United States of America v. Juan Porter, a/k/a LAMAR PORTER a/k/a YUM YUM

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3747
UNITED STATES OF AMERICA
v.
JUAN PORTER,
a/k/a LAMAR PORTER
a/k/a YUM YUM,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 06-cr-00903)
District Judge: Hon. Katharine S. Hayden
Submitted Under Third Circuit LAR 34.1(a)
July 6, 2009
Before: SLOVITER, AMBRO and JORDAN, Circuit Judges
(Filed: July 14, 2009)
OPINION

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Porter’s plea agreement stipulated that the version of the1
Sentencing Guidelines that became effective on November 1, 2006
governed his plea.
2
SLOVITER, Circuit Judge.
Juan Porter, who pled guilty to acting as an accessory after the fact to a Hobbs Act
robbery, appeals his sentence, challenging the calculation of his criminal history score.
We will affirm.
I.
Porter was in the getaway vehicle to which David McKenzie fled after committing
an armed robbery of a Chinese restaurant on April 18, 2004. He subsequently pled guilty
to being an accessory after the fact to the crime of Hobbs Act robbery, in violation of 18
U.S.C. § 3. The pre-sentence report (“PSR”) assigned Porter a criminal history category1
of VI, based on his four previous juvenile adjudications and three previous adult
convictions. At issue are the three adult convictions. First, Porter was arrested on
December 7, 2003, while driving a stolen car, and was convicted in New Jersey state
court for receiving stolen property and sentenced on November 9, 2004, to three years
imprisonment. Second, he was arrested on December 30, 2003, for possession with intent
to distribute heroin, was convicted, and was sentenced on November 9, 2004, to three
years imprisonment to run concurrently to the receipt of stolen property offense. Finally,
he was arrested on February 11, 2004, for resisting arrest and was sentenced on
November 9, 2004, to 18 months imprisonment to run concurrently with the aforesaid two

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sentences.
At his sentencing for the instant offense, Porter’s counsel argued that the three
convictions were related, and should be so treated. He argued, as he does here, that the
offenses leading to Porter’s three previous adult convictions had occurred within a two-
month range between December 2003 and February 2004, that Porter was sentenced for
all three offenses on the same day, and that the sentences were to run concurrently. The
District Court held they were not related, noting that the nature of each offense was
different, ranging from receiving stolen property to drug possession and resisting arrest,
and that Porter was arrested separately for each offense although his sentencing for all
three crimes took place on November 9, 2004.
Porter does not challenge the calculation of his offense level. On appeal, Porter
contends only that the District Court erred in calculating his criminal history score by
declining to treat his three adult convictions as related pursuant to § 4A1.2(a)(2) of the
Sentencing Guidelines.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction to review a defendant’s challenge to a sentence under 18 U.S.C. § 3742(a).
When a sentencing appeal is based on an allegedly improper calculation of the Guidelines
range, we engage in plenary review of the district court’s interpretation of the Guidelines,
and scrutinize any findings of fact used in the calculations for clear error. United States

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v. Wood, 526 F.3d 82, 85 (3d Cir. 2008).
III.
Section 4A1.2(a)(2) of the 2006 Sentencing Guidelines instructed that prior
sentences imposed in related cases should be counted as one sentence for the purposes of
calculating a defendant’s criminal history score. U.S.S.G. § 4A1.2(a)(2). Application
Note 3 to §4A1.2(a)(2) further instructed that
[p]rior sentences are not considered related if they were for
offenses that were separated by an intervening arrest . . . .
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.
Id. at cmt. n.3.
Addressing this language in United States v. Hallman, 23 F.3d 821, 825 (3d Cir.
1994), we held that a district court may properly refuse to treat a defendant’s two prior
convictions as related when the defendant was arrested separately for each of the
underlying offenses, even when the sentencing for these crimes had been consolidated.
Subsequently, in United States v. Hankerson, 496 F.3d 303, 311 n.5 (3d Cir. 2007), we
explained that Hallman stood for the proposition that a sentencing court need not consider
the three alternative ways of finding consolidation of prior offenses if it found that a
defendant’s prior offenses had been separated by intervening arrests.
Thus, under the reasoning of Hallman and Hankerson, because Porter’s three
previous offenses were separated from each other by intervening arrests, the District

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Court did not err in declining to treat them as related pursuant to § 4A1.2(a)(2) of the
2006 Sentencing Guidelines.
Porter also appears to raise other challenges to his sentence. However, his plea
agreement contains an agreement “not to seek or argue for any upward or downward
departure, adjustment, or variance not set forth herein,” except that he “reserve[d] any
right [he] may have under 18 U.S.C. § 3742 to appeal the sentencing court’s
determination of the criminal history category.” App. at 18. In light of that waiver, we
need not consider Porter’s other challenges.
IV.
For the above-stated reasons, we will affirm the sentence imposed by the District
Court.

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