Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 89-CR-1104--Harry D. Leinenweber, Judge.
Before CUMMINGS, EASTERBROOK, and RIPPLE, Circuit Judges.
After Richard Yahne had served a sentence for conspiracy relating to theft of goods in interstate commerce, imposed by a federal court sitting in Indiana, he was convicted and sentenced in this proceeding for later acts involving a conspiracy to steal an interstate shipment in Illinois. The district court sentenced Mr. Yahne to 18 1/2 months of imprisonment, an additional period of supervised release, a fine and restitution. Mr. Yahne now appeals his sentence. For the reasons set forth in the following opinion, we affirm in part and reverse and remand in part.
On August 6, 1988, Mr. Yahne and three others stole a tractor-trailer carrying about 915 cases of cigarettes valued at approximately $500,000 from the Turner Trucking Company in Indianapolis, Indiana. On December 18, 1989, Mr. Yahne, again with several others, stole a trailer containing Panasonic electronic equipment worth over $580,000 from the Chicago & North Western Transportation Company in Chicago, Illinois.
On April 19, 1990, Mr. Yahne was indicted in federal court in Indiana on charges relating to the Indiana theft of cigarettes. He eventually entered into a plea agreement regarding those charges. The district court in Indiana accepted Mr. Yahne's guilty plea and granted the United States Attorney's motion for a downward departure. Accepting the United States Attorney's recommendation, on July 3, 1991, the court sentenced Mr. Yahne to 434 days of incarceration. *fn1
On November 4, 1993, Mr. Yahne and seven co-defendants were indicted in federal court in Illinois on charges relating to the Illinois theft of Panasonic merchandise. Again Mr. Yahne entered into a plea agreement with the United States Attorney. On June 14, 1994 he pleaded guilty to count one of the indictment, conspiracy to steal an interstate shipment. The agreement provided that Mr. Yahne would plead guilty to the single count of the indictment which alleged a conspiracy to commit an offense against the United States relating to the theft of an interstate shipment of property. The agreement recited that the parties agreed on the appropriate base level, on the value of the shipment, and on the appropriate criminal history points. The criminal history factor took into account the earlier conviction in the federal court sitting in Indiana. The parties to the plea agreement stipulated that, subject to any additional evidence that may alter the evaluation, the defendant was eligible for a reduction for acceptance of responsibility. They also agreed that a further reduction was appropriate because the defendant had acknowledged his responsibility in a timely manner. The agreement further stated that these calculations were preliminary in nature and that either party might submit a revised calculation to the district court. Finally, the agreement recited that it was governed by Federal Rule of Criminal Procedure 11(e)(1)(C) and that the parties agreed that the sentence imposed ought to include a term of imprisonment of "one-half the low end of the applicable Guideline range." If the court determined that another term of imprisonment was more appropriate, the agreement stated that the defendant had the right to withdraw the plea.
Before sentencing, Mr. Yahne argued to the district court that the sentence to be imposed in Illinois should be grouped with the July 3, 1991 sentence previously imposed in the Indiana case. At the sentencing hearing on October 25, 1994, the district court accepted Mr. Yahne's plea agreement and entered a judgment of guilty against Mr. Yahne on count one. The court rejected, however, Mr. Yahne's grouping request. It accepted the guideline range tentatively mentioned in the plea agreement and then granted the government's Sentencing Guideline sec. 5K1.1 motion for a downward departure of one-half the low end of that applicable sentencing guideline range. *fn2 Accordingly, the court sentenced Mr. Yahne to a term of 18 1/2 months of incarceration and three years of supervised release. It also ordered a fine of $4,000 and restitution in the amount of $580,000 to be paid in installments as determined by the probation department. Mr. Yahne now appeals the district court's determination with respect to the sentence.
Mr. Yahne submits that the district court erred in refusing to group or to consolidate the Indiana and Illinois cases for sentencing purposes. By refusing to group the offenses for purposes of sentencing, he contends, the district court arrived at the wrong guidelines range and therefore calculated the downward departure from the wrong starting point.
In submitting that grouping is appropriate, the defendant stresses the similarity of the crimes: Both were interstate conspiracies for theft; both extended into 1989, and thus were within a year of one another; at least four of the same conspirators were involved in both cases; and both were orchestrated by the same co-conspirator. Therefore, he submits, there is a sufficient nexus between the two cases to consolidate them under Guideline sec. 4A1.2 for sentencing purposes. According to Mr. Yahne, if the two cases ...