Sentencing – Criminal history

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U.S. Court of Appeals For the Seventh Circuit

Criminal

Sentencing – Criminal history

The district court did not err in counting defendant’s state court convictions as part of his criminal history, rather than as part of the instant offense.

“It is undisputed that Butler’s 90-day sentence for forgery was imposed after the conduct underlying the instant offense, but prior to sentencing on the instant offense. Butler maintains, however, that the  offense conduct associated with the forgery conviction does not fall within the ambit of § 4A1.2 because that conviction was the last in an unabated series of counterfeiting offenses that culminated in the instant conviction. We disagree. While it is ‘well established that in determining a defendant’s sentence a court may consider a broad range of information,’ United States v. Valenti, 121 F.3d 327, 334 (7th Cir. 1997), with respect to whether a defendant’s prior conduct should be considered relevant conduct under § 1B1.3, the court looks to the ‘similarity, regularity, and temporal proximity of the uncharged acts to the offense of conviction.’ United States v. Sykes, 7 F.3d 1331, 1336 (7th Cir. 1993). If one of those three factors is not present, the court must look for ‘a stronger presence of at least one of the other factors.’ U.S.S.G. § 1B1.3 cmt. n.9(B). In Butler’s case, the similarities between the instant offense and the state forgery conviction are minimal. The fact that both offenses involve counterfeit currency does not, independently, demonstrate that they are part of the same course of conduct. The Guidelines compel us to conduct a more searching inquiry to determine whether there are distinctive similarities between the offense of conviction and the prior conduct that indicate that they are not isolated, unrelated events that happen only to be similar in kind. Where, as here, the prior conduct takes place over one hundred miles away from the conduct underlying the instant offense, is relatively remote temporally, and involves entirely different victims, means, and purposes, we cannot say that it is sufficiently connected to the instant offense to qualify as part of the same course of conduct for the purposes of § 1B1.3.”

Affirmed.

14-2770 U.S. v. Butler

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Bauer, J.

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