ALVIN B. RUBIN, Circuit Judge:
Defendant challenges the sentence imposed on him by the district court under the Federal Sentencing Guidelines. The court refused to group the two counts of auto theft to which he pled guilty and, in calculating his criminal history category, considered state misdemeanor convictions imposed subsequent to his guilty plea but previous to his federal sentencing. Because we conclude that the district court applied the Guidelines correctly, we affirm in all respects.
Curtis Ballard pled guilty to two counts of auto theft on January 25, 1990. The first count charged that Ballard had knowingly received a stolen 1987 Pontiac Trans Am; the second charged that he had knowingly obliterated the vehicle identification number on a 1988 Chevrolet Camaro Iroc. A month later, but before he had been sentenced on the auto theft charges, Ballard was involved in an unrelated automobile accident in Jacksonville, Arkansas; without benefit of counsel, he pled guilty to four misdemeanor charges and the state court imposed a fine.
The federal district court thereafter sentenced Ballard to 24 months in prison for the two counts of auto theft. It combined the two offenses under § 3D1.4 of the Federal Sentencing Guidelines, yielding an offense level of 13; it then subtracted two points because Ballard had accepted responsibility for his crimes, resulting in an offense level of 11. The district court determined that the recent Arkansas misdemeanor convictions added one point to Ballard's criminal history level, raising him from Category III to Category IV. The Guideline range for an offense level of 11 with a Category IV criminal history is 18-24 months. The court therefore sentenced Ballard to 24 months, the maximum sentence within that Guideline range.
Ballard appeals his sentence, contending that the two counts of auto theft should have been grouped under § 3D1.2 of the Guidelines, thereby yielding an offense level two points lower than that obtained by combining the counts under § 3D1.4. Moreover, he asserts that the district court erred in considering uncounselled misdemeanor convictions that occurred subsequently to his guilty plea in calculating his criminal history category.
§ 3D1.2 of the Guidelines provides that closely-related counts, involving substantially the same harm, shall be "grouped together" for the purpose of calculating the offense level. § 3D1.2(d) divides offenses into three categories: those specifically
In reviewing a district court's decision whether to group counts that are not specifically included or excluded under § 3D1.2(d), this court has not applied the clearly erroneous standard, but has accorded the district court's conclusions "due deference," since both legal and factual determinations are involved.
The Guideline Commentary to § 3D1.2 states:
Had Ballard been convicted of stealing a car and then altering the vehicle identification number of that same car, the counts would properly have been grouped.
Ballard also contends that the district court should not have considered his Arkansas misdemeanor convictions in calculating his criminal history category. He argues that the trial court's consideration of misdemeanors that occurred after his guilty plea in the instant offense constitutes an "ex post facto situation." The Commentary to Guideline § 4A1.2, however, explicitly states that a "prior sentence" to be used in determining the criminal history category:
Since this Guideline section was in effect at the time Ballard committed his offenses and at the time he entered his guilty plea,
Ballard also argues that it was error to consider his state misdemeanor plea because that plea was entered into without benefit of counsel to warn him of its potential effect on his federal sentencing. We have previously held to the contrary. A federal court may, in imposing sentence, consider an uncounselled state misdemeanor conviction for which the defendant did not receive a term of imprisonment.
We therefore AFFIRM the sentence imposed by the district court.