FILED
United States Court of Appeals
Tenth Circuit

MAR 16 1998

PATRICK FISHER
Clerk

	PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

ROBERT EARL CUTHBERTSON,

Defendant - Appellant.	
No. 97-5138	

	Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 96-CR-173-001-BU)

Submitted on the briefs:

Stephen C. Lewis and Ann Dooley, Office of the U.S. Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.

Stanley Monroe, Tulsa, Oklahoma, for Defendant-Appellant.

Before BALDOCK, EBEL and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

	In May of 1994, Appellant Robert Earl Cuthbertson (“Cuthbertson”) drove from Florida to Oklahoma to pick up his sister’s three children for the purpose of  transporting them back to Florida to stay with him for the summer.  Among the three children was Cuthbertson’s 11-year-old niece, E.H., whom Cuthbertson had subjected to sexual molestation two years prior.  After molesting E.H. in a Tulsa, Oklahoma motel room, Cuthbertson transported E.H. and her siblings to his home in Florida, where he continued to molest E.H. through the course of the summer.  The following year, in May of 1995, Cuthbertson again traveled to Oklahoma, again molested E.H. in a Tulsa motel room, and again transported E.H. to his home in Florida where he proceeded to regularly molest her over the course of the summer.  Upon returning home to Oklahoma, in fear that Cuthbertson was planning to turn his sexual attentions to her younger sister the following year, E.H. informed her parents of the abuse.  
	Cuthbertson was arrested in Florida, and brought before the Santa Rosa County Court.  Based on his 1995 molestation of E.H., he pled no contest to the charge of Sexual Battery while in a Position of Custodial Authority, in violation of Fla. Stat. Ch. 794.011.  He was sentenced to 80 months imprisonment.  Cuthbertson was then indicted in the United States District Court for the Northern District of Oklahoma with five federal criminal counts, all based upon his conduct in traveling from Florida to Oklahoma with the intent and purpose of molesting E.H. in 1994 and 1995.  Cuthbertson, as per his plea agreement with the Government, pled guilty to Count Three, traveling in interstate commerce, in 1994, for the purpose of engaging in illegal sexual acts with a juvenile, in violation of 18 U.S.C. § 2423(b) (West Supp. 1997).  All other counts were dropped.
	The Presentence Report (“PSR”) prepared by the Probation Office recommended, inter alia, that Cuthbertson be given three criminal history points for his Florida sentence, as per U.S.S.G. § 4A1.1(a),  thus placing him in criminal history category II.   Cuthbertson filed an objection to the recommendation.  At sentencing, the district court considered Cuthbertson’s objection and decided to adopt the PSR’s findings.  The court calculated Cuthbertson’s offense level to be 30; combined with a criminal history category of II, Cuthbertson was subject to a sentencing range of 108-135 months.  The district court sentenced Cuthbertson to 120 months imprisonment, the maximum permitted under 18 U.S.C. § 2423.  As per Cuthbertson’s plea agreement, the sentence was imposed to run consecutively to his Florida sentence.
	Cuthbertson’s sole issue on appeal concerns the district court’s decision to assign him to criminal history category II based on his Florida sentence for the 1995 molestation of E.H.  Cuthbertson argues that the court erred in considering his 1995 sentence to be a “prior sentence” and not “relevant conduct.”  Because the district court did not err in determining that Cuthbertson’s Florida sentence fits the Guideline definition of “prior sentence,”  his challenge of the court’s determination of his prior criminal history fails. 
	This court reviews a district court's legal interpretation of the guidelines de novo, and we review  its underlying findings of fact for clear error.   See United States v. Pappert, 112 F.3d 1073, 1078 (10th Cir. 1997).  The determination of whether a conviction is groupable with other convictions is a question of law, reviewable de novo, whereas determination of whether prior conduct is relevant conduct is a pure question of fact for the district court to determine.  See United States v. Moore, 130 F.3d 1414, 1417 (10th Cir. 1997). 
	We begin our inquiry by looking at U.S.S.G.  § 4A1.1(a) (1995), which directs the sentencing court to “[a]dd three points for each prior sentence of imprisonment exceeding one year and one month.”   It is uncontested that the length of imprisonment element of this Guideline is satisfied by Cuthbertson’s Florida sentence.  As for the definition of the term “prior sentence,” the commentary following § 4A1.1(a) directs us to § 4A1.2(a).  That section defines “prior sentence” as “any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendre, for conduct not part of the instant offense.”  U.S.S.G. § 4A1.2(a)(1) (emphasis added).   It is well established that “sentences imposed after commission of an offense for which a criminal history score is being calculated constitute ‘prior sentences’ for purposes of that calculation.”  United States v. Walling, 936 F.2d 469, 471 (10th Cir. 1991) (citing United States v. Smith, 900 F.2d 1442, 1445 (10th Cir. 1990)).  Thus, under § 4A1.2 “the chronology of sentencing rather than the commission of the crimes” controls the analysis.  Id.  Because Cuthbertson’s Florida sentence was imposed prior to the sentence in his federal conviction, it qualifies as a “prior sentence” unless it can be shown that the 1995 conduct which served as the basis for his Florida conviction was conduct that was “part of” the 1994 conduct for which he was convicted in federal court. 
	 “Conduct that is part of the instant offense” for purposes of § 4A1.2(a) is defined in § 1B1.3 “Relevant Conduct.”  See U.S.S.G. § 4A1.2(a) cmt. 1.  Under § 1B1.3(a)(1), relevant conduct is conduct “that occurred during the commission of the offense of conviction . . . .”    Cuthbertson urges this court to analyze this question using the “same course of conduct or common scheme or plan” approach set out in U.S.S.G. § 1B1.3(a)(2).  Much case law has been created on the “same course of conduct or common scheme or plan” language of § 1B1.3(a)(2).  However, § 1B1.3(a)(2) only applies to offenses that are specifically groupable under U.S.S.G. § 3D1.2(d).  Because Cuthbertson’s federal offense falls under U.S.S.G. § 2A3.1, and because § 2A3.1 is specifically excluded from § 3D1.2(d), in this case § 1B1.3(a)(2) does not apply.   Instead, we must limit our analysis to
the terms of § 1B1.3(a)(1), namely, whether the conduct underlying Cuthbertson’s Florida conviction “occurred during the commission of the offense of” his federal conviction.
	The commentary to § 1B1.3 advises us that “[s]ubsections (a)(1) and (a)(2) adopt different rules because offenses of the character dealt with in subsection (a)(2) (i.e. to which § 3D1.2(d) applies) often involve a pattern of misconduct that cannot be readily broken into discrete identifiable units that are meaningful for purposes of sentencing.”   U.S.S.G. § 1B1.3, backg’d.  The commentary indicates that § 1B1.3(a)(2) is intended to prevent “double counting” in cases in which quantities are key to sentencing, such as embezzlement and drug offenses.  See id.  Also key to our analysis is the commentary following § 3D1.2:
		[C]ounts that were part of a single course of conduct 
		with a single criminal objective and represent essentially 
		one composite harm to the same victim are to be grouped 
		together, even if they constitute legally distinct offenses 
		occurring at different times.  This provision does not 
		authorize grouping of offenses that cannot be considered to 
		represent essentially one composite harm (e.g. robbery of the 
		same victim on different occasions involves multiple, 
		separate instances of fear and risk of harm, not one composite 
		harm).
 
U.S.S.G. § 3D1.2 cmt. 4 (emphasis added).  See also U.S.S.G. § 1B1.3, backg’d (“[W]hen § 3D1.2(d) does not apply . . . convictions on multiple counts are considered separately . . . .”) 
	This case is not a case involving quantities of drugs or money.  Instead, this case involves two distinct offenses, namely a 1994 federal offense of transporting a juvenile in interstate commerce with intent to engage in criminal sexual activity and a 1995 state offense of  sexual battery while in a position of custodial authority.  Granted, both of these offenses involved similar conduct against the same victim.  But because these two acts occurred on different occasions, separated by a temporal gap of almost a year, and involved “multiple, separate instances of fear and harm” they cannot be considered to be “part of” one another.	We simply refuse to see E.H.’s school schedule as a  force majeure acting to interrupt Cuthbertson’s ongoing offense, in spite of his efforts.  Cuthbertson was never “forced to put the venture ‘on hold.’” Hill, 79 F.3d at 1483.  Instead, Cuthbertson used E.H.’s school schedule to gain access to E.H., without arousing suspicion, on repeated yet entirely separate occasions.      Cf. United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir. 1993) (“[T]emporal proximity [although not dispositive] is a significant consideration in finding a course of conduct . . . .”).
	The district court heard arguments on this issue, then adopted the findings of the PSR in ruling that Florida conviction did not qualify as part of the offense “as defined or set forth in the guidelines.”  Cuthbertson argues that because the PSR treats his Florida conduct as part and parcel of the same conduct for which he was convicted in federal court, and because he was initially indicted in federal court for his 1995 misconduct as well as his 1994 activity, it was error for the district court to fail to treat his 1995 Florida conviction as part of his 1994 federal offense.  We reject both of these arguments.  First, Cuthbertson offers no authority for his proposition that acts that may have been included together in an indictment must be treated as relevant conduct for sentencing purposes. It is a matter of common sense that a single indictment may contain any number of charges of unrelated offenses.  Second, while it is true that the presentence report lists Cuthbertson’s Florida conviction as a “related case,” we note that under the section entitled “The Offense Conduct” the presentence report discusses only Cuthbertson’s traveling from Oklahoma to Florida in 1994 for the purpose of taking E.H. back to Florida and sexually molesting her.  Later, in a section entitled “Offense Conduct Not Part of Relevant Conduct” the PSR describes Cuthbertson’s separate acts of molestation of E.H. in 1992 and 1995.  The PSR then lists Cuthbertson’s Florida conviction as a separate adult criminal conviction.
	 As presented in the PSR, the harm underlying Cuthbertson’s Florida sentence was sufficiently separate from that underlying his federal conviction to allow the two to be “readily broken into discrete identifiable units that are meaningful for purposes of sentencing.”  U.S.S.G. § 1B1.3, backg’d.   The district court did not abuse its discretion in adopting the PSR’s findings and holding that Cuthbertson’s Florida conviction was not part of his federal conviction, thus qualifying it as a prior sentence.  For this reason, the district court’s sentence is AFFIRMED.