United States of America v. Gregory Steven Horn

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0026P (6th Cir.)
File Name: 04a0026p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGORY STEVEN HORN,
Defendant-Appellant.
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No. 02-5668
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 01-00142—Thomas A. Wiseman, Jr., District Judge.
Argued: September 16, 2003
Decided and Filed: January 20, 2004
Before: SILER, BATCHELDER, and COOK, Circuit
Judges.
_________________
COUNSEL
ARGUED: Hugh M. Mundy, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant.
William Cohen, ASSISTANT UNITED STATES
ATTORNEY, Nashville, Tennessee, for Appellee.
ON BRIEF: C. Douglas Thoresen, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant.
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William Cohen, ASSISTANT UNITED STATES
ATTORNEY, Nashville, Tennessee, for Appellee.
_________________
OPINION
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ALICE M. BATCHELDER, Circuit Judge. Defendant-
appellant Gregory Steven Horn appeals the sentence imposed
following his conviction on one count of bank robbery in
violation of 18 U.S.C. §§ 2113(a) and (d). Horn contends
only that the district court erred in sentencing him as a career
criminal under USSG § 4B1.1. In particular, Horn argues that
his prior felony convictions for robbery were related offenses
under Section 4B1.1, and that they therefore should not have
been counted as separate offenses for purposes of career
offender enhancement. Because we find that defendant’s
prior felony convictions were not related offenses under
Section 4B1.1, we will AFFIRM the district court.
I.
Gregory Steven Horn pleaded guilty to one count of bank
robbery in violation of 18 U.S.C. § 2113(d) after robbing the
SunTrust Bank in Nashville, Tennessee. Horn filed
objections to the Presentence Report, objecting among other
things, to the Report’s recommendations that his two prior
armed robbery convictions should be considered separate
offenses for purposes of calculating his sentence, and that he
should be sentenced as a career offender. Horn argued that
these prior offenses had been effectively consolidated for
sentencing by the state court, and that they were part of a
common scheme or plan.
The first of the prior convictions was for the armed robbery
of the manager of a Giant Food Store in Anne Arundel
County, Maryland, on January 6, 1998. Horn, accompanied
by an accomplice, approached the manager in the store

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No. 02-5668 United States v. Horn 3
parking lot, shoved a handgun into the manager’s ribs and
threatened to shoot him. The manager gave the robbers his
car keys and his wallet containing credit cards. The second
conviction was for an armed robbery which occurred on
January 26, 1998, in the parking lot of a different grocery
store in another town in Anne Arundel County, Maryland.
During the latter robbery, the defendant, this time acting
alone, robbed a different victim of cash, several credit cards,
and his driver’s license. The defendant once again used a
handgun in commission of the robbery. On January 27, 1998,
Horn attempted to rob a third person, who was able to identify
part of the license tag on Horn’s vehicle. He was arrested
later that day for having stolen tags, and on March 19, 1998,
he was charged in a multi-count information with, among
other theft offenses, the January 6, 1998 robbery. On
March 23, 1998, he was charged in another multi-count
information with the January 27, 1998, robbery and attempted
robbery. Horn made his initial appearance in state court as to
each information on March 30, 1998, and waived his right to
a preliminary hearing in each case. The cases were set for the
same trial date, and Horn was represented by the same
counsel in both. On June 16, 1998, he entered guilty pleas to
both of the robbery charges and to the attempted robbery
charge, and on September 11, 1998, he was sentenced for
each of these offenses. The cases were docketed separately,
however, and no order was entered by the court to consolidate
the cases for either trial or sentencing.
In the present case, the district judge overruled Horn’s
objections to the Presentence Report and adopted the findings
and calculations contained in it. The court held that the two
prior state court robbery convictions were not related cases as
that term is defined in USSG § 4A1.2, and that Horn is a
career offender under USSG § 4B1.1. The district court
sentenced him to 204 months’ incarceration, to run
concurrently with a State of Maryland sentence that he was
obligated to fulfill. The only question presented upon appeal
is whether the district court erred in counting Horn’s prior
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robbery convictions as separate offenses and sentencing Horn
as a career criminal under USSG § 4B1.1.
II.
Horn contends that his prior felony convictions for robbery
were related offenses under Section 4B1.1, and that they
therefore should not have been counted as separate offenses
for the purpose of career offender enhancement. If the
offenses are treated as related, Horn’s total offense level
would be 26, rather than 31, the level that the district court
used in sentencing him to 204 months’ incarceration. The
government concedes that this Court has jurisdiction over this
appeal.
In reviewing a sentence imposed under the Sentencing
Guidelines, we are required by statute to “accept the findings
of fact of the district court unless they are clearly erroneous
and [to] give due deference to the district court’s application
of the guidelines to the facts.” 18 U.S.C. § 3742(e). This
deferential standard applies at least to the first aspect of the
question of relatedness before us here: whether the district
court erred in determining that Horn’s prior offenses were not
“effectively consolidated” and are therefore not “related
cases” as that term is defined for purposes of determining
career offender status under USSG § 4B1.1. See Buford v.
United States, 532 U.S. 59, 66 (2001) (holding that “in light
of the fact-bound nature of the legal decision,” deferential
rather than de novo review was appropriate for the district
court’s determination that particular prior convictions are
separate and not “functionally consolidated”).
Whether Buford’s deferential standard applies to all aspects
of the relatedness question is not clear in this circuit. In
United States v. Carter, for example, citing pre-Buford cases
and mentioning neither Buford nor the statutory standard of
review set out in 18 U.S.C.§ 3742(e), we held that in
reviewing the district court’s decision that prior offenses were
not part of a common scheme or plan, we review the

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No. 02-5668 United States v. Horn 5
sentencing court’s findings of fact for clear error and its
application of the guidelines de novo. United States v.
Carter, 283 F.3d 755, 757 (6th Cir. 2002). On the other hand,
we have held that Buford has a much broader and more
general application. In United States v. Jackson-Randolph,
282 F.3d 369 (6th Cir. 2002), we reviewed the reasoning of
Buford, and concluded that the district court’s application of
USSG § 3C1.1 is to be reviewed deferentially because, like
the determination of whether felony convictions are “related,”
the determination of whether particular conduct constituted
obstruction of justice is a fact-bound decision in which
“‘factual nuance may closely guide the legal decision, with
legal results depending heavily upon an understanding of the
significance of case-specific details.’” Jackson-Randolph,
282 F.3d at 389 (quoting Buford, 532 U.S. at 65). We noted
further that like the determination at issue in Buford, the
question of whether particular conduct constitutes obstruction
of justice is a matter within the special competence of district
court judges and the conclusion reached on the matter has
little precedential value because of the case-specific and fact-
bound circumstances. Id. at 389-90. Accordingly, we
concluded, “the clear error standard is also appropriate for
reviewing sentencing decisions under § 3C1.1 where the sole
issue before the district court is a fact-bound application of
the guideline provisions.” Id. at 390. See also United States
v. Webb, 335 F.3d 534, 537 (6th Cir. 2003) (holding that the
district court’s application of the guidelines to the facts
should not be disturbed unless clearly erroneous); United
States v. Lang, 333 F.3d 678, 682 (6th Cir. 2003) (holding
that we review under the “clearly erroneous” standard the
district court’s application of USSG § 3B1.3 where the
application is fact-bound); United States v. Ennenga, 263
F.3d 499, 502 (6th Cir. 2001) (noting that Buford “suggests
that our standard of review even with regard to these
questions of law should instead be deferential,” and holding,
in light of the analysis in United States v. Hardin, 248 F.3d
489, 495 (6th Cir. 2001), that the district court’s application
of USSG § 2K2.1 is to be reviewed deferentially); United
States v. Hardin, 248 F.3d 489, 495 (6th Cir. 2001) (opining,
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but not deciding, that Buford’s deferential standard would
apply to review of the district court’s application of USSG
§ 2K2.1(b)(5)). In light of the reasoning of Buford and the
ensuing case law in this circuit, we are satisfied that we must
review deferentially, that is, for clear error, the entirety of the
district court’s determination that Horn’s prior robbery
convictions were not related.
Under USSG § 4A1.2, “prior sentences are considered
related if they resulted from offenses that (A) occurred on the
same occasion, (B) were part of a single common scheme or
plan, or (C) were consolidated for trial or sentencing.” USSG
§ 4A1.2, cmt. n.3. Although conceding that no formal order
of consolidation was entered by the state court hearing those
cases, Horn first argues that the two prior armed robbery
convictions were “effectively consolidated,” because he was
arrested and charged with the robberies at the same time; he
made an initial appearance as to both offenses at the same
time; the cases were set for trial on the same date; the same
counsel represented defendant as to both offenses; a guilty
plea was entered for each offense on the same day; and
defendant was sentenced for both offenses on the same day
with sentences to run concurrently.
At oral argument of this case, Horn urged upon us the
proposition that this Court has never explicitly held that prior
offenses must be formally consolidated in order that they may
be found to be related for purposes of USSG § 4A1.2, and
therefore, no formal order of consolidation is required for
such a finding. Defendant’s reliance on this lacuna is
misplaced. We have stated several times that “cases are not
consolidated when offenses proceed to sentencing under
separate docket numbers, cases are not factually related, and
there was no order of consolidation.” United States v.
McAdams, 25 F.3d 370, 374 (6th Cir 1994); United States v.
Coleman, 964 F.2d 564, 567 (6th Cir. 1992). “The fact that
judgment was pronounced on the same day with sentences to
run concurrently, without more, does not establish that [the
cases] were in fact consolidated.” Carter, 283 F.3d at 758;

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No. 02-5668 United States v. Horn 7
Coleman, 964 F.2d at 566. Those cases make it clear that we
require some explicit indication that the trial court intended to
consolidate the prior convictions. In each of those cases,
there was no order from the trial court consolidating the
earlier offenses, nor was there any statement by the trial court
implying they should be considered consolidated. We hold
that the contemporaneous treatment of Horn’s state court
robbery offenses notwithstanding, the district court correctly
held that Horn was charged with, tried for, and convicted of
separate unrelated offenses.
Horn next argues that the prior offenses arose from a single
common scheme or plan. He argues that both robberies were
motivated by his addiction to drugs; that his modus operandi
in both cases was almost identical; and that the robberies
occurred less than three weeks apart. The defendant bears the
burden of proving the two prior felony convictions were part
of a single common plan or scheme. United States v. Irons,
196 F.3d 634, 638 (6th Cir. 1999); United States v. Cowart,
90 F.3d 154, 159 (6th Cir. 1996). Horn has failed to meet this
burden. In Irons, we held that crimes are part of the same
scheme or plan only if the offenses are jointly planned, or, at
a minimum, the commission of one offense necessarily
requires the commission of the other. Irons, 196 F.3d at 638;
see also Carter, 283 F.3d at 758; United States v. Ali, 951
F.2d 827, 828 (7th Cir. 1992) (finding the words “scheme”
and “plan” to be words of intention, “implying that [offenses]
have been jointly planned, or at least that . . . the commission
of one would entail the commission of the other as well”). “It
is beyond question that the simple sharing of a modus
operandi cannot alone convert [separate offenses] into one
offense by virtue of their being a single common scheme or
plan.” Cowart, 90 F.3d at 160; see also United States v.
Brown, 209 F.3d 1020, 1024 (7th Cir. 2000) (“merely similar,
seriatim robberies fall short of qualifying as a ‘single
common scheme or plan’”). This Court has further held that
merely because crimes are part of a crime spree does not
mean that they are related. Irons, 196 F.3d at 638; Carter,
283 F.3d at 758. Nor are such offenses related because they
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were committed to achieve a similar objective, such as the
support of a drug habit. See United States v. Gonzales, 21
Fed. Appx. 393, 397 (6th Cir. 2001) (citing Brown, 209 F.3d
at 1024) (holding that prior convictions are not “related”
simply because the crimes used the same modus operandi,
were part of a crime spree, or were motivated by the need to
support a drug habit)).
Finally, offenses are not necessarily related merely because
they were committed within a short period of time. In United
States v. Oldham, 13 Fed. Appx. 221, 226-27 (6th Cir. 2001),
we affirmed a district court’s sentencing a defendant as a
career offender based upon the defendant’s two convictions
for burglarizing—with the same accomplice—houses in two
Kentucky counties within hours of each other. We held that
the crimes “did not take place on the ‘same occasion’ because
they occurred at different times, in different locations, and
were committed against different victims.” Id. at 227.
Similarly, we held in United States v. Gonzales that six armed
robberies of convenience stores within a two-week
period—which were part of a “drug-induced crime spree” and
involved the use of the same starter pistol—were not related.
Gonzales, 21 Fed. Appx. at 394-99. Other circuits that have
considered this issue have reached similar conclusions. See
United States v. Mapp, 170 F.3d 328, 339 (2d Cir. 1999)
(finding no error in district court’s conclusion that two
robberies, committed on consecutive days and against
different victims, were not related); United States v. Keller,
58 F.3d 884, 894-95 (2d Cir. 1995) (affirming a district
court’s finding that defendant’s attempts to commit robberies,
four days apart, at different locations and involving different
victims, were not related); Brown, 209 F.3d at 1024 (finding
three armed robberies of stores within a two month period not
related); United States v. Brown, 962 F.2d 560, 564-65 (7th
Cir. 1992) (finding two bank robberies committed eight days
apart not related).
The crimes at issue in the present case were committed
weeks apart at different locations; the offenses involved

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No. 02-5668 United States v. Horn 9
different victims; and the defendant had an accomplice in the
first offense but not the second. There is no evidence, nor
does appellant even allege, that the two armed robberies were
jointly planned or that the commission of the first robbery
entailed the commission of the second. Accordingly, the
district court did not err in finding that these two robberies
were not part of a common scheme or plan.
CONCLUSION
Because the district court did not err in holding that Horn’s
state court robbery convictions were not related as that term
is defined in USSG § 4A1.2, and therefore did not err in
holding that Horn was a career offender under USSG § 4B1.1,
we AFFIRM the judgment of the district court.

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