2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-14-2009

USA v. Porter

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3747

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Recommended Citation

"USA v. Porter" (2009). 2009 Decisions. Paper 1014.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-3747

 

UNITED STATES OF AMERICA

v.

JUAN PORTER,

a/k/a LAMAR PORTER

a/k/a YUM YUM,

 Appellant

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Crim. No. 06-cr-00903)

District Judge: Hon. Katharine S. Hayden

 

Submitted Under Third Circuit LAR 34.1(a)

July 6, 2009

Before: SLOVITER, AMBRO and JORDAN, Circuit Judges

(Filed: July 14, 2009)

 

OPINION
Porter’s plea agreement stipulated that the version of the 1

Sentencing Guidelines that became effective on November 1, 2006

governed his plea.

2

SLOVITER, Circuit Judge.

Juan Porter, who pled guilty to acting as an accessory after the fact to a Hobbs Act

robbery, appeals his sentence, challenging the calculation of his criminal history score. 

We will affirm.

I.

Porter was in the getaway vehicle to which David McKenzie fled after committing

an armed robbery of a Chinese restaurant on April 18, 2004. He subsequently pled guilty

to being an accessory after the fact to the crime of Hobbs Act robbery, in violation of 18

U.S.C. § 3. The pre-sentence report (“PSR”) assigned Porter a criminal history category 1

of VI, based on his four previous juvenile adjudications and three previous adult

convictions. At issue are the three adult convictions. First, Porter was arrested on

December 7, 2003, while driving a stolen car, and was convicted in New Jersey state

court for receiving stolen property and sentenced on November 9, 2004, to three years

imprisonment. Second, he was arrested on December 30, 2003, for possession with intent

to distribute heroin, was convicted, and was sentenced on November 9, 2004, to three

years imprisonment to run concurrently to the receipt of stolen property offense. Finally,

he was arrested on February 11, 2004, for resisting arrest and was sentenced on

November 9, 2004, to 18 months imprisonment to run concurrently with the aforesaid two
3

sentences.

At his sentencing for the instant offense, Porter’s counsel argued that the three

convictions were related, and should be so treated. He argued, as he does here, that the

offenses leading to Porter’s three previous adult convictions had occurred within a twomonth range between December 2003 and February 2004, that Porter was sentenced for

all three offenses on the same day, and that the sentences were to run concurrently. The

District Court held they were not related, noting that the nature of each offense was

different, ranging from receiving stolen property to drug possession and resisting arrest,

and that Porter was arrested separately for each offense although his sentencing for all

three crimes took place on November 9, 2004.

Porter does not challenge the calculation of his offense level. On appeal, Porter

contends only that the District Court erred in calculating his criminal history score by

declining to treat his three adult convictions as related pursuant to § 4A1.2(a)(2) of the

Sentencing Guidelines.

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction to review a defendant’s challenge to a sentence under 18 U.S.C. § 3742(a). 

When a sentencing appeal is based on an allegedly improper calculation of the Guidelines

range, we engage in plenary review of the district court’s interpretation of the Guidelines,

and scrutinize any findings of fact used in the calculations for clear error. United States
4

v. Wood, 526 F.3d 82, 85 (3d Cir. 2008).

III.

Section 4A1.2(a)(2) of the 2006 Sentencing Guidelines instructed that prior

sentences imposed in related cases should be counted as one sentence for the purposes of

calculating a defendant’s criminal history score. U.S.S.G. § 4A1.2(a)(2). Application

Note 3 to §4A1.2(a)(2) further instructed that 

[p]rior sentences are not considered related if they were for

offenses that were separated by an intervening arrest . . . .

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.

Id. at cmt. n.3.

Addressing this language in United States v. Hallman, 23 F.3d 821, 825 (3d Cir.

1994), we held that a district court may properly refuse to treat a defendant’s two prior

convictions as related when the defendant was arrested separately for each of the

underlying offenses, even when the sentencing for these crimes had been consolidated. 

Subsequently, in United States v. Hankerson, 496 F.3d 303, 311 n.5 (3d Cir. 2007), we

explained that Hallman stood for the proposition that a sentencing court need not consider

the three alternative ways of finding consolidation of prior offenses if it found that a

defendant’s prior offenses had been separated by intervening arrests.

Thus, under the reasoning of Hallman and Hankerson, because Porter’s three

previous offenses were separated from each other by intervening arrests, the District 
Court did not err in declining to treat them as related pursuant to § 4A1.2(a)(2) of the

2006 Sentencing Guidelines.

Porter also appears to raise other challenges to his sentence. However, his plea

agreement contains an agreement “not to seek or argue for any upward or downward

departure, adjustment, or variance not set forth herein,” except that he “reserve[d] any

right [he] may have under 18 U.S.C. § 3742 to appeal the sentencing court’s

determination of the criminal history category.” App. at 18. In light of that waiver, we

need not consider Porter’s other challenges.

IV.

For the above-stated reasons, we will affirm the sentence imposed by the District

Court.