C. May 29, 1983 -- Robbery
On May 29, 1983, at 12:45 a.m., Woods and Prince entered a Wendy's Restaurant in Palatine, Illinois. Wearing ski masks and armed with pellet guns, the two men demanded and received money from Wendy's employees. (PSI, lines 324-330.) According to Woods' confession, Parker, Albert and Cliff Hurd waited in vehicles outside monitoring police radio scanners. Parker was charged with Woods and Prince. (Info. No. 83 C 3-35416.)
Woods was found guilty of robbery in a bench trial. (PSI, lines 317-323.) As noted above, this May 29 robbery was consolidated with the May 23 robbery for purposes of sentencing. (PSI, lines 418-420.) On July 24, 1984, Judge Crandell sentenced woods to four years imprisonment for the May 29, 1983 robbery. (PSI, lines 317-323.)
D. June 13, 1983 -- Robbery
On June 13, 1983, Woods, Parker and Prince drove to a Show Biz Pizza restaurant in Arlington Heights, Illinois. Parker served as the driver monitoring Albert's police radio scanner. Woods and Prince entered the store, again armed with plastic pellet guns. They robbed the manager of over $ 10,000.00. (PSI, lines 268-273.) According to Woods' confession, Hurd had "cased" the Show Biz location and one of Prince's friends, Matt Shields, had provided the group with information about the restaurant.
Woods was found guilty of robbery in a bench trial. (Docket Sheet 83 C 20033301.) As discussed above, this robbery was consolidated with the May 21 robbery for purposes of sentencing. (PSI, lines 312-314.) On June 18, 1984, Judge Fiala sentenced Woods to four years imprisonment for the June 13, 1983 robbery. (PSI, lines 259-267.)
E. March 11, 1984 -- Robbery and Unlawful Restraint
On March 11, 1984, at 7:15 p.m., Woods and four other men committed a robbery. Woods remained outside while three of his accomplices, armed with a .38 calibre revolver and a pellet gun, approached two employees of an Eagle Food Store in Buffalo Grove, Illinois.
(Complaint No. 842001139801.) Arthur Soteras, Jerome Walls and William Johnson were charged with Woods. (Indictment No. 84-5029.)
The employees were ordered back into the store. One employee was ordered to lie face down on the floor. The other employee was led to the safe and ordered to open it. The defendants then took $ 350.00 in cash and change from the safe. (PSI, lines 361-366; Complaint, supra.)
Woods pled guilty and was found guilty of two counts of robbery and two counts of unlawful restraint for this offense. (PSI, lines 335-339.) On December 11, 1984, Judge Nicholas T. Pomaro of the Cook County Circuit Court sentenced Woods to four years imprisonment for the robbery convictions, and three years concurrent imprisonment for the unlawful restraint convictions. (PSI, lines 339-354.)
F. March 18, 1984 -- Attempted Armed Robbery
On March 18, 1984, Woods attempted another armed robbery. On that date Woods was in a Mercedes Benz automobile with co-defendants Michael Dale and Arthur Soteras outside a Jewel-Osco store in Buffalo Grove, Illinois. Co-defendants William Johnson and Jerome Walls and three juveniles waited in a Ford Bronco. The occupants of the two vehicles communicated through walkie-talkies. (PSI, lines 384-390; Buffalo Grove Police Report at 2-6.)
The men in the Mercedes then had the juveniles exit the Ford Bronco with ski masks and guns. The juveniles put a gun to the back of a store employee in an attempt to enter the store. The store had just closed, however, and was locked up. Thus, the juveniles were unable to complete the robbery. (PSI, lines 390-394.) The defendants were arrested by a task force of local police surveilling their movements. (Buffalo Grove Police Report at 1.)
Woods pled guilty and was found guilty of attempted robbery. (PSI, lines 371-373.) On June 28, 1984, Judge William D. Block of the Lake County Circuit Court
sentenced Woods to four years imprisonment for this March 18, 1984 attempted armed robbery. (PSI, lines 373-383.)
Woods was received at the Illinois Department of Corrections from the Cook County Department of Corrections on December 14, 1984, for all of the above charges, with time considered served since March 18, 1984. Woods was discharged on January 3, 1986. (PSI, lines 431-439.)
The defendant argues that based upon this criminal history he should be assessed six criminal history points under the USSG. Invoking Application Note 3 to USSG § 4A1.2, defendant asserts that this court should assess a total of three criminal history points for the 1983 sentences and another three criminal history points for the 1984 sentences.
USSG § 4A1.2(a)(2) provides that prior sentences imposed in "unrelated cases" are to be counted separately for purposes of a defendant's criminal history. Prior sentences imposed in "related cases," however, are to be treated as one sentence for purposes of the criminal history. U.S.S.G. § 4A1.2(a)(2). Application Note 3 to USSG § 4A1.2 elaborates on the term "related cases":
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.
U.S.S.G. § 4A1.2, comment. (n.3)
The first category of "related" cases -- cases occurring on a "single occasion" -- is inapplicable here. All six prior sentences imposed on defendant resulted from crimes which he committed on six different occasions. Defendant does not argue otherwise.
At first glance it would appear that the third category of "related" cases -- cases "consolidated for trial or sentencing" -- works in defendant's favor. After all, the state court consolidated defendant's May 21, 1983 attempted armed robbery conviction with his June 13, 1983 robbery conviction for purposes of sentencing. Similarly, the court consolidated defendant's May 23, 1983 and May 29, 1983 robbery convictions for purposes of sentencing.
This court rejects, however, the notion that cases are related solely because they were consolidated for sentencing. This court's view is supported by the recent case of United States v. Elmendorf, 945 F.2d 989 (7th Cir. 1991). In Elmendorf the Seventh Circuit Court of Appeals, in addressing the issue of career offender status under the guidelines, rejected the part of Application Note 3 to USSG § 4A1.2 that suggests that cases consolidated for sentencing are to be deemed related. Id. at 997-98, quoting United States v. Gross, 897 F.2d 414, 416-17 (9th Cir. 1990). As the Seventh Circuit stated:
To read into the plain meaning of the [Federal Sentencing Guidelines] the inference of the application note that every time a defendant is sentenced at a single hearing for multiple convictions those convictions are related would defeat both the intent of the statute and the public policy concerns over haphazard dispensation of justice. A defendant convicted of multiple unrelated offenses who fortuitously is sentenced for all offenses by one judge at one time would subsequently face less punishment when his points are totalled than another defendant who committed the same crimes but was separately sentenced on successive days or on the same day by different judges. Aside from offending the legislative intent and public policy involved, such a result would be inequitable.