UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4312

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KEVIN DEWALT, a/k/a Kelvin Carter, a/k/a Brian

Carter, a/k/a Deshawn Carter, a/k/a Kevin

Deshann-Makel Dewalt, a/k/a Kelvin Dashaun

Dewalt,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. N. Carlton Tilley, Jr.,

Chief District Judge. (CR-03-416)

Submitted: July 29, 2005 Decided: February 8, 2006

Before NIEMEYER, LUTTIG, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, Eric D. Placke,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Anna Mills Wagoner, United States Attorney, Michael A.

DeFranco, Assistant United States Attorney, Greensboro, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

The probation officer recommended a base offense level of 32

under USSG § 2D1.1(c)(4) (50-150 grams of crack), and a three-level

reduction for acceptance of responsibility, USSG § 3E1.1. With

sixteen criminal history points, DeWalt was in category VI. The

recommended guideline range was 151-188 months.

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PER CURIAM:

Kevin DeWalt pled guilty to two counts of distributing

cocaine base (crack), 21 U.S.C.A. § 841(a), (b)(1)(B) (West 1999 &

Supp. 2005) (Counts Five and Six of a six-count indictment), and

was sentenced to a term of 167 months imprisonment. DeWalt

contends on appeal that the district court erred in rejecting his

claim that three of his prior sentences were related cases pursuant

to U.S. Sentencing Guidelines Manual § 4A1.2, comment. (n.3)

(2003), because they were part of a common scheme or plan; the

court found that only two of them were related. DeWalt also

asserts that, in light of the Supreme Court’s subsequent decisions

in Blakely v. Washington, 542 U.S. 296 (2004), and United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the district court

plainly erred in considering facts he did not admit when it adopted

the probation officer’s recommendations concerning the base offense

level and criminal history.1

We review DeWalt’s constitutional claims for plain error

because he did not raise them in the district court. Fed. R. Crim.

P. 52(b); United States v. Hughes, 401 F.3d 540, 547 (4th Cir.

2005). To demonstrate plain error, DeWalt must establish that
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error occurred, that it was plain, and that it affected his

substantial rights. Id. at 547-48. If a defendant establishes

these requirements, our “discretion is appropriately exercised only

when failure to do so would result in a miscarriage of justice,

such as when the defendant is actually innocent or the error

seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Id. at 555 (internal quotation marks and

citation omitted). As explained below, we conclude that no error

occurred under Blakely or Booker. We agree that the court plainly

erred when it failed to find that all three of the prior sentences

in question were imposed in related cases because the offenses

occurred on the same occasion. However, we decline to exercise our

discretion to notice the error because DeWalt’s sentence was within

both the correct guideline range and the erroneous range used by

the district court. 

The factual basis for DeWalt’s guilty plea described six

sales of crack he made to an undercover agent between June 5, 2003,

and August 7, 2003. At his guilty plea hearing, DeWalt stated that

the factual basis was accurate. The total amount of crack DeWalt

sold, 79.1 grams, was used to calculate a base offense level of 32

under USSG § 2D1.1(c)(4) (50-150 grams of cocaine base). DeWalt

now maintains that he admitted distributing only the 40 grams of

crack charged in Counts Five and Six. Citing Blakely, DeWalt

asserts that his sentence is unconstitutional because it was based
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on drug amounts that were not charged in the indictment, and

neither proved to a jury beyond a reasonable doubt nor admitted by

him. 

In Booker, the Supreme Court held that Blakely applied to

the federal sentencing guidelines and that the mandatory guidelines

scheme that provided for sentence enhancements based on facts found

by the court violated the Sixth Amendment. Booker, 543 U.S. at

___, 125 S. Ct. at 746-48, 755-56. When DeWalt acknowledged that

the factual basis was accurate, he was unaware of the effect

Blakely and Booker would later have on sentencing fact finding.

Nonetheless, he was aware that the total quantity of crack set out

in the factual basis would be used to calculate his guideline

range. Therefore, no Sixth Amendment violation occurred in the

calculation of his base offense level.

DeWalt also contests the entire calculation of his

criminal history. He argues that the factual findings required to

determine whether particular convictions are countable and how many

points are assessed involve more than the mere fact of a prior

conviction and therefore are subject to the requirements of

Blakely. In effect, he argues that the prior conviction exception

set out in Almendarez-Torres v. United States, 523 U.S. 224 (1998),

may no longer be good law. This argument is foreclosed by the

Supreme Court’s reaffirmation of the Almendarez-Torres prior

conviction exception in Booker. See Booker, 543 U.S. at ___, 125
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S. Ct. at 756 (“Any fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by

the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable

doubt.”). 

In Shepard v. United States, 125 S. Ct. 1254, 1263-64

(2005), the Supreme Court held that Sixth Amendment protections

apply to disputed facts about a prior conviction, id. at 1262-63,

as distinguished from the mere fact of a prior conviction. In

DeWalt’s case, no Sixth Amendment violation occurred because the

court did not consider any facts that DeWalt had not admitted. The

court relied on the record of DeWalt’s prior convictions and

sentences and, to determine whether specific prior offenses were

related cases, the court relied on testimony given by DeWalt

himself. Cf. United States v. Washington, 404 F.3d 834, 843 (4th

Cir. 2005) (finding that district court’s reliance on disputed

facts about the defendant’s prior conviction violated the

defendant’s Sixth Amendment right to trial by jury). We conclude

that DeWalt cannot show plain error under Booker in the calculation

of his criminal history. 

The district court erred in determining, over DeWalt’s

objection, that only two of three prior sentences were imposed in

related cases. Prior sentences are considered related and treated

as one sentence under USSG § 4A1.2(a)(2) if there is no intervening
2

The relevant factors in deciding whether offenses are part of

a single common scheme or plan are whether the crimes: (1) were

committed within a short period of time; (2) were committed in

close geographic proximity; (3) involved the same substantive

offense; (4) were directed at a common victim; (5) were solved

during the course of a single criminal investigation; (6) shared a

similar modus operandi; (7) were animated by the same motive; and

(8) were tried and sentenced separately only because of an accident

of geography. United States v. Breckenridge, 93 F.3d 132, 138 (4th

Cir. 1996) (citations omitted). Not all of these factors must be

present for there to be a common scheme or plan, nor does the

presence of a few of them require that finding. Id.

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arrest and the offenses (1) occurred on the same occasion, (2) were

part of a common scheme or plan, or (3) were consolidated for trial

or sentencing. USSG § 4A1.2, comment. (n.3). The prior sentences

in dispute were imposed for three crimes committed during the

evening of November 1, 1998, and ended after midnight on November

2, 1998. They were: misdemeanor resisting a public officer,

felony larceny after breaking and entering, and felony larceny.

DeWalt was sentenced for resisting a public officer on January 11,

1999. He was sentenced for the larceny offenses on November 1,

2001. The probation officer assigned two criminal history points

for the sentence in each case.

In his sentencing memoranda and at the sentencing

hearing, DeWalt maintained that the offenses were related because

they were part of a common scheme or plan under USSG § 4A1.2,

comment. (n.3).2 DeWalt testified at sentencing that he and a codefendant obtained a stolen U-Haul truck at about 10:00 p.m. and

loaded it with appliances they stole from six mobile homes at an
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Oakwood Homes sales lot. Around midnight, they fled when they were

confronted by a security officer, but were quickly apprehended.

The district court determined that the offenses of possession of

the stolen truck and theft of the appliances were part of a common

scheme or plan, and thus were related cases, while the resistance

to arrest was unrelated. As a result of the court’s ruling,

DeWalt’s criminal history score was decreased by two points.

However, with fourteen points, DeWalt was still in category VI and

the guideline range remained 151-188 months.

In the district court, DeWalt argued only that the prior

offenses in question were related because they were part of a

common scheme or plan. On appeal, he argues that all three

offenses were related because they occurred on the same occasion,

and were part of a common scheme or plan as well. 

We are convinced that the three offenses occurred on the

same occasion and thus were related cases under Application Note 3

to § 4A1.2. See United States v. Moreno-Arredondo, 255 F.3d 198,

204 (5th Cir. 2001) (the phrase “on the same occasion” should be

applied with its ordinarily understood meaning, not as a term of

art); United States v. Johnson, 961 F.2d 1188, 1188-89 (5th Cir.

1992) (two simultaneous driving offenses and defendant’s subsequent

failure to identify himself to police officer occurred on single

occasion); United States v. Connor, 950 F.2d 1267, 1270 (7th Cir.
3

Both Johnson, 961 F.2d at 1188-89, and Connor, 950 F.2d at

1270, interpreted the 1990 version of Application Note 3 to USSG

§ 4A1.2, which used the term “single occasion” instead of “same

occasion.”

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1991) (common sense definition of “occurred on a single occasion”3

requires finding that offenses committed on same date occurred on

the same occasion); United States v. Jones, 899 F.2d 1097, 1101

(11th Cir. 1990) (holding that two bank robberies, one and a half

hours apart, were not committed on the same occasion because they

were temporally distinct), overruled in part on other grounds,

United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (holding

that bank tellers, as a class, are not vulnerable victims).

DeWalt’s offenses occurred over several hours on the same night as

part of one continuous criminal activity. We conclude that the

district court erred in not finding that they occurred on the same

occasion, and that the error was plain.

The government maintains that DeWalt began and ended the

larcenies before he resisted the public officer and thus the

offenses were not committed on the same occasion. This position is

not supported by the record. DeWalt was arrested while he was in

possession of the stolen U-Haul and still on the Oakwood Homes lot;

the appliance theft had not been completed. The government also

argues that the offenses were not related because they involved

different locations and victims. This argument goes to whether the

Breckenridge factors permit a conclusion that any of the offenses
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were part of a common scheme or plan. Although DeWalt contends on

appeal that the three offenses were all part of a common scheme, we

need not reach that question. 

Had the district court determined that all three offenses

were related because they occurred on the same occasion, DeWalt’s

criminal history score would have been reduced from 13 to 11, and

he would have been placed in criminal history category V rather

than VI. With a final offense level of 29, DeWalt’s guideline

range would have decreased from 151-188 to 140-175 months. Because

the 167-month sentence imposed by the district court falls within

both ranges, we conclude that the error did not seriously affect

the fairness, integrity, or public reputation of judicial

proceedings. We therefore decline to exercise our discretion to

notice the error.

Accordingly, we affirm the sentence. We dispense with

oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED