In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1834
United States of America,
Plaintiff-Appellee,
v.
Paula L. Buford,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98-CR-210--J.P. Stadtmueller, Chief Judge.
Argued November 17, 1999--Decided January 12, 2000
Before Eschbach, Easterbrook, and Rovner, Circuit
Judges.
Easterbrook, Circuit Judge. Following her plea of
guilty to armed bank robbery, see 18 U.S.C.
sec.2113(a) and (d), Paula Buford was sentenced
to 188 months' imprisonment. The judge calculated
an offense level of 31 (including all
adjustments) after finding that she is a career
offender. This led to a sentencing range of 188
to 235 months' imprisonment. If she is not a
career offender, then her sentencing range is
only 84 to 105 months.
A defendant is a career offender if (1)
the defendant was at least eighteen years
old at the time the defendant committed
the instant offense of conviction, (2) the
instant offense of conviction is a felony
that is either a crime of violence or a
controlled substance offense, and (3) the
defendant has at least two prior felony
convictions of either a crime of violence
or a controlled substance offense.
U.S.S.G. sec.4B1.1. Buford was 42 when she robbed
the bank; armed bank robbery is a "crime of
violence", see U.S.S.G. sec.4B1.2(a)(1), even
though the object Buford described as a bomb
would not have exploded; and she has more than 22
prior convictions. Details of many convictions
are missing from the record, because state courts
have destroyed relevant documents (most of the
crimes are more than a decade old) and Buford has
not turned over information in her own
possession. But the district judge counted five
more-recent convictions that meet the standard of
sec.4B1.1. In 1992 Buford was convicted in a
Wisconsin court of four armed robberies and
possessing cocaine with intent to deliver it.
Five exceeds two, but this does not end the
discussion, because a definitional provision in
sec.4B1.2(c)(2) says that, when counting
convictions for purposes of the career offender
provision, the judge must determine that "at
least two of the aforementioned felony
convictions are counted separately under the
provisions of sec.4A1.1(a), (b), or (c)." Turning
back to sec.4A1.2(a)(2) we find: "Prior sentences
imposed in unrelated cases are to be counted
separately. Prior sentences imposed in related
cases are to be treated as one sentence for
purposes of sec.4A1.1(a), (b), and (c)." So when
are cases "related"? Application Note 3 to
sec.4A1.2 offers this advice:
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 resulted from
offenses that (A) occurred on the same
occasion, (B) were part of a single common
scheme or plan, or (C) were consolidated
for trial or sentencing.
Buford's four armed robberies and one drug
offense did not occur on the same occasion. See
United States v. Hudspeth, 42 F.3d 1015 (7th Cir.
1994) (en banc) (defining "occasion" for purposes
of 18 U.S.C. sec.924(e)(1), the Armed Career
Criminal statute). Nor were they part of a common
scheme or plan. The district court sensibly
rejected Buford's argument that all crimes
designed to raise revenue are related by that
objective, which would treat a one-woman crime
wave as having but a single countable offense and
thus negate the principal function of the career
offender guideline. Buford therefore relies on
(C), asserting that the cases were consolidated
for sentencing. As is frequently true, the
details are messy and defy easy characterization-
-and the Sentencing Commission has not offered
guidance on intermediate situations.
Buford was arrested in Milwaukee on January 23,
1992, after robbing a gas station at gunpoint. A
search of her residence turned up a pistol, the
loot, and 73 grams of cocaine. Buford confessed
to three additional armed robberies of gas
stations during 1990 and 1991. On January 27,
1992, state prosecutors filed two criminal
complaints against Buford. The first charged her
with committing five armed robberies. The second
charged the drug offense and was assigned to a
branch of the circuit court designated to handle
drug prosecutions. Wis. Stat. sec.753.061(2). The
cases were handled by different prosecutors and
assigned to different judges. Buford pleaded
guilty to four of the robberies and to the drug
charge in separate hearings before the different
judges. Sentencing in both prosecutions occurred
on May 21, 1992, before the judge who had been
assigned to the drug case. The record does not
include an order of consolidation, though it does
contain a letter from Buford's lawyer consenting
to the procedure. The judge then imposed three
sentences: 6 years for the drug offense; 12 years
for two of the robberies; and 15 years for the
other two robberies. These sentences ran
concurrently. Two judgments (one for the robbery
counts and one for the drug count) were entered.
Wisconsin did not follow a truth-in-sentencing
approach back in 1992; the 15-year sentence was
"withheld" (a form of probation), and the 12-year
term of imprisonment ended in less than 6 years,
allowing Buford to rob a bank in 1998. Her
federal 188-month sentence, which amounts to 15
years and 8 months, will keep her in prison for
much longer than her state "15-year" sentence.
(Wisconsin adopted a true-sentence approach
effective January 1, 2000, too late for Buford.)
Everyone agrees that the four armed robberies
were consolidated with each other for trial and
sentencing and thus count as but a single crime
of violence for purposes of sec.4B1.1. Buford
contends that the imposition of sentence by a
single judge on a single occasion was a
consolidation of the drug offense with the armed
robberies for sentencing, within the meaning of
Application Note 3. The federal prosecutor
replies that there was no consolidation: there is
no order of consolidation, and separate judgments
were entered following the sentencing. We have
held that joint sentencing for administrative
convenience is not "consolidation for sentencing"
under Application Note 3. United States v.
Bomski, 125 F.3d 1115, 1119 (7th Cir. 1997);
United States v. Stalbaum, 63 F.3d 537, 539 (7th
Cir. 1995); United States v. Russell, 2 F.3d 200,
204 (7th Cir. 1993). But we have also held that
a formal order of consolidation is unnecessary,
and that cases may be deemed functionally
consolidated when they are factually or logically
related, and sentencing was joint. United States
v. Joseph, 50 F.3d 401 (7th Cir. 1995). Here a
single sentencing hearing, informed by a single
presentence report, ended in concurrent
sentences. Buford contends that her crimes were
related through her addiction and would have been
charged in a single indictment or information but
for Wisconsin's decision to require drug
prosecutions to be handled separately. This is
not so clear; Wisconsin follows the approach of
Fed. R. Crim. P. 8(a), see Wis. Stat.
sec.971.12(1), and it might be hard to
characterize the robberies and drug offense as
"of the same or similar character or . . . based
on the same act or transaction or on two or more
acts or transactions connected together or
constituting parts of a common scheme or plan."
Anyway, the separate drug court cuts both ways:
the crimes might have been consolidated but for
their assignment to separate branches, but the
separation shows that Wisconsin does not want
such prosecutions consolidated--and Application
Note 3 defers to the state's practice on
consolidation rather than creating an independent
federal rule. (Wisconsin's provision for
separation is not airtight; the branches
designated under sec.753.061(2) are to handle
drug cases "primarily" but not exclusively, which
is why a single judge was able to sentence Buford
for both the robberies and the drug offense. But
the statute assuredly disfavors consolidation.)
Because elements of Buford's situation support
either characterization, the standard of
appellate review may be dispositive. If review is
deferential, then affirmance follows
straightaway, for the district court's conclusion
that Buford's state cases were not functionally
consolidated for sentencing cannot be called
clearly erroneous. But if our role is to make a
de novo decision, then this appeal could come out
either way. What, then, is the right appellate
posture? Until recently the court has treated
this as an unresolved question. See United States
v. Carroll, 110 F.3d 457, 460 (7th Cir. 1997);
United States v. Woods, 976 F.2d 1096, 1099 (7th
Cir. 1992); United States v. Connor, 950 F.2d
1267, 1270 (7th Cir. 1991); Joseph, 50 F.3d at
404; Russell, 2 F.3d at 204. Within the last few
months two panels have taken a firm stance--but
unfortunately the panels do not agree with each
other, and the more recent panel did not
acknowledge the prior, contrary decision. Compare
United States v. Joy, 192 F.3d 761, 770 (7th Cir.
1999) (relatedness is a factual issue reviewed
only for clear error), with United States v.
Jackson, 189 F.3d 655, 658 (7th Cir. 1999) (all
questions about application of the career
offender guideline are reviewed de novo). Neither
Joy nor Jackson gives a reason for its conclusion
or evinces awareness that the issue had been
reserved by earlier panels. Divergence within the
circuit mirrors a conflict among the circuits.
Six review "relatedness" issues deferentially,
while three engage in de novo decisionmaking. See
United States v. Correa, 114 F.3d 314, 317 (1st
Cir. 1997) (de novo); United States v. Mapp, 170
F.3d 328, 338 (2d Cir. 1999) (deferential);
United States v. Huggins, 191 F.3d 532, 539 (4th
Cir. 1999) (deferential); United States v.
Huskey, 137 F.3d 283, 285 (5th Cir. 1998) (de
novo); United States v. Irons, 1999 U.S. App.
Lexis 26887 at *9-10 (6th Cir. 1999)
(deferential); United States v. Bartolotta, 153
F.3d 875, 879 (8th Cir. 1998) (deferential);
United States v. Allen, 153 F.3d 1037, 1045 (9th
Cir. 1998) (de novo); United States v. Wiseman,
172 F.3d 1196, 1219 (10th Cir. 1999)
(deferential); United States v. Mullens, 65 F.3d
1560, 1565 (11th Cir. 1995) (deferential). By
revisiting the subject, we can create at least
intra-circuit harmony.
"Relatedness" and "consolidation" are not pure
questions of law. No legal rule specifies what it
means for cases to be "consolidated for
sentencing." If in Joseph we had adopted the view
that "consolidation" is a matter of form--cases
are consolidated if there is an order of
consolidation, otherwise not--then it would make
sense to engage in de novo consideration. A
record either contains an order of consolidation
or it doesn't, which dictates a legal outcome--
though if the existence of the order were
debatable, the district judge's resolution of
that wholly factual issue would be reviewed
deferentially. But once Joseph adopted a
functional approach to consolidation, it became
impossible to say that one characterization
rather than another is mandatory. We have instead
a classic mixed issue, where the court must apply
legal norms to classify the facts. And disputes
about the proper characterization of events, when
legal norms guide rather than determine the
answer, are principally committed to district
courts, with deferential appellate review. Thus
even though a finding of racial discrimination
requires the application of law to facts, the
existence of discrimination is itself a "fact"
and review is for clear error only. Pullman-
Standard v. Swint, 456 U.S. 273, 288 (1982).
Whether an employee is a "seaman" under a multi-
factor balancing approach likewise is a question
of fact, with deferential appellate review.
Icicle Seafoods, Inc. v. Worthington, 475 U.S.
709, 714 (1986). Even the question whether a
complaint is "frivolous" for purposes of Fed. R.
Civ. P. 11--a subject that requires no fact-
finding by the district court-- is reviewed
deferentially. Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 401-05 (1990).
Cooter & Gell holds that when the legal inquiry
resists statement as a rule of general
applicability, and when the application of that
rule is a case-specific determination, courts of
appeals should treat the district judges'
conclusions deferentially. Our own cases likewise
emphasize that matters of characterization and
application, which lack general significance to
other litigants, are best resolved by the
district court, with a light appellate touch.
See, e.g., Mars Steel Corp. v. Continental Bank
N.A., 880 F.2d 928 (7th Cir. 1989) (en banc);
Morton Community Unit School District No. 709 v.
J.M., 152 F.3d 583 (7th Cir. 1998); Mucha v.
King, 792 F.2d 602, 604-06 (7th Cir. 1986);
Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d
1423, 1428-29 (7th Cir. 1985). As the second
circuit put the point in Mapp, 170 F.3d at 338
n.15, deferential review is appropriate
"[b]ecause of the (obviously) fact-intensive
nature of the inquiry and because a sentencing
court's findings regarding factual relatedness in
any given case are unlikely to establish widely-
applicable principles of law". (None of the three
circuits that has gone the other way has offered
a reasoned explanation for the choice, and the
fifth circuit in United States v. Garcia, 962
F.2d 479, 481 (5th Cir. 1992), explained that
although the argument for deferential review is
"compelling," the circuit would continue to use
de novo review because of unexplained prior
decisions.)
How best to understand the events in the
Wisconsin courts in spring 1992 has no
significance beyond these parties. Someone has to
select a characterization of complex facts, and
the best candidate for that role is the district
judge. Questions concerning application of the
Guidelines generally are reviewed deferentially,
see Koon v. United States, 518 U.S. 81, 96-100
(1996), unless the district court makes an
identifiable legal mistake; that principle is as
applicable to "relatedness" as it was to the
questions under review in Koon. We hold
accordingly that whether cases have been
"consolidated" for trial or sentencing is a
matter of fact, to be reviewed deferentially by
the court of appeals. Other issues in the
application of the career-criminal guideline may
be strictly matters of law with general
application, and for those issues review would be
plenary. Because this conclusion resolves a
conflict among panels of this court, it was
circulated to all active judges under Circuit
Rule 40(e). None of the judges favored a hearing
en banc.
The district judge did not commit a clear error
in finding that the joint sentencing was a matter
of administrative convenience rather than a
"consolidation for sentencing." Separate
sentences were imposed and separate judgments
entered. Treating Buford as a career offender
makes a good deal of sense; her lengthy record
demonstrates that she is an incorrigible criminal
who regularly uses weapons (or, in her latest
robbery, the threat of a bomb). With a record of
convictions past two dozen, she is a "career"
offender.
Affirmed