United States Court of Appeals,

Eleventh Circuit.

No. 95-4461

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Vincent JOHNSON, a/k/a Wimpy, Defendant-Appellant.

July 16, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 93-571-CR-UUB), Ursula Ungaro Benages,

Judge.

Before KRAVITCH, EDMONDSON and BARKETT, Circuit Judges.

KRAVITCH, Circuit Judge:

Vincent Johnson appeals the 157-month sentence he received for

conspiracy to possess with intent to distribute cocaine, in

violation of 21 U.S.C. § 846. We affirm.

I.

Johnson pleaded guilty to conspiring to possess and distribute

cocaine. The drug ring in which Johnson was involved operated from

1986 to September 1993. In 1990, Johnson participated in several

jewelry store robberies in order to obtain capital to fund the drug

operation. Johnson was arrested for the robbery of one of the

jewelry stores and was convicted in Georgia state court, where he

received an eight-year prison term. While serving this sentence,

Johnson was indicted by federal authorities for his participation

in the drug conspiracy. As an overt act in furtherance of the

conspiracy, the indictment lists Johnson's participation in several

jewelry store robberies, including the robbery for which he was
convicted in Georgia. In addition, the indictment alleges that on

one occasion Johnson delivered cocaine in furtherance of the

conspiracy.

In determining Johnson's offense level, the presentence

investigation report relied solely on the weight of the narcotics

attributable to him and did not factor in his participation in the

robberies. Johnson's state court robbery conviction was

considered, however, in determining his criminal history category.

The district court overruled Johnson's objection on this point.

The court then ordered that Johnson's federal sentence run

concurrently with his state sentence on the robbery conviction, but

declined to credit Johnson for time already served in state prison.

On this appeal, Johnson argues that the robbery conviction

should not have been scored in determining his criminal history

category. He also argues that his federal sentence should have

begun running concurrently with the state sentence retroactive to

the beginning of that sentence.

II.

 Because this case involves an application of the Sentencing

Guidelines to the facts, we review the district court's decision de

novo. United States v. Walker, 912 F.2d 1365, 1367 (11th

Cir.1990), cert. denied, 498 U.S. 1103, 111 S.Ct. 1004, 112 L.Ed.2d

1087 (1991).

Johnson claims that his robbery sentence should not have been

included in determining his criminal history category because his

participation in the robbery was part of the instant conspiracy

offense, and thus not a "prior sentence" as defined by U.S.S.G. §
4A1.2(a)(1).

 Section 4A1.1 of the Guidelines instructs a sentencing court

to calculate a defendant's criminal history category by counting

certain prior sentences imposed for specified felony or misdemeanor

convictions. Section 4A1.2(a)(1) defines "prior sentence" as "any

sentence previously imposed upon adjudication of guilt ... for

conduct not part of the instant offense." According to an

amendment to the first application note to § 4A1.2 (added on

November 1, 1993), "[c]onduct that is part of the instant offense

means conduct that is relevant conduct to the instant offense under

the provision of § 1B1.3 (Relevant Conduct)." U.S.S.G. § 4A1.2,

comment. (n. 1).

Johnson argues that because the robbery for which he was

convicted was listed in the indictment as one of the overt acts

which provided the basis for his involvement in the conspiracy, it

is "relevant conduct" under U.S.S.G. § 1B1.3, which in turn makes

it part of the instant offense, and therefore not a "prior

sentence." The government responds that under § 1B1.3 the robbery

could not properly be included as "relevant conduct," and it is

therefore appropriate to consider the robbery conviction in

determining Johnson's criminal history category.

Section 1B1.3 explains what conduct is "relevant" in

determining a defendant's guideline range. Specifically, the

guideline instructs that "solely with respect to offenses of a

character for which § 3D1.2(d) would require grouping of multiple

counts, all acts and omissions ... that were part of the same

course of conduct or common scheme or plan as the offense of
 1

" "Offenses of a character for which § 3D1.2 would require

grouping of multiple counts,' as used in subsection (a)(2),

applies to offenses for which grouping of counts would be

required under § 3D1.2(d) had the defendant been convicted of

multiple counts.... Subsection (a)(2) merely incorporates by

reference the types of offenses set forth in § 3D1.2(d)." 

U.S.S.G. § 1B1.3, comment. (n. 3). In other words, it is not

necessary that a conviction actually occur. United States v.

Mullens, 65 F.3d 1560, 1564 (11th Cir.1995), cert. denied, ---

U.S. ----, 116 S.Ct. 1337, 134 L.Ed.2d 487 (1996). 

 2

Johnson does not challenge the amount of drugs attributed

to him. 

 3The government argues that because robbery is not a

groupable offense under § 3D1.2(d), it may not be considered

relevant conduct. What § 3D1.2(d) means, however, is that

multiple counts of robbery may not be grouped together; it does

not mean that no other criminal act is groupable with a single

count of robbery. This is made clear in the commentary to the

guideline: "use of a firearm in a bank robbery and unlawful

possession of that firearm are sufficiently related to warrant

grouping of counts under this subsection." U.S.S.G. § 3D1.2,

comment. (n. 5); see United States v. Gelzer, 50 F.3d 1133,

1143-44 (2d Cir.1995). 

conviction" are attributable to the defendant.1 U.S.S.G. §

1B1.3(a)(2). Conspiracy to distribute cocaine is an offense for

which Section 3D1.2(d) requires grouping of multiple counts.

U.S.S.G. § 3D1.2(d); United States v. Lawrence, 47 F.3d 1559, 1566

(11th Cir.1995). The guideline specifically states that counts

should be grouped "[w]hen the offense level is determined largely

on the basis of ... the quantity of a substance involved."

U.S.S.G. § 3D1.2(d). It is appropriate, therefore, to attribute to

Johnson the total amount of drugs he could reasonably foresee would

be involved in the conspiracy.2

 Lawrence, 47 F.3d at 1566.

Whether the Georgia robbery would have been grouped with the

drug conspiracy had the robbery been a count in Johnson's federal

conviction, however, requires a closer examination of § 3D1.2.3

The purpose of this section is to group together all counts
 4

"For offenses in which there are no identifiable victims

(e.g., drug or immigration offenses, where society at large is

the victim), the "victim' for purposes of subsections (a) and (b)

is the societal interest that is harmed." U.S.S.G. § 3D1.2,

comment. (n. 2). 

involving "substantially the same harm":

Counts involve substantially the same harm within the meaning

of this rule:

(a) When counts involve the same victim and the same act

or transaction.

(b) When counts involve the same victim and two or more

acts or transactions connected by a common criminal

objective or constituting part of a common scheme or

plan.

(c) When one of the counts embodies conduct that is

treated as a specific offense characteristic in, or other

adjustment to, the guideline applicable to another of the

counts.

(d) When the offense level is determined largely on the

basis of the total amount of harm or loss, the quantity

of a substance involved, or some other measure of

aggregate harm, or if the offense behavior is ongoing or

continuous in nature and the offense guideline is written

to cover such behavior.

U.S.S.G. § 3D1.2.

Johnson's robbery does not fall under any of these

subsections. The victims of the jewelry store robbery were

distinct from the "victims" of the drug conspiracy;4

 therefore

subsections (a) and (b) do not apply. Neither does subsection (c)

apply, because robbery is not a specific offense characteristic of

the possession or distribution of drugs. Finally, subsection (d)

is also inapplicable because the crime of robbery is not of the

"same general type" as the crime of conspiring to possess and

distribute drugs. U.S.S.G. § 3D1.2, comment. (n. 6); see, e.g.,

United States v. Harper, 972 F.2d 321, 322 (11th Cir.1992)
(rejecting grouping of drug trafficking and money laundering

because not "of the same general type" and, under the facts of the

case, not closely related).

Furthermore, the goal of § 3D1.2—"to limit the significance of

formal charging decision[s] and to prevent multiple punishment for

substantially identical offense conduct," U.S.S.G. Ch. 3 Pt.D,

intro. comment.—would not be advanced by grouping a 1990 robbery of

a jewelry store in Savannah, Georgia with a count of conspiracy to

possess and distribute cocaine throughout the southeastern United

States. See, e.g., United States v. Torres-Diaz, 60 F.3d 445, 448

(8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 432, 133 L.Ed.2d

347 (1995) ("defendant is not entitled to merge all criminal

activities simply because those activities occurred over a single

span of time, or out of a common base of operations"). This

determination is supported by a comparison of the crimes at issue

here to some examples of groupable crimes from the Guidelines:

forging and uttering the same check, three counts of unlicensed

dealing in firearms, one count of auto theft and one count of

altering the vehicle identification number of the stolen car, and

five counts of embezzling from a bank. Id. at (n. 3)-(n. 7).

We conclude that under the facts of this case the robbery

count would not be grouped with the drug conspiracy count under §

3D1.2. This is so despite the fact that the robbery that formed

the basis of Johnson's state court conviction was a factor in his

drug conspiracy indictment. Consequently, it is not "relevant

conduct" within the meaning of § 1B1.3, and by reference back to §

4A1.2(a)(1), it was not part of the "instant offense." Therefore,
 5

This result is consistent with the purpose of the 1993

amendment to § 4A1.2, i.e., to avoid the double counting that

would occur if a defendant were punished under both the "relevant

conduct" and the "prior sentence" provisions of the guidelines. 

U.S.S.G.App.C, ¶ 493. 

because the robbery sentence was "imposed upon an adjudication of

guilt," it is a "prior sentence" within the meaning of §

4A1.2(a)(1) and may be used in determining Johnson's criminal

history category.5

III.

 Johnson also argues that his sentence should run concurrently

with his Georgia state sentence retroactive to the beginning of

that sentence. He claims that by ordering that he serve his

federal sentence concurrently only with the unexpired term of his

state sentence, the district court violated U.S.S.G. § 5G1.3(b).

Section 5G1.3(b) applies when "the undischarged term of

imprisonment resulted from offense(s) that have been fully taken

into account in the determination of the offense level for the

instant offense." Because Johnson's robbery offense was not taken

into account in determining his offense level, subsection 3(b) does

not apply. Rather, subsection 3(c) is the relevant provision.

Under 3(c), the district court "shall impose a consecutive sentence

to the extent necessary to fashion a sentence resulting in a

reasonable incremental punishment for the multiple offenses." Id.

at § 5G1.3(c), comment. (n. 3). This the court did.

AFFIRMED.