UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4885

BARRY ALAN JOHNSON, a/k/a David

Jackson,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge.

(CR-02-4)

Submitted: May 30, 2003

Decided: June 13, 2003

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Frank W. Dunham, Jr., Federal Public Defender, Walter B. Dalton,

Assistant Federal Public Defender, Frances H. Pratt, Research and

Writing Attorney, Norfolk, Virginia, for Appellant. Paul J. McNulty,

United States Attorney, Robert J. Krask, Assistant United States

Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Barry Alan Johnson pled guilty to bank extortion, 18 U.S.C.

§§ 2113(a), 2 (2000), and making a bomb threat, 18 U.S.C. §§ 844(e),

2 (2000), and was sentenced to a term of 108 months imprisonment.

He appeals his sentence, arguing that the district court erred in applying U.S. Sentencing Guidelines Manual § 2B3.1 (2001), instead of

§ 2B3.2, to the bank extortion offense, and erred when it decided that

his two prior federal offenses were not related cases as defined in

Application Note 3 to USSG § 4A1.2. We affirm. 

On June 16, 2001, Johnson attempted to extort money from the

SunTrust Bank in Virginia Beach, Virginia, by calling the bank manager, telling her that there was a bomb on the roof of the building,

giving her eight minutes to comply with his demands, and threatening

to "have her mother" if she failed to follow his directions. While the

manager and other employees tried to comply with Johnson’s directions, the police arrived and Johnson hung up. Johnson was arrested

and charged with the instant offenses about six months later. In the

interim, he pled guilty to conspiracy to commit mail and wire fraud

arising from an internet auction fraud scheme in Virginia and also

pled guilty to making false claims arising from a tax fraud scheme in

Pennsylvania. The latter offense was transferred to the Eastern District of Virginia pursuant to Fed. R. Crim. P. 20. Johnson was sentenced for both the internet fraud offense and the tax fraud offense on

February 19, 2002. These two federal cases were not formally consolidated. 

Johnson subsequently pled guilty to attempted extortion of the SunTrust Bank and making a bomb threat. The probation officer recommended that Johnson’s offense level for the bank extortion count be

calculated under USSG § 2B3.1 (Robbery, Extortion, and Blackmail).1

1The Statutory Index in Appendix A lists both § 2B3.1 and § 2B3.2 as

potentially applicable to a violation of § 2113(a). 

2 UNITED STATES v. JOHNSON
Johnson objected that the applicable guideline for determining his

offense level instead should be USSG § 2B3.2 (Extortion by Force or

Threat of Injury or Serious Damage). The probation officer treated

Johnson’s two prior federal sentences as related cases, giving him

only three criminal history points for both of them. The government

objected that Johnson’s prior federal sentences should be treated as

unrelated cases. 

At the sentencing hearing, the district court agreed with the government’s objection and determined that the two federal offenses for

which Johnson was sentenced in February 2002 were unrelated cases

because they were not part of a common scheme and because there

was no formal order of consolidation. The court overruled Johnson’s

objection and determined that § 2B3.1 was the appropriate guideline

for the offense because it included an enhancement for an attempt to

take the property of a financial institution, while § 2B3.2 does not.

The effect of the court’s rulings was to raise Johnson’s criminal history score to from eight to eleven and move him from category IV to

category V. His guideline range was 100-125 months. The court

imposed a sentence of 108 months, and stated that it would have

imposed the same sentence even if § 2B3.2 had been applied. 

On appeal, Johnson first challenges the district court’s decision to

apply § 2B3.1. The sentencing court’s selection of the appropriate

guideline is reviewed de novo. United States v. Davis, 202 F.3d 212,

218 (4th Cir. 2000). When the statute under which the defendant was

convicted proscribes a variety of conduct that may fall under several

guidelines, the court must "determine which of the referenced guideline sections is most appropriate" for the offense of conviction. USSG

§ 1B1.2, comment. (n.1). To accomplish this, the court "should compare the guideline texts with the charged misconduct, rather than the

statute (which may outlaw a variety of conduct implicating several

guidelines) or the actual conduct (which may include factors not elements of the indicted offense"). United States v. Lambert, 994 F.2d

1088, 1092 (4th Cir. 1993). 

Here, Count One of the indictment charged that Johnson "did

knowingly attempt to obtain by extortion, money, property, and any

other thing of value belonging to and in the care, custody, control,

management, and possession of SunTrust Bank, the deposits of which

UNITED STATES v. JOHNSON 3
were then insured by the Federal Deposit Insurance Corporation," in

violation of § 2113(a). Johnson argues that the district court "was

required to look only at the conduct charged in the indictment . . . and

was not permitted to consider the identity of the victim." He argues

that the fact that the victim was a bank is "a circumstance of the

offense" to be considered only in setting the offense level once the

guideline has been selected. In his reply brief, he concedes that the

fact that the victim is a bank is an element of the offense, but argues

that it is merely a jurisdictional element, not a "conduct element," and

thus not significant to the determination of the appropriate guideline.

Johnson’s reasoning is unconvincing because the guideline which

permits an enhancement for attempting to obtain money from a bank,

as opposed to a business or individual, is clearly the guideline that

more closely fits the offense Johnson committed. See United States

v. Smith, 320 F.3d 647, 656-57 (6th Cir.), cert. denied, 123 S. Ct.

1954 (2003) (holding that § 2B3.1 was more appropriate than § 2B3.2

where object of extortion was bank robbery). Therefore, we conclude

that the district court did not err in applying § 2B3.1.2

Johnson next claims that his prior federal convictions were related

cases because they were consolidated for sentencing. Although Johnson did not make this specific argument in the district court, the court

resolved the government’s objection to the probation officer’s calculation of Johnson’s criminal history by finding that Johnson’s prior

federal convictions were not consolidated for sentencing. Therefore,

2The government alternatively argues that, even if the court erred in

applying § 2B3.1, resentencing is not necessary because the district court

stated that it would impose the same sentence using § 2B3.2. See United

States v. Strandquist, 993 F.2d 395, 401 (4th Cir. 1993) ("‘[O]verlapping

ranges doctrine obviates the necessity of selecting the appropriate range

only when the district court expressly makes an independent determination that the sentence would be the same under either of the ranges in the

absence of any dispute.’") (quoting United States v. Willard, 909 F.2d

780, 783 (4th Cir. 1990)); United States v. Smith, 914 F.2d 565, 569 n.3

(4th Cir. 1990). However, we have reviewed the issue on the merits

because the parties did not address the correctness of the alternative

guideline calculation at sentencing, and Johnson now disputes the probation officer’s computation of the guideline range that would apply under

§ 2B3.2. 

4 UNITED STATES v. JOHNSON
the issue may be reviewed de novo, not for plain error as the government asserts. See United States v. Allen, 50 F.3d 294, 296 (4th Cir.

1995) (when facts are undisputed, district court’s legal conclusion that

prior cases are unrelated is reviewed de novo). 

It is undisputed that Johnson’s prior federal cases were not consolidated by any formal order of consolidation. This fact is dispositive

because Allen holds that, in the absence of a factual relationship

between the prior offenses, a formal consolidation of the cases is

required to classify them as related within the meaning of Application

Note 3 to § 4A1.2. Allen, 50 F.3d at 297-98. 

Johnson argues that the prior convictions should nonetheless be

treated as consolidated for several reasons. First, his plea agreement

with respect to the false claims offense stated that the parties would

seek to have the matter transferred to the Eastern District of Virginia

and would also seek to have it consolidated for sentencing with the

internet fraud offense pending against him in Virginia. This claim is

unpersuasive because, although the offenses were sentenced together,

they were never formally consolidated.

Second, he argues that the sentencing guidelines operated to formally consolidate his cases for sentencing because USSG § 5G1.2

(Sentencing on Multiple Counts of Conviction) requires that cases

that are sentenced together be treated as one, whether formally consolidated or not. This argument is without merit; section 5G1.2 does

not address consolidation of cases nor does it operate to consolidate

cases automatically. We note that the presentence report for these

cases combined the two offenses and determined one offense level for

them both without using the multiple count rules and worksheets.

This apparent error does not amount to formal consolidation of the

cases. 

Finally, Johnson argues that equity requires that his prior convictions be treated as related cases because (1) the same government

attorney has represented the government in all three cases and thus

agreed to seek consolidation of the prior cases for sentencing, and (2)

the same district court judge accepted his plea agreement containing

the agreement to seek consolidation and later held that the cases had

not been consolidated. 

UNITED STATES v. JOHNSON 5
None of Johnson’s arguments is sufficient to overcome Allen’s

requirement of a formal order of consolidation. Despite the language

in his prior plea agreement, Johnson did not obtain a formal consolidation order. Therefore, the district court did not err in awarding three

criminal history points for the sentence imposed in each prior case.

We therefore 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

6 UNITED STATES v. JOHNSON