United States of America v. Franklin Dwayne Vogues

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-3851
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UNITED STATES OF AMERICA
v.
FRANKLIN DWAYNE VOGUES,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 01-cr-00235-1
(Honorable Jerome B. Simandle)
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Submitted Pursuant to Third Circuit LAR 34.1(a)
April 25, 2002
Before: BECKER, Chief Judge, SCIRICA and RENDELL, Circuit Judges
(Filed May 8, 2002)
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OPINION OF THE COURT
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SCIRICA, Circuit Judge.
Under a plea agreement, Franklin Dwayne Vogues pled guilty to failure to
surrender for service of sentence under 18 U.S.C. 3146(a)(2). He was sentenced to
sixteen months’ imprisonment and three years’ supervised release. The issue on appeal is
whether Vogues’s Criminal History Score was treated properly under U.S.S.G. 4A1.2.
I.
On November 6, 2000, Vogues failed to surrender to serve a sentence of three
years’ imprisonment and three years’ supervised release resulting from his conviction for
being a felon in possession of a weapon (18 U.S.C. 922(g)(1)). Vogues has two other
past felony convictions. On January 11, 1995 and November 16, 1995, he was arrested
for cocaine possession. On June 6, 1996, Vogues was sentenced to two five-year
sentences one on each conviction to be served concurrently.
In this case, Vogues’s base offense level was 11. U.S.S.G. 2J1.6(a)(1). Two
levels were reduced for acceptance of responsibility. Id. 3E1.1(a). With a total offense
level of 9 and a Criminal History Category of IV, Vogues’s applicable sentence range
was twelve to eighteen months. The District Court sentenced him to sixteen months’
imprisonment. Vogues objects to his placement in Criminal History Category IV.
II.
Vogues contends the District Court misapplied the sentencing guidelines in
calculating his Criminal History Score. We review de novo. United States v. Hallman,

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23 F.3d 821, 823 (3d Cir. 1994). Vogues asserts his 1995 cocaine convictions are so
"related" they should have been treated as one under U.S.S.G. 4A1.2(a)(2). But an
intervening arrest renders similar offenses "unrelated" for purposes of the applicable
guideline. U.S.S.G. 4A1.2 app. n.3; see also Hallman, 23 F.3d at 825. Vogues’s 1995
arrests were separated by ten months. He committed the second crime while out on bail
for the first. Given these circumstances, the District Court properly calculated Vogues’s
Criminal History points.
III.
For the foregoing reasons, we will affirm the judgment of conviction and
sentence.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Anthony J. Scirica
Circuit Judge
DATED: May 8, 2002

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