August 13, 1992 ____________________
No. 91-1778
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM A. YATES, II,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Coffin and Campbell, Senior Circuit Judges.
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Deirdre L. Thurber, by Appointment of the Court, for appellant.
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Margaret D. McGaughey, Assistant United States Attorney, with
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whom Richard S. Cohen, United States Attorney, and Jonathan R.
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Chapman, Assistant United States Attorney, were on brief for the
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United States.
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CAMPBELL, Senior Circuit Judge. Appellant William
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A. Yates, II, (Yates) pled guilty in the United States
District Court for the District of Maine to a one count
information charging him with unauthorized use of credit
cards in violation of 18 U.S.C. 1029(a)(2) and 1029(b)(1).
He was sentenced to 30 months of incarceration. On appeal,
Yates challenges the district court's calculation of his
sentence under the United States Sentencing Guidelines. He
complains of a two level increase for obstruction of justice
under U.S.S.G. 3C1.1; a two level increase for possession
of a loaded firearm under U.S.S.G. 5K2.0; and an assessment
of 13 criminal history points resulting in a criminal history
category of VI. While otherwise affirming, we agree with
Yates that the obstruction of justice increase was improper,
and remand for resentencing.
Background
Background
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We draw the facts from the Presentence
Investigation Report (PSI Report) and the transcript of the
sentencing hearing. United States v. Connell, 960 F.2d 191
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(1st Cir. 1992); United States v. Garc a, 954 F.2d 12, 14
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(1st Cir. 1992); United States v. Dietz, 950 F.2d 50, 51 (1st
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Cir. 1991).
On November 8, 1990, the New Hampshire residence of
Mark Watkins (Watkins) was burglarized. Among the items
stolen were several credit cards; a Colt .45 with ammunition;
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a lap top computer; a camera; jewelry and compact discs. The
following day the New Hampshire Police chased a stolen
automobile driven by Yates and his girlfriend Kathie
Guilmette. During the chase, Yates and Guilmette threw some
of the stolen items out the car's window. The police
discontinued pursuit because of hazardous driving conditions.
With the exception of the credit cards and the gun and
ammunition, the police recovered most of the items stolen
from Watkins's residence.
On November 21, 1990, Yates and Guilmette were
involved in yet another high speed chase, this time in
Massachusetts. The chase began when a Massachusetts state
trooper tried to stop a speeding vehicle driven by Yates,
Guilmette and a third passenger. The pursuit went eastbound
from route 495 to route 114 in the Lawrence/Lowell area in
Massachusetts. While trying to elude the police, the fleeing
car hit two other vehicles injuring one of the drivers. The
police stopped the fleeing car, but Yates and Guilmette
managed to escape on foot. The Massachusetts state trooper
identified Yates as the driver of the fleeing car at a
photographic line-up.
After an extensive investigation, Maine police
officers determined that a man and a woman matching the
description of Yates and Guilmette given by New Hampshire
police were registered under the name Stachulski at a motel
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in Portland, Maine. The Maine Police arrested Yates and
Guilmette there on December 2, 1990. While searching the
motel room, police officers found Watkins's credit cards as
well as checks and social security cards. They also seized
drugs and the Colt .45 stolen from Watkins's residence. The
Colt was discovered to be loaded.
Further investigation revealed that between
November 14, 1990 and November 23, 1990, Yates and Guilmette
used three stolen credit cards to make purchases valued at
$1,999.74. The cards were a Visa card in the name of
Christine Stachulski, a Sears card in the name of Watkins,
and a Mastercard also in the name Watkins.
When Yates was arrested in Portland on December 2,
1990, he told police officers that his name was William Alan
Stickles. His companion Guilmette also provided a false
name, but shortly thereafter revealed her true identity.
Yates was taken to the Cumberland County jail, where he
insisted he was Stickles. Yates gave as date of birth
September 29, 1961 and a social security number of 002-64-
1861. This information was also false.
When Portland Police Detective Peter Baleyco became
suspicious of the identity of the man he had just
apprehended, he secured the help of United States Secret
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Service1 Agent Philip Paradis for checking out the true
identity of the man claiming to be Stickles. On December 3,
1990, Paradis began an investigation on unauthorized use and
possession of a social security card. He learned that the
social security number provided by Yates belonged to a ten
year old boy who lived in New Hampshire, and that no social
security number had been issued to a William Alan Stickles.
On December 5, 1990, a federal grand jury indicted Yates
under the name of Stickles his true identity being unknown
for giving a false social security number. The Stickles
name was also used in various official acts undertaken in
connection with his apprehension and custody, such as
entering his record in the State Bureau of Identification
system, and in the Cumberland County Jail records.
Meanwhile, Paradis had forwarded Yates'
fingerprints to the Secret Service laboratory. On December
6, 1990, Paradis learned that the fingerprints belonged to
Yates. The investigation further revealed that Yates was
wanted for a probation violation in New Hampshire. On
December 7, 1990, Paradis visited Yates in prison to gather
additional information. By this date Paradis already knew
Yates' true identity and Yates acknowledged his true name.
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1. The United States Secret Service has jurisdiction to
investigate criminal violations relating to access devices
pursuant to 18 U.S.C. 1029.
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At some point between January 1 and January 9,
1991, Assistant U.S. Attorney Jonathan Chapman (Chapman)
assumed control over the false social security number case.
He determined that all the evidence obtained when Yates was
arrested on December 2nd would be inadmissible because it had
been illegally seized. Chapman then asked Paradis if it was
possible to find a charge to bring against Yates that could
be developed independently of the illegally seized evidence.
Paradis stated that there was independent evidence to charge
Yates with unauthorized use of credit cards. This evidence
consisted mainly of the information provided both by the
Massachusetts and New Hampshire Police, the victims of the
credit card thefts and the credit card companies.
On February 11, 1991, Yates agreed to waive
indictment by the grand jury. He pled guilty to an
Information charging him with unlawful use of access devices
in violation of 18 U.S.C. 1029(a)(2) and 1029(b)(1).
Yates entered his plea on March 1, 1991. The district court
ordered the preparation of a PSI Report and a sentencing
hearing was scheduled for July 5, 1991.
The district court found that the guideline for the
offense of conviction was U.S.S.G. 2F1.1(a)(b)(1)(A) [Fraud
and Deceit of $2,000 or less] which provides a Base Offense
Level (BOL) of six. The court increased the BOL by two
levels under U.S.S.G. 2F1.1(b)(2) because it concluded that
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the offense conduct involved more than minimal planning. The
government sought a two level increase under U.S.S.G. 3C1.2
for reckless endangerment on the basis that the November 21
flight posed a substantial risk of death or serious bodily
injury. The district court declined to impose this increase
because it was not persuaded that the requisite nexus existed
between the crime of conviction and Yates' flight. The court
nevertheless departed upwards by two levels under U.S.S.G.
5K2.0 on the basis of Yates' possession of a loaded firearm
during a portion of the offense conduct.
Although the government did not seek an obstruction
of justice enhancement under U.S.S.G. 3C1.1, the district
court imposed a two level increase under that section of the
guidelines. The court found that Yates falsely represented
his identity to the arresting officers, and in doing so,
significantly obstructed and impeded the officers in properly
identifying him and completing their responsibilities with
respect to documenting the arrest. Two levels were reduced
under U.S.S.G. 3E1.1(a) for acceptance of responsibility.
This calculation lead to a BOL of ten. The court
assessed 13 criminal history points and determined that the
criminal history category was VI. With a BOL of ten and a
criminal history category of VI, the sentencing table
provides a sentencing range of 24 to 30 months. The district
court imposed 30 months. This appeal followed.
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I.
I.
Yates claims the district court erred in applying a
two level increase to his BOL for obstruction of justice,
pursuant to U.S.S.G. 3C1.1. We review that issue de novo.
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United States v. Manning, 955 F.2d 770 (1st Cir. 1992);
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United States v. Bell, 953 F.2d 6 (1st Cir. 1992); United
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States v. Moreno, 947 F.2d 7, 10 (1st Cir. 1991). We will
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uphold the district court's sentence so long as it results
from a correct application of the guidelines to factual
findings which are not clearly erroneous. United States v.
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Pilgrim Market Corp., 944 F.2d 14, 16 (1st Cir. 1991); United
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States v. Akitoye, 923 F.2d 221, 228-229 (1st Cir. 1991). In
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conducting that review, we apply the guidelines in effect on
the date of sentencing. Bell, 953 F.2d at 7 (citing United
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States v. Cousens, 942 F.2d 800, 802 n.1 (1st Cir. 1991)
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(absent ex post facto problem, sentence is reviewed under
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guidelines in effect at time of sentencing, not commission of
offense)). The district court sentenced Yates on July 5,
1991. The applicable guideline then in effect was U.S.S.G.
3C1.1, as amended through November 1, 1990. This provided:
If the defendant willfully obstructed or
impeded, or attempted to obstruct or
impede, the administration of justice
during the investigation, prosecution, or
sentencing of the instant offense,
increase the offense level by two levels.
Application Note 4(a) in the then applicable Commentary to
3C1.1 stated that providing a false name did not warrant the
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two level increase "except where such conduct actually
resulted in a significant hindrance to the investigation or
prosecution of the instant offense." (Emphasis supplied.)
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See United States v. Barry, 938 F.2d 1327, 1333 (D.C. Cir.
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1991).
If we limit ourselves to the text of 3C1.1 alone,
it can be argued that by furnishing a false name when
arrested, Yates "willfully . . . attempted to obstruct
. . . justice during the investigation" of the instant (i.e.
credit card) offense, as all potentially chargeable offenses
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were, in some sense, under investigation at the time he was
arrested, even though a particularized investigation of the
credit card offense had yet to begin. Application Note 4(a),
however, adds another wrinkle to the analysis. Note 4(a)
requires a showing that the giving of the false name
"actually resulted in a significant hindrance to the
investigation or prosecution of the instant offense." While
Yates' false representations to the arresting officers can be
said to have actually and significantly hindered the
investigation of the charge involving the false social
security number, that charge was dropped late in 1990. Only
thereafter was the "instant offense" involving the
unauthorized use of the credit cards, specifically
investigated and charged. United States v. Barry, 938 F.2d
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at 1333. By then, Yates' identity was well known, and there
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is no evidence whatever that his previous giving of the false
name actually hindered the investigation or prosecution of
the instant offense. Indeed, the government's principal
witness, Paradis, testified to the contrary:
Q. [by Assistant U.S. Attorney Chapman] All right.
Now, would you state for the Court how it is that
act on Mr. Yates' part of giving a false name and
social security number affected your
investigations?
A. [by S/A Paradis] The initial investigation as to
providing false social security number was hindered
due to the fact that he was not providing accurate
information.
THE COURT: What happened was you had a false
identification and you had reason to suspect that
he was not who he said he was, you had to undertake
additional investigation effort to find out who he
was?
A. Yes.
THE COURT: Next question.
Q. How about with respect to the present charge?
A. It could not hinder the current investigation
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being a credit card. (Emphasis supplied.)
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Q. Why is that?
A. Due to the fact that I was aware of his identity
at the time, and I had a body in hand, I was able
to identify through photo line ups who the
individual was using the cards.
The government contends that it is irrelevant for
purposes of applying U.S.S.G. 3C1.1 that at the time of the
obstructive conduct, the authorities were actually
investigating an offense other than the offense of
conviction. But as pointed out above, Application note 4(a)
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which was not in existence when Barry, see 938 F.2d at
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1335, was decided plainly states that providing a false
name does not warrant the enhancement unless it actually
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results in a significant hindrance to the investigation or
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prosecution. Thus, even assuming that Yates attempted to
throw off the police in their investigation both of the false
social security number offense and the fraudulent use of the
credit cards, all factors, including the testimony of the
main investigative officer, unequivocally establish that the
false name did not actually hinder the investigation of the
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"instant" credit card offense. We hold, therefore, that the
two level increase for obstruction of justice was
unwarranted. To affirm would require either a tortured
reading of the commentary or our ignoring it altogether. To
be sure, courts have on occasion refused to follow the
commentary,2 and we do not foreclose the possibility of
doing likewise in some particularly compelling matter. But
we think the guidelines are complicated enough without our
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2. Cf. United States v. Stinson, 957 F.2d 813, 915 (11th
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Cir. 1992) (although commentary should generally be regarded
as persuasive, it is not binding); United States v.
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Elmendorf, 945 F.2d 989, 997 (7th Cir. 1991) (quoting United
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States v. Pinto, 875, F.2d 143, 144 (7th Cir. 1989)
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(application notes are not binding law, they are only
advisory commentary to assist in the application of the
statute)); and compare United States v. Madera-Gallegos, 945
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F.2d 264, 267 (9th Cir. 1991) (citing United States v.
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Anderson, 942 F.2d 606 (9th Cir. 1991) (en banc) (courts
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should always consider the commentary and should construe a
guideline and its commentary so as to be consistent, if that
is possible.)
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ordinarily proceeding along such a path. The Sentencing
Commission itself is best situated to fine tune issues of
this nature in its periodic review of the guidelines and
commentary. In the meantime, courts and parties should be
able to rely upon the commentary, at least in the vast
generality of cases. Accordingly, without doubting the
common sense of the district court's ruling, we are
constrained to hold that it was error to add a two level
increase for obstruction of justice.
II.
II.
Next, Yates challenges the district court's upward
departure by two levels under U.S.S.G. 5K2.0 on two
grounds: first, that the district court failed to give him
notice of its intention to depart upwards as required by
Burns v. United States, 111 S. Ct. 2182 (1991);3 and second,
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that the departure was a violation of the guidelines. We
consider these arguments seriatim.
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3. In Burns, 111 S. Ct. at 2187, the Supreme Court held
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that:
. . . before the district court can depart upward on a
ground not specified as a ground for upward departure
either in the presentence report or in a prehearing
submission by the Government, Rule 32 requires that the
district court give the parties reasonable notice that
it is contemplating such ruling. This notice must
specifically identify the ground on which the district
court is contemplating an upward departure. (footnote
omitted).
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Yates' first argument need not occupy us for long.
The record flatly refutes Yates' claim that he was not
notified of the district court's intention to depart upwards.
The supplemental report prepared by the presentence
investigator on June 28, 1991 specified as a second reason
for departing upwards under U.S.S.G. 5K2.0 that Yates was
in possession of a loaded firearm. This constituted the
notice required by Burns.
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As for the substantive justification for departure,
the district court made the following finding:
. . . The basis of that departure is this
defendant's possession of a firearm,
loaded, when it was seized during a
portion of the offense conduct. This
firearm was taken apparently at the same
time the access devices [credit cards]
that are the subject of the offense of
conviction were taken by larsonist [sic],
and with that firearm were taken 75
rounds of ammunition. The court infers
from that, that it was taken definitely
for a purpose. The amount of ammunition
taken with it indicated it was intending
to keep it for a considerable period of
time and it was anticipated by the
defendant in taking it that there would
be need for considerable use.
The court notes that by its own admission
during one or the other of his instances
in November of 1990 when he fled from the
police officers, that he has told Mr.
Paradis and others the reason for that
was that he realized his possession of
the firearm would cause him additional
legal difficulties. It was a serious
aspect of his criminal conduct. Then he
continued to hold it, he did not discard
it or get rid of it. And I find from all
of the facts in this case that it is not
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improbable that he was keeping that
weapon for the purpose of whatever
assistance it might afford him in a
confrontation with officers, if he should
have such confrontation under
circumstances where he could gain access
to the weapon and, as such, it did pose,
in his possession, a significant indeed
frightening danger to the public welfare
and safety.
I am satisfied that because of the nature
of this offense, the guideline provisions
make no, provide for no consideration of
possession of a firearm as an offense
characteristic and that as such it is
appropriate basis under 5K2.0 for the
Court to depart upwards in recognition of
the serious aspect of the offense
behavior and I will depart upward by 2
levels. . .
Under U.S.S.G. 5K2.0 the sentencing court may
impose a sentence outside the range established by the
applicable guideline if the court finds
that there exists an aggravating or
mitigating circumstance of a kind, or to
a degree, not adequately taken into
consideration by the Sentencing
Commission in formulating the Guidelines
that should result in a sentence
different from that described.
In this case, the aggravating circumstance was the alleged
possession of a loaded firearm. We review the district
court's departure under the three-step process set forth in
United States v. D az-Villafa e, 874 F.2d 43, 49 (1st Cir.
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1989), cert. denied, 110 S. Ct. 177 (1989).
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First, we consider if the offense was sufficiently
unusual to warrant departure. Since departures from the
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guidelines are meant to be the exception, not the rule, D az-
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Villafa e, 874 F.2d at 52, there must be ". . . something
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`special' about a given offender, or the accouterments of the
crime committed, which distinguishes the case from the mine-
run for that offense." United States v. Aguilar-Pena, 887
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F.2d 347, 350 (1st Cir. 1989). In this case, the district
court determined that the possession of a loaded firearm in
close conjunction with events surrounding the offense of
conviction was sufficiently unusual to warrant departure. We
agree. The guideline for the offense of conviction
U.S.S.G. 2F1.1(a)(b)(1)(A) [Fraud and Deceit of $2,000 or
less] does not list or mention as a relevant factor the
possession or use of a firearm as a characteristic of that
offense. This is understandable given the nonviolent
characteristics of the offense. Clearly the presence of the
loaded pistol was a circumstance beyond the "mine run" of
cases involving misuse of a credit card.
Next, we consider if the court's findings relative
to the firearm were supported by the evidence. We must
accept these, of course, unless they are clearly erroneous.
United States v. Mocciola, 891 F.2d 13, 17 (1st Cir. 1989).
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The court found that Yates was in possession of the loaded
firearm at the time he possessed the subject credit cards.
The district court also found that Yates kept the weapon for
whatever assistance it might afford him
in a confrontation with officers, if he
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should have such confrontation under
circumstances where he could gain access
to the weapon and, as such, it did pose,
in his possession, a significant indeed
frightening danger to the public welfare
and safety.
Yates contends there was insufficient evidence that
he used or even possessed the firearm in the course of the
credit card offense. His mere possession of the loaded gun
when arrested on December 2, 1990, a week after the period
November 14 through 23 of the credit card crimes, was, he
says insufficient proof. However, as the district court
found and the government points out, there was other evidence
from which to conclude that Yates held the loaded gun as
insurance within the same period that he possessed and
misused the stolen credit cards. He had stolen the weapon,
the ammunition and the credit cards at the same time and from
the same house. He used one of the cards to rent the
automobile involved in the high speed chase in Massachusetts
and he admitted to having the weapon with him during the
chase. When arrested he still had both the cards and the
loaded weapon. These and other circumstances mentioned by
the court permitted the inference of a significant
association between the loaded weapon and the misuse of the
stolen cards. There is no necessity of proof that the gun
was actually used in the credit card offense. Compare United
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States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).
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III.
III.
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Finally, Yates claims the court erred in
determining the number of criminal history points leading a
criminal history category of VI. We find no error.
The PSI report indicates that Yates has an
extensive criminal record. Between October 16, 1979 and
October 26, 1979 Yates burglarized several residences in New
Hampshire. All these burglaries occurred within Merrimack
County, with the exception of one committed on October 23,
1979 in Hillsborough County. The district court concluded
that although sentence was imposed for all burglaries on the
same day, the burglary of October 23, 1979 involved different
conduct in relation to the other burglaries and therefore was
not a related case for purposes of U.S.S.G. 4A1.1(a),(b)
and (c). The court ruled that the October 23, 1979 burglary
was an unrelated case to be counted separately and added
three criminal history points.
Yates argued that the district court erred in
adding three criminal history points for the October 23, 1979
burglary because that burglary was a part of a common scheme.
According to Yates, although this burglary occurred in a
different county, a look at a New Hampshire map indicates
that all the burglaries occurred within a small geographical
area. Therefore, he was entitled to have the court consider
that burglary as a related case and be treated as one
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sentence for sentencing under U.S.S.G. 4A1.1(a),(b) and
(c). We disagree.
Under U.S.S.G. 4A1.2(a)(2), prior sentences
imposed on related cases are to be treated as one sentence
for purposes of the criminal history. Application note 3
explains what constitutes "related cases:"
Cases are considered related if they (1)
occurred on a single occasion, (2) were
part of a single common scheme or plan,
or (3) were consolidated for trial or
sentencing. The court should be aware
that there may be instances in which this
definition is overly broad and will
result in a criminal history score that
underrepresents the seriousness of the
defendant's criminal history and the
danger he represents to the public. For
example, if the defendant commits a
number of offenses on independent
occasions separated by arrests, and the
resulting criminal cases are consolidated
and result in a combined sentence of
eight years, counting merely three points
for this factor will not adequately
reflect the seriousness of the
defendant's criminal history or the
frequency with which he commits crimes.
In such circumstances, the court should
consider whether departure is warranted.
See 4A1.3.
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The district court awarded three points for the
first of eight charges for which Yates was sentenced in
Strafford County, New Hampshire on June 6, 1980. The court
assigned no points for any of the seven other sentences he
received in the same court on the same day. Similarly, the
court assigned no criminal history points for any of the ten
sentences Yates received in Merrimack County, New Hampshire
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also on June 6, 1980. Thus, Yates received only three
criminal history points for a total of eighteen convictions.
In the circumstances here, the court's determination relative
to Yates' criminal history was well founded and fully
justified.
We affirm the sentence in all respects except as to
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the two level increase for obstruction of justice. The
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sentence is vacated and the case remanded for further
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proceedings in accordance herewith.
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