MEMORANDUM*

Rex Lauderdale appeals his sentence for bank robbery, arguing the district court overstated his criminal history score because it found certain prior convictions were not part of a "single common scheme or plan." United States Sentencing Commission Guidelines Manual (U.S.S.G.) Sec. 4A1.2(a)(2), application note 3. We remand for resentencing.

Under U.S.S.G. Sec. 4A1.2(a)(2) "[p]rior sentences imposed in related cases are to be treated as one sentence for purposes of the criminal history." According to application note 3, "[c]ases are 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."

The relevant facts are in public court records or have been stipulated; we review the legal conclusion drawn from them de novo. United States v. Gross, 897 F.2d 414, 416 (9th Cir.1990).

Defendant worked as a residential painter. In April 1986 he took $400 in cash from a wallet he found in a dresser drawer in a home in Laguna Beach, California. In October 1986 he took blank checks from three different homes, two in Laguna Beach, a third in Costa Mesa, California, which he forged and cashed for small amounts at an auto parts store in Laguna Beach. When confronted by his employer, defendant admitted the theft and forgeries.

Lauderdale was arrested by the Laguna Beach police who notified the Costa Mesa police. Both police departments took statements from Lauderdale on the same day. In November 1986 a complaint was filed in South Orange County Municipal Court charging Lauderdale with grand theft and forgery counts based on the theft of the cash taken in Laguna Beach in April and forgery of two of the checks taken in Laguna Beach in October. He pled guilty to the theft count and one of the forgery counts, and received a jail sentence of one year. Three months later, a complaint was filed in the same court charging Lauderdale with forgery of the third check taken in Costa Mesa in October. Lauderdale pled guilty and received a 90 day sentence to run concurrently with the one year sentence.

In imposing the sentence for the bank robbery involved in this appeal, the district court held the two prior sentences had been imposed in "unrelated cases" within the meaning of Sec. 4A1.2(a)(2), and therefore counted both of them and assigned Lauderdale a Criminal History category of V. If the prior sentences were imposed in "related cases" they should have been treated as one sentence, and Lauderdale's Criminal History score should have been IV, resulting in a lower Guideline range.

Lauderdale contends the prior offenses at issue "were part of a single common scheme or plan" within the meaning of application note 3. His argument seems to rest primarily on the presence in each complaint of a charge based on the forgery of one of the three checks taken in October. The district court apparently counted both sentences because there were two indictments, one including the Laguna Beach theft of the cash in April and the forgery of two of the checks in October, and the second charging the Costa Mesa forgery of the third check in October. The charges appear to have been separated in this way only because of an accident of geography and the differing schedules of the two prosecutors' offices.

In United States v. Houser, slip op. at 4475, 4487 (9th Cir., April 5, 1991), we held "mere geography" is insufficient to find two offenses "related," stating that "[t]he guidelines require a sentencing judge to look behind the mere number of prior convictions to examine the circumstances of the convictions when determining whether or not they are related." Id. In Houser, such an examination revealed that the conduct underlying separate convictions and sentences in two different counties for two different drug sales, were nonetheless parts of a single scheme or plan and therefore related. Although we reached the opposite conclusion in United States v. Davis, 922 F.2d 1385, 1390 (9th Cir., 1991), we affirmed the rule that it is "the nature of the offenses which was controlling, not mere geographic separation." We went on to hold that "[t]o qualify as 'related', the cases also had to be factually related", id., and that "[a] common modus operandi, standing alone, is not sufficient to establish that two cases are factually related." Id. at 1391.

Thus, the focus of the sentencing judge must be on the actual conduct at issue, regardless of the prosecutor's decision to combine the offenses into one or more indictments or to prosecute the offenses in one or more locations. The mere fact there were two separate investigations or judges is also not determinative. Because the sentencing judge in this case focused on the separate indictments and not on the underlying offenses, he did not consider whether any or all of the offense conduct actually formed a common scheme or plan. We must remand for such a determination.

It may appear from the record that there was one common scheme or plan, that there were two--one involving the three October 1986 forgeries and one involving the April 1986 theft--or that each of the offenses was separate. We cannot choose one of these alternatives as a matter of law. We remand to enable the district court to make that determination and, if necessary, to resentence Lauderdale.

REMANDED.