56 F3d 69 United States v. Lewis

UNITED STATES of America, Appellee,
Robert LEWIS, Appellant.

No. 94-4011

United States Court of Appeals,
Eighth Circuit.

Submitted: May 10, 1995
Filed: May 15, 1995

56 F.3d 69
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.

Before FAGG, MAGILL, and BEAM, Circuit Judges.


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Robert Lewis appeals his 168-month sentence imposed by the district court1 after he pleaded guilty to distributing methamphetamine. We affirm.


Lewis first argues that two prior state court convictions (one for burglary and one for robbery) should have been treated as one conviction because, although they were not formally consolidated, he was sentenced for both on the same day, he received concurrent sentences, and he received credit on both sentences for time already served in custody in a single "amended judgment." It is well-settled in this circuit that "two or more sentences imposed at the same time 'are not related for purposes of Sec. 4A1.2(a)(2) if the cases proceeded to sentencing under separate docket numbers, and there was no formal order of consolidation.' " United States v. Klein, 13 F.3d 1182, 1185 (8th Cir.) (quoting United States v. McComber, 996 F.2d 946, 947 (8th Cir. 1993) (per curiam)), cert. denied, 114 S. Ct. 2722 (1994). The "amended judgment," which Lewis claims served to consolidate the two cases, simply refers to the two independent docket numbers and amends each judgment and sentence to reflect credit for jail time Lewis had already served.


Lewis also argues the court erred in refusing to depart downward pursuant to U.S.S.G. Sec. 4A1.3 on the ground that his criminal history category overrepresented the seriousness of his criminal history. At sentencing, the court acknowledged its authority to depart but exercised its discretion not to do so. We have held that a district court's decision not to depart downward under section 4A1.3, where the court was aware of its authority to do so, is nonreviewable. United States v. Hall, 7 F.3d 1394, 1396 (8th Cir. 1993).


Accordingly, the judgment is affirmed.


The Honorable Richard H. Battey, Chief Judge, United States District Court for the District of South Dakota