           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         October 16, 2007

                                       No. 06-50934                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,
v.

SAMUEL MEZA,
also known as Samuel Mesa-Escobedo,

                                                  Defendant–Appellant.



                   Appeal from the United States District Court
                        for the Western District of Texas
                                   3:05-CR-556



Before JONES, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Samuel Meza was convicted on a guilty plea for being
unlawfully in the United States after removal in violation of 8 U.S.C. § 1326. He
was sentenced to thirty-three months imprisonment. He appeals the district
court’s calculation of his sentence. We AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 06-50934


                      I. Factual and Procedural History
      Samuel Meza was removed from the United States in December 2004. In
February 2005, he reentered the country without having received the consent of
the Attorney General or the Secretary of Homeland Security to reapply for
admission to the United States. He was found in El Paso, Texas and pleaded
guilty and was convicted of illegal reentry into the United States.
      Meza’s Presentence Report (“PSR”) recommended a total offense level of
thirteen. Based on Meza’s criminal history record, the PSR calculated his
criminal history points as eleven, which included three criminal history points
for his prior convictions and two points for having committed the instant offense
less than two years following his release from custody in December 2004,
resulting in a criminal history category of V. Based on total offense level of
thirteen and a criminal history category of V, Meza’s sentencing guidelines range
was thirty to thirty-seven months. Meza objected to the PSR’s assessment of
nine criminal history points for each of his prior convictions. He argued that the
convictions should have been counted as related cases not separate sentences,
which would have reduced his criminal history category to III and his sentence
guidelines range to eighteen to twenty-four months.
      On appeal, Meza presents two reasons why his prior burglary and two
theft convictions were related. First, he argues that because there was a joint
plea agreement, a single arraignment, and a single sentencing hearing for all
three cases, the convictions were related under the current U.S.S.G. §
4A1.2(a)(2). Second, Meza asserts that in light of the proposed amendment to
§ 4A1.2(a)(2), his prior convictions count as a single sentence because the
amendment makes clear that sentences imposed together on the same day count
as a single sentence for criminal history purposes. He states that this court
should consider holding his appeal until the amendment’s effective date on


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November 1, 2007, and then remanding his case for resentencing. Meza also
contends that his conviction was unconstitutional in light of the Supreme Court’s
holding in Apprendi v. New Jersey, 530 U.S. 466 (2000).


                                 II. Discussion
                                       A.
      We review the district court's interpretation or application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Huskey, 137 F.3d 283, 285 (5th Cir. 1998) (citation omitted).
      Pursuant to current U.S.S.G. § 4A1.2(a)(2), prior sentences in unrelated
cases are counted separately; prior sentences in related cases are treated as one
sentence for the purpose of calculating a defendant’s criminal history. The
Sentencing Guidelines commentary provides the following explanation of the
term “related:”
            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.

U.S.S.G. § 4A1.2, comment n.3. Meza does not pursue relief under prongs (1) or
(2); however, he contends that under prong (3) his prior convictions “were
consolidated for trial or sentencing” and therefore should not have been counted
separately in assessing his criminal history points.
      This court has held that “a finding that prior cases were ‘consolidated’ will
require either some form of factual connexity between them, or else a finding that
the cases were merged for trial or sentencing.” Huskey, 137 F.3d at 288. Where
sentences are merely imposed on the same day and/or in the same proceeding, or

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run concurrently, this court has refused to find that those sentences were
consolidated. Id.; see also United States v. Metcalf, 898 F.2d 43, 46 (5th Cir.
1990) (finding that sentencing on same day does necessarily mean that cases
were consolidated); United States v. Flores, 875 F.2d 1110, 1114 (5th Cir. 1989)
(rejecting proposition that cases are consolidated “[s]imply because two
convictions have concurrent sentences”). However, even cases that are factually
distinct may be considered consolidated if they are charged in the same criminal
indictment and under the same docket number. Huskey, 137 F.3d at 288.
      In support of his contention that his cases were related, Meza submitted
an affidavit from the El Paso County Public Defender, whose office had
represented him in his three prior convictions. The affidavit explained that
Meza’s cases, while separately indicted, were “procedurally joined” and
consolidated for the purpose of arraignment, conference, and plea. The public
defender’s affidavit also stated that all of the charges were disposed of in a single
plea and sentencing proceeding as part of a plea bargain agreement. Meza
agreed to plead guilty to all three of the indicted charges in exchange for a
recommendation from the prosecutor that he receive three ten-year sentences to
be served concurrently and the dismissal of a fourth unindicted charge. The plea
deal was approved and Meza’s guilty pleas were accepted; he was sentenced to
three concurrent ten-year prison terms on the burglary and two theft offenses.
      The PSR’s recommendation was based on the fact that Meza’s three prior
convictions were each indicted separately and each had its own individual case
number. Further, there was no formal consolidation order and the offenses were
committed on different dates against different victims, and they resulted in three
distinct harms. The district court agreed with the PSR, concluding that the prior
convictions were not consolidated for § 4A1.2 purposes. The court stated that the
fact that there happened to have been concurrent sentences and that three cases



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were brought together for one hearing is not indicative of consolidation, stating
that the latter act could have merely been for the sake of judicial economy.
      We cannot conclude that the district court clearly erred in its factual
findings. Morever, under the precedent of this court, we find that the district
court properly concluded that Meza’s prior convictions were unrelated for § 4A1.2
purposes as there was no formal consolidation order, each of his indictments had
separate docket numbers, and each arose from separate incidents with no factual
connectedness.
                                        B.
      Meza contends for the first time on appeal that in light of a recent
amendment to § 4A1.2(a)(2), this court should find that his three prior
convictions are related. He argues that the proposed amendment is a clarifying
amendment and urges this court to vacate and remand for resentencing. The
proposed amendment provides:
            If the defendant has multiple prior sentences,
            determine whether those sentences are counted
            separately or as a single sentence. 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 imposed on the
            same day. Count any prior sentence covered by (A) or
            (B) as a single sentence. See also §4A1.1(f).




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§ 4A1.2(a)(2) (emphasis added).1 Based on part (B) of the proposed amendment,
it is clear that Meza’s three prior convictions would qualify as a single sentence
for the purpose of calculating his criminal history points.
       Amendments to the guidelines intended as clarifications, rather than
substantive changes, may be considered on direct appeal even when the
amendments were not effective at the time of sentencing. United States v.
Anderson, 5 F.3d 795, 802 (5th Cir. 1993), cert. denied, 510 U.S. 1137 (1994).
However, this court has held it must be "clear or obvious" whether the
amendment was intended to be a substantive change or merely a clarification as
this court will not consider those amendments intended to change current law on
direct appeal. United States v. Huff, 370 F.3d 454 (5th Cir. 2004).
       This court considers a number of factors when determining whether an
amendment to the Sentencing Guidelines or its commentary is a substantive
change or merely a clarification. Where an amendment alters the language of the
guideline itself, we have considered this evidence that a substantive change was
intended. See e.g., United States v. Davidson, 283 F.3d 681, 684 (5th Cir. 2002)
(finding addition of text to guideline to be an indication of a substantive change);
see also Huff, 370 F.3d at 466 (citing United States v. Camacho, 40 F.3d 349, 354
(11th Cir. 1994) (holding an amendment is substantive where it amends the
guidelines rather than the commentary)). Where the Commission indicates that
the amendment is intended as a clarification, we have taken this as an indication
of intent to clarify. See Davidson, 283 F.3d at 684 (finding lack of commentary
stating that amendment is clarifying supports conclusion that amendment is
substantive); see also Huff, 370 U.S. at 466. Conversely, where an amendment



       1
        Current § 4A1.2(a)(2) reads in relevant part: “Prior sentences imposed in unrelated
cases are to be counted separately. Prior sentences imposed in related cases are to be treated
as one sentence for purposes of § 4A1.1(a), (b), and (c).”


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addresses a matter which it notes is intended to resolve circuit conflicts, we have
found this to be an indication that the amendment is not clarifying. Davidson,
283 F.3d at 684. Finally, when the amendment is not listed as being retroactively
applicable, we have taken this as an indication that the amendment is
substantive. Id.; see also United States v. McIntosh, 280 F.3d 479, 485 (5th Cir.
2002) (“Further evidence that the sentencing commission did not intend [the
amendment] to be a clarifying change is that it is not included in the list of
amendments to be applied retroactively”).
      We find that each of these considerations weigh against Meza’s contention
that the proposed amendment to § 4A1.2 is a clarification.          The proposed
amendment significantly alters the language of the guidelines. The commentary
to proposed § 4A1.2(a)(2) does not indicate that it is intended to clarify.
Moreover, the Commission states that the amendment is due in part to the fact
that circuit conflicts have developed over which prior sentences should be
considered related. The Commission goes on to state that the purpose of the
amendment was to simplify "the rules for counting multiple prior sentences and
promote consistency in the application of the guideline," providing further
support that this amendment is in fact a substantive change.          Finally, the
Commission did not indicate that this amendment is to be applied retroactively.
Accordingly, Meza has not shown that the proposed amendment was intended
merely to clarify. The amendment therefore does not apply to Meza’s sentence
because it substantively changes § 4A1.2(a)(2).
                                        C.
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Meza challenges
the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the
offense that must be found by a jury. This court has held that this issue is “fully



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foreclosed from further debate.” United States v. Pineda-Arrellano, 492 F.3d 624,
625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
                                 III. Conclusion
For the foregoing reasons, the district court’s judgment is AFFIRMED.




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