United States of America v. Michael J. Tolbert

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 29, 2014
Decided May 15, 2014
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 13‐1972
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MICHAEL J. TOLBERT
Defendant‐Appellant.
Appeal from the United States District
Court for the Eastern District of Wisconsin
No. 11 CR 186
Lynn Adelman,
Judge.
O R D E R
When Michael Tolbert was arrested in 2011 for not registering as a sex offender and
possessing guns illegally, he already had an extensive criminal past. At issue in this appeal
is whether two criminal‐history points properly were assigned when he was sentenced for
possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). The first contested point was
added for a crime of violence that did not receive 3 points only because that offense had
been counted together with another as a single sentence. See U.S.S.G. §§ 4A1.1(a), (e),
4A1.2(a). The second point was based on the district court’s finding that a state court had
imposed two concurrent jail terms, not a single term, for Tolbert’s two theft convictions.
See id. § 4A1.2(a)(2). Just one of these disputed criminal‐history points was enough to push
Tolbert into criminal‐history Category IV. Because we conclude that the first of these points
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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properly was assessed, we need not address Tolbert’s argument about the second. His
sentence is affirmed.
Tolbert’s felony convictions date back to September 1980 when he was sentenced in
Cook County, Illinois, on convictions for attempted murder, rape, armed robbery, armed
violence, and home invasion. Tolbert and an accomplice had forced their way into an
apartment, raped a woman in the presence of her 9‐ and 14‐year‐old children, and then shot
all three in the head. The younger child died. Tolbert served time in prison, and in August
2011, long after his release, police in Kenosha, Wisconsin, learned that he was living there
but had not registered in the state as a sex offender, which was required. Tolbert had been
stopped in Kenosha for a traffic violation while driving a borrowed car, so police went to
the owner’s house looking for him. The owner confirmed that Tolbert had been living with
her for seven months. With her consent, police searched the house and in Tolbert’s
bedroom found two guns and ammunition.
Tolbert surrendered to police the next day. He was charged with failing to update his
sex‐offender registration with his Wisconsin address, 18 U.S.C. § 2250, and possessing a
firearm as a felon, id. § 922(g)(1). He pleaded guilty to the gun charge, and the other count
was dismissed. Tolbert was sentenced in 2013. A probation officer calculated a total offense
level of 17 and criminal‐history score of 8, placing Tolbert in criminal‐history Category IV.
Tolbert’s convictions in 1980 had resulted in a 50‐year term of imprisonment for
attempted murder and also for rape. He received a 25‐year sentence on each of the three
other counts (armed robbery, armed violence, and home invasion), with all five sentences
running concurrently. Because the 25‐year sentences expired after 12‐1/2 years, see ILL . R EV .
S TAT. ch. 38 § 1003‐6‐3(a)(2) (1979); Barksdale v. Franzen, 700 F.2d 1138, 1140 (7th Cir. 1983);
Lane v. Sklodowski, 454 N.E.2d 322, 325 (Ill. 1983), those counts did not receive
criminal‐history points, see U.S.S.G. § 4A1.2(e)(3). And the two 50‐year sentences counted
as a single sentence because they resulted from crimes charged together and also sentenced
on the same day. See U.S.S.G. § 4A1.2(a)(2). Thus, Tolbert received 3 points for one 50‐year
sentence, see U.S.S.G. § 4A1.1(a), and 1 additional point under U.S.S.G. § 4A1.1(e) because
the second 50‐year sentence resulted from a crime of violence that counted as a single
sentence. Tolbert objected to the addition of the fourth point, arguing that he received one
aggregate 50‐year sentence for the attempted murder and rape.
The probation officer also assessed 2 points for two convictions in Lake County,
Illinois, in 2010 for retail thefts that occurred on different dates. Tolbert had been arrested
after stealing a camera from a store and then, three months later, was caught stealing liquor

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No. 13-1972 Page 3
from a different merchant. The two thefts were charged separately and assigned distinct
case numbers, but both charges were resolved on the same date. The state court issued a
single judgment listing both case numbers. That judgment says Tolbert was found guilty
of “retail theft in both cases” and that he “shall be required to serve a sentence of 30 days
in the Lake County Jail.” The probation officer concluded that Tolbert had received two
30‐day sentences and, because the thefts were separated by an intervening arrest, added
a point for each sentence. See U.S.S.G. § 4A1.1(c). Tolbert objected and insisted that the two
thefts had yielded a single sentence and thus should have received only 1 criminal‐history
point.
Tolbert incurred 2 more criminal‐history points that he did not contest. By his count,
then, the total was 6, a point shy of the 7 that would bump him from Category III to
Category IV. The district judge agreed with the probation officer, however, that Tolbert
had accumulated 8 criminal‐history points. The judge sentenced him to 46 months’
imprisonment, the high end of the resulting range of 37 to 46 months. The judge concluded
that Tolbert had been sentenced to separate 50‐year terms on his 1980 convictions for
attempted murder and rape, and that, because these convictions counted under the
Guidelines as a single sentence allowing just 3 criminal‐history points, see U.S.S.G.
§ 4A1.1(a), a fourth point was mandated by § 4A1.1(e). The judge further concluded that
the state court had imposed a 30‐day sentence for each of Tolbert’s convictions for retail
theft but simply listed those sentences together in shorthand fashion in a single judgment.
Because the two retail thefts were separated by an intervening arrest, the judge counted
them separately under the Guidelines, adding 1 point for each conviction.
On appeal Tolbert presses his contention that he incurred only 6, not 8, criminal‐history
points and thus should have been in a lower criminal‐history category. He first argues that
he should not have received the fourth point under § 4A1.1(e) on his 1980 sentences for
attempted murder and rape. He insists that § 4A1.1(e) does not apply if the prior crimes
of violence occurred on the same occasion. And because he committed those two crimes
together, Tolbert concludes, he can receive criminal‐history points for only one of the
convictions.
Before 2007, § 4A1.1(e) (formerly designated as § 4A1.1(f)) provided:
Add 1 point for each prior sentence resulting from a conviction of a crime of
violence that did not receive any points under (a), (b), or (c) above because such
sentence was considered related to another sentence resulting from a conviction
of a crime of violence, up to a total of 3 points for this item. Provided, that this

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item does not apply where the sentences are considered related because the
offenses occurred on the same occasion.
U.S.S.G. § 4A1.1(f) (2006). In 2007 this language was amended by removing from the third
line the reference to a “related” sentence and also striking the entire last sentence. U.S.S.G.
app. C, vol. III, amend. 709 (2011). As amended, this provision now reads:
Add 1 point for each prior sentence resulting from a conviction of a crime of
violence that did not receive any points under (a), (b), or (c) above because
such sentence was counted as a single sentence, up to a total of 3 points for
this subsection.
U.S.S.G. § 4A1.1(e) (2010). Tolbert recognizes that the new version—which governs his
case—no longer includes any reference to “related” sentences or to whether multiple
crimes were committed on the same occasion. But he emphasizes that the pertinent
application note was not changed when the Guidelines were amended, and even now the
commentary includes the example of a defendant who committed prior crimes on different
occasions and received an extra point under § 4A1.1(e). See U.S.S.G. § 4A1.1 cmt. n.5 (2010).
It follows from this example, Tolbert reasons, that § 4A1.1(e) still applies only when prior
crimes were committed on different occasions. We review de novo a district court’s
interpretation of the Guidelines, and its factual findings for clear error. United States v.
Ruelas‐Valdovinos, No. 12‐2685, 2014 WL 1347747, at *2 (7th Cir. Apr. 7, 2014); United States
v. Medina, 695 F.3d 702, 704 (7th Cir. 2012).
Tolbert’s reading of § 4A1.1(e), as amended, is inconsistent with how that provision
has been applied. We have not addressed the effect of the change to subsection (e), but
other circuits have recognized that the Guidelines no longer distinguishes multiple prior
crimes that occurred on the same occasion from multiple prior crimes that occurred on
different occasions. See United States v. Scott, 654 F.3d 552, 557 (5th Cir. 2011); King v. United
States, 595 F.3d 844, 850 (8th Cir. 2010). The purpose of § 4A1.1(e) is to add criminal history
points for crimes of violence that are not counted under § 4A1.1(a), (b), or (c). King, 595 F.3d
at 850. Prior sentences for crimes of violence that are counted as a single sentence and not
assessed points under subsections (a) through (c) will receive an additional point under
subsection (e) whether or not the crimes occurred on the same occasion. Scott, 654 F.3d
at 557.
Tolbert reads the example in the commentary to exclude all other scenarios, rather than
as just one example of the Guidelines application. In doing so, Tolbert ignores the

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Sentencing Commission’s explanation for the amendment, which provides an example,
similar to the one Tolbert cites, where a defendant who received concurrent 5‐year
sentences for two robbery convictions would incur 3 criminal‐history points under
§ 4A1.1(a) and 1 more point under § 4A1.1(e). The example accompanying the amendment,
however, does not specify whether the prior crimes occurred on the same or different
occasions. U.S.S.G. App. C, vol. III, amend. 709, p. 239 (2011). Thus, the court properly
attributed to Tolbert a criminal‐history point under § 4A1.1(e) for the second 50‐year
sentence that did not receive other points under § 4A1.1(a), (b), or (c).
Tolbert needed just 7 criminal‐history points to be in criminal‐history Category IV.
Because Tolbert does not challenge 6 of his criminal‐history points, and the district court
properly assigned 1 additional point under § 4A1.1(e) for his 1980 convictions, we need not
address Tolbert’s remaining argument challenging the eighth criminal‐history point.
Accordingly, the sentence is AFFIRMED.

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