United States Court of Appeals

For the First Circuit

No. 06-1421

UNITED STATES,

Appellee,

v.

STEVEN WESLEY BELL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

 Lynch, Circuit Judge,

Stahl, Senior Circuit Judge,

Lipez, Circuit Judge.

J. Hilary Billings, with whom Law Office of J. Hilary Billings

was on brief, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.

Silsby, United States Attorney, was on brief, for appellee.

May 9, 2007
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STAHL, Senior Circuit Judge. Appellant Steven Wesley

Bell pled guilty to and was sentenced for committing a credit union

robbery, in violation of 18 U.S.C. § 2113(a). He now contends that

at the time of his sentencing, the district court committed clear

error in calculating his criminal history points. Specifically,

Bell argues that his eight prior juvenile crimes were consolidated

into two groups for sentencing, and as a result he should have

received just three criminal history points for those prior

offenses, rather than the thirteen points actually assessed by the

district court. Because we conclude that the district court did

not commit clear error in calculating Bell's criminal history

points, we affirm the sentence imposed by the lower court. 

I. Background

A. The Federal Sentence

Bell pled guilty to robbing a credit union in Bangor,

Maine, on April 4, 2005. In committing the robbery, Bell entered

the credit union office and handed a note to a teller that read:

"THIS IS A HOLDUP!! I HAVE A GUN. PUT 100'S, 50'S AND 20'S IN A BAG

AND YOU WILL NOT GET HURT." Notwithstanding the note, Bell, only

19 years old at the time of the crime, did not have a weapon with

him. In response to Bell's demand, the teller gave him $2,210,

after which Bell fled the credit union. 

On February 21, 2006, the district court sentenced Bell

to 77 months in prison, three years of supervised release,
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restitution in the amount of $2,210, and a $100 special assessment.

The sentence imposed was at the low end of the 77- to 96-month

sentencing guideline range calculated by the district court. In

determining Bell's sentencing range, the district court began by

calculating a base offense level of 20, and added a two-level

enhancement because the offense involved the property of a

financial institution. Finding that Bell made a threat of death in

the course of committing the robbery, the court imposed an

additional two-level enhancement under USSG § 2B3.1(b)(2)(F)

(2006), thus resulting in a total offense level of 24. The court

then applied a two-level reduction for acceptance of

responsibility, under USSG § 3E1.1(a), and a one-level reduction

under USSG § 3E1.1(b), for timely entry of a guilty plea. These

adjustments yielded a final offense level of 21. The court also

assessed 13 criminal history points based on Bell's eight prior

convictions, placing him in Criminal History Category VI. On

appeal, Bell contests the imposition of the 13 criminal history

points.

At his sentencing hearing for the credit union robbery,

Bell argued that his eight previous convictions, all of which were

adjudicated by Maine's juvenile justice system, were actually two

clusters of crimes that were consolidated by the juvenile court

into two groups for sentencing purposes. Therefore, Bell argued

that he should receive only three criminal history points, under
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USSG § 4A1.2(d)(2), instead of the thirteen points the court

ultimately imposed upon him. Had the district court accepted

Bell's argument that the prior convictions merited only three

points, he would have been put in Criminal History Category II,

which would have yielded a guideline range of 41 to 51 months. The

district court, in rejecting Bell's argument on this point,

concluded that there was no indication apparent on the face of the

record that the juvenile court had consolidated his crimes for

sentencing. 

B. The Juvenile Crimes

Bell's juvenile crimes occurred in two temporal clusters.

The first cluster (Cluster A) consisted of three crimes committed

between October 12, 2000, and October 26, 2000. In Cluster A, Bell

was convicted of terrorizing, for leaving a bomb threat in the

bathroom of his high school; of petty theft, for stealing $55 from

a tip tray on the counter of a local restaurant; and of criminal

threatening with a dangerous weapon, for brandishing a knife and

demanding money and cigarettes at a local convenience store. Bell

was arrested for all three offenses at the same time, on October

31, 2000. Each charged offense was assigned a separate docket

number. The three charges were resolved at a unified dispositional
The sentences imposed for the Cluster A offenses were as 1

follows. On the terrorizing charge, Bell received a suspended

sentence until age 18 and one month of probation. On the petty

theft charge, Bell received 30 days of juvenile detention and one

year of probation. On the threatening with a dangerous weapon

charge, Bell received 30 days of juvenile detention. 

Maine's juvenile code requires that sentences of commitment 2

to a juvenile correctional facility be served concurrently. See

Me. Rev. Stat. Ann. tit. 15, § 3314(1)(H). 

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hearing on April 6, 2001. Separate sentences were imposed for each

crime, and the sentences were made to run concurrently. 1 2

The second cluster of juvenile crimes (Cluster B)

consisted of five crimes committed by Bell between December 17,

2001 and March 28, 2002. In Cluster B, Bell was convicted of

disorderly conduct, for kicking a wall at his high school; of petty

theft, for stealing three posters from a comic book store; of nine

counts of burglary, theft, and aggravated criminal mischief, for

burglarizing five summer cottages; of forgery and theft, for

attempting to negotiate a falsely made check in the name of his

mother's roommate; and of possession of alcohol by a minor and

escape. Each of the five crimes was assigned a separate docket

number; these separate docket numbers were retained for the

duration of the legal proceedings. All five charges were resolved

at a unified dispositional hearing on May 16, 2002, before the same

juvenile judge who had presided over the Cluster A sentencing.

There is some inconsistency among the court records

regarding the sentences imposed for the Cluster B crimes. The
One of the docket numbers listed on the Judgment and 3

Commitment order is 02-27, which does not correspond to any of the

docket numbers assigned to Bell's offenses. In their briefs, both

parties seem to have concluded that the 02-27 docket number was a

typographical error intended to be 02-57, which corresponds to

Bell's alcohol and escape charges. This is a sensible conclusion,

which we adopt. 

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court issued a unified Judgment and Commitment order, carrying the

docket numbers of all five crimes, imposing a sentence of

commitment in a juvenile detention facility until Bell reached age

19. This document might be read to suggest that, because of the 3

imposition of one unified sentence, the crimes were consolidated

for sentencing purposes. However, the court also maintained

separate docket numbers and individual docket sheets for each of

the charged crimes, and the docket sheets indicate that the court

actually imposed separate, concurrent sentences as to each offense,

as there were variations among the sentences imposed for each

crime. For example, restitution of $5,200 was ordered for the

disorderly conduct charge, restitution of $17 was ordered for the

petty theft charge, and the commitment period imposed for the

alcohol and escape charges was set to run only until Bell reached

age 18. 

On a separate issue, the district court found that there

were no intervening arrests between the first four crimes in

Cluster B, but that there was an intervening arrest between the
The fifth crime in Cluster B was charged as possession of 4

alcohol by a minor and escape. Police had been alerted by motel

employees that minors in possession of alcohol had been spotted in

the area. When police arrived, they encountered Bell, and asked

him if he had been drinking. He responded in the negative. The

police contacted Bell's probation officer, who told them that Bell

should be taken to the police station for a blood alcohol test,

which was permitted as a condition of his probation. The officers

requested that Bell accompany them to the police station for such

a test. When he agreed, they placed him in the backseat of the

police cruiser. While the police were speaking with other minors

also suspected of possessing alcohol, Bell's friend opened the

police cruiser door, and Bell and the friend fled. This was the

basis for the escape charge. 

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fourth and fifth crimes. Because the sentencing guidelines state 4

that sentences are not "related" where they are separated by an

intervening arrest, see USSG § 4A1.2, cmt. n.3, the district

court's conclusion meant that the fifth crime in Cluster B could

not be "related" to the other crimes in that cluster.

Bell timely appealed the district court's rejection of

his claim of consolidation.

II. Discussion

A. Standard of Review

The Supreme Court has held that an appellate court must

"deferentially" review a lower court's assessment of whether a

defendant's prior crimes were consolidated for sentencing. Buford

v. United States, 532 U.S. 59, 64 (2001). This is so because "a

district judge sees many more 'consolidations' than does an

appellate judge. . . . [and] a district judge is likely to be more

familiar with trial and sentencing practices in general." Id. at
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64. Thus, "'where there is more than one plausible view of the

circumstances, the sentencing court's choice among supportable

alternatives' is not clearly erroneous and a reviewing tribunal

cannot disturb it." United States v. Correa, 114 F.3d 314, 317

(1st Cir. 1997) (quoting United States v. Ruiz, 905 F.2d 499, 508

(1st Cir. 1990)). "However, to the extent that an alleged error

involves the district court's interpretation of a sentencing

guideline, it presents a question of law warranting plenary

review." Id.

B. The Sentencing Guidelines

The Sentencing Guidelines assess criminal history points

for "each prior sentence." See USSG § 4A1.1. However, sentences

imposed in "related cases" are treated as one sentence for purposes

of calculating a defendant's criminal history points. See id. §

4A1.2(a)(2). Note 3 of the commentary to USSG § 4A1.2 explains

that sentences are deemed related if "they resulted from offenses

that (1) occurred on the same occasion, (2) were part of a single

common scheme or plan, or (3) were consolidated for trial or

sentencing." Bell's claim rests on the third definition of

relatedness -- namely, that his juvenile crimes were consolidated

for sentencing into two groups. 

This circuit has established a categorical rule for

determining whether charges were consolidated for sentencing:

"charges . . . should not be regarded as having been consolidated
Bell also seeks review of the district court's finding that 5

the fourth and fifth crimes in Cluster B were separated by an

intervening arrest, meaning that the fifth crime was not "related"

under USSG § 4A1.2(a)(2). See supra note 4. The district court

concluded that because Bell was charged with escape, he must have

been under arrest when he was placed in the back of the police

cruiser. As the court said, "[I]t seems inescapable that you don't

get charged with escape unless you're under arrest." However, this

conclusion does not appear to be supported by Maine law, which

defines "escape" as leaving "official custody" without permission.

See Me. Rev. Stat. Ann. tit. 17-A, § 755(1). Further, "official

custody" is defined not only as arrest but also as custody on the

way to a police station. Id. at § 755(3). We need not resolve

this issue definitively, however, because the record contains

sufficient grounds to conclude that the fifth crime in Cluster B,

like the other crimes in that cluster, was not consolidated for

sentencing. See Estate of Soler v. Rodriguez, 63 F.3d 45, 53 (1st

Cir. 1995) ("An appellate court is not limited to the legal grounds

relied upon by the district court, but may affirm on any

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(and, therefore, 'related') unless the original sentencing court

entered an actual order of consolidation or there is some other

persuasive indicium of formal consolidation apparent on the face of

the record which is sufficient to indicate that the offenses have

some relationship to one another beyond the sheer fortuity that

sentence was imposed by the same judge at the same time." Correa,

114 F.3d at 317. Correa identified several documents to which the

courts might look for formal indicia of consolidation, including

the indictment, docket entries, docket numbers, and the judgment of

conviction. Id. 

C. Assessing Bell's Criminal History Points

Bell asks us to review the district court's determination

that his eight juvenile offenses were not consolidated into two

clusters for sentencing. Maine law does not provide a formal 5
independently sufficient grounds."). 

The district court suggested that Rule 8(a) of the Maine 6

Rules of Criminal Procedure would permit a court to consolidate

separate charges for sentencing. See Me. R. Crim. P. 8(a).

However, that rule is directed toward joinder of charges for trial,

not sentencing. Further, the prosecution's sole witness at the

sentencing hearing, the assistant district attorney who had

responsibility for all of Bell's charges, stated that he was not

aware of a procedure for formal consolidation for sentencing, and

that, in his experience, consolidation for sentencing was

accomplished informally by the court, rather than formally. 

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mechanism for consolidation of charges for sentencing. Therefore, 6

we must look at the face of the record to determine whether we

detect any formal indicia of consolidation. See Correa, 114 F.3d

at 317.

As to Cluster A, Bell argues that consolidation is

evidenced by: (1) the Conditions of Probation order bearing the

docket numbers for the terrorizing and petty theft charges; (2) the

unified dispositional hearing for all three charges; (3) a single

offer sheet from the District Attorney's office; (4) the

involvement of the same prosecutor, district attorney, and judge in

all three matters; and (5) "the comprehensive approach to

sentencing that saw a structured sentence designed with a view

toward its collective impact." In contrast, the government points

out that there was no formal order of consolidation or docket entry

suggesting consolidation, all three charges retained their distinct

docket numbers, and different sentences were imposed for each

crime.
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Bell's arguments as to Cluster A are unpersuasive given

the categorical approach adopted by this circuit. Indeed, the only

potential indicium of formal consolidation on the face of the

record is the Conditions of Probation order bearing the docket

numbers of two of the crimes. However, the fact that the

Conditions of Probation order governed two of the three offenses is

not sufficient evidence of consolidation where each crime retained

its original docket number and received a distinct sentence. This

is particularly so where our standard of review is clear error.

Therefore, we affirm the district court's conclusion that no

consolidation occurred as to Cluster A.

Bell has a stronger argument that the Cluster B crimes

were consolidated for sentencing. His most persuasive evidence of

formal consolidation is the Judgment and Commitment order bearing

the docket numbers of all five crimes, which mandated a unified

sentence of confinement until age 19. However, as noted above,

there is contradictory evidence in the record as well. For

example, each crime retained its original docket number throughout

the adjudication. In addition, the individual docket sheets

indicate that the court imposed separate, concurrent sentences as

to each crime, and that somewhat different sentences were imposed

as to three of the crimes. Given this contradictory evidence, it

would be difficult to conclude that the district court was clearly

erroneous had it reached either result -- either that the charges
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were or were not consolidated for sentencing. Therefore, given our

deferential standard of review, we decline to assign error to the

judge's conclusion as to Cluster B.

III. Conclusion

For the foregoing reasons, we affirm the district court's

calculation of Bell's criminal history points, and therefore also

affirm the sentence imposed on the appellant.