United States Court of Appeals

Fifth Circuit



## FILED

November 21, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-51116

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FELICIA MONIQUE DUNN,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Felicia Dunn appeals her sentence for possession of cocaine

with intent to distribute and aiding and abetting the same. She

argues that two prior shoplifting convictions used to enhance her

sentence were “related” under the Sentencing Guidelines, yielding

a smaller enhancement, because the underlying offenses occurred at

two stores in the same mall at about the same time and resulted in

contemporaneou s pleas and identical concurrent sentences. We

vacate and remand for resentencing.

I

F elicia Dunn pleaded guilty to possession of cocaine wit h

intent to distribute, and aiding and abetting the same, pursuant to1 She also objected that another four criminal history points should have

b een only two points because the underlying two shoplifting offenses were

“related,” but this objection was later dropped.

2 a plea agreement. The pre-sentence report recommended offense

level twenty-five after a three-level reduction for acceptance of

responsibil ity. It then recommended eleven criminal history

points, which resulted in criminal history category V. The

r esulting Sentencing Guidelines range was 100-125 months of

imprisonment.

Dunn, in objecting to the PSR, argued that she should receive

a two-level minor participant reduction. She also objected to

receiving four criminal history points for two shoplifting offenses

that had occurred on the same day; she argued that these offenses

should be considered “related” under the Sentencing Guidelines,

resulting in only two points. 1

The facts of those two offenses are as follows: Dunn was

arrested on March 17, 1994 for shoplifting from The Limited

Clothing Store in Post Oak Mall in College Station. An

“investigation” found that she had stolen from at least three other

stor es, but only The Limited and another store pressed charges.

She was charged with two separate informations naming two separate

complainants and two separate, but sequential, cause numbers. She

was sentenced for both offens es on the same day and received the

same sentence for each, running concurrently.

At sentencing in the present case, the district court granted2 The district court did not provide a name or citation for this case, and

we have not been able to determine its identity.

3 Section 4A1.2, cmt. 3.

3 a two-level reduction for Dunn's minor role in the offense. Dunn

renewed her objection tha t her two shoplifting offenses were

related and should yield only two points. The district court

overruled this objection, explaining that it was “familiar with a

case wher e an individual committed burglaries of two adjoining

buildings in a strip center

. . . [which were considered] separate

offenses and I don’t see how this would be any different.” 2 The

court sentenced Dunn to 84 months of imprisonment and four years of

supervised release. Dunn filed a timely notice of appeal,

challenging only the district court’s refusal to consider her two

same-day shoplifting offenses “related.”

II.

Section 4A1.2(a)(2) of the Sentencing Guidelines provides that

“ [p]rior sentences imposed in unrelated cases are to be counted

separately. Prior sentences imposed in related cases are to be

treated as one sentence for purposes of [assigning criminal history

points.]” The Sentencing Guidelines commentary provides the

following explanation of the term “related:”

Prior sentences are not considered related if they were

for offenses that were separated by an intervening arrest

(i.e., the defendant is arrested for the first

offense prior to committing the second offense). Otherwise, 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. 34 United States v. Moreno-Arredondo , 255 F.3d 198, 205 (5th Cir. 2001).

5 Id. at 204.

6 Id. at 205.

7 Id.

8 Id. at 207.

4 Dunn argues that her two shoplifting offenses are “related” under

any of the three tests. Reviewing d e novo

, 4 we conclude that her

offenses “occurred on the same occasion.”

This court in United States v. Moreno- Arredondo h eld that,

because the Sentencing Guidelines do not define “related,”

“occurred,” or “occasion,” these terms should be defined by their

“common sense, conversational meanings.” 5 The court noted that

“[t]her e is not a surfeit of jurisprudence construing the ‘same

occasion’ prong of the test for relatedness, but most opinions on

the subject emphasize the temporal aspect and rely only to a lesser

degree on the geograp hical or spatial aspect.” 6 “Only the extent

of temporal separation between commissions can be controlling for

purposes of the same-occurrence prong, and even then such

separation must be viewed in light of other factors such as spatial

separation, identity or non-identity of offenses, and t he like.” 7

As a result, it held that “sequential commiss ions of offenses

affecting differ ent victims can comprise a single occurrence.” 8

The court concluded that Moreno-Arredondo’s two prior offenses had

occurred on the “same occasion:” the offenses were the same, they9 Id.

10 No. 00-51022 (5th Cir. Aug. 23, 2001) (unpublished opinion).

11 961 F.3d 1188, 1188 (5th Cir. 1992).

5 occurred in the same location (the couch in the house where the

defendant lived), and they occurred withi n minutes of each other

and without interruption. 9

In a later unpublished opinion, United States v. Becerra

, this

c ourt cited Moreno-Arredondo but concluded that the defendant’s

offenses did not occur on the “same occas ion.” 1 0 Becerra

burglarized two different v ehicles, which were parked about one

block apart on the same stree t, on the same evening. When the

police arrested him several weeks later, they found on him an item

identified as stolen from one of the vehicles. After releasing

him, the police arrested him again after determining that another

item in his possession at the time of his initial arrest had been

stolen from the second vehicle. The court determined that,

although the offenses had occurred on the same day, they were two

separate acts of theft involving two different victims and two

different arrests. The court also noted that, although both

offenses had occurred on th e same street, they occurred in

different locations on that street. It concluded that these facts

rendered Becerra’s case distinguishable from Moreno-Arredondo and

United States v. Johnson

, 11 where this court held t hat it was

“evident” that the offe nses of DWI, driving with a suspended12 10 F.3d 261, 263 (5th Cir. 1993); see also United States v. Garcia

, 962

F.2d 479, 481 (5th Cir. 1992), a brogated on other grounds, Buford v. United

States

, 532 U.S. 59 (2001) (holding, in a case where the defendant committed two

heroin deliveries in the same place but nine days apart, that although the facts

surrounding the cases may be similar, similar crimes are not related crimes).

13 Moreno-Arredondo , 255 F.3d at 205.

6 license, and failure to identify onesel f to a police officer

occurred on the same occasion when the defendant pre sumably was

arrested while doin g all three. And it held that Becerra’s case

was similar to United States v. Cain

, 12 where this court held that

the offenses of escape from prison, stealing a car, breaking and

entering, and attemptin g to steal another car committed over the

course of a five-day prison break did not occur on the same

occasion.

We think that this ca se is more similar to M oreno-Arredondo

than Becerra . As in Moreno-Arredondo , the offenses were the same

and occurred on the same day, apparently minutes apart - temporal

proximity being the key factor. 13 Although there were two separate

acts and two separate victims, Dunn was not arrested twice, unlike

the defendant in Becerra . And a mall is more easily considered a

single location than the wide-open street in Becerra

. Only if Dunn

had stolen from the same store could one see her offenses as having

occurred more clearly on the “same occasion;” that distinction is

insufficient here to make a difference.

For the foregoing reasons, we VACATE Dunn’s sentence and

REMAND the case for resentencing.