                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 04-3720
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

CURTIS GRAVES,
                                          Defendant-Appellant.
                         ____________
       Appeal from the United States District Court for the
       Southern District of Indiana, Indianapolis Division.
          No. 02 CR 127—David F. Hamilton, Judge.
                         ____________
    ARGUED MAY 13, 2005—DECIDED AUGUST 12, 2005
                    ____________




 Before CUDAHY, EASTERBROOK, and KANNE, Circuit
Judges.
  KANNE, Circuit Judge. Curtis Graves was arrested and
charged with two counts of possession with intent to
distribute 50 or more grams of crack cocaine. On appeal he
argues that his conviction should be overturned and that he
was improperly sentenced as a career criminal under the
sentencing guidelines. For the reasons stated herein, we
affirm his conviction but vacate his sentence and remand
for resentencing.
2                                              No. 04-3720

                     I. Background
  On March 29, 2002, Curtis Graves sold 72 grams of crack
cocaine to Tona Jones. Unfortunately for Graves, Jones was
working as an informant for the FBI Safe Streets Task
Force at the time of the controlled purchase. Jones was
wearing a tape-recording device and the sales transaction
between Graves and Jones was observed by law enforce-
ment officers. The recorded conversation included state-
ments by Graves saying that he was “cooking all this dope”
and that Jones should let it dry before use. On April 15,
2002, Jones made a second controlled purchase of crack
cocaine from Graves, this time buying more than 110
grams.
  Graves was charged with two counts of distributing 50 or
more grams of crack cocaine. See 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(iii). At trial, the government presented testi-
mony from the FBI officers who had worked with Jones and
observed the drug purchases. The recorded conversations
between Graves and Jones were played for the jury. On
February 3, 2004, one day after the trial began, a jury
convicted Graves on both counts.
   At sentencing, the district court found that based on the
quantity of drugs sold, Graves’s base offense level was 34.
The court then found that Graves was a career offender
according to U.S.S.G. § 4B1.1. This enhancement increased
the offense level to 37 and, combined with a criminal his-
tory category VI, led to a sentencing range of 360 months to
life. The court sentenced Graves to 360 months on each
count, to be served concurrently.
No. 04-3720                                                  3

                        II. Analysis
   Graves makes several arguments contesting the validity
of his conviction.1 His prosecutorial misconduct and suf-
ficiency of the evidence challenges are without merit. His
argument relating to the jury selection process is also
flawed, but will be discussed.
  Graves claims that his conviction should be overturned
because the “exceptionally confused jury-selection process”
impaired his right to the intelligent exercise of his peremp-
tory challenges. Graves’s trial counsel had used only one of
his ten peremptory challenges when the jury was seated,
apparently because of a mistaken understanding of when
the jury members to try the case would ultimately be
selected. We find, however, that Judge Hamilton’s explana-
tion of the process was clear.
  The venire had been divided into two groups—A and B.2
When voir dire had been completed for group A, the court
heard challenges for cause and two jurors were dismissed.
Then Judge Hamilton directed counsel to prepare the
peremptory strikes for group A and stated, “We will seat the
12 jurors with the highest priority seating positions who
remain unstruck after this.” He further explained that
“once this group clears, they are in, and then we will move
on to the second group.”
  When the peremptory strikes had been completed for
group A—one peremptory strike by Graves’s trial counsel
and four by the government—Judge Hamilton indicated
that twelve regular jurors had been chosen from the
thirteen remaining unstruck.


1
  At the suggestion of the court at oral argument, Graves with-
drew his ineffective assistance of counsel challenge.
2
  The government suggests that Judge Hamilton might have
chosen to divide the jury pool into two groups because of the
limited space in his courtroom.
4                                               No. 04-3720

  The court then asked Graves’s counsel, “You follow where
we are . . .? We have got 12 jurors now.” The government
indicated that it was “comfortable going with thirteen if the
court is.” Graves’s counsel responded, “That is fine, Judge.”
  Finally, the court asked “Do any of you want to exercise
a challenge for the 13th juror?” Both the government and
Graves’s counsel responded that they did not. The court
concluded by saying, “So she will be the alternate. We will
go with that.”
  At that point, twelve regular jurors and one alternate had
been selected from group A. The jurors in group B were
dismissed and the court recessed for lunch. Following that
recess, the jury was sworn and the trial commenced. It is
apparent that counsel for Graves did not object at any time
to the jury selection process or to going forward with the
jury that had been selected.
  “Peremptory challenges come from [Federal Rules of
Criminal Procedure] Rule 24, and Rule 52(a) adds: ‘Any
error, defect, irregularity or variance which does not affect
substantial rights shall be disregarded.’ ” United States v.
Patterson, 215 F.3d 776, 781 (7th Cir.), vacated on other
grounds by 531 U.S. 1033 (2000). Trial courts have wide
discretion in the procedures they may use to select juries
under Rule 24. See Fed. R. Crim. P. 24(b). In United States
v. Williams, for example, the trial judge utilized a method
of jury selection with which the Florida lawyers on the case
were not familiar. 447 F.2d 894 (5th Cir. 1971), overruled on
other grounds by United States v. Archer, 733 F.2d 354 (5th
Cir. 1984). The defendant argued that this method was
prejudicial, but failed to indicate any legitimate reason why
that was the case. The Fifth Circuit found that the jurors
who served were not biased or prejudiced and, therefore,
“[t]here is no authority known to us for so limiting the
discretion of trial judges in the federal system of courts.
Indeed the whole procedure outlined by Rule 24 . . . empha-
No. 04-3720                                                 5

sizes the wide discretion committed to the trial judge in the
methods employed to select juries.” Id. at 896-97.
  In this case, Graves argues that his right to an impartial
jury was violated when two potential jurors, whom he had
previously challenged for cause, were seated on the jury.
One of the jurors was the wife of a police officer and one
had lived next door to drug dealers who had shot a bullet
into her home. Each of the empaneled jurors, when asked
individually by Judge Hamilton, stated that none of their
experiences or relationships would affect their judgment as
jurors. Judge Hamilton found that the seated jury was im-
partial. We grant deference to the experienced trial judge’s
assessment and decision as to whether potential jurors are
impartial. See United States v. Beasley, 48 F.3d 262, 267
(7th Cir. 1995).
  The jury that sat for Graves’s trial was impartial, and so
his substantial rights were not violated. See Fed. R. Crim.
P. 52(a). “Peremptory challenges enable defendants to feel
more comfortable with the jury that is to determine their
fate, but increasing litigants’ comfort level is only one goal
among many, and reduced peace of mind is a bad reason to
retry complex cases decided by impartial juries.” Patterson,
215 F.3d at 782. We find that the court did not abuse its
discretion in the method chosen to empanel the jury, and
that the jury-selection process was explained clearly and
was far from “exceptionally confused.” Graves’s conviction
will be affirmed.
  The sentencing issues that Graves raises are closer ques-
tions. Graves first argues that the career offender en-
hancement should not have been used to determine his
sentence because he did not have the requisite number of
prior felony convictions. According to the sentencing guide-
lines:
    A defendant is a career offender if (1) the defendant was
    at least eighteen years old at the time the defendant
6                                                No. 04-3720

    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 convic-
    tions of either a crime of violence or a controlled sub-
    stance offense.
U.S.S.G. § 4B1.1(a). The guidelines further instruct that
“[p]rior sentences imposed in related cases are to be treated
as one sentence . . . .” U.S.S.G. § 4A1.2(a)(2). “Therefore,
whether any two prior convictions may be counted sepa-
rately for purposes of the career offender provision depends
upon whether the sentences imposed for the convictions
were ‘related.’ ” United States v. Best, 250 F.3d 1084, 1094
(7th Cir. 2001). The last step in this “relatedness” analysis
is to consider Application Note 3 to § 4A1.2:
    Prior sentences are not considered related if they were
    for offenses that were separated by an intervening ar-
    rest (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.
There is no question that Graves meets the first two criteria
of the career offender enhancement because he was over 18
when he committed the instant controlled substance
offense. Graves argues, however, that his two prior convic-
tions were consolidated for sentencing and thus should
qualify as “related” offenses.
  A short discussion of Graves’s criminal history is re-
quired. On April 10, 1993, Graves fired a gun inside a
townhouse in which two adults and two young children
resided. On January 5, 1994, Graves shot a man in the back
of the neck and the leg with a semi-automatic handgun.
After committing both aggravated battery offenses, Graves
No. 04-3720                                                   7

was arrested only for the first offense. While out on bond,
he was arrested for the second shooting. These two offenses
were prosecuted as different cases and resolved by different
plea agreements. The crimes occurred nine months apart
and had different, unrelated victims. Graves was sentenced
to serve concurrent terms, but the two sentencings took
place on different days in front of different judicial officers.
  Sentences are considered consolidated when there is a
formal order consolidating them, or if the defendant can
show “functional consolidation.” See Best, 250 F.3d at 1095.
“Functional consolidation occurs when there is a record that
shows the sentencing court considered the cases sufficiently
related for consolidation and effectively entered one sen-
tence for multiple convictions.” United States v. Vallejo, 373
F.3d 855, 858 (7th Cir. 2004) (internal quotations and
citation omitted). We review the district court’s decision as
to whether the sentences were functionally consolidated for
clear error. See United States v. Buford, 201 F.3d 937, 942
(7th Cir. 2000).
  The district court noted that although the sentences were
concurrent and there was a reference in one plea agreement
to the other, those facts alone did not support a finding that
the sentences were consolidated. We agree. “[C]oncurrent
sentences do not automatically create cases consolidated for
sentencing.” United States v. Sexton, 2 F.3d 218, 219 (7th
Cir. 1993); see also Vallejo, 373 F.3d at 859 (finding sen-
tences not consolidated when each case had a different
docket number, the judge referred to the cases as separate,
and sentencing orders were entered separately); Best, 250
F.3d at 1095 (affirming district court’s decision on consoli-
dation when the sentencing court retained separate docket
numbers, entered separate judgments and sentences, and
the crimes occurred one month apart and were not logically
related). The facts supporting a finding that the sentences
were not consolidated are even stronger here than they
were in Vallejo and Best; Graves committed two aggravated
8                                                No. 04-3720

batteries nine months apart, the cases were prosecuted as
separate crimes, there were two separate plea agreements,
and the sentencings took place on different days in front of
different judges. We cannot say that the district court erred
in finding that Graves’s two prior felonies were not “re-
lated”; thus, sentencing him as a career offender was
proper.
  Graves next argues that his sentence violates the Sixth
Amendment because the district court, in determining that
he was a career offender, made findings of fact which ex-
ceeded the judicial factfinding exception for recidivism that
was recognized in Almendarez-Torres v. United States, 523
U.S. 224 (1998), and preserved in United States v. Booker,
125 S. Ct. 738 (2005). It is true that a court makes a factual
determination when it decides whether a case has been
consolidated for sentencing, and until recently we believed
that these factual findings fell within the exception for prior
convictions. See United States v. Ngo, 406 F.3d 839, 842-43
(7th Cir. 2005). Shepard v. United States, 125 S. Ct. 1254
(2005), however, “suggests that the recidivism exception
exempts only those findings traceable to a prior judicial
record of ‘conclusive significance.’ ” Ngo, 406 F.3d at 842.
The sentencing court may only examine “the terms of the
charging document, the terms of a plea agreement or trans-
cript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant,
or to some comparable judicial record of this information.”
Shepard, 125 S. Ct. at 1263.
   “The finding that [Graves’s] crimes were not consolidated
falls within the narrow parameters permitted by Shepard,
i.e., those findings that can be made by resorting only to
information with the ‘conclusive significance’ of a prior
judicial record.” Ngo, 406 F.3d at 843. We explained pre-
viously that sentences can be considered consolidated only
“when there is a record that shows the sentencing court
No. 04-3720                                                  9

considered the cases sufficiently related for consolida-
tion . . . .” Vallejo, 373 F.3d at 858. “Our precedent ac-
cordingly requires that a district court decide a disputed
consolidation question by resorting to a formal order or a
sentencing transcript, both sources that presumably have
‘the conclusive significance of a prior judicial record’ as
required by Shepard.” Ngo, 406 F.3d at 843.
  As explained above, we find that Graves’s Sixth
Amendment rights were not violated. However, the district
court did commit error by sentencing Graves under the now-
defunct mandatory guidelines scheme. See United States v.
Schlifer, 403 F.3d 849, 853 (7th Cir. 2005). Because Graves
preserved his Blakely/Booker claim by objecting to the pre-
sentence report on those grounds, he is entitled to plenary
review of the sentencing error. Id. at 854. The district
court’s error in treating the guidelines as mandatory is, in
effect, a misapplication of the guidelines, and so Graves’s
sentence must be vacated unless the error was harmless.
Id. “When an error relates to the validity of a defendant’s
sentence, it is harmless only if it did not affect the district
court’s choice of sentence.” Id. (citations omitted).
  We can find no evidence in the record proving conclusively
that the district court would have chosen the exact same
sentence for Graves had he known that the guidelines were
merely advisory. The court stated that Graves had “a track
record in both vicious violence with guns and trafficking in
the most destructive drug around and, so, the sentence is
appropriately a heavy one.” The court also noted that if it
had decided that the career offender enhancement could not
be applied, it might have “consider[ed] the possibility of an
upward departure based on an under representative
criminal history.” And although these statements seem to
indicate that the court was satisfied with the 360 month
sentence, “we require a higher degree of certainty” for a
conclusion that the guideline misapplication was harmless.
See Schlifer, 403 F.3d at 854. Based on the record, “this
10                                              No. 04-3720

court would have to speculate that the district court’s error
in thinking itself bound by the guidelines did not affect the
sentence.” Id. at 855. Therefore, we must vacate Graves’s
sentence and remand for resentencing.


                     III. Conclusion
  Graves’s conviction is AFFIRMED. However, we VACATE his
sentence and REMAND the case to the district court for
resentencing consistent with this opinion and Booker.


A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-12-05
