UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 93-4037

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

BRUCE ALLEN CAIN,

Defendant-Appellant.

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Appeal from the United States District Court

For the Western District of Louisiana

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(December 15, 1993)

Before HIGGINBOTHAM, DAVIS and JONES, Circuit Judges.

PER CURIAM:

Bruce Cain appeals his sentence following his plea of guilty

and conviction of conspiracy to transport a stolen motor vehicle in

interstate commerce and of interstate transportation of a stolen

motor vehicle. We affirm.

I.

In September 1992, Bruce Cain and two others were charged in

a two-count bill of information with conspiracy to transport a

stolen motor vehicle in interstate commerce in violation of 18

U.S.C. § 371 and § 2312 and with interstate transportation of a

stolen motor vehicle and aiding and abetting in violation of 18

U.S.C. § 2312 and § 2. Cain pled guilty to both counts of the bill

pursuant to a written plea agreement.
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The presentence investigation report (PSR) indicated a

criminal history level of five. The PSR reported that Cain was

convicted and sentenced in 1977 under the Wisconsin Youthful

Offender Act to two years imprisonment for the burglary of a

sporting goods store and theft of several firearms, for which he

received three criminal history points.

On October 29, 1977, Cain escaped from the Oakhill

Correctional Institution and embarked on a five-day crime spree in

Michigan and Wisconsin. This activity resulted in convictions for

stealing a motor vehicle, breaking and entering, and attempting to

steal another motor vehicle. The presentence investigation report

assigned three points for his convictions arising out of activity

in Michigan, two points for his escape conviction in Wisconsin, and

three points for his conviction for unauthorized use of a motor

vehicle in Wisconsin.

The district court overruled all of Cain's objections to the

presentence investigation report and accepted the report's total

offense level of ten and criminal history category of five. We

consider Cain's arguments below

II.

Cain first argues that his criminal history level is incorrect

because it includes a sentence that is over ten years old. Cain

was assessed two criminal history points based on his conviction

following a guilty plea 1985 to the escape that occurred in 1977.

Cain was sentenced to one year of imprisonment, but he was given

credit for time served in 1980 and served no additional prison

time. Cain argues that because he completed his one year sentence
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over ten years before the commencement of the instant offense, the

prior sentence should not have been included in his criminal

history.

The Guidelines provide that prior sentences of less than one

year and one month should be counted only if the prior sentence

"was imposed within ten years of the defendant's commencement of

the instant offense..." § 4A1.2(e)(2). The term "prior sentence"

means any sentence previously imposed upon adjudication of guilt.

§ 4A1.2(a)(1).

Cain argues that the term "imposed" is different from the

"pronouncement of sentence in court." He argues that the one year

he served in 1980 constitutes imposition of sentence because it was

the penalty imposed by the court, even though it was not pronounced

until 1985. However, this interpretation ignores the words that

follow the term "imposed" in § 4A1.2(a)(1); namely, "upon

adjudication of guilt." Adjudication of guilt can only occur when

the court pronounces the defendant's guilt. The sentence was not

imposed until 1985 following Cain's plea of guilty, and the court's

acceptance of the plea and pronouncement of Cain's guilt. Thus,

the court "imposed" sentence on Cain in 1985 even though it gave

him credit against this sentence for time served in 1980.

Therefore, the court did not err in assigning two points for

appellant's 1985 escape conviction.

Cain next contends that the convictions resulting from

offenses committed while he was on escape status should be grouped

with his escape conviction and counted as only one offense for

purposes of his criminal history. Cain argues that the escape, car
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theft, burglary and attempted car theft were all part of a single

common plan and therefore were "related cases" that should be

grouped under U.S.S.G. § 4A1.2(a)(2). This section provides that

"[p]rior sentences imposed in related cases are to be treated as

one sentence for purposes of the criminal history." The

Commentary to this section provides that cases are related if they

"1) occurred on the same occasion, 2) were part of a single common

scheme or plan, or 3) were consolidated for trial or sentencing."

These crimes did not occur on the same occasion, nor were they

consolidated for trial. Therefore, the question narrows to whether

they were part of a single common scheme or plan. For a number of

reasons, we agree with the district court that these multiple

crimes were not part of a single scheme or plan. The victims were

different. The crimes occurred in different states. As far as the

record shows, these were random crimes without any overall scheme

or plan.

Finally, Cain argues that the district court erred in not

departing downwards from the sentencing guidelines' range. All of

appellant's prior crimes occurred in 1977 when he was nineteen

years old. He was released from prison in 1982 and had no

infractions until 1992. He points out that the passage of just a

few months before the instant crime was committed would have put

Cain in criminal history one or two rather than five. For all of

these reasons, Cain argues that the court should have departed

downwards.

When the district court has sentenced within the guidelines,

appellate review is limited to determining whether the guidelines
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were correctly applied. U.S. v. Soliman, 954 F.2d 1012 (5th Cir.

1992). Generally, a claim that the district court refused to

depart from the guidelines and imposed a lawful sentence provides

no ground for relief. U.S. v. Keller, 947 F.2d 739, 741 (5th Cir.

1991) (citations omitted). The district court did not abuse its

discretion in refusing to grant Cain a downward departure. All of

defendant's prior offenses were felonies, and his prior offenses

included theft of an automobile, the same type of offense as the

instant offense.

For all of the foregoing reasons, we affirm the sentence

imposed by the district court.

AFFIRMED.