United States of Am., & Cross-Appellee v. Robert J. Shewmaker, Sr., & Cross-Appellant, 936 F.2d 1124 (10th Cir. 1991). · Go Syfert
United States of Am., & Cross-Appellee v. Robert J. Shewmaker, Sr., & Cross-Appellant, 936 F.2d 1124 (10th Cir. 1991). Cases Citing This Book View Copy Cite
127 citation events (34 in the last 25 years) across 16 distinct courts.
Strongest positive: WildEarth Guardians v. National Park Service (ca10, 2013-01-09)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
cited Cited as authority (rule) WildEarth Guardians v. National Park Service
10th Cir. · 2013 · confidence medium
United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir.1991).
discussed Cited as authority (rule) United States v. Siyam
10th Cir. · 2009 · confidence medium
See Garcia, 994 F.2d at 1508 (collecting cases); see, e.g., United States v. Sturmoski, 971 F.2d 452, 462 (10th Cir.1992) (estimate based on amount of precursor chemicals seized); Cook, 949 F.2d at 295-96 (estimate based on witness testimony that defendant sold specified dollar amount of drugs over specified time period); United States v. Short, 947 F.2d 1445, 1456-57 (10th Cir.1991) (estimate based on the characteristics of drug laboratory); United States v. Shewmaker, 936 F.2d 1124, 1130 (10th Cir.1991) (estimate based on aerial observation of marijuana field); United States v. Harris, 903 F…
discussed Cited as authority (rule) United States v. Martin
D. Me. · 2008 · confidence medium
She argues that “[flactors such as temporal and geographic proximity as well as common criminal investigations are dispositive.” Id. (quoting United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.1991)).
discussed Cited as authority (rule) Educational Credit Management Corp. v. Mersmann (In Re Mersmann) (2×)
10th Cir. · 2007 · confidence medium
“When general and specific statutory provisions apparently contradict, it is well-established that the two may exist together, the specific provision qualifying or limiting the general.” United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir.1991).
discussed Cited as authority (rule) Educational Credit Management Corp. v. Mersmann
10th Cir. · 2007 · confidence medium
“When general and specific statutory provisions apparently contradict, it is well-established that the two may exist together, the specific provision qualifying or limiting the general.” United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir.1991).
cited Cited as authority (rule) United States v. Dazey
10th Cir. · 2007 · confidence medium
Fed.R.Evid. 1101(d)(3); United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.1991).
discussed Cited as authority (rule) United States v. Jordan
10th Cir. · 2007 · confidence medium
Common Schem e or Plan The proper inquiry in considering whether prior convictions arose from a “single common scheme or plan” focuses on “factual comm onality.” United States v. Wiseman, 172 F.3d 1196, 1219 (10th Cir. 1999) (quoting United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir. 1991)).
discussed Cited as authority (rule) United States v. Mark Jordan
10th Cir. · 2007 · confidence medium
Instead, he argues that the offenses are related because they “were part of a single common scheme or plan.” 3.Common Scheme or Plan The proper inquiry in considering whether prior convictions arose from a “single common scheme or plan” focuses *1225 on “factual commonality.” United States v. Wiseman, 172 F.3d 1196, 1219 (10th Cir.1999) (quoting United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.1991)).
discussed Cited as authority (rule) United States v. Williams
10th Cir. · 2005 · confidence medium
Reversal is merited only if “the court’s finding was without factual support in the record, or if after reviewing all the evidence we are left with the definite and firm conviction that a mistake has been made.” United States v. Shewmaker, 936 F.2d 1124, 1130 (10th Cir.1991) (citations omitted).
discussed Cited as authority (rule) United States v. Waite
10th Cir. · 2005 · confidence medium
See Dazey, 403 F.3d at 1177 n. 7 (noting that sentencing courts may consider hearsay); United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir. 1991) (sentencing court may rely on hearsay provided it has “some minimal indicium of reliability beyond mere allegation”); United States v. Hershberger, 962 F.2d 1548, 1554 (10th Cir.1992) (“[Constitutional provisions regarding the Confrontation Clause are not required to be applied during sentencing proceedings.”).
discussed Cited as authority (rule) United States v. Taing
10th Cir. · 2005 · confidence medium
Reversal is merited only if “the court’s finding was without factual support in the record, or if after reviewing all the evidence we are left with the definite and firm conviction that a mistake has been made.” United States v. Shewmaker, 936 F.2d 1124, 1130 (10th Cir.1991).
discussed Cited as authority (rule) United States v. Dazey
10th Cir. · 2005 · confidence medium
While sentencing courts may consider hearsay evidence provided that the evidence has sufficient indi-cia of reliability, United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.1991), juries may not consider this type of evidence.
discussed Cited as authority (rule) United States v. Mendenhall
10th Cir. · 2003 · confidence medium
Although “[t]he meaning of the word ‘related’ is a legal issue that we review de novo,” we “review the district court’s factual determination that the cases were unrelated under a clearly erroneous standard.” United States v. Gary, 999 F.2d 474, 479 (10th Cir.1993). “[I]n considering whether prior convictions arose from a common scheme or plan, the focus should be on ‘factual commonality.’ ” United States v. Wiseman, 172 F.3d 1196, 1219 (10th Cir.1999) (quoting United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.1991)).
discussed Cited as authority (rule) United States v. Perez
unknown court · 2003 · confidence medium
As to the first, the courts of appeals that have considered the matter now agree that U.S.S.G. § 5G1.3(a) and 18 U.S.C. § 3584 are not in conflict, and that the consecutive sentence "mandate" of § 5G1.3(a) precludes concurrent sentencing except insofar as the sentencing judge identifies grounds for a downward departure. 1 See United States v. Schaefer, 107 F.3d 1280, 1285 (7th Cir.1997), cert. denied 522 U.S. 1052 , 118 S.Ct. 701 , 139 L.Ed.2d 645 (1998); United States v. Flowers, 995 F.2d 315, 316-17 (1st Cir.1993); United States v. Gullickson, 981 F.2d 344, 349 (8th Cir.1992); United Stat…
discussed Cited as authority (rule) United States v. Perez
unknown court · 2003 · confidence medium
As to the first, the courts of appeals that have considered the matter now agree that U.S.S.G. § 5G1.3(a) and 18 U.S.C. § 3584 are not in conflict, and that the consecutive sentence “mandate” of § 5G1.3(a) precludes concurrent sentencing except insofar as the sentencing judge identifies grounds for a downward departure. 1 See United States v. Schaefer, 107 F.3d 1280, 1285 (7th Cir.1997), cert. denied 522 U.S. 1052 , 118 S.Ct. 701 , 139 L.Ed.2d 645 (1998); United States v. Flowers, 995 F.2d 315, 316-17 (1st Cir.1993); United States v. Gullickson, 981 F.2d 344, 349 (8th Cir.1992); United …
discussed Cited as authority (rule) United States v. Gann (Ralph)
10th Cir. · 2003 · confidence medium
We have rejected the argument that mandatory application of § 5G1.2(d) is inconsistent with the statutory discretion provided a court to impose concurrent or consecutive sentences, relying upon our analysis in United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir.1991).
discussed Cited as authority (rule) United States v. Herman Brothers
2d Cir. · 2003 · confidence medium
However, among the relevant factors in determining whether various convictions are part of a “common scheme or plan,” are the following: (1) the time period within which the offenses took place, see United States v. Rappaport, 999 F.2d 57, 60 (2d Cir.1993); United States v. Connor, 947 F.2d 1018, 1020 (2d Cir.1991); (2) the participants involved, see United States v. LaBarbara, 129 F.3d 81, 86 (2d Cir.1997); United States v. Chartier, 970 F.2d 1009, 1016 (2d Cir.1992); Connor, 947 F.2d at 1020 ; (3) the victims targeted, see United States v. Bauers, 47 F.3d 535, 538 (2d Cir.1995); Rappapor…
cited Cited as authority (rule) United States v. Shewmaker
10th Cir. · 2002 · confidence medium
United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.1991).
discussed Cited as authority (rule) United States v. Green
10th Cir. · 2002 · confidence medium
In United States v. Skewmaker, 936 F.2d 1124, 1128 (10th Cir.1991), we noted § 3584(a) is a general provision, while § 5G1.3 (mandating a consecutive sentence if the defendant committed the offense while serving a term of imprisonment) is a specific provision. "[W]hen general and specific statutory provisions apparently contradict, it is well-established that the two may exist together, the specific provision qualifying or limiting the general.” Id.
discussed Cited as authority (rule) United States v. Carter
6th Cir. · 2002 · confidence medium
United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.1991) (citations omitted), cert. denied, 502 U.S. 1037 , 112 S.Ct. 884 , 116 L.Ed.2d 788 (1992); United States v. Chartier, 933 F.2d 111, 115 (2d Cir.1991); United States v. Houser, 929 F.2d 1369, 1374 (9th Cir.1990).
discussed Cited as authority (rule) United States v. Terry Lee Carter
6th Cir. · 2002 · confidence medium
United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir. 1991) (citations omitted), cert. denied, 502 U.S. 1037 , 112 S.Ct. 884 , 116 L.Ed.2d 788 (1992); United States v. Chartier, 933 F.2d 111, 115 (2d Cir. 1991); United States v. Houser, 929 F.2d 1369, 1374 (9th Cir.1990).
discussed Cited as authority (rule) United States v. Relerford
7th Cir. · 2001 · confidence medium
Accord, United States v. Fossett, 881 F.2d 976 (11th Cir.1989); United States v. Rogers, 897 F.2d 134,137 (4th Cir.1990); United States v. Miller, 903 F.2d 341, 349 . (5th Cir.1990); United States v. Stewart, 917 F.2d 970, 973 (6th Cir.1990); United States v. Pedrioli, 931 F.2d 31, 32 (9th Cir.1991); United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir.1991); United States v. Gullickson, 981 F.2d 344, 349 (8th Cir. 1992); United States v. Flowers, 995 F.2d 315, 316-17 (1st Cir.1993).
discussed Cited as authority (rule) United States v. Keifer
10th Cir. · 2001 · confidence medium
“In reviewing a district court’s application of the Sentencing Guidelines to the facts, we apply a due deference standard, yet we review de novo questions of law.” United States v. Shewmaker, 936 F.2d 1124, 1126 (10th Cir.1991).
discussed Cited as authority (rule) United States v. Iris Collette Jackson Dwight Dean Jackson (2×)
10th Cir. · 2000 · confidence medium
The court may also rely upon estimates of drug quantity "if they are based on information that has a 'minimum indicia of reliability.'" United States v. Shewmaker, 936 F.2d 1124, 1130 (10th Cir. 1991) (quoting United States v. Davis, 912 F.2d 1210, 1214 (10th Cir. 1990)) (further citations omitted), cert. denied, 502 U.S. 1037 (1992).
discussed Cited as authority (rule) United States v. Medrano
E.D.N.Y · 2000 · confidence medium
See United States v. Schae- *316 fer, 107 F.3d 1280, 1285 (7th Cir.1997), cert. denied 522 U.S. 1052 , 118 S.Ct. 701 , 139 L.Ed.2d 645 (1998); United States v. Flowers, 995 F.2d 315, 316-17 (1st Cir.1993); United States v. Gullickson, 981 F.2d 344, 349 (8th Cir.1992); United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir.1991), cert. denied, 502 U.S. 1037 , 112 S.Ct. 884 , 116 L.Ed.2d 788 (1992); United States v. Pedrioli, 931 F.2d 31, 32 (9th Cir.1991); United States v. Stewart, 917 F.2d 970, 973 (6th Cir.1990); United States v. Miller, 903 F.2d 341, 349 (5th Cir.1990); United States v. R…
discussed Cited as authority (rule) United States v. Caraballo
1st Cir. · 1999 · confidence medium
See, e.g., United States v. Joost, 133 F.3d 125, 132 (1st Cir.1998); United States v. Sheahan, 31 F.3d 595, 599 (8th Cir.1994); United States v. McCaskey, 9 F.3d 368, 375-76 (5th Cir.1993); United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.1991).
cited Cited as authority (rule) United States v. Wiseman
10th Cir. · 1999 · confidence medium
United States v. Shewmaker , 936 F.2d 1124, 1129 (10 th Cir. 1991).
cited Cited as authority (rule) United States v. Lonnie Ray Wiseman
10th Cir. · 1999 · confidence medium
United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.1991).
cited Cited as authority (rule) Olmsted v. McNutt
D. Colo. · 1999 · confidence medium
United States v. Shewmaker, 936 F.2d 1124, 1127 (10th Cir.1991).
discussed Cited as authority (rule) United States v. Diaz
D. Kan. · 1999 · confidence medium
See, e.g., United States v. Ciapponi 77 F.3d 1247, 1252 (10th Cir.) (Two sales of controlled substances on two separate occasions under different circumstances were “not part of common scheme or plan.”), cert. denied, 517 U.S. 1215 , 116 S.Ct. 1839 , 134 L.Ed.2d 942 (1996); United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.1991) (On the issue of commonality, relevant factors include “temporal and geographical proximity as well as common victims and a common criminal investigation.”), cert. denied, 502 U.S. 1037 , 112 S.Ct. 884 , 116 L.Ed.2d 788 (1992); United States v. Kinney, …
discussed Cited as authority (rule) United States v. Joseph Keith Bickett
10th Cir. · 1998 · signal: cf. · confidence medium
Cf. United States v. Shewmaker, 936 F.2d 1124, 1127-28 (10th Cir.1991) (considering 1989 version of U.S.S.G. § 5G1.3; holding that where guideline indicates the new sentence must run consecutively, sentencing court may run new sentence concurrently if it determines that guideline departure is appropriate).
discussed Cited as authority (rule) United States v. Bickett
10th Cir. · 1998 · signal: cf. · confidence medium
Cf. United States v. Shewmaker, 936 F.2d 1124, 1127-28 (10th Cir. 1991) (considering 1989 version of U.S.S.G. § 5G1.3; holding that where guideline indicates the new sentence must run consecutively, sentencing court may run new sentence concurrently if it determines that guideline departure is appropriate).
discussed Cited as authority (rule) Breckenridge v. United States
W.D. Va. · 1997 · confidence medium
The factors by which a court should determine factual similarity include: whether the crimes were committed within a short period of time, in close geographic proximity, involved the same substantive offense, were directed at a common victim, were solved during the course of a single criminal investigation, shared a similar modus operandi, were animated by the same motive, and were tried and sentenced separately only because of an accident of geography. 93 F.3d at 138 , citing, United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.1991); United States v. Chattier, 933 F.2d 111, 115 (2d Cir…
discussed Cited as authority (rule) United States v. Scott
10th Cir. · 1997 · confidence medium
In 1991, we harmonized this disparity in holding that, “when an offense is committed during the term of a previously imposed sentence, the new sentence must run consecutively to the old unless the court determines that Guideline departure is appropriate.” United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir. 1991).
discussed Cited as authority (rule) United States v. Dallas Earl Scott
10th Cir. · 1997 · confidence medium
In 1991, we harmonized this disparity in holding that, "when an offense is committed during the term of a previously imposed sentence, the new sentence must run consecutively to the old unless the court determines that Guideline departure is appropriate." United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir.1991). 7 Mr. Scott first argues that he should be resentenced because the judge erroneously interpreted the applicable law as limiting the judge's authority to sentence Mr. Scott to anything other than consecutive terms.
discussed Cited as authority (rule) United States v. John R. Schaefer and Charles A. Schaefer
7th Cir. · 1997 · confidence medium
In addition to Fossett , see United States v. Flowers, 995 F.2d 315, 316-17 (1st Cir.1993); United States v. Gullickson, 981 F.2d 344, 349 (8th Cir.1992); United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir.1991); United States v. Pedrioli, 931 F.2d 31, 32 (9th Cir.1991); United States v. Stewart, 917 F.2d 970, 973 (6th Cir. 1990); United States v. Miller, 903 F.2d 341, 349 (5th Cir.1990); United States v. Rogers, 897 F.2d 134, 137 (4th Cir.1990).
discussed Cited as authority (rule) United States v. Stephen P. Kezerle
7th Cir. · 1996 · confidence medium
See United States v. Flowers, 995 F.2d 315, 317 (1st Cir.1993); United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir.1991), cert. denied, 502 U.S. 1037 , 112 S.Ct. 884 , 116 L.Ed.2d 788 (1992); United States v. Pedrioli, 931 F.2d 31, 32 (9th Cir.1991); United States v. Stewart, 917 F.2d 970, 972 (6th Cir.1990); United States v. Miller, 903 F.2d 341, 349 (5th Cir.1990); United States v. Rogers, 897 F.2d 134, 136-37 (4th Cir.1990); United States v. Fossett, 881.
cited Cited as authority (rule) United States v. Solomon
10th Cir. · 1996 · confidence medium
United States v. Shewmaker, 936 F.2d 1124, 1126 (10th Cir.1991), cert. denied, 502 U.S. 1037 , 112 S.Ct. 884 , 116 L.Ed.2d 788 (1992).
discussed Cited as authority (rule) United States v. Mihaly
10th Cir. · 1996 · confidence medium
We noted that "a district court 'retains discretion to depart [from the guidelines], subject to review, if it determines that factors relevant to the sentencing have not been addressed adequately by the [g]uidelines.' " Id. at 896 (quoting United States v. Shewmaker, 936 F.2d 1124, 1127 (10th Cir.1991), cert. denied, 502 U.S. 1037 (1992)). 3 On remand, the district court held a resentencing hearing.
discussed Cited as authority (rule) United States v. Charles John McCarty (2×)
10th Cir. · 1996 · confidence medium
However, the court's discretion is confined by consideration of the factors in 18 U.S.C. § 3553 (a) and USSG § 5G1.3. 2 United States v. Shewmaker, 936 F.2d 1124, 1127 (10th Cir.1991), cert. denied, 502 U.S. 1037 , 112 S.Ct. 884 , 116 L.Ed.2d 788 (1992).
discussed Cited as authority (rule) United States v. David Lee Randolph
10th Cir. · 1995 · confidence medium
Moreover, nothing we have said in United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.1991), cert. denied, 502 U.S. 1037 (1992), or any of our other cases relied upon by defendant indicate this limited commonality of criminal purpose meets the scheme or plan definition. 12 One other factor is also significant.
discussed Cited as authority (rule) United States v. Tommy Blake McCary
10th Cir. · 1995 · confidence medium
The Sentencing Commission’s statutory authority to promulgate the Guidelines requires that the sentencing range established “for each category of offense involving each category of defendant” be “consistent with all pertinent provisions of title 18....” 28 U.S.C. § 994 (b)(1); United States v. Shewmaker, 936 F.2d 1124, 1127 (10th Cir.1991), cert. denied, 502 U.S. 1037 , 112 S.Ct. 884 , 116 L.Ed.2d 788 (1992).
cited Cited as authority (rule) United States v. William Earl Moore
10th Cir. · 1995 · confidence medium
United States v. Cody, 7 F.3d 1523, 1527 (10th Cir.1993); United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.1991), ce rt. denied, 502 U.S. 1037 , 112 S.Ct. 884 , 116 L.Ed.2d 788 (1992).
discussed Cited as authority (rule) United States v. Ron Erving
7th Cir. · 1994 · confidence medium
United States v. Flowers, 995 F.2d 315, 316-317 (1st Cir.1993); United States v. Gullickson, 981 F.2d 344, 349 (8th Cir.1992); United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir.1991), cert. denied, 112 S.Ct. 884 (1992); United States v. Stewart, 917 F.2d 970, 973 (6th Cir.1990); United States v. Miller, 903 F.2d 341, 349 (5th Cir.1990); United States v. Rogers, 897 F.2d 134, 137 (4th Cir.1990); United States v. Fossett, 881 F.2d 976, 980 (11th Cir.1989). 19 Our circuit has not decided the issue.
cited Cited as authority (rule) United States v. Alejandro Bustillos-Olave
10th Cir. · 1993 · confidence medium
United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.1991).
cited Cited as authority (rule) United States v. Clarence Edward Cody and Pauline W. Cody
10th Cir. · 1993 · confidence medium
United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.), cert. denied, — U.S. -, 112 S.Ct. 884 , 116 L.Ed.2d 788 (1992).
cited Cited as authority (rule) United States v. Samuel Rascon-Lara, AKA Roberto Martinez-Martinez
10th Cir. · 1993 · confidence medium
United States v. Shewmaker, 936 F.2d 1124, 1126 (10th Cir.1991). 4 Defendant's offense level was determined under U.S.S.G.
discussed Cited as authority (rule) United States v. John G. Flowers
1st Cir. · 1993 · confidence medium
See United States v. Rogers, 897 F.2d 134, 136-37 (4th Cir.1990); United States v. Miller, 903 F.2d 341, 349 (5th Cir. 1990); United States v. Stewart, 917 F.2d 970, 972-73 (6th Cir.1990); United States v. Shewmaker, 936 F.2d 1124, 1127-28 (10th Cir.1991); United States v. Fossett, 881 F.2d 976, 980 (11th Cir.1989).
cited Cited as authority (rule) United States v. Theodore Reed Campbell
10th Cir. · 1993 · confidence medium
United States v. Shewmaker, 936 F.2d 1124, 1127 (10th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 884 , 116 L.Ed.2d 788 (1992).
discussed Cited as authority (rule) United States v. Sergio Garcia
10th Cir. · 1993 · confidence medium
See, e.g., Sturnoski, 971 F.2d at 462 (estimate based on amount of precursor chemicals seized); Cook, 949 F.2d at 295-96 (estimate based on witnesses testimony that defendant sold specified dollar amount of drugs over specified time period); United States v. Short, 947 F.2d 1445, 1456-57 (10th Cir.1991) (estimate based on the characteristics of drug laboratory), cert. denied, — U.S. -, 112 S.Ct. 1680 , 118 L.Ed.2d 397 (1992); United States v. Shewmaker, 936 F.2d 1124, 1130 (10th Cir.1991) (estimate based on aerial observation of marijuana field), cert. denied, — U.S. -, 112 S.Ct. 884 , 116…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellant and Cross-Appellee,
v.
Robert J. SHEWMAKER, Sr., Defendant-Appellee and Cross-Appellant
90-3207, 90-3215.
Court of Appeals for the Tenth Circuit.
Jun 24, 1991.
936 F.2d 1124
1991 U.S. App. LEXIS 12934
1991 WL 108584
Kenneth W. Starr, Sol. Gen., Dept, of Justice, Washington, D.C., Lee Thompson, U.S. Atty., Richard L. Hathaway, Asst. U.S. Atty., Topeka, Kan., for plaintiff-appellant and cross-appellee., Michael M. Jackson, Topeka, Kan., for defendant-appellee and cross-appellant.
Tacha, Baldock, Ebel.
Cited by 105 opinions  |  Published
BALDOCK, Circuit Judge.

In September 1989, the Kansas Bureau of Investigation (KBI) discovered a marijuana field in Allen County, Kansas. Upon further investigation, the government discovered that defendant Robert J. Shew-maker, Sr. was the supervisor of a marijuana farming and processing enterprise with fields in six Kansas counties. Defendant pled guilty to one count of conspiracy to plant, cultivate, grow, harvest and possess marijuana with the intent to distribute, 21 U.S.C. §§ 846, 802 & 812. The Sentencing Guidelines applied because the offense occurred after November 1, 1987. See 28 U.S.C. § 994(a); United States Sentencing Commission, Guidelines Manual (Nov. 1990) [hereinafter U.S.S.G.]. The government appeals defendant’s sentence, contending that the court did not comply with Sentencing Guideline § 5G1.3. And defendant cross-appeals, raising several Guideline issues. The government’s argument is well-taken, and we remand. On remand, the district court is instructed simultaneously to vacate the sentence and resen-tence in accordance with this opinion.

I. Standard of Review

In reviewing a district court’s application of the Sentencing Guidelines to the facts, we apply a due deference standard, yet we review de novo questions of law. See 18 U.S.C. § 3742(e). See also United States v. Banashefski, 928 F.2d 349, 351 (10th Cir.1991) (citing United States v. Smith, 900 F.2d 1442, 1445 (10th Cir.1990) and United States v. Kirk, 894 F.2d 1162, 1163 (10th Cir.1990)). “We begin, as with statutory interpretation, with the language of the Guidelines, and move to the Commentary, and Supplementary Illustrations in instances of ambiguity.” Banashefski, 928 F.2d at 351 (citing Smith, 900 F.2d at 1446-47). Regarding factual determinations made by the district court, we apply a “clearly erroneous” standard of review. See United States v. Rutter, 897 F.2d 1558, 1560 (10th Cir.), cert. denied, — U.S. —, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990); United States v. Beaulieu, 893 F.2d 1177, 1181-82 (10th Cir.), cert. denied, — U.S. —, 110 S.Ct. 3302, 111 L.Ed.2d 811 (1990).

II. The Government’s Appeal, No. 90-3207

On May 5, 1986, in the federal district court in Savannah, Georgia, defendant was convicted on drug charges resulting from his importation of approximately 17,000 pounds of marijuana into the United States. Defendant was sentenced on separate counts to concurrent sentences totaling twenty-five years imprisonment, but was released on bond pending appeal. Defendant absconded and remained a fugitive until April 1989, when he was arrested in Ontario, Canada. In October 1989, he was sentenced to an additional consecutive five-year term for failure to return, 18 U.S.C. § 3146.

In this case, the district court applied the Guidelines and sentenced defendant to thirty years imprisonment to run concurrently with the previous sentences imposed by the federal district court in Georgia. The government appeals, contending that Guideline § 5G1.3 requires defendant's new sentence to run consecutively with the prior sentences because the instant offense occurred while he was serving the prior sentences. Our jurisdiction to entertain this issue arises under 18 U.S.C. § 3742(b). Section 3742(b) allows the government to appeal a final sentence that was “imposed in violation of law [or] as a result of an incorrect application of the sentencing[*1127] guidelines.... ” We review de novo the district court’s determination to sentence concurrently because it presents a pure question of law. See United States v. Kuntz, 908 F.2d 655, 656-57 (10th Cir.1990) (citing United States v. La Guardia, 902 F.2d 1010, 1012 (1st Cir.1990)).

Section 5G1.3 provides: “If the instant offense was committed while the defendant was serving a term of imprisonment (including ... escape status), the sentence for the instant offense shall be imposed to run consecutively to the unexpired term of imprisonment.” Because defendant was on escape status from the prior sentence when he committed the instant offense, the Guidelines would appear to require that his sentences run consecutively. The district court, however, sentenced defendant to a concurrent sentence, relying on United States v. Wills, 881 F.2d 823 (9th Cir.1989). The Wills court held that 18 U.S.C. § 3584(a), irrespective of Guideline § 5G1.3, allows the sentencing court “discretion to impose a concurrent or consecutive sentence, as a matter of law....” Id. at 826. See also United States v. Nottingham, 898 F.2d 390 (3d Cir.1990). Section 3584(a) provides: “if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively....” Although § 3584(a) read alone appears to grant unfettered discretion to a sentencing court, subsection (b) of the statute requires the district court to consider the factors set forth in 18 U.S.C. § 3553(a) before determining whether to sentence consecutively or concurrently with the prior sentence. Section 3553(a)(5), in turn, requires the district court to consider the Guidelines promulgated by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(1). And § 994(a)(1)(D) delegates to the Sentencing Commission authority to promulgate guidelines governing a district court’s “determination of whether multiple sentences to terms of imprisonment should be ordered to run concurrently or consecutively.” But § 994 also requires that the Guidelines be consistent with title 18, including 18 U.S.C. § 3584(a). See 28 U.S.C. § 994(b)(1). The Wills court focused on this latter portion of § 994, holding that Guideline § 5G1.3 is ultra vires because it is inconsistent with 18 U.S.C. § 3584(a). Wills, 881 F.2d at 826.

The apparent tension, in sum, is between two provisions of 28 U.S.C. § 994 — subsection (a)(1)(D), delegating to the Sentencing Commission authority to promulgate Guidelines regarding concurrent and consecutive sentences, and subsection (b)(1), requiring consistency with 18 U.S.C. § 3584(a). The Eleventh Circuit, in United States v. Fosset, 881 F.2d 976 (11th Cir.1989), implicitly rejected the Wills rationale and reconciled § 3584(a) and Guideline § 5G1.3. Most circuit courts that have addressed this issue have followed Fosset. See United States v. Stewart, 917 F.2d 970 (6th Cir.1990); United States v. Miller, 903 F.2d 341 (5th Cir.1990); United States v. Rogers, 897 F.2d 134 (4th Cir.1990). These courts have held that Guideline § 5G1.3 is reconcilable with 18 U.S.C. § 3584(a) because § 5G1.3 does not preclude a court from departing from the Guidelines and sentencing concurrently. The Guidelines provide generally for two methods of downward departure. First, “the particular guideline at issue may suggest circumstances or factors that, if present, may provide the basis for departure.” Rogers, 897 F.2d at 137. Second, the court retains discretion to depart, subject to review, if it determines that factors relevant to the sentencing have not been addressed adequately by the Guidelines. See id.; 18 U.S.C. §§ 3553(b) and 3742(e)(3); U.S.S.G., Ch. 1, Pt. A, intro, at 4(b), and § 5K2.0. See also United States v. Maldonado-Campos, 920 F.2d 714, 719-20 (10th Cir.1990).

All of the statutes involved in this analysis, 18 U.S.C. § 3553, 18 U.S.C. § 3584, and 28 U.S.C. § 994 were enacted as part of the Sentencing Reform Act of 1984. In resolving the apparent tension among the statutes, we are guided by well-established canons of statutory construction. “ ‘In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.’ ” Mastro Plastics Corp. v. Labor Board, 350[*1128] U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956) (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122, 12 L.Ed. 1009 (1850). See also Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 2241, 104 L.Ed.2d 923 (1989). And “‘a statute should be interpreted so as not to render one part inoperative.’ ” Mountain States Tel. & Tel. Co. v. Santa Ana, 472 U.S. 237, 249, 105 S.Ct. 2587, 2594, 86 L.Ed.2d 168 (1985) (quoting Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596 (1979)). The Wills approach renders the delegation to the Sentencing Commission, 28 U.S.C. § 994(a)(1)(D), inoperative when 18 U.S.C. § 3584(a) is involved. Moreover, § 3584(a) is a general provision concerning concurrent or consecutive sentences, and § 3584(b) and what it incorporates (28 U.S.C. § 994(a)(1)(D) and Guideline § 5G1.3) are specific provisions. When general and specific statutory provisions apparently contradict, it is well-established that the two may exist together, the specific provision qualifying or limiting the general. See Townsend v. Little, 109 U.S. 504, 512, 3 S.Ct. 357, 362-63, 27 L.Ed. 1012 (1883). In this instance, Guideline § 5G1.3, enacted pursuant to 28 U.S.C. § 994, merely qualifies § 3584(a) by requiring the court to consider Guideline departure before sentencing concurrently. Finally, it is preferable to harmonize apparently conflicting statutes, so as to give effect to both. See United States v. Moore, 95 U.S. 760, 763, 24 L.Ed. 588 (1877).

We think the better reasoned approach is to harmonize the provisions of the Act. Therefore, we adopt the Fosset approach. In sum, the rationale we have adopted harmonizes § 3584(a) and Guideline § 5G1.3 by providing that, when an offense is committed during the term of a previously imposed sentence, the new sentence must run consecutively to the old unless the court determines that Guideline departure is appropriate. See Fosset, 881 F.2d at 980.

Defendant committed the instant offense while he was on escape status from the earlier twenty-five year concurrent sentences imposed by federal district court in Georgia. Therefore, we hold that the district court erred in sentencing defendant concurrently with the earlier sentences without considering whether Guideline departure was appropriate. Regarding the five-year sentence for failure to return to Georgia, the district court in this case properly exercised its discretion under the Guidelines to sentence concurrently because the instant offense occurred before the failure to return sentence was imposed. [1] See U.S.S.G. § 5G1.3 Comment. (“Where the defendant is serving an unexpired term of imprisonment, but did not commit the instant offense while serving that term of imprisonment, the sentence for the instant offense may be imposed to run consecutively or concurrently_”).

III. Defendant’s Cross-Appeal, No. 90-3215

Defendant first argues that the court erred in calculating his criminal history category. See U.S.S.G. § 4A1.1 et seq. The Guidelines require an addition of three criminal history points for each prior offense which resulted in a sentence exceeding thirteen months. Id. § 4Al.l(a). In applying § 4Al.l(a) to defendant’s sentence, the district court added three criminal history points for the prior conviction for conspiracy to possess with intent to distribute marijuana, and the court added three additional points for the failure to return conviction. As a result, defendant’s criminal history category was increased from category III to category IY. See id. Ch. 5 Pt. A (criminal history category table). Defendant contends that the court should have added a total of only three points for the two prior convictions because the underlying offenses were “related.” See id. § 4A1.2(a)(2) (“Prior sentences imposed in related cases are to be treated[*1129] as one sentence for purposes of the criminal history.”).

The Guidelines commentary suggests that prior “[c]ases are considered related if they (1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing.” U.S.S.G. § 4A1.2, comment. (n.3). Defendant argues that the failure to return offense and the underlying drug offenses were “part of a single common scheme or plan” and should therefore be treated as one offense for purposes of the criminal history calculation in the instant offense. Defendant has not pointed to anything in the record which would indicate that the two offenses were part of a “common scheme or plan.” His only argument is that the two offenses were related as a matter of law because the failure to appear statute, 18 U.S.C. § 3146, cross-references the underlying crime. Defendant offers no support from case-law for this proposition.

In applying the “common scheme or plan” language, courts have looked to factual commonality. Factors such as temporal and geographical proximity as well as common victims and a common criminal investigation are dispositive. See e.g., United States v. Davis, 922 F.2d 1385, 1389-90 (9th Cir.1991); United States v. Veteto, 920 F.2d 823, 825-26 (11th Cir.1991); United States v. Kinney, 915 F.2d 1471, 1472 (10th Cir.1990). See also Wilkins & Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C.L.Rev. 495, 513-517 (1990) (discussion of the meaning of “common scheme or plan” in the context of “relevant conduct,” U.S.S.G. § 1131.3(a)(2)). We review the district court’s fact-intensive inquiry according to a clearly erroneous standard of review. Kinney, 915 F.2d at 1472. In this case, we find none of the above factors which would suggest a common scheme or plan. Instead, we find, as did the district court, that defendant committed two distinct offenses: (1) he smuggled large quantities of drugs into the United States in 1980 and 1981; and (2) six years later, he failed to appear before the authorities to serve the sentence imposed. His failure to appear was not part of a “common scheme or plan” with the underlying offense simply because of the statutory cross-reference, and the district court did not err in its determination.

Defendant next argues that the court erred in quantifying the amount of marijuana involved. Following an evidentiary hearing, the court determined that the marijuana operation involved 74,110 plants. This quantity placed defendant’s base offense level at 34. See U.S.S.G. § 2D1.1. [2] In determining the quantity, the court relied on the presentence report and on testimony from Rick Atteberry, a KBI agent who participated in the investigation. Defendant contends that Atteberry’s hearsay testimony lacked minimum indicia of reliability and was not sufficient to prove the quantity of marijuana involved.

Clearly the Federal Rules of Evidence do not control the sentencing process. Instead, the Guidelines allow a judge to consider “any reliable source of information” which falls within constitutional standards. Beaulieu, 893 F.2d at 1180. Regarding hearsay, “due process requires that the information used have ‘some minimal indicium of reliability beyond mere allegation.’ ” Id. at 1181 (citing United States v. Sunrhodes, 831 F.2d 1537, 1543 (10th Cir.1987) and U.S.S.G. § 6A1.3, comment.). After a careful review of the transcript from the sentencing hearing, we are convinced that it was proper for the district court to consider Atteberry’s testimony. Under direct and cross-examination, Atte-berry provided a detailed account of the methods used by the KBI agents who estimated the quantity of marijuana involved. His detailed account of the estimation process was not “mere allegation.” Therefore, we find no constitutional violation.

For Guidelines sentencing, the court must find the quantity of narcotics by a preponderance of the evidence. See Rutter, 897 F.2d at 1560. And we review the court’s factual finding under the “clearly[*1130] erroneous” standard. See Beaulieu, 893 F.2d at 1181-82. We will reverse only if “the court’s finding was without factual support in the record, or if after reviewing all the evidence we are left with the definite and firm conviction that a mistake has been made.” Id. at 1182 (citing Bill’s Coal Company v. Board of Public Utilities, 887 F.2d 242, 244 (10th Cir.1989)). The government did not physically seize and then quantify the majority of the marijuana involved in this case because the defendants already had harvested when the arrests were made, but quantification by physical seizure, although desirable, is not required. Otherwise, the seriousness of the crime often would not be reflected in the sentencing process. Instead, estimates are acceptable if they are based on information that has a “ ‘minimum indicia of reliability.’ ” United States v. Davis, 912 F.2d 1210, 1214 (10th Cir.1990) (quoting United States v. Jones, 640 F.2d 284, 286 (10th Cir.1981)). See also United States v. Reid, 911 F.2d 1456, 1460 (10th Cir.1990) (“Given several plausible estimates as to replicated quantities, the quantity determined ... must rest upon a preponderance of the evidence.”), cert. denied, — U.S. —, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991).

The KBI estimated the quantity involved in this case by extrapolating from the density of the remaining plants (or remnants of plants) to a total per field. Also, the KBI used aerial surveillance photographs and counts from physical seizures. Defendant contends that the methods used were inconsistent and unreliable. For example, in one field the KBI estimated quantity by counting the number of marijuana plants in a single row of corn and multiplying by the total number of rows in the field. [3] In another field, a KBI agent sampled the density of marijuana plants in a small area and extrapolated to the total area. In yet another field, the KBI used only an aerial surveillance photograph because all of the plants had been removed after harvesting. Certainly, it would have been better for the government to use consistent methods for estimating quantity, but defendant has pointed to nothing which would indicate that the methods used were inherently unreliable. Given the large amount of land involved, and the harvesting methods used by defendant, [4] it was difficult for the government to estimate quantity, but the different methods used appear reasonably related to the varying conditions among locations. After reviewing the testimony, we are not “left with the definite and firm conviction that a mistake has been made.” Beaulieu, 893 F.2d at 1181-82. On the contrary, we find that the district court could deem the quantity computations sufficiently reliable so as to make a preponderance finding.

Defendant, in his final argument, contends that the application of the Guidelines to his case violates the ex post facto clause because ten months of the conspiracy alleged in the indictment had elapsed before the Guidelines were implemented on November 1, 1987. See 28 U.S.C. § 994(a). Because the marijuana operation continued after the Guidelines were implemented, we find no ex post facto violation. See United States v. Williams, 897 F.2d 1034, 1039-40 (10th Cir.1990) (Guidelines applied without ex post facto violation to conspiracy extending from 1984 to December 1987), cert. denied, — U.S. —, 111 S.Ct. 2064, 114 L.Ed.2d 469. (1991)

IV. Conclusion

We find no error other than the district court’s failure to comply with Sentencing Guideline § 5G1.3. On remand, the district court is ordered to vacate the sentence and resentence in accordance with § 5G1.3. The defendant’s new sentence must run consecutively to the prior federal sentences for marijuana distribution unless the court determines pursuant to Guideline procedures that departure is appropriate.

1

. The indictment for the instant offense alleged a conspiracy beginning in January 1987, and ending in July 1989; whereas the sentence for failure to return was imposed on October 2, 1990.

2

. Guideline § 2D 1.1 sets the base level at 34 for offenses involving at least 3,000 kilograms but less than 10,000 kilograms of marijuana (30,000 to 99,999 plants). U.S.S.G. § 2D1.1(c)(5).

3

. Defendant camouflaged the marijuana plants by interspersing them among corn stalks.

4

. After the harvest, each plant would be removed in its entirety and discarded.