1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206 ELECTRO NIC CIT

ATION: 2004 FED App . 0026P (6th C ir.) File Name: 04a00 26p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.
G REGORY S TEVEN H ORN , Defenda nt-Appel

lant. X - - - -> , - - N 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
Befor e: SIL ER, BATCH

ELDER, and COO K, Circui t Judges.

_________________ COUNSEL ARGUED: Hug h M. Mun dy, F EDE RAL P UBLIC DEFENDER’S OFFI CE, Nashville, Te nnessee, for Appellant

. William Cohen, ASSISTANT UNITED STATE S ATTORNEY, Nashville, Tennessee, for Appellee

. ON BRIE F: C. Dou gla s Th ore sen , FE DER AL PU BLIC DEFENDER’S OFFICE, Nashville, Tenn essee, f or Appel l ant

. 2 United Sta tes v. Ho rn No. 02-5668

William Cohen, ASSISTANT UNI TED S T ATE S ATTORNEY, Nashville, Tennessee, for Appellee

.

_________________ OPINION

_________________ ALICE M. BATCHELDE R, Circuit J

udge. Defend

antappellant Gregory Steven Horn appeals the sentence imposed followin g h is convic tion on one

count of b ank robb ery

in violation o f 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 c onvictions for robbery were related

offenses under Section 4B1.1, and

that they theref ore shoul d

not have been c ounted as separate offenses for pur poses of care e r offender enhancement. Because we find that d efendant’s prior felony convictions we

re no t rela

ted offenses under Section 4B 1.1, we will AFFIRM the distri ct court

. I. Gregory Steven Horn ple a ded guilty to one c ount 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 th ings, to the Report’s recommendations that his two prior armed robbery convicti ons should b e conside red sepa rate offenses for purp oses of c alculati ng his sentence, and that

he should be sentenced as a caree

r offender. Horn arg

ued tha t these prior offenses had been effe ctively consolidated f o r sentencingby the state cou rt, 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 Co un ty, Marylan

d , on January 6, 1998. Horn, ac companied by an accomplice, approa ched the manager in the storeNo. 02-5668 United Sta tes v. Ho rn 3

parkinglot, shoved a h andgun into the manager’s ribs and threatened

to shoot him. The manager gave the ro bbers his car keys and his wallet c ontaining cred it cards. The second convictionwa s f

or an ar me d r ob be ry which occurred on January 26, 1998, in the par

ki ng lot of a different groc ery store in another t own in Anne Arundel County, Mar yland. During the latter robbery , the defendant, this time acting alone, robbed a

differe nt victim of cash, several

credit c ards, andh is driver’s license. The defendant once a gain u sed 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 ar rested later that day for havi ng stole n tags, and on March

19, 1998, he was charged in a multi-count information with, among other theft offenses, the January 6, 19 9 8 robbery. On March 23, 19 98, he was cha rge d in an other multi-count informationwith

the January 27, 1998, robbery a nd attempted ro bb er y. Horn made his initial appearance in state court as to each information on March 30, 1998, and waiv ed his rig ht to a preliminary hea

ring in each

case. The cases were se

t for the same trial date, an

d Horn wa s repre sented by the same counsel in both. On June 16, 1998, he entere d guilty pleas to both of the robbery

cha rg es and to the attempted robbery charge, and on Sep te mber 11, 1998, he was sentenced for each of these offenses. The ca se s w er e d oc ke te d s ep ar at el y, however, and no order w as enter ed by the cour t to consolida

te the cas es for e ither trial or sen tenci ng. Inthe pr esent case, the district judge overruled H orn’s objections to the Presentence Report and adopted the findi ngs and calculations containe d in it. The court held that the two prior state court robbery

convictions were not related cases as that term is defi ned in USSG § 4A1.2, a

nd that Horn is a career offender under USSG § 4B1.1. The district court sentenced him to 204 months’ incarceration, to run concurr ently with a Stat

e of Mar yla nd sente nce th at he was obligated to fulfill. The only question prese nted upon appeal is whether the district

court e rred in counting Horn’s prior 4 United Sta tes v. Ho rn No. 02-5668
robbery convictions as separate offenses and sentencing Horn as a car eer cr iminal unde

r USSG § 4B1.1.
II.
Horn contends that his prior felony convictions for robbery were r elat ed offenses under Section 4B1.1, and that they therefore s hould

not have been counted as separate of fenses for the purpose of caree r offe nder enhancement. I f the offenses are treated as related, Hor n’s total offense level would be 26, rather than 31, the level that the di s trict court used in sentencing hi m to 204 months’ incarceration. The government

concedes that this Court

has jurisdiction over

this appeal.
Inreviewi

ng a se nte nce i mposed under the Sentencing Guideline s, we are required by statute to “accept

the findi ngs of fact of the district cour

t unless they are

clearly e rroneous 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: whe ther the district court erred i ndetermining that Horn’s prior offenses were not “effe ctively

consolidated ” and

are therefore not “relate d cases” as that term is defined for purposes of determining career o ffender 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 lega l decision,” deferential rather than de novo review was appropriate for the district court’s determination that particular p ri or convictions are separate and not “functionally consolidated”). Whether Buford ’s defe

rential s tandard

applies to all aspe cts o f th e re lat edn ess que st io n i s no t cl ear in th is cir cui t. In United States v. Carter , for example, citing pre-Buford cases and mentioning neither Buford nor the st

atuto ry stan dard of re v iew set out in 1 8 U.S.C.§ 37 42(e), we held tha t in reviewing the district court’s decision that prior offenses were notpart of a

c ommon scheme or plan, we review theNo. 02-5668 United Sta tes v. Ho rn 5

sentencingcourt’s

finding s of fac t f

o r clear error a nd its applicationof the g

uideline s d e novo. United States v. Carter , 283 F.3d 755, 757 (6th Cir. 2002). On the other hand, we have he ld

tha t Buford

has a much broader and more general application. In United States v. Jackson-Randolph , 282 F.3d 369 (6th Cir. 2002), we reviewe d 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 convi ctio ns are “related,” th e determination of whether particular conduct constituted obstructionof justice is a fact-bound decision in which “‘factualnuance may

closel y guide the lega

l decision , with legal results depending heavily upon an understanding of the significance of case-specific details.’” Jackson-Ra n dolph , 282 F.3d at 389 (q uoti ng Buford , 532 U.S. at 65). We noted further that like the dete rmination at issue in Buford , the question of whether particular conduct cons titutes ob struction of justice is a matter

within the special competence of district court judges a nd the conclusion reached on the matter has little precedential value because of the case-specific and

factboun d ci rcumstances. Id. at 389-90. Accordingly , we concluded, “the clear error standard i s als o appropriate for reviewing sentencing decisions under § 3C1.1 where the sole issue b efore 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 districtcourt ’s applic ation of the guide lines to the facts should not b e disturb ed unless clearly errone ous); United States v. Lang , 333 F.3d 678, 682 (6th Cir. 2003) (holding that we review under the “clear ly errone ou s ” standard the districtcourt’s

applica tion of USS G § 3B 1.3 where the applicationis f

act-bo und); United States v. Ennenga , 263 F.3d 499, 502 (6th Cir. 2001) (n oting tha t Buford “sugg ests that our standard of review even with reg ard t o these questions of law sho

uld instead be defere ntial ,” and hold ing, inlight of the analy sis in United Sta tes v. Ha rdin , 24 8 F.3 d 489, 495 ( 6th

Cir. 2001), that the district court’s application of USSG § 2K2.1 is to be r ev iewed de ferent ially ); United States v. Hardin , 248 F.3d 489, 495 (6 th Ci r. 200 1) (op inin g, 6 United Sta tes v. Ho rn No. 02-5668

butnot decid

ing, tha t Buford’ s deferential standard w ould apply to review o f the distr

ict cour t’s applic ation of U SSG § 2K2.1(b)(5)). In lig

ht of the reasoning of Buford and the ensuing case law

inthis circ

uit, we ar e satisfi ed that we

must review de fe re nt ia ll y, that is, for clear error, the entirety of the districtcourt’s determination that Ho rn ’s prior robbery convictions were not related. Under USSG§ 4A1.2, “prior sentences are considere d related if they resulted f

rom 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 c ases, Horn first argues that the two prior armed robbery convictions were “effectively consolidated,” because he was arrested and charge d

with the robberies at the same time; he made an initial

a ppearance as to both o ffense s at the sa me time; the cases were set for trial on the same dat e; the sa

me c ounsel represented defendant as to both offense s; a guilt y plea was entered for each off ense on the same day ; and defendant was s ente nced for both offenses on the same day wi th se nt en ce s t o r un co nc ur re nt ly.
At oral argument of this case, Ho rn urged upon us the proposition that

this Court has never

explicitly held that prior offenses must be fo rmally consolidated in order that they may b e found to be related for purposes of USSG § 4A1.2, an d therefor e, no f

ormal order of consolidation is required for sucha finding . Defen

dant’s r eliance on this lac

una is misplaced. We have stated several times that “cases are not consolidated w hen offenses proceed to sentencing under separa te docket nu

mbers, c ases ar

e not factually

related, and there was no order of con solidation.” United States v. McAdams , 25 F.3d 37 0, 374 (6th Cir 1994); United States v. Coleman , 9 64 F.2d 564, 567 (6th Cir. 1992). “The fact that judgment was pronounced on

the same day with sente

nces to runconcurren

tly, w ithout more, does not establish that [the cases] were in fact consolidated.” Carter , 283 F.3d at 758;No. 02-5668 United Sta tes v. Ho rn 7

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

indication that

the trial court inte nded to consolida te the prior

convicti ons. I

n each o f those c ases, there was no order from the trial cour t conso lidating the earlier offense s, nor was there any statement by the

trial court implying the y should be c onsidere d consolid ated. We hold that the conte

mporane ous trea

tm ent o f Horn’s state court robbery offenses notwithstanding, the district court correctly held that Horn was charged with, tried for , and convicted of separa te unrel ated off

enses. Horn next arg ues that the prior o ffense s arose froma single commonscheme or plan. He arg ues that b oth

robberies were motivated by h is addiction to drugs; that his modus operandi inboth ca se s was almost identical; and that the robberies occurred less than three weeks apart. The defendant bea rs the burden of proving the two prior

felony convictions we

re part of a single common plan or schem e. United States v. Irons , 196 F.3d 634, 6 38 ( 6th Cir. 199 9); United Sta tes v. Cowa rt , 90 F.3d 154, 159 (6th Cir. 1996). Horn has fa iled to meet this burden. In Irons , we held that crimes a

re part of the sa me scheme or plan on

ly if the offenses are jointly planned, or, at a minimum, the

commission

of one of

fense ne cessa

ril y requires the commission of the other. Irons , 196 F.3d at 638; see also Carter , 283 F.3d at 75 8; United States v. Ali , 951 F.2d 827, 828 (7th Cir. 19 92) (finding the words “scheme” and “plan” to be words of

intention, “implying

that [offe nses] have been join

tly p lanned, or at leas tthat . . . the commission of one would

entail the commission of t he o th er a s we ll ”). “It is beyond question that the simple sharing of a modus op erandi cannot alone convert [separate offense s] into one offense by virtue of their be ing a single com mon sc heme or plan.” Cowart , 90 F.3d a t 160; see also United States v. Brown , 209 F.3d 1020, 1024 (7th Cir. 2000) (“merely similar, seriatim robberi es fall short of qua lify ing as a ‘sing le commonscheme

or plan’”). This Court has further held that merely because crimes are partof a crime spree does not mean that they are re la ted. Iron s , 196 F.3d at 638; Carter , 283 F.3d at 758. Nor aresuch offenses related because they 8 United Sta tes v. Ho rn No. 02-5668

we re committed to achieve a similar objective, such as th e support of a dru g habit. See United States v. Gonzales , 21 Fed. Appx. 393, 397 (6th Cir. 2001) (citi ng Brown , 209 F.3d at 1024) (holding that prior convictions are not “related” simply because the crime s usedthe same modus oper

andi, were part of a crime spree , or were motivated

by t he need to support a drug habit)). Fi na ll y, offenses are not

necessa rily related merely because they were c ommitted wi

thin 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 defen d ant 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 p lace on t

he ‘same occasion’ beca

use they occurred at diffe ren t times, in different locations, and were com mit ted against different victims.” Id. at 227. Si mi la rl y, we held in United Sta tes v. Go nzales that six armed robberies of convenience stores within a two-week period—which

were pa rt of a “ drug-i

nduced c rime spree” and involved the use of

the same starter pistol—were not related. Gonzales , 21 Fed. Appx. at 394-99. Other ci rcuits that have considered

this issue have rea

ched simil ar conc lu sions

. See United S tates v. Mapp , 170 F.3d 328, 339 (2d Cir. 1999) (finding no error

indis trict court’s conclusion that two robberi e s, committed

on conse cutive da

ys a nd aga inst different victims, w ere not r

elated) ; Uni ted S tates v. Keller , 58 F.3 d 884, 894-95 (2d Cir. 1995) (affirming a distri c t court’s finding that defendant’s attempts to commit robbe ries , four days apar t, at different locations and involving different victims, were no t relate d); Brown , 209 F.3d at 1024 (finding three armed robberies of store s within a t wo month period not related); United Sta tes v. Bro wn , 962 F.2d 560, 564 -65 (7th Cir. 1992) (finding two bank ro bb er ie s c om mi tt ed ei gh t d ays apart not related). The crimes a

t issue in the pr esent case were committed weeks apart a t different locations; the offenses involvedNo. 02-5668 United Sta tes v. Ho rn 9

different victims; andthe defe

ndant had an accomplice in

the fi rst offense but not the second. There is no evidence, n o r 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, t he districtcourt did

not err in

finding that these

two robb eries were not part of a common scheme or plan.

CONCLUSION
Becau se the district court did not err in holding that Horn’s state court robbery

convictions were not related a s that term is defined

in USSG § 4A1 .2, and th erefor e did not e

rr in holding that Horn was a career off ender under USSG § 4B1.1, we AFFIRM the judg

ment of the

district c ourt.