Monday, May 12, 2008

"Related" within the meaning of U.S.S.G. §4A1.2(a)(2) (pre-Nov. 1, 2007) requires either formal consolidation order or close factual relationship

In United States v. Wood, No. 06-3812 (3d Cir. May 1, 2008), the Third Circuit considered whether the defendant's prior burglary and conspiracy convictions were "related" within the meaning of U.S.S.G. §4A1.2(a)(2) (pre-Nov. 1 2007 version) where the defendant was sentenced for those offenses on the same day before the same judge. Adopting the approach utilized by other circuits and the district court in this case, the Third Circuit held that the imposition of sentences for multiple offenses at the same time by the same judge does not render the cases "consolidated for sentencing" and, therefore, "related" within the meaning of §4A1.2(a)(2), in the absence of either a formal consolidation order or a close factual relationship between the offenses. Here, the three prior convictions were factually distinct, involved different crimes and separate victims, and occurred on separate dates. The offenses were charged under different docket numbers, no formal consolidation order was ever entered, and the county judge imposed consecutive sentences. Accordingly, the district court did not err by concluding that the defendant's prior offenses were not related.

The Third Circuit also considered whether the amended version of §4A1.2(a)(2) (Nov. 1, 2007) should be applied retroactively. The version of §4A1.2(a)(2) in effect at the time of the defendant's sentencing distinguished between related and unrelated cases, and defined relatedness with respect to similarity in either time, facts, or judicial economy. In contrast, the amended version of §4A1.2(a)(2) contemplates that prior sentences are to be considered as one if the underlying offenses either share the same charging instrument or were sentenced together on the same day. According to the Third Circuit, the amended version, which does not turn on relatedness, but rather on factors that would be obvious from the record, effected a substantive change to the Guidelines which could not be applied retroactively to the defendant's sentence. Accordingly, the Third Circuit affirmed the defendant's sentence.

Circuit Judge Rendell filed a dissenting opinion indicating that she would have found the defendant's prior convictions related under old version of §4A1.2(a)(2).

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