United States v. Terry Poole

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16506 AUGUST 24, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-80073-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY POOLE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 24, 2006)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Terry Poole pled guilty pursuant to a plea agreement to two counts of a
three-count indictment: Count 1, distribution of cocaine base, in violation of 21
U.S.C. §841(a)(1); Count 3, attempted escape, in violation of 18 U.S.C. § 751(a).
The district court sentenced Poole to concurrent prison sentences of 151 months on
Count 1 and 60 months on Count 3. He now appeals his sentences, raising one
issue: Whether the district court properly found that his two prior felony
convictions for crimes of violence were not related and therefore qualified him as a
career offender under U.S.S.G. § 4B1.1(a).
We review for clear error a district court’s determination of whether prior
convictions are related for purposes of U.S.S.G. § 4A1.2. United States v.
Hernandez-Martinez, 382 F.3d 1304, 1306 (11th Cir. 2004). We will not find clear
error unless our review of the record leaves us “with the definite and firm
conviction that a mistake has been committed.” United States v. White, 335 F.3d
1314, 1319 (11th Cir. 2003). A district court’s determination of whether cases are
functionally consolidated, and hence related, is entitled to due deference on review.
United States v. Buford, 532 U.S. 59, 63-66, 121 S.Ct. 1276, 1279-81, 149 L.Ed.2d
197 (2001).
A defendant is a career offender if (1) he was at least 18 years old at the time
he committed the instant offense of conviction, (2) that offense is a felony, e.g., a
controlled substance offense such as the Count 1 offense in this case, and (3) the
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defendant has at least two prior felony convictions of either a crime of violence or
a controlled substance offense. U.S.S.G. § 4B1.1(a). Prior sentences imposed in
unrelated cases are counted separately, while prior sentences imposed in related
cases are treated as one sentence for the purpose of determining career offender
status. U.S.S.G. §§ 4A1.2(a)(2), 4B1.2(c). Prior sentences are considered related
if they resulted from offenses that (1) occurred on the same occasion, (2) were part
of a single common scheme or plan, or (3) were consolidated for trial or
sentencing. U.S.S.G. § 4A1.2, comment. (n.3).
Here, the district court did not clearly err in finding that Poole qualified as a
career offender. The primary dispute is whether the district court erred in treating
his two prior felony convictions as unrelated for computation purposes. The two
convictions were for second degree murder, which Poole committed on April 19,
1989, and for burglary-while armed, which he committed on August 20, 1988. He
was arrested for the murder on April 19, 1989 and for the burglary on April 26,
1989.
Poole contends the cases were related because they were “consolidated for
sentencing.” It is unclear, however, whether Poole is claiming that these cases
were formally consolidated by court order, functionally consolidated, or
consolidated under state law. Because Poole has failed to point to evidence of a
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formal court order of consolidation, we only consider whether the offenses were
functionally consolidated or consolidated under state law.
Cases sentenced on the same day are not functionally consolidated when
they are not subject to a formal consolidation order, they are assigned different
docket numbers, and the defendant receives separated judgments. United States v.
Smith, 385 F.3d 1342, 1346 (11th Cir. 2004), vacated and remanded on other
grounds, 543 U.S. 1181 (2005), reinstated on remand, 416 F.3d 1350 (11th Cir.),
cert. denied, 126 S.Ct. 784 (2005). Cases are not functionally consolidated even if
the same attorney represents the defendant in both cases, and the court imposed
concurrent sentences. Id. Like the defendant in Smith whose offenses were found
to be unrelated, Poole was sentenced to concurrent sentences on the same day, and
he was represented by the same attorney for both offenses. Also like the defendant
in Smith, Poole received separate judgments under two different docket numbers.
In United States v. Hernandez-Martinez, 382 F.3d 1304, 1307-08 (11th Cir.
2004), we held that the district court committed no error in determining that the
defendant’s offenses were not consolidated because: (1) there was no formal
consolidation order; (2) the cases had been assigned different docket numbers; (3)
the defendant received separate judgments; and (4) the defendant was represented
by two different attorneys at sentencing. The only possible distinguishing
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characteristic between the case at hand and Martinez is that Martinez was
represented by two different attorneys on the day of sentencing, and it may be – but
the record is not clear – that Poole was represented by the same attorney at
sentencing. Even if we were to give Pool the benefit of the doubt and assume that
he was represented by the same attorney, this “factual distinction” alone is
insufficient “to change the ultimate outcome in this case.” Smith, 385 F.3d at 1342,
n.2.
Poole contends Martinez is nonetheless distinguishable because in Martinez
“two of the prior felonies occurred in different years and were clearly unrelated.”
Poole claims his case is different because his two arrests were only one week apart
and for similar conduct. His contention is unpersuasive; even though his prior
arrests occurred within one week of each other, the crimes leading to those arrests
were committed more than eight months apart. Additionally, although both crimes
were violent in nature, nothing in the record indicates that they were factually
related in any way.
Finally, the prior convictions were not consolidated under Florida law. We
consider sentences to be consolidated for the purpose of § 4A1.2 if the sentences
have met the requirements for consolidation under state law. Hernandez-Martinez,
382 F.3d at 1308, n.3. Under Florida law, sentences are consolidated when they
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are imposed on the same day, by the same judge, using the same score sheet, and
made to run concurrently. Id. Poole’s sentences were imposed on the same day,
by the same judge, and made to run concurrently, but Poole has not shown that the
same score sheet was used. In short, the sentences were not consolidated for
sentencing under state law.
AFFIRMED.
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