927 F2d 611 United States v. McAnaney

927 F.2d 611

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 90-30263.

United States Court of Appeals, Ninth Circuit.

Submitted Mar. 1, 1991.*
Decided March 5, 1991.

Appeal from the United States District Court for the District of Oregon, No. CR-90-60011-1-REJ; Robert E. Jones, District Judge, Presiding.

D.Or.

AFFIRMED.

Before FLETCHER, PREGERSON and TROTT, Circuit Judges.

1

MEMORANDUM**

2

Daniel Allen McAnaney appeals his sentence under the United States Sentencing Guidelines following his conviction by guilty plea for armed bank robbery, in violation of 18 U.S.C. Sec. 2113(a) and (d), and use of a firearm during the commission of a bank robbery, in violation of 18 U.S.C. Sec. 924(c)(1). McAnaney was sentenced to 120 months imprisonment and 5 years supervised release. He contends that the district court erred by refusing to consider two sets of prior convictions as related when calculating his criminal history score. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

3

This court reviews de novo the district court's application of the Sentencing Guidelines. United States v. Anderson, 895 F.2d 641, 644 (9th Cir.1990). "Prior 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." U.S.S.G. Sec. 4A1.2(a)(2). "Cases are considered related if they ... were consolidated for trial or sentencing." U.S.S.G. Sec. 4A1.2 comment. note 3. Factually unrelated cases sentenced by the same judge at the same time are not related. United States v. Gross, 897 F.2d 414, 416-17 (9th Cir.1990).

I. Convictions Imposed in 1984

4

On July 2, 1982, McAnaney stole and forged a payroll check from his former employer. On March 14, 1984, he damaged a car. He was arrested on March 14, 1984, and charged with theft and failure to appear for stealing the check, and with criminal mischief for damaging the car. He pleaded guilty to forgery in a Lincoln County court on July 30, 1984, and pleaded guilty to criminal mischief in a Coos County court on July 31, 1984. McAnaney was sentenced by the two courts to two terms of five years probation. The district court counted one criminal history point for each of the two offenses.

5

McAnaney contends that the offenses were consolidated for sentencing and therefore related. This contention lacks merit because the sentences were imposed by different courts in different counties on different days. Accordingly, the district court did not err by considering the convictions unrelated.1 See U.S.S.G. Sec. 4A1.2(a)(2); U.S.S.G. Sec. 4A1.2 comment. note 3.

II. Convictions Imposed in 1989

6

McAnaney was arrested on January 1, 1989, and charged with possession of heroin. On April 24, 1989, while on release from the heroin possession charge, McAnaney stole conductor wire from Lane Electric Corporation. He was arrested that same day and charged with theft. On August 2, 1989, he pleaded guilty to both charges and was sentenced by the same court to concurrent terms of one year in a residential drug treatment program and five years probation. The district court counted one criminal history point for each of the two offenses.

7

McAnaney contends that the offenses were consolidated for sentencing and therefore related. The concurrent sentences were imposed by the same court at the same time. Nevertheless, the offenses were factually unrelated; the only factual connection is that McAnaney was awaiting proceedings on the charge of heroin possession when he committed the theft. Accordingly, the district court did not err by considering the convictions unrelated. See Gross, 897 F.2d at 416-17.

8

AFFIRMED.

**

This disposition is not appropropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

1

Although the district court appears to have found that the offenses were consolidated for sentencing, any such finding is harmless error because the offenses were factually unrelated. See Gross, 897 F.2d at 416-17