REVISED SEPTEMBER 16, 1999

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 98-50271

___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

SEDRICK ROBINSON,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

for the Western District of Texas

___________________________________________________ August 30, 1999

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Appellant Sedrick Robinson challenges the sentence imposed

upon him by the district court for possession with intent to

distribute in excess of 50 grams of cocaine base, in violation of

21 U.S.C. § 841(a)(1). Robinson contends that the district court

erred in sentencing him as a career offender based on his two prior

convictions for delivery of cocaine. The Government first argues

that Robinson cannot bring this appeal because, as a term of his

plea agreement, he waived his right to appeal his sentence.

Alternatively, the Governme nt contends that the district court

properly sentenced Robinson as a career offender. We hold that2

Robinson has the right to appeal because the record does not

demonstrate that he knowingly and voluntarily waived his right to

appeal. We also hold that the district court erred in relying on

convictions that were related in sentencing him as a career

offender.

I.

On April 16, 1997, Robinson was indicted for possession with

intent to distribute in excess of 50 grams of cocaine base (Count

One) and cocaine (Count Two), in violation of 21 U.S.C. §

841(a)(1). Robinson pleaded guilty to Count One pursuant to a

written plea agreement with the Government.

Robinson’s Presentence Investigation Report (“PSI”) determined

that Robinson was a career offender under the United States

Sentencing Guidelines, based on his two prior state convictions for

delivery of cocaine. Robinson objected to the PSI, arguing that

the two prior convictions were related and thus should be counted

as one conviction for guidelines purposes. The district court

overruled the objection and adopted the PSI’s calculation,

sentencing Robinson, as a c areer offender, to 262 months

imprisonment. Robinson appeals his sentence.

II.

The Government first contends that Robinson may not appeal his

sentence because he waived his right to appeal his sentence in the

plea agreement. The written plea agreement included the following

waiver-of-appeal provision:

4. The Defendant is aware that his sentence will be imposed1 During Robinson’s Rule 11 hearing, the following exchange

took place:

The Court: Okay. Now has there been a plea agreement entered

into between you and your lawyer and the lawyer for the

government?

The Defendant: Yes, sir, Your Honor.

The Court: All right. Ms. Garcia [lawyer for the Government],

what is the plea agreement?

Ms. Garcia: Your Honor, in exchange for Mr. Sedrick Robinson’s

plea to Count One of the indictment the government has agreed

not to oppo se a three-level reduction for acceptance of

responsibility, not to oppose his request that he be sentenced

at the bottom of the applicable guideline range, and at the

time of sentencing, with leave of Court, move to dismiss Count

Two of the indictment.

3 in conformity with the F ederal Sentencing Guidelines and

Policy Statements , which may be up to the maximum allowed by

statute for his offenses. He is also aware that the sentence

to be imposed is not subject to parole. By entering into this

agreement, and as a term of this agreement, the Defendant

voluntarily and knowingly waives his right to appeal his

sentence on any ground, including any appeal right conferred

by 18 U.S.C. § 3742; provided, however, that this waiver does

not extend to his right to appeal any upward departure

pursuant to U.S.S.G. § 5K2.0 from the Guidelines range found

by the district court.

Although a defendant may waive his right to appeal as part of a

plea agreement with the Government, this waiver must be “‘informed

and voluntary.’” U nited States v. Baty

, 980 F.2d 977, 978 (5th

Cir. 1992) (quoting United States v. Melancon

, 972 F.2d 566, 567

(5th Cir. 1992)). Robinson argues that because the district court

did not explain the waiver-of-appeal provision at the plea

colloquy, the record does not de monstrate that the waiver was

informed or voluntary.

Our review of the record confirms that the district court’s

discussion of the plea agreement with Robinson at the Rule 11

hearing included no explanation of the waiver of appeal provision. 1The Court: All right. Mr. Vaughn [lawyer for Robinson], is

this your understanding of the plea agreement?

Mr. Vaughn: Yes, sir, Your Honor.

The Court: All right. Mr. Robinson, do you understand it?

The Defendant: Yes, I do, Your Honor.

The Court: And you agreed to it?

The Defendant: Yes, I do, Your Honor.

4 This Court has stated that “a defendant’s waiver of her right

to appeal deserves and, indeed, requires the special attention of

the district court.” B aty

, 980 F.2d at 979. “It is up to the

district court to insure that the defendant fully understands her

right to appeal and the consequences of waiving that right.” Id.

See al so U

nited States v. Portillo

, 18 F.3d 290, 293 (5th Cir.

1994).

It is clear from the plea colloquy that the district court did

not ask Robinson whether he had read the written plea agreement and

understood it. More importantly, the district court did not warn

Robinson that he was waiving his right to appeal. Although the

Government contends that the district court did mention the waiverof-appeal provision later during the Rule 11 hearing, the record

shows only that, during a general discussion of the Sentencing

Guidelines, the district court stated: “And even though in your

plea agreement you might have waived the right to appeal, if I

sentence you above the guidelines then you still have the right to

appeal, if I sentence you below the guidelines then the government

has the right to appeal.” It is clear to us that this was part of

the district cou rt’s explanation of the role the sentencing

guide lines play in sentencing. This general statement does not2 Although not binding in this case, this conclusion is

consistent with the amendment to Federal Rule of Criminal Procedure

11, which has been adopted by the United States Supreme Court and,

in the absence of congressional action, will become effective on

December 1, 1999. Amended Rule 11(c) provides that: “Before

accepting a plea of guilty or nolo contendere, the court must

address the defendant personally in open court and inform the

defendant of, and determine that the defendant understand s, the

following:

. . . (6) the terms of any provision in a plea agreement

w aiving the right to appeal or to collaterally attack the

sentence.”

5 satisfy the requirement that the court “insure that the defendant

fully understand her right to the waiver-of-appea l and the

consequences of waiving that right.” B aty

, 980 F.2d at 279.

Therefore, we conclude that the record made at the Rule 11 hearing

was not adequate to demonstrate that Robinson knowingly and

voluntarily waived his right to appeal. The waiver is therefore not

effective. 2

III.

We now turn to the substance of Robinson’s appeal. Robinson’s

PSI originally calculated the offense level for his possession with

intent to distribute cocaine base offense as 31 and his criminal

history category as I. The applicable guidelines sentencing range

for Robinson would have been 108-135 months imprisonment. However,

the PSI noted that Robinson had two prior state convictions for

delivery of cocaine and determined that Robinson should therefore

be sentenced as a career offender. As a career offender, Robinson

had an offense level of 34, a criminal history category of VI, and

an imprisonment range of 262-327 months. The district court

sentenced Robinson to 262 months imprisonment.6

Robinson’s two earlier state offenses of delivery of cocaine

occurred in June 1992. The first delivery occurred on June 17,

1992, when Robinson sold a $50 “rock” of cocaine to undercover

agent Stephen Fuchs. At the time of this first delivery, Robinson

told Fuchs that he would pay Fuchs $50 for every additional

customer that Fuchs referred to Robinson. The second delivery then

occurred on June 24, 1992, when Robinson sold another $50 “rock” of

cocaine to undercover agent Darrell Sanders, who Fuchs referred to

Robinson. Both offenses occurred within a two block area in San

Antonio, Texas. Robinson pled guilty to the two offenses on May

13, 1993, and received identical sentences of 10 years probation.

Both probation terms were terminated early on January 11, 1995.

At sentencing, Robins on objected that he should not be

sentenced as a career offender. He argued that his two prior state

convictions for deliver y of cocaine should be treated as one

conviction for purposes of the career offender provision of the

guidelines because they are “related” offenses within the meaning

of the guidelines. The district court found that Robinson’s prior

convictions were not related and sentenced him as a c areer

offender.

We review de novo the district court’s finding that Robinson’s

prior convictions were not related. U nited States v. Ford

, 996

F.2d 83, 85 (5th Cir. 1993); United States v. Garcia

, 962 F.2d 479,

481 (5th Cir. 1992). The sentencing guidelines provide for

enhanced punish ment for career offenders. The term “career7

offender” is defined as follows:

A defendant is a career offender if (1) the defendant was at

least eighteen years old at the time of the instant offense,

(2) the instant offense of conviction is a felony that is

either a crime of violence or a controlled substance offense,

and (3) the defendant has at least two prior felony

convictions of either a crime of violence or a controlled

substance offense.

U.S.S.G. § 4B1.1. Section 4B1.2(3) defines “two prior felony

convictions” an d refers to § 4A1.2, which explains whether a

d efendant’s felony convictions are to be counted separately.

Section 4A1.2 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 §

4A1.1(a), (b), and (c).” U.S.S.G. § 4A1.2(a)(2).

The commentary to § 4A1.2 states that “prior sentences are

considered related if they resulted from offenses that (1) occurred

on the same occasion, (2) were part of a single common scheme or

plan, or (3) were consolidated for trial or sentencing.” U.S.S.G.

§ 4A1.2, comment. (n. 3). Robinson argued in the district court and

to this court on appeal that his prior convictions were part of a

common scheme or plan because they involved the same type of crime,

were committed within days of each other and within the same

vicinity, were investigated by a single agency, an d because the

commission of the second crime could not have occurred but for the

commission of the first.

Unfortunately, the guidelines do not define the term “common

scheme or plan.” Nor does the commentary to § 4A1.2 make clear

what type of scheme or plan is needed to make separate offenses3 C f. United States v. Houser

, 929 F.2d 1385 (9th Cir. 1990)

(defendant’s prior convictions are part of a single common scheme

or plan if the crimes were of a similar nature, occurred within a

short period of time, were the result of a single investigation,

and were charged separately only because they had occurred in

different jurisdictions).

8 related. U

n ited States v. Butler , 970 F.2d 1017, 1024 (2d Cir.

1992). However, we start from the bedrock premise that crimes that

are merely similar are not necessarily related crimes. See Ford

,

996 F.2d at 86; Garcia

, 962 F.2d at 482. S ee also Butler

, 970 F.2d

at 1024 (“the term ‘single common scheme or plan’ is not synonymous

with ‘same course of conduct’”); United States v. Brown , 962 F.2d

560, 564 (7th Cir. 1992) (“a relatedness finding requires more than

mere similarity of crimes”). Additionally, a common criminal

motive or similar modus operandi will not cause separate crimes to

be related, see United States v. L owe , 930 F.2d 645 (8th Cir.

1991), nor will crimes be related merely because they are committed

to achieve a common goal, such as the suppo rt of a drug habit or

lifestyle, see United States v. Chartier , 970 F.2d 1009, 1016 (2d

Cir. 1992). 3

It is helpful to consider our decisions in Garcia and Ford in

more detail to understand how we arrived at the conclusion that

crimes of a similar nature are not necessarily related. In G arcia

,

the defendant had committed two distinct, separate delive ries of

heroin within a nine-day period and within the same vicinity. This

Court held that although temporally and geographically alike, the

crimes were not part of a common scheme or plan. We stated that9

the defendant’s argument “‘would lead to the illogical result that

a defendant who is repeatedly convicted of the same offense on

different occasions could never be considered a career offender

under the guidelines.’” G arcia

, 962 F.2d at 482 (quoting United

States v. Mau , 958 F.2d 234, 236 (8th Cir. 1992)).

Similarly, in Ford , this Court, relying on Garcia , held that

the defendant’s four prior state methamphetamine delivery

convictions were not part of a common scheme or plan. All four of

the charges arose from sales to the same undercover officer during

a six-day period; two of the sales occurring on the same date and

at the same motel. The Court found that “each sale was a separate

transaction, separated by hours , if not days. The fact that the

buyer was the same did not make the sales ‘related’ any more than

if Ford made four separate trips to the same H.E.B. in one week to

buy groceries--there was no common scheme or plan, simply

convenience and experience.” Ford , 996 F.2d at 85.

It is clear from Garcia and Ford that the term “common scheme

or plan” must mean something more than repeated convictions for the

same criminal offense. Indeed, we agree with the Seventh Circuit’s

statement in U

nited States v. Ali

, 951 F.2d 827 (7th Cir. 1992 )

,

that the words “scheme” and “plan” are “words of intention,

implying that the [prior offenses] have been jointly planned, or at

least that it have been evident that the commission of one would

entail the commission of the other as well .” Id. at 828.

However, “[a] crime merely suggested by or arising out of the10

commission of a previous crime is not

. . . related to the earlier

c rime in the special sense of being part of a common scheme or

plan.” Id.

In the present case, Robinson’s two prior convictions are more

than merely repeated transactions, temporally and geographically

alike. Although the two crimes occurred only seven days apart and

within the same vicinity, they contain a factual nexus not present

in Garcia and Ford . The situation in the present case is similar

to the hypothetical scenario described in Ali

, where the prior

crimes are “jointly planned” or where the “commission of one crime

entailed the commission of the other.” I d. Specifically, Robinson

planned the commission of the second crime during the course of the

first crime: while selling the “rock” of cocaine to Agent Fuchs,

Robinson told Fuchs that he would pay him $50 if Fuchs would refer

other customers to Robinson. Robinson intended or planned, at the

time he committed the first offense, to sell drugs to other

customers Agent Fuchs might refer to him. The second offense was

not a spur of the moment occurrence, see United States v. Woods

,

976 F.2d 1096, 1099 (7th Cir. 1992), but rather an action proposed

and planned at the time of the first offense. Additionally, the

second offense could not have occurred but for the first offense--

the commission of the second offense therefore necessarily entailed

the commission of the first offense. In other words, Robinson

could not have made the second delivery of cocaine to Agent Sanders

had he not sold the first “rock” to Agent Fuchs who then referred11

Sanders to Robinson.

In light of the fact that Robinson jointly planne d the two

deliveries of cocaine, we conclude that Robinson’s two prior state

convictions are related as being part of a common scheme or plan

and should be treated as one conviction. Therefore, the district

court erred in sentencing Robinson as a career of fender.

Accordingly, we vacat e Robinson’s sentence and remand for

resentencing.

IV.

Because the record does not reflect that Robinson knowingly

and voluntarily w aived his right to appeal, that waiver is

ineffective. We also conclude that the district court erred in

sentencing Robinson a s a career offender. Therefore, we vacate

Robinson’s sentence and remand for resentencing.

VACATED and REMANDED.