          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                  June 8, 2009
                                No. 08-31046
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

MARIO K JOHNSON

                                            Defendant-Appellant


                 Appeal from the United States District Court
                     for the Middle District of Louisiana
                           USDC No. 3:07-CR-17-1


Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      Mario K. Johnson appeals the 210-month sentence of imprisonment
imposed following his plea of guilty to one count of distribution of five grams or
more of cocaine base. Johnson argues that the district court erred by imposing
a career offender enhancement pursuant to U.S.S.G. § 4B1.1. According to
Johnson, the sentences for the two prior Louisiana drug offenses which formed
the basis for the enhancement should not have been treated as separate



      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                   No. 08-31046

sentences because they were functionally consolidated. As Johnson concedes,
because he did not object to the enhancement in the district court, review is for
plain error. United States v. Campos-Maldonado, 531 F.3d 337, 339-40 (5th
Cir.), cert. denied, 129 S. Ct. 328 (2008).
      Even if Johnson had objected to the enhancement, there was no error.
Under the plain language of the current version of § 4A1.2(a)(2), prior sentences
“are always counted separately if the sentences were imposed for offenses that
were separated by an intervening arrest (i.e., the defendant is arrested for the
first offense prior to committing the second offense.” If there was no intervening
arrest, the sentences are still treated separately unless (1) they resulted from
offenses charged in the same instrument, or (2) the sentences were imposed on
the same day. § 4A1.2(a)(2). It is undisputed that Johnson was arrested for the
first offense on January 26, 2006, and that the second offense occurred on
February 21, 2006. Thus, the offenses were separated by an intervening arrest,
and are treated separately. It is unnecessary to conduct any further analysis.
      Although Johnson contends that a court must inquire into whether the
prior sentences were functionally consolidated, consolidation is no longer the
relevant inquiry under the version of § 4A1.2 that applies to him. Even under
the prior version, however, offenses separated by an intervening arrest were
treated separately, and courts looked to whether they were consolidated only if
there was no intervening arrest.
      In light of the foregoing, the district court committed no error, plain or
otherwise. The judgment of the district court is AFFIRMED.




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