* Pursuant to Local Rule 47.5, the Court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in Local Rule 47.5.4. 

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 96-40693

(Summary Calendar)

_________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROBERT ANTHONY TUFT,

Defendant - Appellant.

Appeal from the United States District Court

For the Eastern District of Texas

(1:96-CR-9)

March 12, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Robert Anthony Tuft appeals his sentence for escape from an

institutional facility in violation of 18 U.S.C.§ 751(a);

specifically, Tuft challenges the district court’s treatment of two

past criminal convictions as “unrelated” under the Sentencing

Guidelines. Finding no error, we affirm.
2 The record does not reflect why the court transferred the case for

sentencing, or under which subsection of Fed. R. Crim. P. 20 the case was

transferred. The Rule generally provides that a defendant may plead guilty or

nolo contendere in the original district court, waive trial, and consent to

sentencing in another district court with an interest in the case.

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Tuft began today’s journey in 1986 when he submitted a false

statement to a pawn shop in Austin, Texas in order to obtain a

firearm. Tuft failed to disclose a previous felony conviction for

unlawful possession of cannabis, in violation of federal law.

Later the same day in Lockhart, Texas, Tuft created a disturbance

in a bar. Lockhart police found Tuft intoxicated at the bar and

saw him discard something near a trash barrel. Searching near the

barrel, police recovered a .38 caliber pistol that Tuft later

acknowledged to be the firearm he had purchased in Austin. While

searching Tuft, police discovered a box of .38 caliber cartridges,

a silver spoon, three syringes, and three plastic bags of cocaine.

Police arrested Tuft for making a false statement in connection

with purchase of a firearm in violation of 18 U.S.C. 922(a)(6) and

for possession of illegal drugs.

The federal government charged Tuft with making a false

statement in order to obtain a firearm, but it did not pursue the

possession offense. Tuft pled guilty to making the false

statement, claiming that he had purchased the pistol in order to

protect his girlfriend from her ex-boyfriend. The court

transferred his sentencing to the Western District of Washington

under Fed. R. Crim. P. 20,2 and that court sentenced Tuft to six
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months in prison with two and a half years probation. Apparently

during this time Texas sought to prosecute Tuft for the possession

charge, and put out a warrant for his arrest.

A few months after Tuft’s release on probation, police in

Washington State arrested him for possession of drugs. They

discovered the outstanding warrant in Texas for the Lockhart

possession charge. Texas extradited Tuft and sentenced him to

seven years in prison, but paroled him four months after

sentencing. Two months after he began parole, Tuft robbed a bank

in Spokane, Washington. The Eastern District of Washington revoked

his parole for the false statement charge and sentenced him to an

eighteen-month term for violating parole, to be served consecutive

to his bank robbery sentence. During sentencing, and without

objection from the government, the district court apparently took

the recommendation of Tuft’s parole officer to count his prior

convictions for false statement and possession as a single offense

under the guidelines for purposes of calculating Tuft’s criminal

history. After serving sixty-three months for bank robbery, Tuft

began his sentence for breaking parole at the Land Manor community

correction center. About two weeks later, Tuft signed out of the

facility and did not return. Police found him hiding under a bed

in a house in Beaumont, Texas three weeks later.

Tuft pled guilty to one count of escape from an institutional

facility. Tuft’s pre-sentence report (“PSR”) assigned a base

offense level of thirteen, subject to a two-level decrease for
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acceptance of responsibility and a four-level decrease because he

was incarcerated in an unsecured community corrections center. The

PSR credited Tuft with nine criminal history points for past

criminal convictions, treating his conviction for cocaine

possession and his conviction for lying to obtain a firearm as

unrelated offenses. His final adjusted offense level was seven

with a criminal history category of V, resulting in a punishment

range from twelve to eighteen months. The district court sentenced

Tuft to eighteen months with a three-year term of supervised

release.

Tuft filed this timely appeal, arguing that the district court

improperly treated the possession and false statement charges as

unrelated for sentencing purposes. Because the number of

convictions increases criminal history points, and because the

United States Sentencing Guidelines Manual (“U.S.S.G.”)

§ 4A1.2(a)(2) (1995) treats related offenses as a single offense,

Tuft argues that the district court improperly computed his

criminal history. Further, Tuft points out that the district court

in the Eastern District of Washington, when sentencing him for bank

robbery, treated the offenses as related when calculating his

criminal history. Thus, contends Tuft, the government is

collaterally estopped from claiming the offenses are unrelated in

this action.

We review a district court’s application and interpretation of
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the sentencing guidelines de novo and the district court’s findings

of fact for clear error. United States v. Domino, 62 F.3d 716, 719

(5th Cir. 1995). Three characteristics support a finding that

prior convictions are “related” for purposes of the sentencing

guidelines: (1) the offenses occurred on the same occasion, (2) the

offenses were part of a single common scheme or plan, or (3) the

offenses were consolidated for trial or sentencing. U.S.S.G.

§ 4A1.2, comment. (n.3); United States v. Garcia, 962 F.2d 479, 480

(5th Cir.), cert. denied, 506 U.S. 902, 113 S. Ct. 293, 121 L. Ed.

2d 217 (1992). In this case, the two offenses are for drug

possession and for making a false statement to obtain a firearm.

One offense occurred in Lockhart, the other in Austin. Therefore

they did not occur on the same occasion, even though police

discovered the firearm during the same arrest in which they

discovered the cocaine. The two offenses were not part of a common

scheme or plan, since Tuft claimed that he purchased the pistol to

protect his girlfriend. Patently, the cocaine would do little to

further that plan. Finally, the offenses were not tried by the

same sovereign, much less consolidated for trial or sentencing.

The United States convicted Tuft for the false statement, whereas

Texas convicted him for the possession charge. Therefore we find

that the two offenses were not related for purposes of Tuft’s

criminal history under the sentencing guidelines.

We also find that the district court was not precluded by
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collateral estoppel from finding that the two offenses were not

related. Collateral estoppel, or issue preclusion, provides that

“when an issue of ultimate fact has once been determined by a valid

and final judgment, that issue cannot again be litigated between

the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S.

436, 443, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469 (1970); United

States v. Montes, 976 F.2d 235, 239 (5th Cir. 1992), cert. denied,

507 U.S. 1024, 113 S. Ct. 1831, 123 L. Ed. 2d 459 (1993).

Collateral estoppel therefore bars only the “reintroduction or

relitigation of facts already established against the government.”

Montes, 976 F.2d at 239 (quoting United States v. Mock, 604 F.2d

341, 343 (5th Cir. 1979)). 

The issue of relatedness was never litigated in the district

court in the Eastern District of Washington. In that case, Tuft’s

probation officer assumed in Tuft’s PSR that the two offenses were

related under the guidelines. The government did not challenge

this assumption, and it was never raised during sentencing. The

court appears to have accepted the assumption, although it never

discussed the issue in its order. On this record, we find that the

issue of relatedness was never actually litigated or “established

against” the government. Had the government in the bank robbery

conviction contested the relatedness of the two prior offenses and

the court decided that issue in Tuft’s favor, the issue might

properly be considered litigated. But a court’s sub silentio
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ruling, consistent with uncontested recommendations of a PSR, is

neither a “factual finding” nor a determination on the merits. See

Montes, 976 F.2d at 239. Therefore, the district court’s

consideration of the question, and determination that the offenses

were not related, was the first true litigation of the issue. We

find that the relatedness of the two offenses was therefore not

“relitigated” in the district court below and that the court was

not precluded from making this determination. Id. AFFIRMED.