1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0026P (6th Cir.)

File Name: 04a0026p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GREGORY STEVEN HORN,

Defendant-Appellant.

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No. 02-5668

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 01-00142—Thomas A. Wiseman, Jr., District Judge.

Argued: September 16, 2003

Decided and Filed: January 20, 2004 

Before: SILER, BATCHELDER, and COOK, Circuit

Judges.

_________________

COUNSEL

ARGUED: Hugh M. Mundy, FEDERAL PUBLIC

DEFENDER’SOFFICE, Nashville, Tennessee,forAppellant.

William Cohen, ASSISTANT UNITED STATES

ATTORNEY, Nashville, Tennessee, for Appellee.

ON BRIEF: C. Douglas Thoresen, FEDERAL PUBLIC

DEFENDER’SOFFICE,Nashville,Tennessee, for Appellant.

2 United States v. Horn No. 02-5668

William Cohen, ASSISTANT UNITED STATES

ATTORNEY, Nashville, Tennessee, for Appellee.

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OPINION

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ALICE M. BATCHELDER, Circuit Judge. Defendantappellant Gregory Steven Horn appeals the sentence imposed

following his conviction on one count of bank robbery in

violation of 18 U.S.C. §§ 2113(a) and (d). Horn contends

only that the district court erred in sentencing him as a career

criminal under USSG § 4B1.1. In particular, Horn argues that

his prior felony convictions for robbery were related offenses

under Section 4B1.1, and that they therefore should not have

been counted as separate offenses for purposes of career

offender enhancement. Because we find that defendant’s

prior felony convictions were not related offenses under

Section 4B1.1, we will AFFIRM the district court.

I.

Gregory Steven Horn pleaded guilty to one count of bank

robbery in violation of 18 U.S.C. § 2113(d) after robbing the

SunTrust Bank in Nashville, Tennessee. Horn filed

objections to the Presentence Report, objecting among other

things, to the Report’s recommendations that his two prior

armed robbery convictions should be considered separate

offenses for purposes of calculating his sentence, and that he

should be sentenced as a career offender. Horn argued that

these prior offenses had been effectively consolidated for

sentencing by the state court, and that they were part of a

common scheme or plan.

The first of the prior convictions was for the armed robbery

of the manager of a Giant Food Store in Anne Arundel

County, Maryland, on January 6, 1998. Horn, accompanied

by an accomplice, approached the manager in the store
No. 02-5668 United States v. Horn 3

parking lot, shoved a handgun into the manager’s ribs and

threatened to shoot him. The manager gave the robbers his

car keys and his wallet containing credit cards. The second

conviction was for an armed robbery which occurred on

January 26, 1998, in the parking lot of a different grocery

store in another town in Anne Arundel County, Maryland.

During the latter robbery, the defendant, this time acting

alone, robbed a different victim of cash, several credit cards,

and his driver’s license. The defendant once again used a

handgun in commission of the robbery. On January 27, 1998,

Horn attempted to rob a third person, who was able to identify

part of the license tag on Horn’s vehicle. He was arrested

later that day for having stolen tags, and on March 19, 1998,

he was charged in a multi-count information with, among

other theft offenses, the January 6, 1998 robbery. On

March 23, 1998, he was charged in another multi-count

information with the January 27, 1998, robbery and attempted

robbery. Horn made his initial appearance in state court as to

each information on March 30, 1998, and waived his right to

a preliminary hearing in each case. The cases were set for the

same trial date, and Horn was represented by the same

counsel in both. On June 16, 1998, he entered guilty pleas to

both of the robbery charges and to the attempted robbery

charge, and on September 11, 1998, he was sentenced for

each of these offenses. The cases were docketed separately,

however, and no order was entered by the court to consolidate

the cases for either trial or sentencing.

In the present case, the district judge overruled Horn’s

objections to the Presentence Report and adopted the findings

and calculations contained in it. The court held that the two

prior state court robbery convictions were not related cases as

that term is defined in USSG § 4A1.2, and that Horn is a

career offender under USSG § 4B1.1. The district court

sentenced him to 204 months’ incarceration, to run

concurrently with a State of Maryland sentence that he was

obligated to fulfill. The only question presented upon appeal

is whether the district court erred in counting Horn’s prior

4 United States v. Horn No. 02-5668

robbery convictions as separate offenses and sentencing Horn

as a career criminal under USSG § 4B1.1.

II.

Horn contends that his prior felony convictions for robbery

were related offenses under Section 4B1.1, and that they

therefore should not have been counted as separate offenses

for the purpose of career offender enhancement. If the

offenses are treated as related, Horn’s total offense level

would be 26, rather than 31, the level that the district court

used in sentencing him to 204 months’ incarceration. The

government concedes that this Court has jurisdiction over this

appeal.

In reviewing a sentence imposed under the Sentencing

Guidelines, we are required by statute to “accept the findings

of fact of the district court unless they are clearly erroneous

and [to] give due deference to the district court’s application

of the guidelines to the facts.” 18 U.S.C. § 3742(e). This

deferential standard applies at least to the first aspect of the

question of relatedness before us here: whether the district

court erred in determining that Horn’s prior offenses were not

“effectively consolidated” and are therefore not “related

cases” as that term is defined for purposes of determining

career offender status under USSG § 4B1.1. See Buford v.

United States, 532 U.S. 59, 66 (2001) (holding that “in light

of the fact-bound nature of the legal decision,” deferential

rather than de novo review was appropriate for the district

court’s determination that particular prior convictions are

separate and not “functionally consolidated”).

WhetherBuford’s deferentialstandard applies to all aspects

of the relatedness question is not clear in this circuit. In

United States v. Carter, for example, citing pre-Buford cases

and mentioning neither Buford nor the statutory standard of

review set out in 18 U.S.C.§ 3742(e), we held that in

reviewing the district court’s decision that prior offenses were

not part of a common scheme or plan, we review the
No. 02-5668 United States v. Horn 5

sentencing court’s findings of fact for clear error and its

application of the guidelines de novo. United States v.

Carter, 283 F.3d 755, 757 (6th Cir. 2002). On the other hand,

we have held that Buford has a much broader and more

general application. In United States v. Jackson-Randolph,

282 F.3d 369 (6th Cir. 2002), we reviewed the reasoning of

Buford, and concluded that the district court’s application of

USSG § 3C1.1 is to be reviewed deferentially because, like

the determination of whether felony convictions are “related,”

the determination of whether particular conduct constituted

obstruction of justice is a fact-bound decision in which

“‘factual nuance may closely guide the legal decision, with

legal results depending heavily upon an understanding of the

significance of case-specific details.’” Jackson-Randolph,

282 F.3d at 389 (quoting Buford, 532 U.S. at 65). We noted

further that like the determination at issue in Buford, the

question of whether particular conduct constitutes obstruction

of justice is a matter within the special competence of district

court judges and the conclusion reached on the matter has

little precedential value because of the case-specific and factbound circumstances. Id. at 389-90. Accordingly, we

concluded, “the clear error standard is also appropriate for

reviewing sentencing decisions under § 3C1.1 where the sole

issue before the district court is a fact-bound application of

the guideline provisions.” Id. at 390. See also United States

v. Webb, 335 F.3d 534, 537 (6th Cir. 2003) (holding that the

district court’s application of the guidelines to the facts

should not be disturbed unless clearly erroneous); United

States v. Lang, 333 F.3d 678, 682 (6th Cir. 2003) (holding

that we review under the “clearly erroneous” standard the

district court’s application of USSG § 3B1.3 where the

application is fact-bound); United States v. Ennenga, 263

F.3d 499, 502 (6th Cir. 2001) (noting that Buford “suggests

that our standard of review even with regard to these

questions of law should instead be deferential,” and holding,

in light of the analysis in United States v. Hardin, 248 F.3d

489, 495 (6th Cir. 2001), that the district court’s application

of USSG § 2K2.1 is to be reviewed deferentially); United

States v. Hardin, 248 F.3d 489, 495 (6th Cir. 2001) (opining,

6 United States v. Horn No. 02-5668

but not deciding, that Buford’s deferential standard would

apply to review of the district court’s application of USSG

§ 2K2.1(b)(5)). In light of the reasoning of Buford and the

ensuing case law in this circuit, we are satisfied that we must

review deferentially, that is, for clear error, the entirety of the

district court’s determination that Horn’s prior robbery

convictions were not related.

Under USSG § 4A1.2, “prior sentences are considered

related if they resulted from offenses that (A) occurred on the

same occasion, (B) were part of a single common scheme or

plan, or (C) were consolidated for trial or sentencing.” USSG

§ 4A1.2, cmt. n.3. Although conceding that no formal order

of consolidation was entered by the state court hearing those

cases, Horn first argues that the two prior armed robbery

convictions were “effectively consolidated,” because he was

arrested and charged with the robberies at the same time; he

made an initial appearance as to both offenses at the same

time; the cases were set for trial on the same date; the same

counsel represented defendant as to both offenses; a guilty

plea was entered for each offense on the same day; and

defendant was sentenced for both offenses on the same day

with sentences to run concurrently.

At oral argument of this case, Horn urged upon us the

proposition that this Court has never explicitly held that prior

offenses must be formally consolidated in order that they may

be found to be related for purposes of USSG § 4A1.2, and

therefore, no formal order of consolidation is required for

such a finding. Defendant’s reliance on this lacuna is

misplaced. We have stated several times that “cases are not

consolidated when offenses proceed to sentencing under

separate docket numbers, cases are not factually related, and

there was no order of consolidation.” United States v.

McAdams, 25 F.3d 370, 374 (6th Cir 1994); United States v.

Coleman, 964 F.2d 564, 567 (6th Cir. 1992). “The fact that

judgment was pronounced on the same day with sentences to

run concurrently, without more, does not establish that [the

cases] were in fact consolidated.” Carter, 283 F.3d at 758;
No. 02-5668 United States v. Horn 7

Coleman, 964 F.2d at 566. Those cases make it clear that we

require some explicit indication that the trial court intended to

consolidate the prior convictions. In each of those cases,

there was no order from the trial court consolidating the

earlier offenses, nor was there any statement by the trial court

implying they should be considered consolidated. We hold

that the contemporaneous treatment of Horn’s state court

robbery offenses notwithstanding, the district court correctly

held that Horn was charged with, tried for, and convicted of

separate unrelated offenses.

Horn next argues that the prior offenses arose from a single

common scheme or plan. He argues that both robberies were

motivated by his addiction to drugs; that his modus operandi

in both cases was almost identical; and that the robberies

occurred less than three weeks apart. The defendant bears the

burden of proving the two prior felony convictions were part

of a single common plan or scheme. United States v. Irons,

196 F.3d 634, 638 (6th Cir. 1999); United States v. Cowart,

90 F.3d 154, 159 (6th Cir. 1996). Horn has failed to meet this

burden. In Irons, we held that crimes are part of the same

scheme or plan only if the offenses are jointly planned, or, at

a minimum, the commission of one offense necessarily

requires the commission of the other. Irons, 196 F.3d at 638;

see also Carter, 283 F.3d at 758; United States v. Ali, 951

F.2d 827, 828 (7th Cir. 1992) (finding the words “scheme”

and “plan” to be words of intention, “implying that [offenses]

have been jointly planned, or at least that . . . the commission

of one would entail the commission of the other as well”). “It

is beyond question that the simple sharing of a modus

operandi cannot alone convert [separate offenses] into one

offense by virtue of their being a single common scheme or

plan.” Cowart, 90 F.3d at 160; see also United States v.

Brown, 209 F.3d 1020, 1024 (7th Cir. 2000) (“merely similar,

seriatim robberies fall short of qualifying as a ‘single

common scheme or plan’”). This Court has further held that

merely because crimes are part of a crime spree does not

mean that they are related. Irons, 196 F.3d at 638; Carter,

283 F.3d at 758. Nor are such offenses related because they

8 United States v. Horn No. 02-5668

were committed to achieve a similar objective, such as the

support of a drug habit. See United States v. Gonzales, 21

Fed. Appx. 393, 397 (6th Cir. 2001) (citing Brown, 209 F.3d

at 1024) (holding that prior convictions are not “related”

simply because the crimes used the same modus operandi,

were part of a crime spree, or were motivated by the need to

support a drug habit)).

Finally, offenses are not necessarily related merely because

they were committed within a short period of time. In United

States v. Oldham, 13 Fed. Appx. 221, 226-27 (6th Cir. 2001),

we affirmed a district court’s sentencing a defendant as a

career offender based upon the defendant’s two convictions

for burglarizing—with the same accomplice—houses in two

Kentucky counties within hours of each other. We held that

the crimes “did not take place on the ‘same occasion’ because

they occurred at different times, in different locations, and

were committed against different victims.” Id. at 227.

Similarly, we held in United States v. Gonzales that six armed

robberies of convenience stores within a two-week

period—which were part of a “drug-induced crime spree” and

involved the use of the same starter pistol—were not related.

Gonzales, 21 Fed. Appx. at 394-99. Other circuits that have

considered this issue have reached similar conclusions. See

United States v. Mapp, 170 F.3d 328, 339 (2d Cir. 1999)

(finding no error in district court’s conclusion that two

robberies, committed on consecutive days and against

different victims, were not related); United States v. Keller,

58 F.3d 884, 894-95 (2d Cir. 1995) (affirming a district

court’s finding that defendant’s attempts to commit robberies,

four days apart, at different locations and involving different

victims, were not related); Brown, 209 F.3d at 1024 (finding

three armed robberies of stores within a two month period not

related); United States v. Brown, 962 F.2d 560, 564-65 (7th

Cir. 1992) (finding two bank robberies committed eight days

apart not related).

The crimes at issue in the present case were committed

weeks apart at different locations; the offenses involved
No. 02-5668 United States v. Horn 9

different victims; and the defendant had an accomplice in the

first offense but not the second. There is no evidence, nor

does appellant even allege, that the two armed robberies were

jointly planned or that the commission of the first robbery

entailed the commission of the second. Accordingly, the

district court did not err in finding that these two robberies

were not part of a common scheme or plan.

CONCLUSION

Because the district court did not err in holding that Horn’s

state court robbery convictions were not related as that term

is defined in USSG § 4A1.2, and therefore did not err in

holding that Horn was a career offender under USSG § 4B1.1,

we AFFIRM the judgment of the district court.