Professional Documents
Culture Documents
No. 04-4312
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-416)
Submitted:
Decided:
February 8, 2006
PER CURIAM:
Kevin DeWalt pled guilty to two counts of distributing
cocaine base (crack), 21 U.S.C.A. 841(a), (b)(1)(B) (West 1999 &
Supp. 2005) (Counts Five and Six of a six-count indictment), and
was sentenced to a term of 167 months imprisonment.
DeWalt
DeWalt also
Fed. R. Crim.
P. 52(b); United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2005).
Id. at 547-48.
If a defendant establishes
erred when it failed to find that all three of the prior sentences
in question were imposed in related cases because the offenses
occurred on the same occasion. However, we decline to exercise our
discretion to notice the error because DeWalts sentence was within
both the correct guideline range and the erroneous range used by
the district court.
The factual basis for DeWalts guilty plea described six
sales of crack he made to an undercover agent between June 5, 2003,
and August 7, 2003.
DeWalt
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also
criminal history.
contests
the
entire
calculation
of
his
and
therefore
are
subject
to
the
requirements
of
Courts
reaffirmation
of
the
Almendarez-Torres
prior
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In
The
about
the
defendants
prior
conviction
violated
the
We conclude
that DeWalt cannot show plain error under Booker in the calculation
of his criminal history.
The district court erred in determining, over DeWalts
objection, that only two of three prior sentences were imposed in
related cases.
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arrest and the offenses (1) occurred on the same occasion, (2) were
part of a common scheme or plan, or (3) were consolidated for trial
or sentencing.
They were:
2001.
his
sentencing
memoranda
and
at
the
sentencing
Oakwood Homes sales lot. Around midnight, they fled when they were
confronted by a security officer, but were quickly apprehended.
The district court determined that the offenses of possession of
the stolen truck and theft of the appliances were part of a common
scheme or plan, and thus were related cases, while the resistance
to arrest was unrelated.
204 (5th Cir. 2001) (the phrase on the same occasion should be
applied with its ordinarily understood meaning, not as a term of
art); United States v. Johnson, 961 F.2d 1188, 1188-89 (5th Cir.
1992) (two simultaneous driving offenses and defendants subsequent
failure to identify himself to police officer occurred on single
occasion); United States v. Connor, 950 F.2d 1267, 1270 (7th Cir.
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bank
tellers,
as
class,
are
not
vulnerable
victims).
district court erred in not finding that they occurred on the same
occasion, and that the error was plain.
The government maintains that DeWalt began and ended the
larcenies before he resisted the public officer and thus the
offenses were not committed on the same occasion. This position is
not supported by the record.
possession of the stolen U-Haul and still on the Oakwood Homes lot;
the appliance theft had not been completed.
argues that the offenses were not related because they involved
different locations and victims. This argument goes to whether the
Breckenridge factors permit a conclusion that any of the offenses
appeal that the three offenses were all part of a common scheme, we
need not reach that question.
Had the district court determined that all three offenses
were related because they occurred on the same occasion, DeWalts
criminal history score would have been reduced from 13 to 11, and
he would have been placed in criminal history category V rather
than VI.
fairness,
proceedings.
integrity,
or
public
reputation
of
judicial
argument
because
the
facts
and
legal
We dispense with
contentions
are
AFFIRMED
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