1

The Honorable Harold D. Vietor, United States District Judge for the Southern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-4020

___________

United States of America, *

*

Plaintiff/Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Artur Chibukhchyan, also known as *

Arthur Grigoryan, *

*

Defendant/Appellant. *

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Submitted: June 12, 2007

Filed: July 2, 2007

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Before MURPHY, BEAM, and SHEPHERD, Circuit Judges.

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MURPHY, Circuit Judge.

Artur Chibukhchyan pled guilty to possession of a fraudulently obtained

employment verification card in violation of 18 U.S.C. § 1546(a). The district court1

sentenced him to time served. Chibukhchyan appeals his sentence, arguing that the

district court erred in treating his sentence for earlier state convictions as a prior

sentence for the purpose of determining his criminal history category. We affirm. 
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Chibukhchyan is an Armenian national who entered the country legally but

overstayed his visa. On June 8, 2006 an Audubon County deputy approached him to

inquire about a large number of cell phones that he had recently purchased.

Chibukhchyan voluntarily accompanied the deputy to the sheriff's office to answer

questions, and there he was asked to show identification. He was arrested when he

produced a social security card that he had altered. 

At the time of his arrest, he was also found in possession of a social security

card and an employment authorization card in the name of Arthur Grigoryan. The

employment authorization card had Chibukhchyan's photograph affixed to it.

Chibukhchyan had been able to obtain the social security card and employment

verification card in a false name by using counterfeit documents purchased from a

private individual in California for $500 each. He bought the documents knowing that

they were false and intending to use them to apply for United States naturalization and

citizenship under the name Arthur Grigoryan. 

Chibukhchyan was charged with violations of state law in connection with the

altered social security card that he had provided to the Audubon deputy. This social

security card was in Chibukhchyan's real name. He pled guilty in Iowa District Court

for Audubon County to one count of forgery and one count of giving false information

to law enforcement. He received a state sentence of one year deferred probation for

the forgery count and seventy days time served for the false information count. 

A federal grand jury then indicted Chibukhchyan on one count of possession

of false identification documents in violation of 18 U.S.C. § 1028(a)(4) and one count

of possession of an employment authorization card obtained by fraud in violation of

18 U.S.C. § 1546(a). Both charges related to the documents he had procured in the

name of Arthur Grigoryan. Chibukhchyan pled guilty to possessing a fraudulently

obtained employment verification card, and the other charge was dropped. His plea

agreement preserved his right to challenge his sentence on appeal.
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At sentencing Chibukhchyan objected to the recommendation in the presentence

report (PRS) that he be assigned criminal history points for his state convictions. He

argued that they should instead be considered relevant conduct under U.S.S.G. §

1B1.3. Adopting the recommendations in the PSR, the district court assigned

Chibukhchyan two criminal history points for his state convictions, see U.S.S.G. §§

4A1.1(b), 4A1.2(a)(2), after finding that those offenses were separate and unrelated

to the federal conviction for which he was being sentenced. This placed

Chibukhchyan in criminal history category II. With a total offense level of 6,

including a two level reduction for acceptance of responsibility, see U.S.S.G. §§

2L2.2(a), 3E1.1(a), this resulted in an advisory guideline range of one to seven

months. The district court then sentenced Chibukhchyan to time served. 

On appeal Chibukhchyan argues that the district court erred in treating his state

and federal convictions as separate offenses in calculating his criminal history.

Chibukhchyan concedes that a favorable outcome in this appeal would not affect the

length of his federal sentence, but he contends that the finding that his state and

federal convictions represented separate offenses might negatively impact him in the

future by making him ineligible for admission to the United States or for adjustment

of status or by exposing him to a longer sentence if he should ever be convicted of

another federal offense. Although we may decline to review cases in which the

appellant would receive the same sentence on remand, see United States v. Simpkins,

953 F.2d 443, 446 (8th Cir. 1992), we will not deny review where a defendant may

suffer collateral consequences from a sentencing decision. See United States v. Torres,

409 F.3d 1000, 1002-03 (8th Cir. 2005) (gun enhancement might preclude eligibility

for early release). The government does not contest Chibukhchyan's right to appeal

the district court's sentencing determination.

The sole issue on appeal is whether the district court erred in treating

Chibukhchyan's state sentence as a prior sentence warranting criminal history points

under § 4A1.1. We review a district court's interpretation and application of the
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sentencing guidelines de novo and its findings of fact for clear error. United States

v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005). We will upset a district court's

finding that a prior conviction was a separate offense only if it was clearly erroneous.

United States v. Blumberg, 961 F.2d 787, 792 (8th Cir. 1992). 

Under U.S.S.G. § 4A1.1, a defendant is assigned criminal history points for

each prior sentence to which he was subject, although multiple prior sentences

imposed in related cases are treated as one sentence for these purposes. U.S.S.G. §

4A1.2(a)(2). In this context the term "prior sentence" refers to "any sentence

previously imposed . . . for conduct not part of the instant offense." U.S.S.G. §

4A1.2(a)(1). If the conduct is part of the instant offense, it is instead treated as

"relevant conduct" under U.S.S.G. § 1B1.3 and does not increase the defendant's

criminal history points. See U.S.S.G. § 4A1.2 cmt. application note 1. Prior criminal

conduct is not part of the offense of conviction if it was a "severable, distinct offense."

Blumberg, 961 F.2d at 792. A number of factors are relevant in assessing the

relatedness of a prior offense, including "temporal and geographical proximity,

common victims, and a common criminal plan or intent." Id.

We cannot say that the district court clearly erred in finding that

Chibukhchyan's state convictions were distinct and severable from his present

conviction for possession of a fraudulently obtained employee authorization card. The

fact that the arrest for the state offenses led to the discovery of evidence of this federal

offense is not sufficient to require that the conduct be considered related. See United

States v. Troncoso, 23 F.3d 612, 616-17 (1st Cir. 1994). Nor is it dispositive that

Chibukhchyan had both sets of fraudulent documents in his possession at the same

time. See United States v. Torres-Diaz, 60 F.3d 445, 448 ("defendant is not entitled

to merge all criminal activities simply because these activities occurred over a single

span of time"). The conduct giving rise to the state and federal offenses is distinct. 
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The present offense involved the purchase of fraudulent documents in the name

of Arthur Grigoryan from a private individual in California. In contrast,

Chibukhchyan's state convictions stemmed from his own alteration of a social security

card in his real name, as well as his use of that card to identify himself falsely to an

Audubon County deputy. These offenses do not reflect a common plan or intent since

Chibukhchyan admittedly procured documents in a false name in order to apply for

citizenship; an altered social security card in his own name could hardly have

furthered that purpose. We conclude that the district court did not err in determining

that the sentence Chibukhchyan received for his state convictions was a prior sentence

within the meaning of § 4A1.2.

Accordingly, we affirm the judgment of the district court.

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