USA v. Donald Daye Storer

1The Honorable Nanette Laughrey, United States District Court Judge for the
Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2110
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Albert William Newsome, * Western District of Missouri.
*
Appellant. *
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Submitted: February 15, 2005
Filed: June 10, 2005
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Before WOLLMAN, McMILLIAN and BENTON, Circuit Judges.
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McMILLIAN, Circuit Judge.
Albert William Newsome appeals from a final judgment of the District Court1
for the Western District of Missouri entered upon his guilty plea to conspiracy to
distribute cocaine base, in violation 21 U.S.C. § 841. On appeal, Newsome asserts
that the district court erred in calculating his criminal history score under the United
States Sentencing Guidelines § 4A1.2. We affirm.

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BACKGROUND
The Presentence Report calculated Newsome's total offense level at 23 and his
criminal history category as II. The criminal history category was based on a criminal
history score of 2. As relevant here, one point was assessed for a prior sentence
arising from a 1998 juvenile court action following Newsome's guilty plea to a
misdemeanor charge of third-degree assault. As a disposition, the juvenile court
continued Newsome's probation from a 1997 juvenile court adjudication for stealing
and imposed 53 hours of community service and a $15.00 fine. The disposition of the
1997 juvenile court adjudication did not result in a criminal history point because it
was beyond the five-year period for counting juvenile sentences set forth in
§ 4A1.2(d)(2).
Newsome objected to the criminal history category II, arguing that the 1998
juvenile court disposition was not a "prior sentence" within the meaning of U.S.S.G.
§ 4A1.2, but rather was merely a continuation of the 1997 sentence, which could not
be counted. Section 4A1.2(a) (1) provides that "[t]he term 'prior sentence' means any
sentence previously imposed upon an adjudication of guilt, whether by guilty plea,
trial, or plea of nolo contendere, for conduct not part of the instant offense."
Newsome asserted that without the one point assessed for the 1998 juvenile court
disposition, he would have been eligible for the safety valve provision of § 5C1.2,
releasing him from the statutory mandatory minimum sentence of 60 months.
At the sentencing hearing, the government presented the testimony of
Christopher Wilson, an attorney for the juvenile officer for the state circuit court.
Wilson testified that he drafted the filings for Newsome's 1998 juvenile court
adjudication, noting that the 1998 assault violation was filed as a law violation.
Wilson explained the difference between a status violation and a law violation, noting
that a law violation involves a violation of the law and must be proved beyond a
reasonable doubt, whereas a status violation does not involve a violation of the law

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2 Under § 4A1.2(c), sentences for "juvenile status offenses" are not counted in
computing a criminal history score. For purposes of the guideline, a "juvenile status
offense" refers to a non-serious offense involving conduct which "'would have been
lawful if engaged in by an adult.'" United States v. Webb, 218 F.3d 877, 880 (8 th Cir.
2000) (quoting United States v. Correa, 114 F.3d 314, 319 (1st Cir. 1997)).
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and only requires proof by clear and convincing evidence.2 Wilson also noted that
the juvenile court lacked authority to impose a $15.00 fine or community service for
a status offense. On cross-examination, Wilson explained that the 1998 adjudication
for assault had the same case number as the 1997 adjudication for stealing because
under state law a juvenile court has continuing jurisdiction over a minor. See Mo.
Rev. Stat. § 211.031.
The district court overruled Newsome's objection, holding that the 1998
juvenile court disposition was "clearly" a prior sentence within the meaning of
§ 4A1.2(a)(1). The district court reasoned that there had been an adjudication of guilt
beyond a reasonable doubt for a law violation and that, in addition to continuing
probation for the 1997 offense, the juvenile court imposed a fine and community
service. The district court rejected Newsome's request to apply the rule of lenity and
sentenced him to the statutory mandatory minimum sentence of 60 months
imprisonment.
DISCUSSION
"We review the sentencing court's factual findings for clear error and its
application of the Guidelines to those facts de novo." United States v. Morgan, 390
F.3d 1072, 1073 (8 th Cir. 2004). "Whether a prior sentence counts for criminal history
purposes is a question of federal law, not state law." Id. at 1074. "State law is
relevant only to the extent that it describes the pertinent details of a defendant's prior
sentence." Id.

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Newsome renews his argument that the juvenile court's 1998 disposition
following his guilty plea to third-degree assault was not a prior sentence within the
meaning of § 4A1.2, but rather was merely a continuation of the 1997 sentence for
stealing. In support of his argument, he suggests that because the two cases shared
the same docket number in the juvenile court the offenses are related and the
sentences should be "treated as one sentence" under § 4A1.2(a)(2). It is true that
where there is formal consolidation order of two cases and the cases proceed under
the same case number, the cases may be considered as related cases and the sentences
imposed may be treated as one sentence. See United States v. Klein, 13 F.3d 1182,
1185 (8 th Cir. 1994). However, "[w]e inquire whether sentencing was consolidated
only when there is a single arrest for multiple offenses." United States v. Peltier, 276
F.3d 1003, 1007(8 th Cir. 2002). Where, as here, the offenses are "separated by a an
intervening arrest[,]" we must "consider the offenses [as] unrelated." Id. (internal
quotation omitted). Id. at 1006-07. See § 4A1.2, comment. (n. 3) ("Prior sentences
are not considered related if they were for offenses that were separated by an
intervening arrest, i.e., the defendant is arrested for the first offense prior to
committing the second offense.").
Newsome also argues that the two sentences should be treated as one sentence
because in the case of a revocation of probation, the Guidelines provide that "[r]ather
than count the original sentence and the resentence after revocation as separate
sentences, the sentence given upon revocation should be added to the original
sentence . . . and the total should be counted as if it were one sentence." § 4A1.2,
comment. (n. 11). However, he fails to mention that if, as relevant here, "at the time
of revocation of [probation] another sentence was imposed for a new criminal
conviction, that conviction would be computed separately from the sentence imposed
for the revocation." Id. As the district court noted, the 1998 disposition arose from
an adjudication for the separate offense of assault and in addition to continuing
probation, the juvenile court imposed a fine and community service.

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3In United States v. Oetken, 241 F.3d 1057, 1060 (8 th Cir. 2001), this court
stated that when "there are two plausible readings of a guideline provision, we apply
the rule of lenity and give the defendant the benefit of the reading that results in a
shorter sentence." As the government notes, this court has also stated that the rule of
lenity does not apply unless "there is a grievous ambiguity or uncertainty in the
language or structure of a [guideline]." United States v. Clawson, No. 03-3910, 2005
WL 1268919, at *2 (8 th Cir. May 31, 2005). In this case, we do not decide whether
the two formulations of the rule of lenity are in conflict. Under either formulation,
the district court did not err in refusing to apply the rule of lenity.
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Thus, the district court did not err in holding that the 1998 juvenile court's
disposition was a prior sentence within the meaning of § 4A1.2. Nor did the district
court err in refusing to apply the rule of lenity. In order to create an ambiguity,
Newsome ignored relevant commentary to § 4A1.2. We remind Newsome that
"'commentary in the Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution . . . or is inconsistent with, or a plainly
erroneous reading of, that guideline.'" United States v. Oetken, 241 F.3d 1057, 1059
(8 th Cir. 2001) (quoting Stinson v. United States, 508 U.S. 36, 38 (1993)). 3
Accordingly, we affirm the judgment of the district court.
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