United States v. Lawrence Buchanan

concurring and dissenting.

I concur in the opinion except with regard to Section II.B.2. In light of the explicit instructions contained in Application Note 3 to U.S.S.G. § 2J1.6 and Application Note 6 to U.S.S.G. § 3C1.1, I cannot agree with the majority’s conclusion that the sentence may be affirmed.

The Guidelines specifically require a sentencing court to group a failure to appear conviction with the underlying offense when sentencing a defendant. Under Application Note 3 to U.S.S.G. § 2J1.6 (Failure to Appear):

Similarly, Application Note 6 to U.S.S.G. § 3C1.1 states that:

The Guidelines also make clear that when a defendant is convicted of separate offenses that must be grouped during sentencing, only one of the convictions may serve as the basis for the sentence — in this case, the mail fraud offense — and the remaining offenses may only be used to adjust the base offense level. As the Introduction to Chapter 3, Part D of the Guidelines provides, “[i]n essence, counts that are grouped together are treated as constituting a single offense for purposes of the guidelines.” (emphasis added) Because these grouping provisions require us to treat the underlying offense as if…

Opinion by Judge TANG; Partial Concurrence and Partial Dissent by Judge REINHARDT.

Lawrence Buchanan appeals his eighteen-month sentence, which was imposed after Buchanan pleaded guilty to one count of mail fraud and one count of failure to appear. Specifically, Buchanan contends that the district court erroneously calculated his criminal history score. The government argues that Buchanan cannot challenge his sentence because he knowingly and voluntarily waived his right to appeal his sentence in his plea agreement. We have jurisdiction under 28 U.S.C. § 1291 and find that the waiver of appellate rights contained in Buchanan’s plea agreement is unenforceable. We affirm, however, the district court’s calculation of Buchanan’s criminal history score.

I. BACKGROUND

In December 1991, Raymond E. Albretsen approached Buchanan for help in disposing of a Toyota 4-Runner so he could claim an insurance loss. Joseph Holmes, an FBI informant, procured a buyer. Buchanan sold the vehicle to that buyer and retained the profit from the sale. Albretsen later reported the Toyota stolen to his insurance company. The insurance company reimbursed him for the claimed loss. In June 1992, Buchan *916…

59 F.3d 914 95 Daily Journal D.A.R. 8943 UNITED STATES of America, Plaintiff-Appellee, v. Lawrence BUCHANAN, Defendant-Appellant. No. 94-10056. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 13, 1994. Decided July 6, 1995. John C. Lambrose, Asst. Federal Public Defender, Las Vegas, NV, for defendant-appellant. Rimantas A. Rukstele, Asst. U.S. Atty., Las Vegas, NV, for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before: TANG, SCHROEDER, and REINHARDT, Circuit Judges. Opinion by Judge TANG; Partial Concurrence and Partial Dissent by Judge REINHARDT. TANG, Senior Circuit Judge: 1 Lawrence Buchanan appeals his eighteen-month sentence, which was imposed after Buchanan pleaded guilty to one count of mail fraud and one count of failure to appear. Specifically, Buchanan contends that the district court erroneously calculated his criminal history score. The government argues that Buchanan cannot challenge his sentence because he knowingly and voluntarily waived his right to appeal his sentence in his plea agreement. We have jurisdiction under 28 U.S.C. Sec. 1291 and find that the waiver of appellate rights contained…