In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3544

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

UNDRAY BRADLEY,

Defendant-Appellant.


Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 CR 30038--David R. Herndon, Judge.


ARGUED APRIL 4, 2000--DECIDED JUNE 26, 2000




  Before COFFEY, ROVNER and DIANE P. WOOD,
Circuit Judges.

  COFFEY, Circuit Judge. On March 17,
1999, a federal grand jury returned a
three-count indictment charging the
defendant-appellant, Undray Bradley
("Bradley"), with distribution of crack
cocaine in violation of 21 U.S.C. sec.
841(a)(1). On April 26, 1999, Bradley
appeared before the court and entered a
plea of guilty to all three counts of the
indictment. Following a sentencing
hearing, the trial judge concluded that
Bradley, 41 years of age, was a career
offender within the meaning of U.S.S.G.
sec. 4B1.1,/1 and sentenced him to 151
months’ imprisonment, 3 years’ supervised
release, a fine of $900, and a $300
special assessment. On appeal, Bradley
challenges the trial court’s
determination that he qualifies as a
career offender under the sentencing
guidelines. We affirm.

I.  BACKGROUND
  The facts surrounding Bradley’s
underlying drug offenses are undisputed.
Thus, the focus of this appeal is whether
Bradley’s prior criminal conduct
qualifies him as a career offender.
  Before the sentencing hearing in this
case, the probation officer prepared a
Presentence Investigation Report ("PSR")
that set out, among other things, the
defendant’s prior federal and state
criminal convictions. Bradley’s first
relevant conviction was in state court in
St. Clair County, Illinois, for an
offense that occurred on June 30, 1992,
when he was charged with Unlawful
Possession with Intent to Deliver
Cocaine. See 720 ILCS 570/401(a)(2) (West
1992). Bradley pled guilty to the
Illinois state drug charge, and on
October 30, 1992, he was placed on two
years’ probation.

  Bradley’s second relevant conviction, as
described in the PSR, arose out of
federal charges in which Bradley was
named in two counts of a multiple-count
indictment. Count two charged that
Bradley, along with 24 other individuals,
conspired to distribute cocaine base
during a period commencing in June of
1991 and ending on or about February 15,
1993. Count 29 charged that Bradley
possessed cocaine base with intent to
distribute on November 4, 1992. Bradley
was arrested on February 23, 1993, for
the charges set forth in the federal
indictment. Bradley later entered a plea
of guilty to both counts.

  As part of the plea agreement in this
case, the defendant waived the right to
appeal or otherwise collaterally attack
any issue other than whether he was a
career offender as defined by the
sentencing guidelines. At sentencing,
Bradley’s trial counsel conceded that
under the "intervening arrest" rule set
out in Application Note 3 to U.S.S.G.
sec. 4A1.2,/2 the state charge of June
30, 1992, and the federal charge for
conspiracy to distribute cocaine base
from June 1991 through February 15, 1993,
are unrelated cases./3 Now, on appeal,
Bradley argues that the court erred in
sentencing him as a career offender
because his two prior felony convictions
for controlled substance offenses are
"related" under the sentencing
guidelines.

II. DISCUSSION
  Bradley did not challenge his
classification as a career offender in
the trial court because his counsel
stated his belief that the current state
of the law precluded him from doing so.
The government argues that because
Bradley conceded that the law at the time
of his sentencing supported the finding
that he qualifies as a career offender,
this issue is presented for the first
time on appeal and we should review it
under the plain error standard. See
United States v. Barker, 27 F.3d 1287,
1292 (7th Cir. 1994).

  However, the argument can be made that
because Bradley reserved the right to
appeal the issue of whether he is a
career offender in his plea agreement,
this court should afford the defendant de
novo review on the issue, especially in
light of the fact that Bradley makes a
legal challenge to the interpretation of
the career offender statute rather than a
challenge to the factual finding that he
is a career offender. We are of the
opinion that the standard of review is of
little consequence in this particular
case because we conclude that under
either standard of review the defendant’s
arguments fail.

  Bradley challenges the trial court’s
finding that he is a career offender
within the meaning of U.S.S.G. sec.
4B1.1, claiming that he does not have two
prior felony convictions for crimes of
violence or controlled substance
offenses. The Guidelines provide that in
order to be counted for purposes of
determining career offender status, the
relevant predicate offenses must not be
"related" as the term is used in U.S.S.G.
sec. 4A1.2. The Guidelines further
provide that prior sentences are not
related if they are for offenses that
were separated by an intervening arrest,
and that "[o]therwise, 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. sec. 4A1.2, Application Note 3.

  Bradley was arrested for possession with
intent to deliver cocaine on June 30,
1992, convicted in an Illinois state
court of those charges, and sentenced on
October 30, 1992, to two years’
probation. On February 23, 1993, Bradley
was again arrested on drug charges, this
time for the federal offense of
conspiracy to distribute, and possession
with intent to distribute, cocaine base.
The federal indictment alleged that the
drug conspiracy commenced on or about
June of 1991 and continued until
approximately the middle of February of
1993. Although the federal charges
included conduct that resulted in the
June 30, 1992, state cocaine possession
offense, the fact remains that Bradley
was arrested on the state charge prior to
the last act alleged in the federal case;
thus the trial judge in the instant case
found the state criminal conduct and the
federal charges to be separated by an
"intervening arrest" pursuant to U.S.S.G.
sec. 4A1.2, Application Note 3.

  Bradley acknowledges that the other
circuits which have addressed the same
issue have held that once there has been
an intervening arrest between two
convictions, the inquiry is over and the
convictions are not considered related
offenses. See, e.g., United States v.
Boonphakdee, 40 F.3d 538, 544 (2d Cir.
1994); United States v. Hallman, 23 F.3d
821, 825 (3d Cir. 1994); United States v.
Gallegos-Gonzalez, 3 F.3d 325, 327 (9th
Cir. 1993). The courts in Boonphakdee,
Hallman, and Gallegos-Gonzalez explained
that the plain language of Application
Note 3 indicates that the intervening
arrest inquiry must be made first, and
that the word "otherwise" indicates that
only if there have been no intervening
arrests should the court look to the
other factors to determine whether the
offenses are related.

  In the Seventh Circuit, we have also
concluded that Application Note 3
requires "that if the criminal conduct is
separated by arrests, the ensuing
convictions are never considered related.
. . ." United States v. Woods, 976 F.2d
1096, 1102 (7th Cir. 1992). See also
United States v. Linnear, 40 F.3d 215,
224 n.8 (7th Cir. 1994) ("[E]ven assuming
[the defendant’s] 1990 charges were
consolidated for plea and sentencing,
they cannot be considered as related
offenses because they were separated by
intervening arrests.").

  Despite the fact that there was an
intervening arrest, Bradley urges us to
hold that the district court was under an
obligation to specifically evaluate the
offenses to determine whether the first
was committed prior to the second.
Bradley’s assertion that this court
should require this type of inquiry is
based upon language from the commentary
to the sentencing guidelines stating that
"[p]rior 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)." U.S.S.G. sec. 4A1.2,
Application Note 3 (emphasis added).
Bradley asserts that because the first
drug offense, the state charge of
possession of cocaine with intent to
deliver, was committed on June 30, 1992,
and the second drug offense, the federal
charge of conspiracy to distribute
cocaine base, was a continuing offense,
running from June of 1991 through
February 15, 1993, there is some question
as to whether the first offense is
actually encompassed in the latter
offense. Thus, Bradley argues, the two
convictions are "related" because the
arrest on June 30, 1992, was not
technically intervening.

  In United States v. Coleman, 38 F.3d
856, 860 (7th Cir. 1994), we held that
the district court properly found that
there was an intervening arrest under the
Guidelines where the defendant "was
arrested for the acts comprising the
first offense before he committed the
acts comprising the second offense."
Here, there is no question that Bradley
was arrested for the acts comprising the
first offense, unlawful possession of a
controlled substance, prior to committing
a significant portion of the acts
comprising the conspiracy offense, which
did not conclude until February of 1993.
Thus, even if the court had conducted a
more specific inquiry beyond whether
there was an intervening arrest and into
the issue of whether the first offense
was committed prior to the second
offense, the outcome would have been the
same./4

  The decision of the district court is
AFFIRMED.


/1 Section 4B1.1. provides as follows:

A defendant is a career 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. If the offense
level for a career criminal from the table below
is greater than the offense level otherwise
applicable, the offense level from the table
below shall apply. A career offender’s criminal
history category in every case shall be Category
VI.

/2 Application Note 3 provides, in relevant part, as
follows:

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.

/3 Bradley’s counsel made the following statement to
the court at sentencing:

  Additionally, the PSR recommends that he be
found to be a career offender. Under the state of
the law as it was several years ago we would have
contested that because we really believe that the
State offense that is indicated in the PSR, that
is, the possession, felony possession of cocaine,
was part of the conspiracy, the federal
conspiracy to which the Defendant later pleaded
guilty.

  Nevertheless, under the more recent amendment to
the guideline commentary, the fact that the
Defendant was arrested on the State charge prior
to the conclusion of the conspiracy alleged in
the Federal case would invoke what is called the
Intervening Arrest Rule, and I cannot see a way
of getting around that. Frankly, I believe the
way the law is right now, application of that
commentary would require that the Court finds him
to be a career offender.

/4 Additionally, we noted in Coleman that the fact
that an offender is arrested between his first
and second offenses demonstrates "that he is less
likely to mend his ways." Coleman, 38 F.3d at 860
(citation omitted). Therefore, the intervening
arrest provision is a fair way to assess whether
a defendant is a career offender who is likely to
engage in criminal activity again if released or
whether he shows a sincere intention to abandon
a lifestyle of crime, thus making him a candidate
for rehabilitation. Here, Bradley was arrested on
the state case several months prior to the
commission of the last criminal act alleged in
the federal drug conspiracy case; his continued
involvement in the drug conspiracy after the June
30, 1992, arrest supports the inference that
Bradley is not one likely to "mend his ways."
