First Circuit Notes Split Re Interpretation of "Single Common Scheme or Plan" in the Sentencing Guidelines

Per United States v. Godin, --- F.3d ----, 2007 WL 1696139 (1st Cir. June 13, 2007):

Burglary is classified under the pertinent guideline as a crime of violence, U.S.S.G. § 4B1.2(a)(2), so the two 2002 burglaries-together with the instant armed robbery of the motel-supplied the necessary predicates for career offender status, unless the two prior burglaries are counted as only one conviction. The career offender guidelines, by cross-reference, treat the two convictions as only one (if not separated by an intervening arrest) where the offenses: (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.U.S.S.G. § 4A1.2, cmt. 3.

. . .

The “single common scheme or plan” rubric of subsection (B) raises a more difficult issue. The concept is vague and unlike subsection (C) there is no formal test, such as a single indictment or a formal order of consolidation. The circuit courts are divided FN5 as to whether the meaning of the phrase in subsection (B) is the same as the phrase “common scheme or plan” in section 1B1.3(a)(2), which attributes to the defendant being sentenced “relevant conduct” including certain acts and omissions “that were part of the same course of conduct or common scheme or plan as the offense of conviction.”

FN5. Compare United States v. Berry, 212 F.3d 391, 393-95 (8th Cir.), cert. denied, 531 U.S. 907 (2000), United States v. Brown, 209 F.3d 1020, 1024 n.9 (7th Cir.2000), and United States v. Beckett, 208 F.3d 140, 147 n.2 (3d Cir.2000), with United States v. LaBarbara, 129 F.3d 81, 86 (2d Cir.1997), and United States v. Mullens, 65 F.3d 1560, 1565 (11th Cir.1995), cert. denied, 517 U.S. 1112 (1996).