Appeal from the United States District Court for the Southern District of Florida. (No. 93-571-CR-UUB). Ursula Ungaro Benages, Judge.
Before Kravitch, Edmondson and Barkett, Circuit Judges.
Vincent Johnson appeals the 157-month sentence he received for conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. We affirm.
Johnson pleaded guilty to conspiring to possess and distribute cocaine. The drug ring in which Johnson was involved operated from 1986 to September 1993. In 1990, Johnson participated in several jewelry store robberies in order to obtain capital to fund the drug operation. Johnson was arrested for the robbery of one of the jewelry stores and was convicted in Georgia state court, where he received an eight-year prison term. While serving this sentence, Johnson was indicted by federal authorities for his participation in the drug conspiracy. As an overt act in furtherance of the conspiracy, the indictment lists Johnson's participation in several jewelry store robberies, including the robbery for which he was convicted in Georgia. In addition, the indictment alleges that on one occasion Johnson delivered cocaine in furtherance of the conspiracy.
In determining Johnson's offense level, the presentence investigation report relied solely on the weight of the narcotics attributable to him and did not factor in his participation in the robberies. Johnson's state court robbery conviction was considered, however, in determining his criminal history category. The district court overruled Johnson's objection on this point. The court then ordered that Johnson's federal sentence run concurrently with his state sentence on the robbery conviction, but declined to credit Johnson for time already served in state prison.
On this appeal, Johnson argues that the robbery conviction should not have been scored in determining his criminal history category. He also argues that his federal sentence should have begun running concurrently with the state sentence retroactive to the beginning of that sentence.
Because this case involves an application of the Sentencing Guidelines to the facts, we review the district court's decision de novo. United States v. Walker, 912 F.2d 1365, 1367 (11th Cir.1990), cert. denied, 498 U.S. 1103, 111 S. Ct. 1004, 112 L. Ed. 2d 1087 (1991).
Johnson claims that his robbery sentence should not have been included in determining his criminal history category because his participation in the robbery was part of the instant conspiracy offense, and thus not a "prior sentence" as defined by U.S.S.G. § 4A1.2(a)(1).
Section 4A1.1 of the Guidelines instructs a sentencing court to calculate a defendant's criminal history category by counting certain prior sentences imposed for specified felony or misdemeanor convictions. Section 4A1.2(a)(1) defines "prior sentence" as "any sentence previously imposed upon adjudication of guilt ... for conduct not part of the instant offense." According to an amendment to the first application note to § 4A1.2 (added on November 1, 1993), "conduct that is part of the instant offense means conduct that is relevant conduct to the instant offense under the provision of § 1B1.3 (Relevant Conduct)." U.S.S.G. § 4A1.2, comment. (n. 1).
Johnson argues that because the robbery for which he was convicted was listed in the indictment as one of the overt acts which provided the basis for his involvement in the conspiracy, it is "relevant conduct" under U.S.S.G. § 1B1.3, which in turn makes it part of the instant offense, and therefore not a "prior sentence." The government responds that under § 1B1.3 the robbery could not properly be included as "relevant conduct," and it is therefore appropriate to consider the robbery conviction in determining Johnson's criminal history category.
Section 1B1.3 explains what conduct is "relevant" in determining a defendant's guideline range. Specifically, the guideline instructs that "solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of conviction" are attributable to the defendant.*fn1 U.S.S.G. § 1B1.3(a)(2). Conspiracy to distribute cocaine is an offense for which Section 3D1.2(d) requires grouping of multiple counts. U.S.S.G. § 3D1.2(d); United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir.1995). The guideline specifically states that counts should be grouped "when the offense level is determined largely on the basis of ... the quantity of a substance ...