930 F2d 30 United States v. Mendez-Lopez

930 F.2d 30

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Porfirio MENDEZ-LOPEZ, Defendant-Appellant.

No. 90-10442.

United States Court of Appeals, Ninth Circuit.

Submitted March 12, 1991.*
Decided March 29, 1991.

Before: D.W. NELSON, KOZINSKI and THOMAS G. NELSON, Circuit Judges.

1

MEMORANDUM*

2

Porfirio Mendez-Lopez appeals from a September 10, 1990, judgment sentencing him to nine months in prison. Mendez-Lopez alleges the district court erred when it calculated his criminal history score by failing to count two "consolidated and related" sentences imposed on the same day as one sentence under section 4A1.2(a)(2) of the United States Sentencing Guidelines. Mendez-Lopez asks us to reconsider this court's opinion in United States v. Gross, 897 F.2d 414 (9th Cir.1990), which rejected essentially the same arguments advanced here. We decline the invitation and affirm the sentence imposed by the district court.

FACTUAL AND PROCEDURAL BACKGROUND

3

Mendez-Lopez was indicted on June 15, 1990, on a single count of being a deported alien found within the United States in violation of 8 U.S.C. Sec. 1326. Mendez-Lopez pleaded guilty to the indictment on August 16, 1990, in return for the Government's promise to recommend a sentence at the bottom of the applicable sentencing guideline range.

4

The presentence investigation revealed prior convictions. On February 4, 1988, Mendez-Lopez was convicted of possession of a controlled substance and sentenced to an unknown term of incarceration. On June 21, 1988, Mendez-Lopez was convicted of possession of cocaine for sale and placed on probation for five years with the condition he spend 180 days in jail. On February 6, 1989, Mendez-Lopez was again convicted of possession of cocaine for sale and was sentenced to three years in prison. At the same time, his probation on the June 21, 1988, cocaine offense was revoked and he was resentenced on the June, 1988, offense to a three year sentence to run concurrently with the sentence on the February, 1989, offense.

5

Mendez-Lopez objected to the probation officer's calculation of criminal history category based on the assignment of criminal history points for the probation revocation and the February, 1989, cocaine offense. Appellant argued the two sentences were "related" and that under Application Note 3 to section 4A1.2 of the United States Sentencing Guidelines, they should have been treated as one sentence for purposes of computing his criminal history. The challenge to the criminal history computation was twice raised before the district judge before sentencing on the 8 U.S.C. Sec. 1326 offense.

6

The district court, relying on United States v. Gross, 897 F.2d 414, found that the two convictions were not related and gave Mendez-Lopez three criminal history points for each conviction. The resulting guideline range was set at 9-15 months and Mendez-Lopez was given a nine month sentence. Under appellant's method of calculation, the resulting guideline range would have been 6-12 months. The court also imposed a one year term of supervised release, with the special condition Mendez-Lopez not reenter the United States. Mendez-Lopez has apparently served the nine month sentence. According to the Bureau of Prisons Mendez-Lopez's full term release date was March 4, 1991.

STANDARD OF REVIEW

7

We review de novo a district court's application of the Sentencing Guidelines, to the extent that such application involves a mixed question of law and fact. United States v. Davis, 922 F.2d 1385, 1387 (9th Cir.1991). Appellant expressly admitted below that the June, 1988, and February, 1989, convictions were factually unrelated. There is no dispute that the sentences were imposed on the same day, by the same judge, at the same hearing. Whether the cases were related within the meaning of section 4A1.2(a)(2) and Application Note 3 of the Sentencing Guidelines is a therefore a legal determination in this case, not a factual one. See Gross, 897 F.2d at 416.

ANALYSIS

8

The district court relied on the Gross case in assigning three points each for the June, 1988, and February, 1989, sentences. Mendez-Lopez argues that because the two 1989 cases were consolidated for sentencing, he should be assigned only three points total for these prior convictions. Section 4A1.1(a) of the Guidelines provides that the court should "[a]dd 3 points for each prior sentence of imprisonment exceeding one year and one month." Section 4A1.2(a)(2) directs that under the Guidelines "[p]rior sentences imposed in unrelated cases are to be counted separately. Prior sentences imposed in related cases are to be treated as one sentence for purposes of the criminal history."

9

The Commentary to section 4A1.2 of the Guidelines, Application Note 3, explains that cases should be considered related if they "(1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing. " (Emphasis added.) However, this court held generally in Gross that "application notes are not binding law," but merely "advisory commentary to assist in the application of the statute." 897 F.2d at 416-17. Gross rejected the part of Application Note 3 that suggests that cases consolidated for sentencing are deemed related. Id. at 416.

10

Mendez-Lopez acknowledges that Application Note 11 to section 4A1.2(k) provides that when a sentence is imposed on a probation revocation at the same proceeding in which the defendant is sentenced on a new criminal conviction the revocation and the new conviction are not considered "related" for purposes of counting "prior sentences" under Section 4A1.2(2). However, Mendez-Lopez argues that Gross holds that the Application Notes are advisory only and that it would be inconsistent to reject Note 3 and not Note 11. We likewise decline the invitation to reject Note 11 and point out that because Mendez-Lopez's cases were "factually unrelated" under Gross, rejecting Note 11 would in no way advance his argument on appeal. See also United States v. Smith, 905 F.2d 1296 (9th Cir.1990) (defendant not entitled to have two prior convictions treated as one offense for purposes of calculating his criminal history score under the Guidelines even though when probation was revoked on each offense, he was sentenced to concurrent prison terms).

11

In United States v. Davis, this court recently rejected a claim that two cases were related for purposes of Section 4A1.2(a)(2). Davis sheds more light on the argument advanced by Mendez-Lopez:

12

Application Note 3 contains no definition of the term "consolidated." Although this court did not define the term "consolidated" in Gross, mere consolidation was clearly not sufficient to establish that cases were related. To qualify as "related," the cases also had to be factually related. Therefore, it did not matter whether the three state cases had ever been consolidated. However, it seems that the Gross court implicitly conceded that cases are consolidated for sentencing under the Guidelines' Commentary if a court issues concurrent sentences for them at a single hearing. Otherwise the Gross court would not have had to reject Application Note 3, in part, as it did.

13

Davis, 922 F.2d at 1390.

14

In this case concurrent sentences were imposed on the same day at a single hearing. However, the appellant in this case, unlike the appellant in Davis, has expressly admitted that the two cases are factually unrelated. As noted in Davis, the Gross court implicitly held that "factually unrelated" cases cannot be "related" under section 4A1.2(a)(2) of the Sentencing Guidelines. Davis, 922 F.2d at 1389.

15

Mendez-Lopez concedes that Gross is dispositive. We are not free to revisit Gross and Davis. We may reconsider an earlier circuit precedent only when an intervening Supreme Court decision undermines an existing precedent and both cases are closely on point. United States v. Mandel, 914 F.2d 1215, 1221 (9th Cir.1990). Davis was decided after Mendez-Lopez filed his brief in this appeal. Davis acknowledges the difference in approach to Application Note 3 to section 4A1.2(a)(2) used by this circuit and the Fifth Circuit in United States v. Metcalf, 898 F.2d 43 (5th Cir.1990), a concern raised by Mendez-Lopez. Davis, 922 F.2d at 1389.

CONCLUSION

16

The June, 1988, and February, 1989, convictions were factually unrelated and cannot be deemed to be "related" under section 4A1.2(a)(2) as a matter of law. Davis, 922 F.2d at 1391; Gross, 897 F.2d at 416. Even in the absence of the Gross and Davis cases, Application Note 11 to section 4A1.2(k) of the Guidelines would call for the February, 1989, conviction to be computed separately from the sentence imposed on revocation of probation on the June, 1988, offense. The sentence imposed by the district court is therefore AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4

**

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