Schumann
United States v. Schumann
Opinion
Dissenting Opinion
Reinhardt, J.
dissenting:
I dissent. I believe that a fair application of United States Sentencing Guideline (U.S.S.G.) § 4A1.2, as construed in United States v. Asberry, 394 F.3d 712, 718 (9th Cir.2005) and United States v. Chapnick, 963 F.2d 224, 228 (9th Cir.1992), compels the conclusion that the 1995 bank robberies were “functionally consolidated.” The factors we must apply overwhelmingly favor the defendant. Incidentally, I would think that the fact that the district court did not issue an order of consolidation would be irrelevant. 1 Had it done so, I assume that the cases would have been actually consolidated (not just “functionally consolidated”) and thus would necessarily qualify under U.S.S.G. § 4A1.2 comment n. 3, part C.
. I recognize that we have previously listed this item as a factor. Nevertheless, I fail to understand its role in a “functional consolidation” case.
Lead Opinion
MEMORANDUM *
Schumann appeals the district court’s conclusion that he qualifies as a “career offender” under United States Sentencing Guidelines (U.S.S.G.) § 4B1.1. We affirm. Because the parties are familiar with the factual and procedural history of the case, we need not recount it here. We review de novo the district court’s determination that a defendant qualifies as a career offender, United States v. Kelly, 422 F.3d 889, 891-92 (9th Cir.2005), but we review deferentially the district court’s conclusion that prior convictions were not “functionally consolidated” for sentencing, Buford v. United States, 582 U.S. 59 , 64-66, 121 *670 S.Ct. 1276 , 149 L.Ed.2d 197 (2001); United States v. Asberry, 394 F.3d 712 , 718 n. 8 (9th Cir.2005).
Applying these standards, we conclude that the district court did not commit reversible error in concluding that at least one of the bank robberies for which Schumann was convicted in 1995 was sufficiently “unrelated” from the other two robberies to count as a separate predicate offense. As the district court stated, the 1995 case involved “distinct indictments relating to distinct robberies that occurred on distinct locations and times.” The…