United States v. Andre Smith

ORDER

The opinion filed December 9, 1992, 982 F.2d 354 , is withdrawn.

OPINION

Andre Smith appeals the sentence he received after pleading guilty to two counts of student loan fraud ( 20 U.S.C. § 1097 (1988)) and one count of making false statements to a government agency ( 18 U.S.C. § 1001 ). Smith contends that the district court erred in its application of the United States Sentencing Guidelines (“Sentencing Guidelines”). This court has jurisdiction of Smith’s timely appeal pursuant to 28 U.S.C. § 1291 . We affirm in part, reverse in part, and remand for resentencing.

I. Facts

The two issues in this appeal involve Smith’s criminal history. On November 28, 1983, Smith was convicted of one count of battery and was sentenced to four months in jail. At the same time, Smith was convicted of a separate count of false imprisonment and was sentenced to an additional four months in jail. Both the battery and false imprisonment were sexually motivated attacks on women, with each attack unrelated factually to the other and involving separate victims, dates, and locations. The two four month sentences were served consecutively. However, Smith was sentenced for both crimes in the same…