent 120-month prison terms based, in part, on its determi
In March 2001 drug enforcement agents suspected Walls of manufacturing and selling methamphetamine from her home in Pawnee, Illinois. Agents began watching her home, and while they were watching, she sold small amounts of methamphetamine to several police informants. A grand jury indicted Walls for methamphetamine distribution under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) for two sales involving a total of 2.7 grams. As we said, she pleaded guilty to the charges.
The presentence report recommended that Walls be sentenced as a career offender under U.S.S.G. § 4B1.1 because she had two prior felony drug offenses in Illinois state court — one in Sangamon County in May 1991 for delivering methamphetamine and one in July 1991 in neighboring Morgan County for methamphetamine trafficking.
The first conviction stemmed from Walls’ sale of 2.32 grams of methamphetamine in Pawnee, Sangamon County in June 1989. Sangamon County prosecutors charged her with unlawful delivery of a controlled substance in August 1990, and the case was assigned docket number 90-CF-554. Walls pleaded guilty on May 17, 1991, and that same day a Sangamon County Circuit Court judge sentenced her to two years’ imprisonment to run concurrently with any sentence imposed in the trafficking case that was then pending in Morgan County.
Walls committed the offense underlying her second drug conviction nine months later in March 1990, when she caused methamphetamine to be brought into Illinois for the purpose of delivery. A Morgan County grand jury indicted Walls for controlled substance trafficking in June 1990, and the case was docketed as 90-CF-73. In July 1991, Walls pleaded guilty and received a four-year sentence from a Morgan County Circuit Court judge.
Back to federal court, Walls objected to the PSR’s recommendation that her Sangamon and Morgan County drug convictions made her a career offender. She argued, as she does here, that the convictions were “related” and therefore should only count as one prior conviction under § 4B1.1. Finding insufficient evidence of relatedness, the district court applied the career offender enhancement. Accordingly, the court concluded that Walls had a criminal history category of VI and total offense level of 34, which, after subtracting three levels for Walls’ acceptance of responsibility, yielded a sentencing range of 188 to 235 months. Pursuant to the government’s motion, the court granted Walls a downward departure for her cooperation, see U.S.S.G. § 5K1.1, and sentenced her to concurrent terms of 120 months’ incarceration and six years’ supervised release. Had the court not classified Walls as a career offender, her sentencing range would have been 21 to 27 months.
Walls’ sole contention on appeal is that the district court erred in classifying her as a career offender. Walls is a career offender if (1) she’s at least eighteen years old at the time she committed the instant offense, (2) the instant felony offense is either a crime of violence or a controlled substance offense, and (3) she has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1. Prior convictions qualify under subsection (3) if they would be counted separately under
For prior sentences to be “related,” the underlying conduct must not have been separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second), and must have resulted from offenses that “(A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.” U.S.S.G. § 4A1.2, comment, (n.3). The parties do not dispute that the offenses underlying Walls’ 1991 drug convictions occurred on different dates or that there was no intervening arrest: Walls was charged with the June 1989 offense while in custody for the March 1990 offense. See United States v. Joseph, 50 F.3d 401, 402-03 (7th Cir. 1995) (declining to treat the filing of a criminal charge as the equivalent of an arrest for purposes of § 4A1.2).
Walls contends that she committed the June 1989 and March 1990 methamphetamine offenses as part of a common scheme or plan, and that the cases were consolidated for sentencing. First, Walls argues that because the trafficking and the sale were committed within nine months of each other in the same general area, and both involved methamphetamine, they were connected by a common scheme to distribute the drug. Section 4A1.2 does not define “single common scheme or plan.” But we have repeatedly held that “[c]ommitting like crimes that were close in time and similar in style is not enough to establish a singular common scheme or plan” for purposes of § 4A1.2(a)(2). Brown, 209 F.3d at 1023 (internal quotations omitted); see also United States v. Carroll, 110 F.3d 457, 460 (7th Cir. 1997) (“Neither close temporal proximity nor similar nature of the crimes commands a finding that the defendant jointly planned the crimes.”). A single common scheme or plan exists only if (1) the crimes were “jointly planned,” or (2) “one crime entails the commission of the other.” Brown, 209 F.3d at 1023.
Walls concedes that she fulfills neither criterion. Instead, she asserts that, contrary to our previous cases, we should employ the broader definition of “common scheme or plan” used to ascertain “relevant conduct” under U.S.S.G. § 1B1.3. For two or more offenses to constitute a “common scheme or plan” under § 1B1.3, they must be “substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.” U.S.S.G. § 1B1.3, comment. (n.9(A)). If this broader definition of common scheme or plan is applied, Walls contends her two prior methamphetamine offenses were sufficiently similar and close together in time to be considered related.
Walls’ argument that the term “common scheme or plan” should be defined consistently throughout the guidelines has, we
Applying our well-settled rule, Walls must demonstrate for purposes of § 4A1.2 not only common victims, common accomplices, common purpose, or similar modus operandi, but that she “either intended from, the outset to commit [the] crimes or that [she] intended to commit one crime which, by necessity, involved the commission of [the others].” Brown, 209 F.3d at 1023 (emphasis in original). Because the record is devoid of evidence establishing that Walls jointly planned the two offenses, or that one offense necessarily entailed the commission of the other, the district court did not clearly err by finding that Walls’ prior drug offenses were not part of a common scheme or plan under § 4A1.2(a)(2).
Second, Walls argues that although the Sangamon and Morgan County cases were not formally consolidated, the two cases were “functionally consolidated” for sentencing. Where, as here, a formal consolidation order is absent, a court may consider cases functionally consolidated if the cases “are factually or logically related, and sentencing was joint.” Best, 250 F.3d at 1095. In such cases, however, there must be “a showing on the record of the sentencing hearing that the sentencing judge considered the cases sufficiently related for consolidation and effectively entered one sentence for the multiple convictions.” Id. Walls identifies no such showing. Rather, she relies solely on the fact that the Sangamon County Circuit Court judge imposed a two-year term to run concurrent with the sentence imposed in Morgan County. The decision to run the sentence concurrently, Walls says, “implies that the Sangamon County Court believed there was sufficient similarity between the two offenses.” (Appellant’s Br. at 16) (emphasis added).
But the imposition of concurrent sentences, without more, does not establish consolidation. United States v. Maro, 272 F.3d 817, 824 (7th Cir. 2001) (citing United States v. Brown, 962 F.2d 560, 565 (7th
Reference
- Full Case Name
- United States v. Jill WALLS
- Status
- Published