                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT            FILED
                           ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                 No. 09-14433                   MARCH 15, 2011
                           ________________________               JOHN LEY
                                                                   CLERK
                    D. C. Docket No. 08-00308-CR-T-27-MSS

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                       versus

JOSE QUIÑONES-FIGUEROA,

                                                               Defendant-Appellant.


                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                         _________________________

                                 (March 15, 2011)

Before TJOFLAT, BARKETT and FAY, Circuit Judges.

PER CURIAM:

      Jose Quiñones-Figueroa appeals his 328-month sentence after pleading

guilty to conspiracy to possess with intent to distribute 100 grams or more of
heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B) (Count One); two

counts of distribution of heroin, in violation of 21 U.S.C. § 841(a)(1), (a)(2), and

(b)(1)(C) (Counts Two and Three); and possession with intent to distribute heroin,

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count Four).

       On appeal, he primarily argues that the district court erred by classifying him

as a career offender under U.S.S.G. § 4B1.1, because the two prior controlled

substance offenses used to support that enhancement should have been treated as a

single offense.1

       A federal defendant is a career offender subject to an enhanced sentence

where, inter alia, he “has at least two prior felony convictions of either a crime of

violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a) (emphasis

added). In determining whether a defendant’s prior convictions should be counted

separately, the career offender guideline incorporates § 4A1.2, U.S.S.G. § 4B1.2,

comment. (n.3), which provides, in pertinent part:

       Prior sentences always are 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 is no intervening arrest, prior sentences are
       counted separately unless (A) the sentences resulted from offenses
       contained in the same charging instrument; or (B) the sentences were


       1
         “We review de novo a district court’s decision to classify a defendant as a career
offender under section 4B1.1.” United States v. Whitson, 597 F.3d 1218, 1220 (11th Cir. 2010)
(quotation marks omitted).

                                                  2
      imposed on the same day.

U.S.S.G. § 4A1.2(a)(2).

      In this case, the district court treated the following two prior convictions as

separate offenses for career offender purposes. First, in 1999, Quiñones-Figueroa

pled guilty in the District of Puerto Rico for conspiracy to distribute cocaine, crack

cocaine, and heroin from 1992 to 1995. The following year, while serving his

sentence, a federal grand jury in the same district returned another indictment

against Quiñones-Figueroa, charging him with conspiracy to possess with intent to

distribute cocaine from 1989 to 2000. Quiñones-Figueroa pled guilty to that

charge in 2002.

      Quiñones-Figueroas argues that these two offenses should have been treated

as a single offense because they each derived from the same set of underlying

facts. However, Quiñones-Figueroa concedes that there were two separate

indictments and that he was sentenced for each offense on two different days.

These concessions are fatal to his argument, for the plain and unambiguous

language of § 4A1.2(a)(2) provides that, regardless of whether there is an

intervening arrest, prior convictions are to be treated separately unless: “(A) the

sentences resulted from offenses contained in the same charging instrument; or (B)

the sentences were imposed on the same day.” U.S.S.G. § 4A1.2(a)(2); see United



                                           3
States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010) (“A guideline’s meaning is

derived first from its plain language and, absent ambiguity, no additional inquiry is

necessary.”) (citation and alteration omitted).

      The district court therefore did not err in sentencing Quiñones-Figueroa as a

career offender. He also argues that his sentence was unreasonable, but we have

reviewed the record and find his arguments to be without merit. Accordingly, we

affirm.

      AFFIRMED.




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