                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            DECEMBER 8, 2006
                          Nos. 06-11995 & 06-12032          THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

      D. C. Docket Nos. 05-00425-CR-ODE-1 & 05-00319-CR-01-ODE-1

UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                    versus

ROBERT LEONARD MCDOW,
a.k.a. Louis Shagville Johnson,
a.k.a. Chavez,
a.k.a. Lou,

                                                       Defendant-Appellant.


                         ________________________

                 Appeals from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                             (December 8, 2006)

Before TJOFLAT, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
      Appellant pled guilty under separate plea agreements to Count Two of an

indictment transferred to Northern District of Georgia, which charged him with a

18 U.S.C. § 846 conspiracy to possess with intent to distribute marijuana in

violation of 18 U.S.C. § 841(a), and Count One of an information filed in the

Northern District of Georgia, which charged him with possession with intent to

distribute cocaine in violation of 18 U.S.C. § 841(a). Both plea agreements

contained a waiver of appeal clause that allowed appellant to appeal his sentences

only if there was an upward departure from the sentencing guideline range, a

finding of an offense level greater than 37, or a finding of a criminal history

category greater than II. He now appeals his sentences.

      Appellant first argues that the district court erred in calculating his offense

level because it applied a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(1) for

possession of a firearm. The two-level increase brought his calculated offense

level to 37. His second argument is whether the district court erred in calculating

his criminal history score when it found two of his prior sentences were unrelated

under U.S.S.G. § 4A1.2. The Government responds that he waived his first point

pursuant to the appeal waivers in his plea agreements.

      We review the validity of an appeal waiver provision of a plea agreement

de novo. United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). We



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have recognized that "[p]lea bargains . . . are like contracts and should be

interpreted in accord with what the parties intended." United States v. Rubbo, 396

F.3d 1330, 1334 (11th Cir.), cert. denied, 126 S.Ct. 416 (2005). An appeal waiver

is valid if it was entered into knowingly and voluntarily. Bushert, 997 F.2d at

1350. For an appeal wavier to be enforced, the government must show that either:

“(1) the district court specifically questioned the defendant concerning the sentence

appeal waiver during the [plea hearing], or (2) it is manifestly clear from the record

that the defendant otherwise understood the full significance of the waiver.” Id. at

1351.

        In this case, the appeal waiver was knowing and voluntary because the

district court specifically questioned appellant about the appeal waivers in both

plea agreements during each plea hearing, and he indicated that he understood both

waivers. Because his offense level was not greater than 37, and no other exception

applies, the appeal waiver is effective. As such, it is unnecessary to discuss the

merits of appellant’s first argument.

        Appellant’s second argument is that the district court erred in finding that

the two prior sentences were unrelated under U.S.S.G. § 4A1.2. The Government

concedes that he did not waive this issue because his criminal history category was

more than II. We review for clear error the finding that prior convictions are



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unrelated under § 4A1.2. United States v. Mullens, 65 F.3d 1560, 1565 (11th

Cir.1995). In calculating a criminal history score, points are accumulated for each

unrelated "prior sentence." U.S.S.G. §§ 4A1.1(a)-(c). According to the Guidelines

Commentary:

      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.


U.S.S.G. § 4A1.2, comment. (n.3). The language in Application Note 3 makes

clear that in determining whether cases are related, "the first question is always

whether the underlying offenses are separated by an intervening arrest." United

States v. Hunter, 323 F.3d 1314, 1322-23 (11th Cir. 2003). "This inquiry is

preliminary to any consideration of consolidated sentencing, as reflected by use of

the word ‘otherwise.'" Id. at 1323.

      Appellant was arrested for simple battery and obstruction prior to

committing the second offense, bail jumping. Therefore, the bail jumping offense

resulted in an intervening arrest that precludes a finding that the cases are related,

even though they were consolidated for sentencing and regardless of whether they

were part of a single common scheme or plan. Thus, the district court did not err

                                           4
in treating the two prior sentences separately and assigning criminal history points

to each.

      Appellant’s sentences are

      AFFIRMED.




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