CHAPMAN, Circuit Judge:
This is an appeal by the United States from a finding made by the sentencing court that Gregory Rivers' two prior armed robbery convictions had been consolidated and merged into one offense for the purposes of the United States Sentencing Guidelines, and that for sentencing on his present offenses — two bank robberies — he was not a "career offender" under U.S.S.G. § 4B1.1.
The Grand Jury for the District of Maryland indicted Gregory Robert Rivers on three counts charging bank robbery, bank larceny and entry into a bank with intent to commit larceny in violation of 18 U.S.C. § 2113(a), (b), (f), and 18 U.S.C. § 2. All of these acts occurred on August 18, 1989 at a branch of Signet Bank in Baltimore, Maryland. The same indictment charged three additional counts, bank robbery, bank larceny, and entry into a bank with intent to commit larceny, resulting from acts of appellant on August 9, 1989 at a branch of Equitable Bank in Baltimore, Maryland.
Following negotiations, a plea agreement was signed by an Assistant United States Attorney, appellant's counsel and appellant individually. This agreement is dated December 5, 1989 and provides that appellant will plead guilty to one count of the indictment pending against him charging bank robbery in violation of 18 U.S.C. § 2113(a). The agreement contains a stipulation of the facts covering the actions by the appellant at the Signet Bank on August 18, 1989 and the Equitable Bank on August 9, 1989. The agreement further provides that the combined offense level is 21 and would be reduced by 2 for acceptance of responsibility. It stipulated that the defendant's criminal history category was VI, that the guideline range was 63 to 78 months and "[t]here are no stipulations to career offender and/or criminal livelihood applicability or to 5K departures." In paragraph 5 of the plea agreement, it is provided:
Prior to sentencing, the probation officer issued his final presentence investigation report and concluded that the career offender designation applied to Rivers. The probation officer's conclusion was based upon certain undisputed facts. First, Rivers was at least eighteen years of age at the time of the instant offense. Second, on November 12, 1976 in the Circuit Court of Baltimore City, Rivers received a 12 year sentence for robbery with a deadly weapon, and on March 22, 1977 in the Circuit Court of Baltimore County, Rivers received a 16 year sentence following a plea of guilty to robbery with a dangerous and deadly weapon. Each of these prior crimes is a "crime of violence" as used in the definition of a career offender under § 4B1.1.
After receiving the presentence investigation report, Rivers submitted a motion for a factual determination of his career offender status and claimed that his two prior armed robbery convictions should be counted as one prior sentence for the purpose of evaluating his criminal history category. He claimed that the sentences were related within the meaning of § 4A1.2 because they resulted from a common scheme and because they were consolidated for the purpose of plea bargaining. The government opposed this motion and by written order of April 9, 1980, the district court concluded that Rivers was not a career offender. The district court's reasoning was:
Later in the same order the district court found:
The district court then sentenced appellant, over the objection of the U.S. Attorney, to 70 months incarceration, and the government appealed.
There is no factual or legal support for the district court's findings and conclusions. There is no suggestion in Rivers' motion for a factual determination of his career offender status that the two 1976 armed robbery convictions had been consolidated for the purposes of trial and sentencing. He claimed only that the convictions were consolidated for the purposes of plea bargaining. This is not supported by the record. The convictions were in different courts having separate jurisdiction and they were entered five months apart.
Even if they had been consolidated for plea bargaining, this does not make them related under § 4A1.2, which provides:
The two prior armed robbery sentences were separate "prior sentences" under the above definition. The fact that Judge Raine gave a partially concurrent sentence does not make the prior convictions "related." He obviously treated the occurrences separately because he imposed the sentence of 16 years, 4 years longer than the sentence given by the Circuit Court of Baltimore City. Application Note 3 to § 4A1.2 states that cases are related "if they (1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing." The two prior armed robberies did not occur on a single occasion and were not consolidated for trial or sentencing.
As an alternate holding, the district court found that they were committed pursuant to a "single plan, i.e., a plan to rob gas stations to obtain money to buy narcotics...."
The district court's finding "[i]t was only an accident of geography that precluded such consolidation" is not supported by the record and is clearly erroneous. The offenses were committed in different jurisdictions and on different dates. The offenses were adjudicated separately and appellant was sentenced separately.
The sentencing court discussed United States v. Flores, 875 F.2d 1110 (5th Cir.1989), and concluded that it was contrary to its conclusion that the prior offenses were "related cases," but it found Flores unpersuasive. However, we find Flores helpful and adopt its reasoning on the question of prior convictions as "related cases" within the meaning of § 4A1.2(a)(2). Flores had six prior burglary convictions and argued that they were related cases and should be treated as only one because they were consolidated for trial and sentencing. The record reflects that there were separate trials in three separate counties, but Flores argues that they were consolidated for sentencing because all six sentences ran concurrently. The Fifth Circuit held:
Id. at 1114.
In United States v. Gross, 897 F.2d 414 (9th Cir.1990), the defendant claimed that three cases for which he was sentenced on the same day to concurrent sentences of three years imprisonment should have been treated as one sentence for the purposes of criminal history category because the three cases were consolidated for sentencing. The Ninth Circuit held that when the facts are undisputed, the question of whether cases are related within the meaning of § 4A1.2(a)(2) and Application Note 3 of the Sentencing Guidelines is a legal determination and not a factual one. Even though the prior convictions were all based upon credit card fraud, they were not related because they arose out of factually unrelated criminal actions, and the fact that they were consolidated for sentencing did not require a finding that they were related. The court called attention to the public policy as reflected by the Sentencing Guidelines:
Id. at 417.
In United States v. Metcalf, 898 F.2d 43 (5th Cir.1990), the court held that sentencing
We hold that when the facts as to prior convictions and prior sentences are undisputed, the question of whether such prior sentences are "related" under § 4A1.2(a)(2) is a legal determination. Also, when the facts as to the three elements set forth in § 4B1.1 are not in dispute, the question of whether one is a "career offender" is a legal and not a factual determination.
On the present facts, Rivers is a career offender as a matter of law. He was (1) at least eighteen years of age at the time of the instant offense, which (2) is a crime of violence, and (3) he had two prior felony convictions that were crimes of violence. The district court was in error in not finding Rivers to be a career offender, and we vacate the sentence of 70 months imposed by the district court. However, as previously mentioned, either party to the plea agreement of December 5, 1989 has the right to declare the plea agreement null and void because we have determined that Rivers is a career offender under the guidelines. Notice to declare the plea agreement null and void must be given as hereinabove provided within 30 days of the issuance of the mandate by the Clerk of this court.
We deny the appellee's motion to dismiss this appeal. There is nothing in the plea agreement that prevents either party from appealing the judgment of the district court.
SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.