United States v. Larry Larnell Locke

On November 11, 1989, appellant was sentenced under the Sentencing Guidelines to 41 months in custody for bank robbery, a violation of 18 U.S.C. § 2113 (a). Prior to sentencing, the Probation Department had calculated the applicable guideline range as 37-46 months by taking the offense level of 17 and applying a criminal history category of IV.

Appellant’s criminal history category of IV was reached in the following manner. In 1982, appellant was convicted of armed robbery and was sentenced to three years in state prison. This accounted for three criminal history points. In 1988, appellant was convicted by a special court martial for being absent without leave (“AWOL”) from the Navy and was sentenced to 75 days in the brig. This accounted for two more criminal history points. The instant offense occurred within two years of his release from the brig. This accounted for two more criminal history points. The total of seven criminal history points placed appellant in criminal history category IV.

Appellant attacks the use of his AWOL military offense to “enhance” a civilian criminal sentence. If the AWOL conviction is not considered, his criminal history score would include only…