218 F.3d 670 (7th Cir. 2000)
UNITED STATES OF AMERICA,    Plaintiff-Appellee,v.Undray BRADLEY,    Defendant-Appellant.
No. 99-3544
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 4, 2000Decided June 26, 2000

Appeal from the United States District Court  for the Southern District of Illinois.  No. 99 CR 30038--David R. Herndon, Judge.
Before COFFEY, ROVNER and DIANE P. WOOD,  Circuit Judges.
COFFEY, Circuit Judge.


1
On March 17,  1999, a federal grand jury returned a  three-count indictment charging the  defendant-appellant, Undray Bradley  ("Bradley"), with distribution of crack  cocaine in violation of 21 U.S.C. sec.  841(a)(1). On April 26, 1999, Bradley  appeared before the court and entered a  plea of guilty to all three counts of the  indictment. Following a sentencing  hearing, the trial judge concluded that  Bradley, 41 years of age, was a career  offender within the meaning of U.S.S.G.  sec. 4B1.1,1 and sentenced him to 151  months' imprisonment, 3 years' supervised  release, a fine of $900, and a $300  special assessment. On appeal, Bradley  challenges the trial court's  determination that he qualifies as a  career offender under the sentencing  guidelines. We affirm.

I.  BACKGROUND

2
The facts surrounding Bradley's  underlying drug offenses are undisputed.  Thus, the focus of this appeal is whether  Bradley's prior criminal conduct  qualifies him as a career offender.


3
Before the sentencing hearing in this  case, the probation officer prepared a  Presentence Investigation Report ("PSR")  that set out, among other things, the  defendant's prior federal and state  criminal convictions. Bradley's first  relevant conviction was in state court in  St. Clair County, Illinois, for an  offense that occurred on June 30, 1992,  when he was charged with Unlawful  Possession with Intent to Deliver  Cocaine. See 720 ILCS 570/401(a)(2) (West  1992). Bradley pled guilty to the  Illinois state drug charge, and on  October 30, 1992, he was placed on two  years' probation.


4
Bradley's second relevant conviction, as  described in the PSR, arose out of  federal charges in which Bradley was  named in two counts of a multiple-count  indictment. Count two charged that  Bradley, along with 24 other individuals,  conspired to distribute cocaine base  during a period commencing in June of  1991 and ending on or about February 15,  1993. Count 29 charged that Bradley  possessed cocaine base with intent to  distribute on November 4, 1992. Bradley  was arrested on February 23, 1993, for  the charges set forth in the federal  indictment. Bradley later entered a plea  of guilty to both counts.


5
As part of the plea agreement in this  case, the defendant waived the right to  appeal or otherwise collaterally attack  any issue other than whether he was a  career offender as defined by the  sentencing guidelines. At sentencing,  Bradley's trial counsel conceded that  under the "intervening arrest" rule set  out in Application Note 3 to U.S.S.G.  sec. 4A1.2,2 the state charge of June  30, 1992, and the federal charge for  conspiracy to distribute cocaine base  from June 1991 through February 15, 1993,  are unrelated cases.3 Now, on appeal,  Bradley argues that the court erred in  sentencing him as a career offender  because his two prior felony convictions  for controlled substance offenses are  "related" under the sentencing  guidelines.

II.  DISCUSSION

6
Bradley did not challenge his  classification as a career offender in  the trial court because his counsel  stated his belief that the current state  of the law precluded him from doing so.  The government argues that because  Bradley conceded that the law at the time  of his sentencing supported the finding  that he qualifies as a career offender,  this issue is presented for the first  time on appeal and we should review it  under the plain error standard. See  United States v. Barker, 27 F.3d 1287,  1292 (7th Cir. 1994).


7
However, the argument can be made that  because Bradley reserved the right to  appeal the issue of whether he is a  career offender in his plea agreement,  this court should afford the defendant de  novo review on the issue, especially in  light of the fact that Bradley makes a  legal challenge to the interpretation of  the career offender statute rather than a  challenge to the factual finding that he  is a career offender. We are of the  opinion that the standard of review is of  little consequence in this particular  case because we conclude that under  either standard of review the defendant's  arguments fail.


8
Bradley challenges the trial court's  finding that he is a career offender  within the meaning of U.S.S.G. sec.  4B1.1, claiming that he does not have two  prior felony convictions for crimes of  violence or controlled substance  offenses. The Guidelines provide that in  order to be counted for purposes of  determining career offender status, the  relevant predicate offenses must not be  "related" as the term is used in U.S.S.G.  sec. 4A1.2. The Guidelines further  provide that prior sentences are not  related if they are for offenses that  were separated by an intervening arrest,  and that "[o]therwise, prior sentences  are considered related if they resulted  from offenses that (A) occurred on the  same occasion, (B) were part of a single  common scheme or plan, or (C) were  consolidated for trial or sentencing."  U.S.S.G. sec. 4A1.2, Application Note 3.


9
Bradley was arrested for possession with  intent to deliver cocaine on June 30,  1992, convicted in an Illinois state  court of those charges, and sentenced on  October 30, 1992, to two years'  probation. On February 23, 1993, Bradley  was again arrested on drug charges, this  time for the federal offense of  conspiracy to distribute, and possession  with intent to distribute, cocaine base.  The federal indictment alleged that the  drug conspiracy commenced on or about  June of 1991 and continued until  approximately the middle of February of  1993. Although the federal charges  included conduct that resulted in the  June 30, 1992, state cocaine possession  offense, the fact remains that Bradley  was arrested on the state charge prior to  the last act alleged in the federal case;  thus the trial judge in the instant case  found the state criminal conduct and the  federal charges to be separated by an  "intervening arrest" pursuant to U.S.S.G.  sec. 4A1.2, Application Note 3.


10
Bradley acknowledges that the other  circuits which have addressed the same  issue have held that once there has been  an intervening arrest between two  convictions, the inquiry is over and the  convictions are not considered related  offenses. See, e.g., United States v.  Boonphakdee, 40 F.3d 538, 544 (2d Cir.  1994); United States v. Hallman, 23 F.3d  821, 825 (3d Cir. 1994); United States v.  Gallegos-Gonzalez, 3 F.3d 325, 327 (9th  Cir. 1993). The courts in Boonphakdee,  Hallman, and Gallegos-Gonzalez explained  that the plain language of Application  Note 3 indicates that the intervening  arrest inquiry must be made first, and  that the word "otherwise" indicates that  only if there have been no intervening  arrests should the court look to the  other factors to determine whether the  offenses are related.


11
In the Seventh Circuit, we have also  concluded that Application Note 3  requires "that if the criminal conduct is  separated by arrests, the ensuing  convictions are never considered related.  . . ." United States v. Woods, 976 F.2d  1096, 1102 (7th Cir. 1992). See also  United States v. Linnear, 40 F.3d 215,  224 n.8 (7th Cir. 1994) ("[E]ven assuming  [the defendant's] 1990 charges were  consolidated for plea and sentencing,  they cannot be considered as related  offenses because they were separated by  intervening arrests.").


12
Despite the fact that there was an  intervening arrest, Bradley urges us to  hold that the district court was under an  obligation to specifically evaluate the  offenses to determine whether the first  was committed prior to the second.  Bradley's assertion that this court  should require this type of inquiry is  based upon language from the commentary  to the sentencing guidelines stating that  "[p]rior sentences are not considered  related if they were 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)." U.S.S.G. sec. 4A1.2,  Application Note 3 (emphasis added).  Bradley asserts that because the first  drug offense, the state charge of  possession of cocaine with intent to  deliver, was committed on June 30, 1992,  and the second drug offense, the federal  charge of conspiracy to distribute  cocaine base, was a continuing offense,  running from June of 1991 through  February 15, 1993, there is some question  as to whether the first offense is  actually encompassed in the latter  offense. Thus, Bradley argues, the two  convictions are "related" because the  arrest on June 30, 1992, was not  technically intervening.


13
In United States v. Coleman, 38 F.3d  856, 860 (7th Cir. 1994), we held that  the district court properly found that  there was an intervening arrest under the  Guidelines where the defendant "was  arrested for the acts comprising the  first offense before he committed the  acts comprising the second offense."  Here, there is no question that Bradley  was arrested for the acts comprising the  first offense, unlawful possession of a  controlled substance, prior to committing  a significant portion of the acts  comprising the conspiracy offense, which  did not conclude until February of 1993.  Thus, even if the court had conducted a  more specific inquiry beyond whether  there was an intervening arrest and into  the issue of whether the first offense  was committed prior to the second  offense, the outcome would have been the  same.4

The decision of the district court is

14
AFFIRMED.



Notes:


1
 Section 4B1.1. provides as follows:    A defendant is a career offender if (1) the  defendant was at least eighteen years old at the  time the defendant committed the instant offense  of conviction, (2) the instant offense of  conviction is a felony that is either a crime of  violence or a controlled substance offense, and  (3) the defendant has at least two prior felony  convictions of either a crime of violence or a  controlled substance offense. If the offense  level for a career criminal from the table below  is greater than the offense level otherwise  applicable, the offense level from the table  below shall apply. A career offender's criminal  history category in every case shall be Category  VI.


2
 Application Note 3 provides, in relevant part, as  follows:    Prior sentences are not considered related if  they were 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). Otherwise, prior  sentences are considered related if they resulted  from offenses that (A) occurred on the same  occasion, (B) were part of a single common scheme  or plan, or (C) were consolidated for trial or  sentencing.


3
 Bradley's counsel made the following statement to  the court at sentencing:
Additionally, the PSR recommends that he be  found to be a career offender. Under the state of  the law as it was several years ago we would have  contested that because we really believe that the  State offense that is indicated in the PSR, that  is, the possession, felony possession of cocaine,  was part of the conspiracy, the federal  conspiracy to which the Defendant later pleaded  guilty.
Nevertheless, under the more recent amendment to  the guideline commentary, the fact that the  Defendant was arrested on the State charge prior  to the conclusion of the conspiracy alleged in  the Federal case would invoke what is called the  Intervening Arrest Rule, and I cannot see a way  of getting around that. Frankly, I believe the  way the law is right now, application of that  commentary would require that the Court finds him  to be a career offender.


4
 Additionally, we noted in Coleman that the fact  that an offender is arrested between his first  and second offenses demonstrates "that he is less  likely to mend his ways." Coleman, 38 F.3d at 860  (citation omitted). Therefore, the intervening  arrest provision is a fair way to assess whether  a defendant is a career offender who is likely to  engage in criminal activity again if released or  whether he shows a sincere intention to abandon  a lifestyle of crime, thus making him a candidate  for rehabilitation. Here, Bradley was arrested on  the state case several months prior to the  commission of the last criminal act alleged in  the federal drug conspiracy case; his continued  involvement in the drug conspiracy after the June  30, 1992, arrest supports the inference that  Bradley is not one likely to "mend his ways."


