The opinion of the court was delivered by: GUSTAVE DIAMOND
The defendant sold heroin to an undercover agent on three separate occasions during May and June of 1990. The total amount of heroin sold by defendant was .437 grams. Of this, .06 of a gram was sold within 1,000 feet of a school. The defendant also distributed .03 of a gram of cocaine. The total amount of money involved in the transactions was $ 100.00. On two occasions the defendant personally sold drugs he possessed to the undercover agent and on one of these occasions he solicited the agent. On the third occasion, the defendant acquired the drugs from a co-defendant.
The defendant recently pled guilty to state charges of possession of cocaine and heroin and possession with intent to deliver. These state charges involved substantially similar conduct from roughly the same time period. In July of 1989, and July of 1990, defendant was observed by Pittsburgh narcotics detectives on a street corner that was associated with drug trafficking. On both occasions the detectives' observations gave way to a chase which resulted in the defendant discarding packets of a small amount of narcotics. The state prosecutions concerned only these two transactions and did not include the three formal sales defendant made to an undercover detective in May and June of 1990. At the time of the instant indictment, defendant was serving a 2 to 5 year sentence on these state charges. The state sentence was imposed on September 18, 1991. Defendant has been incarcerated since July 1991.
At paragraph 23 of the presentence investigation report, the probation office concludes that defendant is a career offender pursuant to U.S.S.G. § 4B1.1. Defendant strenuously argues that he is not a career offender as a matter of law. Section 4B1.1 of the United States Sentencing Guidelines provides that a defendant is a career offender if (1) the defendant was at least 18 years old at the time of the instant offense, (2) the instant offense is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two felony convictions of either a crime of violence or a controlled substance offense. The defendant concedes that the first two elements of § 4B1.1 are met. Thus, the inquiry turns on whether defendant has two prior felony convictions for either a crime of violence or a controlled substance offense.
In the addendum to the presentence report, the probation office concludes that defendant's recent state-prosecuted drug violations cannot serve as a basis for career offender treatment. We agree. The offenses in the instant indictment were committed before the April 4, 1991, guilty plea entered in state court. Accordingly, the defendant had not yet sustained a conviction for these charges at the time he committed the instant offense. Therefore, the April 4, 1991, state court conviction is outside the potential calculation of career offender status. See U.S.S.G. § 4B1.2(3).
On June 17, 1980, while defendant was on probation, he was again arrested on charges of burglary, theft and receiving stolen property. While on probation, the defendant had entered a house and had stolen an audio system and television set. Because defendant was on probation at the time, the defendant appeared before the original sentencing judge, probation was revoked and he was sentenced to 9 to 23 months for the probation violation. On February 10, 1981, a sentence of 9 to 23 months was also imposed for the new criminal conviction. The subsequent judge's sentence of 9 to 23 months imposed for the 1980 burglary was concurrent with the sentence for the probation violation.
Defendant argues that all of these burglary convictions should be counted as one sentence because they were "related" cases within the meaning of § 4A1.2(a)(2). The defendant contends that the ex post facto clause of the Constitution requires this court to apply Application Note 3 to U.S.S.G. § 4A1.2 as it existed at the time of the commission of the instant offense, June, 1990. The 1990 Sentencing Guidelines provided at Application Note 3:
Cases are considered related if they (1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing.
The current 1992 version of the Guidelines provides at Application Note 3:
Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if they result from offenses that (1) occurred on the same occasion, (2) were part of a single common scheme or Plan, or (3) were consolidated for trial or sentencing.
Defendant argues that as applied to him, the current provision providing that prior sentences are not considered related if they were for offenses that were separated by an intervening arrest is an increase in punishment which is barred by the ex post facto clause of the Constitution.
The Supreme Court ruled in Miller v. Florida, 482 U.S. 423, 96 L. Ed. 2d 351, 107 S. Ct. 2446 (1987), that the ex post facto clause precluded the application of a Florida sentencing guideline amendment that was enacted after the date of defendant's offense and increased the range of imprisonment. The United States Court of Appeals for the Third Circuit has also indicated that the ex post facto clause of the Constitution prohibits the use of amendments where those amendments cause the defendant's offense levels (and resulting punishment) to be increased. United States v. McAllister, 927 F.2d 136, 138 n.2 (3d Cir.), cert. denied, 116 L. Ed. 2d 80, 112 S. Ct. 111 (1991). The proper test for an ex post facto clause violation is whether the overall punishment for an offense is increased after the fact. Dobbert v. Florida, 432 U.S. 282, 294, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977). Where the sentencing commission amends commentary or application notes to a guideline section and seeks merely to clarify the operation of the guidelines and/or to correct typographical errors the ex post facto clause of the Constitution does not bar the use of such revised commentary. United States v. Thompson, 944 F.2d 1331, 1347 (7th Cir. 1991), cert. denied, 112. S. Ct. 1177 (1992); United States v. Aguilera-Zapata, 901 F.2d 1209, 1213 (5th Cir. 1990).
The issue raised by the parties' submissions is whether there is an inherent conflict between Application Note 3 and 11 to U.S.S.G. § 4A1.2. The Third Circuit has not considered this issue. The Circuits that have considered this issue have concluded that Application Note 11, being the more specific of the two, governs. See United States v. Villarreal, 960 F.2d 117, 119-21 (10th Cir.), cert. denied, 113 S. Ct. 166 (1992) (discussing issue and analyzing cases). Application Note 11 makes clear that the sentence for an underlying conviction and the sentence imposed upon revocation of probation are considered a single sentence and conviction because any additional time imposed for the revocation is merged with the terms of the original sentence; where, however, a sentence is imposed for revocation of probation on the basis of a conviction for a new substantive offense, the sentence for the new conviction is computed separately from the sentence imposed for the revocation of probation. In the latter case, Application Note 3 does not apply. United States v. Palmer, 946 F.2d 97, 99 (9th Cir. 1991).
A sentence is not the equivalent or the period of incarceration served. United States v. Castro Perpia, 932 F.2d 364, 365 (5th Cir. 1991). The fact that the sentences for revocation and the new conviction were made to run concurrently is not dispositive in determining whether the cases should be considered related under Application Note 3. See United States v. Jones, 899 F.2d 1097, 1101 (11th Cir.), cert. denied, 498 U.S. 906, 112 L. Ed. 2d 230, 111 S. Ct. 275 (1990) (action taken by the sentencing court at a parole revocation does not change the underlying sentences' separate and independent nature); United States v. Villarreal, 960 F.2d 117, 119 (10th Cir. 1992) (mere fact that concurrent sentences were given for revocation and separate offense does not convert the separate convictions into related cases under Application Note 3; the offenses must be factually "related" before Application Note 3 applies); United States v. Flores, 875 F.2d 1110, 1114 (5th Cir. 1989) ("simply because two convictions have concurrent sentences does not mean that crimes are 'related' under Part A") . The commission's revisions to Application Note 3 on November 1, 1991, further support the determination that Application Note 11 governs when a revocation occurs based upon a new and separate conviction. Cf. Villarreal, 960 F.2d at 120-21.
The court finds that Application Note 11 governs. The defendant has two separately calculated burglary convictions under either the 1990 or 1992 Guidelines. There has been no increase in punishment after the fact. The defendant's criminal history meets the ...