1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa, sitting by designation.

2

The Honorable Michael J. Davis, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2894

___________

United States of America, * 

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Cordova Jamal Lynch, *

* 

Defendant-Appellant. *

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Submitted: January 9, 2007

Filed: February 26, 2007

___________

Before MURPHY and SMITH, Circuit Judges, and READE,1

 District Judge.

___________

READE, District Judge.

Cordova Jamal Lynch pled guilty to one count of possession with intent to

distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On appeal,

Lynch contends that the district court2

 erred in calculating his advisory Sentencing

Guidelines range and imposed an unreasonable sentence. We affirm.
3

In the plea agreement, the parties attempted to calculate Lynch’s possible

advisory Sentencing Guidelines ranges. The parties agreed that Lynch would be a

Criminal History Category VI, but they incorrectly estimated that a career offender

finding would increase Lynch’s total Offense Level from 23 to 28. Therefore, they

assumed that, if the district court found that Lynch qualified as a career offender, his

advisory Sentencing Guidelines range would be 140 to 175 months of imprisonment,

and, if the district court found that Lynch did not qualify as a career offender, his

advisory Sentencing Guidelines range would be 92 to 115 months of imprisonment.

The United States Probation Office (“USPO”) pointed out to the district court that the

parties mistakenly calculated the possible advisory Sentencing Guidelines ranges.

Rather than rely on a total Offense Level 28, the USPO correctly calculated that, as

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I.

In June of 2005, law enforcement officers executed a search warrant at Lynch’s

home in Crystal, Minnesota, and found approximately 81 grams of powder cocaine

and 11 grams of cocaine base. Pursuant to a plea agreement, Lynch pled guilty to one

count of possession with intent to distribute powder cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C). As part of the plea agreement, the parties agreed to litigate

a number of sentencing issues, including whether Lynch qualified as a “career

offender” under USSG § 4B1.1.

After an evidentiary hearing, the district court held that Lynch qualified as a

career offender. The district court found that Lynch had two unrelated, prior felony

assault convictions. In 1988, a Minnesota state court convicted Lynch of Second

Degree Assault on two occasions.

At sentencing, Lynch moved for a downward departure pursuant to USSG

§ 4A1.3(b) for overstatement of criminal history and USSG § 5H1.4 in light of his

physical condition. The district court denied the motion for a downward departure

and calculated Lynch’s advisory Sentencing Guidelines range to be 151 to 188 months

of imprisonment.3

 After considering all of the factors at 18 U.S.C. § 3553(a),
a career offender, Lynch’s total Offense Level would be 29. A Criminal History

Category VI and a total Offense Level 29 results in an advisory Sentencing Guidelines

range of 151 to 188 months of imprisonment.

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however, the district court varied downward and imposed a sentence of 141 months

of imprisonment.

Lynch appeals. He contends: (1) the district court erred in determining that he

qualified as a career offender; (2) the district court should have departed downward;

and (3) the district court failed to properly analyze the factors at 18 U.S.C. § 3553(a).

II.

“A sentencing court must first determine the advisory [Sentencing] [G]uidelines

range and then consider the factors set forth in 18 U.S.C. § 3553(a) to determine

whether to impose a sentence under the [Sentencing] [G]uidelines.” United States v.

Davis, 457 F.3d 817, 825-26 (8th Cir. 2006) (citing United States v. Haack, 403 F.3d

997, 1003 (8th Cir. 2005)). We review the district court’s application of the

Sentencing Guidelines de novo and its factual findings for clear error. United States

v. Davidson, 437 F.3d 737, 739-40 (8th Cir. 2006) (citing United States v. Hadash,

408 F.3d 1080, 1082 (8th Cir. 2005)). We then review the sentence the district court

imposed for reasonableness. Id. at 740.

III.

A.

Lynch argues that the district court erred in determining that he qualified as a

career offender, because his two prior felony convictions were related and should not

count separately. “Prior felony convictions are counted separately for career offender

purposes if they ‘are counted separately under the provisions of USSG § 4A1.1(a), (b),
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or (c).’” United States v. Mills, 375 F.3d 689, 691 (8th Cir. 2004) (quoting USSG

§ 4B1.2(c)). “Prior sentences imposed in unrelated cases are to be counted

separately,” but “[p]rior sentences imposed in related cases are to be treated as one

sentence . . . .” USSG § 4A1.2(a)(2).

Application Note 3 to USSG § 4A1.2 defines “related.” It states:

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. 

USSG § 4A1.2, cmt. (n.3). In assessing whether the offenses were part of a single

common scheme or plan, we consider (1) the time period, (2) the participants, (3) the

victims, (4) the motive, (5) the modus operandi, (6) the location, (7) the offenses, (8)

whether a common investigation uncovered the offenses and (9) whether the

defendant jointly planned the offenses. Davidson, 437 F.3d at 740 (citing Mills, 375

F.3d at 692 n.5).

The district court did not err when it found that Lynch’s two prior convictions

for Second Degree Assault were unrelated. The following evidence is not disputed:

In April of 1988, a criminal complaint alleged that, on March 15, 1988, Lynch

and a juvenile male were driving separate cars when they tried to block a third car.

Lynch fired shots at the car and its two occupants. In July of 1988, a separate criminal

complaint alleged that, on March 14, 1988, Lynch engaged in similar conduct that

involved three different victims and a different location.
4

The evidence was admitted pursuant to State v. Spreigl, 139 N.W.2d 167, 172-

73 (Minn. 1965). In Minnesota, “[e]vidence of past crimes, frequently referred to as

Spreigl evidence . . . can be admitted to show motive, intent, absence of mistake,

identity, or a common scheme or plan.” State v. Gomez, 721 N.W.2d 871, 877 (Minn.

2006) (citing Minn. R. Evid. 404(b) and Spreigl, 139 N.W.2d at 167).

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Lynch went to trial on the first criminal complaint, which alleged the March 15,

1988 assault. At trial, the Minnesota state court permitted the prosecution to present

evidence of the March 14, 1988 incident. The evidence was ostensibly admitted to

show identity, modus operandi or a common scheme or plan.4

 A jury found Lynch

guilty. In October of 1988, the Minnesota state court sentenced Lynch to ten years of

imprisonment. Lynch subsequently pled guilty to the second complaint, and the

Minnesota state court sentenced him to a consecutive term of three years of

imprisonment.

The undisputed evidence shows that Lynch’s two sentences are “unrelated” for

purposes of USSG § 4A1.2. First, the sentences resulted from offenses that occurred

on two different dates. Second, the offenses were not part of a single common scheme

or plan. The offenses took place at different locations and involved different victims.

Although the two assaults took place on consecutive dates and involved a similar

modus operandi, “‘a single common scheme or plan involves something more than

simply a repeated pattern of conduct.’” Davidson, 437 F.3d at 740 (quoting United

States v. Maza, 93 F.3d 1390, 1400 (8th Cir. 1996)); see also United States v. Joy, 192

F.3d 761, 771 (7th Cir. 1999) (“Crimes are not related . . . simply because they have

a similar modus operandi,” and “[n]either close temporal proximity nor the similar

nature of two crimes requires a finding that the offenses were part of a common

scheme.” (Citations omitted.)). “‘[S]imilar crimes are not necessarily related crimes.’”

Mills, 375 F.3d at 693 (quoting United States v. Lowe, 930 F.2d 645, 647 (8th Cir.

1991)); see, e.g., United States v. Paden, 330 F.3d 1066, 1067-68 (8th Cir. 2003)

(rejecting the defendant’s argument that his two convictions, which stemmed from his

use of the same firearm only four days apart, should be “functionally consolidated”
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for purposes of USSG § 4A1.2(a)(2) because the defendant pled guilty to both charges

on the same date and the sentences ran concurrently). Third, the offenses were not

consolidated for trial or sentencing. See United States v. Nicholson, 231 F.3d 445,

456 (8th Cir. 2000) (“Where prior convictions are sentenced under separate docket

numbers, and there is no formal order of consolidation, the convictions are counted

separately for purposes of USSG § 4A1.2(a)(2).” (Citation omitted.)).

Lynch stresses that the state prosecutor could have charged Lynch in the same

instrument with both offenses and that the Minnesota state court held that evidence

of the March 14, 1988 incident was admissible at his trial. Such considerations,

however, are not binding upon our interpretation of the Sentencing Guidelines. See,

e.g., United States v. Postley, 449 F.3d 831, 832 (8th Cir. 2006) (disregarding state

legislature’s characterization of an offense as an “aggravated misdemeanor,” because

it qualified as a “felony” under the advisory Sentencing Guidelines). We apply

federal law, not state law, and we apply it to actual, not hypothetical, convictions.

In a related argument, Lynch contends that USSG § 4A1.1, § 4A1.2 and

§ 4B1.1 violate due process. Lynch contends that the Sentencing Guidelines are

arbitrary, because they allow the district court to unpredictably “contradict” the

Minnesota state court’s apparent finding that the March 14 and March 15, 1988

incidents were part of a common scheme or plan. As a consequence, Lynch concludes

that the Sentencing Guidelines lack definable standards. We disagree. There is no

contradiction, because the two prosecutions involved different sovereigns. See, e.g.,

Heath v. Alabama, 474 U.S. 82, 89 (1985) (applying dual sovereignty doctrine and

remarking that federal and state governments may separately prosecute and punish

crimes) (citations omitted); see also United States v. Turpin, 920 F.2d 1377, 1388 (8th

Cir. 1990) (holding that the mere fact that a defendant was subject to a harsher

sentence in federal court than in state court did not implicate the due process clause).

Further, the district court’s decision was grounded in the Sentencing Guidelines’

career offender provisions, which have definable standards. See, e.g., United States
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v. Luersen, 278 F.3d 772, 774 (8th Cir. 2002) (rejecting an argument that an

application of the career offender provisions of the Sentencing Guidelines was

“unforeseeable,” “unexpected” and “indefensible”); cf. United States v. Green, 902

F.2d 1311, 1313 (8th Cir. 1990) (holding that USSG § 4B1.1 survived a due process

challenge, because it did not remove too much discretion from the sentencing judge).

Accordingly, we hold that the district court did not err when it found that Lynch

qualified as a career offender under USSG § 4B1.1.

B.

Lynch argues that the district court should have departed downward pursuant

to USSG § 4A1.3(b) and USSG § 5H1.4. “‘The discretionary denial of a motion for

downward departure is unreviewable unless the [district] court failed to recognize its

authority to depart.’” United States v. Vasquez, 433 F.3d 666, 670 (8th Cir. 2006)

(quoting United States v. Andreano, 417 F.3d 967, 970 (8th Cir. 2005)). The

sentencing transcript reveals that the district court recognized its authority to depart

from the Sentencing Guidelines but declined to exercise such authority. Therefore,

the district court’s denial of Lynch’s motion for downward departure is unreviewable.

IV.

Lynch contends that the district court did not properly analyze the factors at 18

U.S.C. § 3553(a), and, therefore, his sentence is unreasonable. The record, however,

shows that the district court analyzed the § 3553(a) factors. In its written statement

of reasons, the district court explicitly considered all of the § 3553(a) factors in

arriving at Lynch’s sentence. “Nothing in § 3553(a) or in the Booker remedy opinion

requires ‘robotic incantations’ that each statutory factor has been considered.” United

States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005) (quoting United States v.

Crosby, 397 F.3d 103, 113 (2d Cir. 2005)).
5

 The propriety of the district court’s downward variance is not at issue in this

appeal.

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In a similar claim, Lynch argues that the district court erred, because it treated

the career offender portions of the Sentencing Guidelines as mandatory. Lynch argues

that the district court should have exercised discretion under Booker in the midst of

its Sentencing Guidelines calculations to find that Lynch did not qualify as a career

offender under USSG § 4B1.1. Even in this post-Booker era, however, the district

court must still consider the Sentencing Guidelines, and such “‘consideration . . . will

normally require determination of the applicable [Sentencing] Guidelines range.’”

Haack, 403 F.3d at 1002 (quoting Crosby, 397 F.3d at 113). The district court did not

resurrect the mandatory nature of the Sentencing Guidelines or violate Booker simply

by calculating the Sentencing Guidelines range. The district court clearly treated the

Sentencing Guidelines as advisory. Its downward variance belies any suggestion that

it treated the Sentencing Guidelines as mandatory.5

V.

Finding that Lynch’s allegations lack merit, we affirm.

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