                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       December 8, 2004

                       __________________________                  Charles R. Fulbruge III
                                                                           Clerk
                              No. 04-30275
                       __________________________


UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                    versus


DARRELL WEST,

                                                      Defendant-Appellant.

          ___________________________________________________

              Appeal from the United States District Court
                  for the Western District of Louisiana
                        (Criminal No. 03-50094-01)
          ___________________________________________________

Before REAVLEY, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

      Defendant-Appellant Darrell West appeals his sentence which

was imposed following his guilty-plea conviction for conspiring to

distribute 50 grams or more of cocaine base, distributing 50 grams

or   more   of   cocaine   base,   and   possessing   with   the    intent     to

distribute 50 grams or more of cocaine base.           The district court

sentenced West as a career offender under United States Sentencing

Guidelines Manual § 4B1.1.         West contends that the district court


      *
        Pursuant to 5TH CIR. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
erred in failing to find that his prior state court convictions

were “related” for purposes of United States Sentencing Guidelines

Manual § 4A1.2(a)(2).     Specifically, he argues that the evidence

supports a finding that his prior convictions were “functionally

consolidated.”1 Following the Supreme Court’s opinion in Buford v.

United States we review deferrentially the sentencing court’s

determination   whether   West’s   prior   offenses   were   functionally

consolidated for trial or sentencing.2      We affirm.

     West’s Presentence Investigation Report (“PSR”) reflects that,

in 1998, West sold crack cocaine to an undercover police officer,

after which a warrant was issued for his arrest.       At the time West

was arrested, a large bag containing marijuana was found in his

possession.   Two indictments were obtained and two cases proceeded

in Louisiana state court under separate docket numbers.          Prior to

trial, West agreed to plea guilty in both cases, signed two plea

agreements, and, at a single sentencing hearing, received two five-

year sentences of hard labor that were to run concurrently.

     Based on these two prior state convictions, the district court

concluded that West is a career offender.       Section      4B1.1 of the

Sentencing Guidelines provides that “[a] defendant is a career


     1
       See United States v. Huskey, 137 F.3d 283 (5th Cir. 1998)
(recognizing functional consolidation).
     2
       532 U.S. 59 (2001); see also United States v. Moreno-
Arredondo, 255 F.3d 198, 203 n.10 (5th Cir. 2001) (the Court’s
Buford opinion rejects de novo review and requires deference to
the district court’s decision, but fails to specify the degree of
deference to be accorded).
                                2
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.”           West argues

that his two prior state court convictions should not be counted

separately    for   career   offender    purposes.     If    West’s   prior

convictions are “related” within the meaning of § 4A1.2(a)(2), they

will not be treated separately for career offender purposes.3            The

Guidelines’ official commentary provides:

            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 (1) occurred on the same occasion, (2)
            were part of a single common scheme or plan, or (3) were
            consolidated for trial or sentencing.4

     It is not disputed that there was no formal consolidation in

West’s prior    state   cases.    We    have,   however,    recognized   the

possibility of functional consolidation when there was “either some

factual connexity between [the prior cases], or else a finding that

the cases were merged for trial or sentencing.”5           In United States

v. Huskey, we held there is de facto consolidation when “factually

     3
         See United States v. Kates, 174 F.3d 580, 584 (5th Cir.
1999).
     4
         U.S. Sentencing Guidelines Manual § 4A1.2, cmt. n.3.
     5
         Huskey, 137 F.3d at 288.
                                    3
distinct offenses are charged in the same criminal information

under the same docket number.”6

     By contrast, neither the fact that sentencing for the prior

offenses occurs on the same day and in the same proceeding, nor the

imposition of identical, concurrent sentences is sufficient to

require a determination that factually distinct offenses were

related.7      In United States v. Kates we upheld the district court’s

determination that the defendant was a career offender.            The

defendant in Kates had been arrested for two separate drug offenses

on the same day; two indictments were obtained; the cases were not

formally consolidated; the defendant was sentenced for offenses on

the same day; and the defendant was paroled on each offense on the

same day.8      Affirming the district court’s determination, we held

that these facts were not sufficient to require a finding of

consolidation under Fifth Circuit precedent.9

     The instant case is indistinguishable from Kates.        West was

arrested on the same day for two separate drug offenses; separate

     6
         Id.
     7
         See Kates, 174 F.3d at 584; Huskey, 137 F.3d at 288.
     8
         174 F.3d at 584.
     9
       Id. See also United States v. Garcia, 962 F.2d 479 (5th
Cir. 1992) (finding no functional consolidation of two prior
state drug offenses when the two indictments had consecutive
numbers and were filed on the same day; the same attorney was
appointed to represent defendant in both cases and submitted one
statement for both representations; the clerk of court scheduled
the two cases in the same court for the same date and time; the
plea agreements for the two cases referred to each other; and the
ten-year sentences for each conviction ran concurrently).
                                4
indictments were returned against him; the offenses were prosecuted

under separate docket numbers; he entered into two separate plea

agreements; and the cases were not formally consolidated.            West

received concurrent sentences from a single judge at a single

hearing, and received parole for both on the same day.

     West makes several arguments for why his case is different

than Kates.          First, he contends that, unlike Texas law which

applied in Kates, Louisiana law does not allow consolidation of

cases     by   the    court   once   proceedings   are   underway.   This

characterization is not entirely accurate. If two offenses “are of

the same or similar character or are based on the same act or

transaction or on two or more acts or transactions connected

together or constituting parts of a common scheme or plan,” a

prosecutor may charge the two offenses in the same indictment, and

any case would proceed under one docket number.10           Furthermore, a

defendant may move to have a case consolidated if it originally

could have been charged in the same indictment and brought under

one docket number.11      Finally, the commentary to Article 706 of the

Louisiana Code of Criminal Procedure notes that, even though a

court does not have the power to consolidate a case on its own

motion or on motion of the state over the objection of any

defendant, the court can accomplish the same result by dismissing


     10
       La. Code Crim. Proc. Ann. art. 493; see also La. Code
Crim. Proc. Ann. art. 493.2.
     11
          See La. Code Crim. Proc. Ann. art. 706.
                                   5
all charges and recharging in a consolidated form.12

     West next contends that the state court’s decision to employ

only one form for both docket numbers to inform him of his rights

under Boykin evidences the state court’s functional consolidation

of the cases.     Again, however, in this circuit the sentencing of

two drug offenses at a single proceeding does not constitute

functional consolidation of the offenses.13             The same reasoning

requires    the   conclusion   that   use   of   one   Boykin   form   is   not

indicative of functional consolidation, especially when separate

plea agreements are used for each offense.14           Given the deference

we accord to a district court’s determination whether two or more

offenses were functionally consolidated for trial or sentencing, we


     12
          La. Code Crim. Proc. Ann. art. 706 official rev. cmt. a.
     13
          See Kates, 174 F.3d at 584; Garcia, 962 F.2d at 482.
     14
       As a final argument, West asserts that the application of
the First Offender Pardon to his two state offenses following his
release from jail indicates the state’s intent that the cases be
considered consolidated. The First Offender Pardon is granted
automatically pursuant to the Louisiana State Constitution and by
statute. See La. Const. art. 4, § 5(E)(1); La. Rev. Stat. Ann. §
529.1(A)(1). Without addressing what the automatic pardon
indicates, we reject its relevance to the present determination.
In determining whether prior offenses were functionally
consolidated for trial or sentencing, we look at how the offenses
were brought before the state court and the state court’s
treatment of the cases, not subsequent actions by a parole board
or any determination pursuant to a statutory pardon provision.
Cf. Buford, 532 U.S. at 64 (deference to a district court’s
determination of whether cases were functionally consolidated for
trial or sentencing is due to a district court’s greater
familiarity with trial and sentencing practices in general,
including consolidation procedures); Huskey, 137 F.3d at 289 (the
object of the district court’s inquiry is to discern the state
judge’s intention to treat two separate offenses as one).
                                6
affirm the court’s ruling on this issue.

     West also contends that the district court sentenced him in

violation of Blakely v. Washington.15 Our decision in United States

v. Pineiro forecloses adoption of his reading.16

The sentence imposed by the district court is AFFIRMED.




     15
          124 S. Ct. 2531 (2004).
     16
          377 F.3d 464 (5th Cir. 2004).
                                   7
