# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued April 29, 2014

Decided May 15, 2014

Before

WILLIAM J. BAUER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

No. 13

‐ 1972

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

MICHAEL J. TOLBERT

Defendant

‐ Appellant. Appeal from the United States District

Court for the Eastern District of Wisconsin

No. 11 CR 186

Lynn Adelman,

Judge.

O R D E R

When Michael Tolbert was arrested in 2011 for not registering as a sex offender and

possessing guns illegally, he already had an extensive criminal past. At issue in this appeal

is whether two criminal

‐ history points properly were assigned when he was sentenced for

possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). The first contested point was

added for a crime of violence that did not receive 3 points only because that offense had

been counted together with another as a single sentence. See U.S.S.G. §§ 4A1.1(a), (e),

4A1.2(a). The second point was based on the district court’s finding that a state court had

imposed two concurrent jail terms, not a single term, for Tolbert’s two theft convictions.

See id. § 4A1.2(a)(2). Just one of these disputed criminal

‐ history points was enough to push

Tolbert into criminal

‐ history Category IV. Because we conclude that the first of these points NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 13-1972 Page 2

properly was assessed, we need not address Tolbert’s argument about the second. His

sentence is affirmed.

Tolbert’s felony convictions date back to September 1980 when he was sentenced in

Cook County, Illinois, on convictions for attempted murder, rape, armed robbery, armed

violence, and home invasion. Tolbert and an accomplice had forced their way into an

apartment, raped a woman in the presence of her 9

‐ and 14

‐ year

‐ old children, and then shot

all three in the head. The younger child died. Tolbert served time in prison, and in August

2011, long after his release, police in Kenosha, Wisconsin, learned that he was living there

but had not registered in the state as a sex offender, which was required. Tolbert had been

stopped in Kenosha for a traffic violation while driving a borrowed car, so police went to

the owner’s house looking for him. The owner confirmed that Tolbert had been living with

her for seven months. With her consent, police searched the house and in Tolbert’s

bedroom found two guns and ammunition.

Tolbert surrendered to police the next day. He was charged with failing to update his

sex

‐ offender registration with his Wisconsin address, 18 U.S.C. § 2250, and possessing a

firearm as a felon, id. § 922(g)(1). He pleaded guilty to the gun charge, and the other count

was dismissed. Tolbert was sentenced in 2013. A probation officer calculated a total offense

level of 17 and criminal

‐ history score of 8, placing Tolbert in criminal

‐ history Category IV.

Tolbert’s convictions in 1980 had resulted in a 50

‐ year term of imprisonment for

attempted murder and also for rape. He received a 25

‐ year sentence on each of the three

other counts (armed robbery, armed violence, and home invasion), with all five sentences

running concurrently. Because the 25

‐ year sentences expired after 12

‐ 1/2 years, see I LL

. R EV

.

S TAT

. ch. 38 § 1003

‐ 6

‐ 3(a)(2) (1979); Barksdale v. Franzen

, 700 F.2d 1138, 1140 (7th Cir. 1983);

Lane v. Sklodowski

, 454 N.E.2d 322, 325 (Ill. 1983), those counts did not receive

criminal

‐ history points, see U.S.S.G. § 4A1.2(e)(3). And the two 50

‐ year sentences counted

as a single sentence because they resulted from crimes charged together and also sentenced

on the same day. See U.S.S.G. § 4A1.2(a)(2). Thus, Tolbert received 3 points for one 50

‐ year

sentence, see U.S.S.G. § 4A1.1(a), and 1 additional point under U.S.S.G. § 4A1.1(e) because

the second 50

‐ year sentence resulted from a crime of violence that counted as a single

sentence. Tolbert objected to the addition of the fourth point, arguing that he received one

aggregate 50

‐ year sentence for the attempted murder and rape.

The probation officer also assessed 2 points for two convictions in Lake County,

Illinois, in 2010 for retail thefts that occurred on different dates. Tolbert had been arrested

after stealing a camera from a store and then, three months later, was caught stealing liquorNo. 13-1972 Page 3

from a different merchant. The two thefts were charged separately and assigned distinct

case numbers, but both charges were resolved on the same date. The state court issued a

single judgment listing both case numbers. That judgment says Tolbert was found guilty

of “retail theft in both cases” and that he “shall be required to serve a sentence of 30 days

in the Lake County Jail.” The probation officer concluded that Tolbert had received two

30

‐ day sentences and, because the thefts were separated by an intervening arrest, added

a point for each sentence. See U.S.S.G. § 4A1.1(c). Tolbert objected and insisted that the two

thefts had yielded a single sentence and thus should have received only 1 criminal

‐ history

point.

Tolbert incurred 2 more criminal

‐ history points that he did not contest. By his count,

then, the total was 6, a point shy of the 7 that would bump him from Category III to

Category IV. The district judge agreed with the probation officer, however, that Tolbert

had accumulated 8 criminal

‐ history points. The judge sentenced him to 46 months’

imprisonment, the high end of the resulting range of 37 to 46 months. The judge concluded

that Tolbert had been sentenced to separate 50

‐ year terms on his 1980 convictions for

attempted murder and rape, and that, because these convictions counted under the

Guidelines as a single sentence allowing just 3 criminal

‐ history points, see U.S.S.G.

§ 4A1.1(a), a fourth point was mandated by § 4A1.1(e). The judge further concluded that

the state court had imposed a 30

‐ day sentence for each of Tolbert’s convictions for retail

theft but simply listed those sentences together in shorthand fashion in a single judgment.

Because the two retail thefts were separated by an intervening arrest, the judge counted

them separately under the Guidelines, adding 1 point for each conviction.

On appeal Tolbert presses his contention that he incurred only 6, not 8, criminal

‐ history

points and thus should have been in a lower criminal

‐ history category. He first argues that

he should not have received the fourth point under § 4A1.1(e) on his 1980 sentences for

attempted murder and rape. He insists that § 4A1.1(e) does not apply if the prior crimes

of violence occurred on the same occasion. And because he committed those two crimes

together, Tolbert concludes, he can receive criminal

‐ history points for only one of the

convictions.

Before 2007, § 4A1.1(e) (formerly designated as § 4A1.1(f)) provided:

Add 1 point for each prior sentence resulting from a conviction of a crime of

violence that did not receive any points under (a), (b), or (c) above because such

sentence was considered related to another sentence resulting from a conviction

of a crime of violence, up to a total of 3 points for this item. Provided

, that thisNo. 13-1972 Page 4

item does not apply where the sentences are considered related because the

offenses occurred on the same occasion.

U.S.S.G. § 4A1.1(f) (2006). In 2007 this language was amended by removing from the third

line the reference to a “related” sentence and also striking the entire last sentence. U.S.S.G.

app. C, vol. III, amend. 709 (2011). As amended, this provision now reads:

Add 1 point for each prior sentence resulting from a conviction of a crime of

violence that did not receive any points under (a), (b), or (c) above because

such sentence was counted as a single sentence, up to a total of 3 points for

this subsection.

U.S.S.G. § 4A1.1(e) (2010). Tolbert recognizes that the new version—which governs his

case—no longer includes any reference to “related” sentences or to whether multiple

crimes were committed on the same occasion. But he emphasizes that the pertinent

application note was not changed when the Guidelines were amended, and even now the

commentary includes the example of a defendant who committed prior crimes on different

occasions and received an extra point under § 4A1.1(e). See U.S.S.G. § 4A1.1 cmt. n.5 (2010).

It follows from this example, Tolbert reasons, that § 4A1.1(e) still applies only when prior

crimes were committed on different occasions. We review de novo a district court’s

interpretation of the Guidelines, and its factual findings for clear error. United States v.

Ruelas

‐ Valdovinos

, No. 12

‐ 2685, 2014 WL 1347747, at *2 (7th Cir. Apr. 7, 2014); United States

v. Medina

, 695 F.3d 702, 704 (7th Cir. 2012).

Tolbert’s reading of § 4A1.1(e), as amended, is inconsistent with how that provision

has been applied. We have not addressed the effect of the change to subsection (e), but

other circuits have recognized that the Guidelines no longer distinguishes multiple prior

crimes that occurred on the same occasion from multiple prior crimes that occurred on

different occasions. See United States v. Scott

, 654 F.3d 552, 557 (5th Cir. 2011); King v. United

States

, 595 F.3d 844, 850 (8th Cir. 2010). The purpose of § 4A1.1(e) is to add criminal history

points for crimes of violence that are not counted under § 4A1.1(a), (b), or (c). King

, 595 F.3d

at 850. Prior sentences for crimes of violence that are counted as a single sentence and not

assessed points under subsections (a) through (c) will receive an additional point under

subsection (e) whether or not the crimes occurred on the same occasion. Scott

, 654 F.3d

at 557.

Tolbert reads the example in the commentary to exclude all other scenarios, rather than

as just one example of the Guidelines application. In doing so, Tolbert ignores theNo. 13-1972 Page 5

Sentencing Commission’s explanation for the amendment, which provides an example,

similar to the one Tolbert cites, where a defendant who received concurrent 5

‐ year

sentences for two robbery convictions would incur 3 criminal

‐ history points under

§ 4A1.1(a) and 1 more point under § 4A1.1(e). The example accompanying the amendment,

however, does not specify whether the prior crimes occurred on the same or different

occasions. U.S.S.G. App. C, vol. III, amend. 709, p. 239 (2011). Thus, the court properly

attributed to Tolbert a criminal

‐ history point under § 4A1.1(e) for the second 50

‐ year

sentence that did not receive other points under § 4A1.1(a), (b), or (c).

Tolbert needed just 7 criminal

‐ history points to be in criminal

‐ history Category IV.

Because Tolbert does not challenge 6 of his criminal

‐ history points, and the district court

properly assigned 1 additional point under § 4A1.1(e) for his 1980 convictions, we need not

address Tolbert’s remaining argument challenging the eighth criminal

‐ history point.

Accordingly, the sentence is AFFIRMED.