                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2942
                                   ___________

United States of America                *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Thomas Eugene Mills, Jr.,               *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: March 10, 2004
                                Filed: July 13, 2004
                                 ___________

Before MURPHY, HEANEY, and SMITH, Circuit Judges.
                          ___________

SMITH, Circuit Judge.

       Thomas Eugene Mills Jr. pleaded guilty to one count of conspiracy to distribute
methamphetamine. The United States requested the district court to sentence Mills
as a career criminal pursuant to United States Sentencing Guideline ("U.S.S.G.") §
4B1.1 due to his three prior burglary convictions. The district court, however,
determined that these prior crimes were part of a "single common scheme or plan"
under U.S.S.G. § 4A1.2 sufficient to disqualify Mills as a career criminal. On appeal,
the government challenges the district court's determination that Mills's three prior
burglary convictions were part of a single common scheme or plan. We reverse and
remand for resentencing.
                                   I. Background
       After Mills pleaded guilty, the probation office prepared a presentence
investigation report ("PSR") stating that Mills had three prior Iowa state burglary
convictions.1 The PSR scored three criminal history points for Mills's third-degree
burglary conviction in Clay County, one point for his second-degree burglary
conviction in Clay County, and three points for his burglary conviction in Kossuth
County, for a total of seven criminal history points. Mills also earned two additional
points for two unrelated assault convictions.

       At sentencing, Mills testified that he committed the three burglaries during a
six-month period within a sixty-mile radius in two different counties.2 Mills testified
that two people accompanied him on all three burglaries and a third person
accompanied him on one. They did not always steal cash, but sometimes took
electronic items. None of the buildings were occupied during the burglaries. They
specifically chose times of day when no one would be in the buildings. None of the
participants were armed, carried explosive devices, or inflicted an injury upon any



      1
        Mills committed one burglary in Kossuth County and two burglaries in Clay
County. On February 26, 1992, Mills broke into a commercial building in Kossuth
County and stole a microwave and a rifle, for which he was charged with second-
degree burglary. In Clay County, Mills and others burglarized a high school and stole
$501.69 on April 17, 1992, for which he was charged with second-degree burglary.
Mills and one other person broke into a Clay County restaurant on September 2,
1992, and stole $500. Mills was charged with third-degree burglary for this offense.
Mills pleaded guilty to both of the Clay County charges, which were charged in one
information. He was sentenced on December 20, 1992, for the two crimes. When he
pleaded guilty and was sentenced in the Kossuth County case on January 11, 1993,
the judge ran the sentence concurrently with Mills's sentences in the Clay County
cases.
      2
        Mills was also involved in burglaries in other counties for which he was
required to pay restitution.

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victim. They chose rural buildings because they "wouldn't have to worry about
running into anybody."

       The district court determined that the burglary offenses were part of a single
common scheme or plan. As a result, Mills no longer qualified as a career criminal
under U.S.S.G. § 4B1.1. His criminal history calculation went from category VI to
category IV; his offense level went from 34 to 31; his sentencing range went from
262 to 326 months to 151 to 188 months. After the government recommended a
sentence reduction pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e),3 the district
court sentenced Mills to eighty months' imprisonment.

                                      II. Analysis
       The government appeals the district court's determination that Mills's three
prior burglaries were part of a single common scheme or plan, thus eliminating the
effect of two of those convictions and reducing Mills's criminal history category from
a VI to a IV. The government argues that the district court erred in determining that
Mills's three prior burglary convictions were part of a single common scheme or plan
pursuant to U.S.S.G. § 4A1.2.4 Specifically, the government contends that the district

      3
        The government reserved the right to appeal the district court's determination
that Mills was not a career criminal after finding that the three burglaries were part
of a single common scheme or plan.
      4
         Mills raises two additional issues on cross-appeal. He argues that we should
revisit our per se rules that burglary of a commercial building is a crime of violence
for purposes of determining career-offender status and that a sentencing court must
enter a formal order of consolidation before we will consider underlying convictions
consolidated for sentencing purposes. Preliminarily, we note that "[i]t is a cardinal
rule in our circuit that one panel is bound by the decision of a prior panel." Owsley
v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002) (citing United States v. Prior, 107
F.3d 654, 660 (8th Cir. 1997)). Therefore, on the first issue, we have determined that
burglary of a commercial building is a "crime of violence" as defined in U.S.S.G. §
4B1.2. United States v. Blahowski, 324 F.3d 592, 594–595 (8th Cir. 2003); United

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court erred in relying on a Second Circuit case and in disregarding Eighth Circuit case
law to conclude that the crimes were connected. Mills responds that the district court
properly determined that his three burglaries were part of a single common scheme
or plan, whether using the Second Circuit's or the Eighth Circuit's factors.

       We review the district court's factual findings for clear error and its application
of the guidelines to the facts de novo. United States v. Orchard, 332 F.3d 1133, 1139
(8th Cir. 2003). A district court's "determinations with respect to the offenses in a
criminal history computation are factual determinations and are subject to a 'clearly
erroneous' standard of review."Paden, 330 F.3d at 1067; United States v. Lowe, 930
F.2d 645, 646–47 (8th Cir. 1991). We review for clear error a district court's
determination of whether the government has proven that a defendant's prior crimes
were unrelated. United States v. Maza, 93 F.3d 1390, 1400 (8th Cir. 1996); United
States v. Lublin, 981 F.2d 367, 371 (8th Cir. 1992).

States v. Sun Bear, 307 F.3d 747, 753 (8th Cir. 2002); United States v. Peltier, 276
F.3d 1003, 1006 (8th Cir.), cert. denied 537 U.S. 862 (2002); United States v. Nation,
243 F.3d 467, 471, n.1 (8th Cir. 2001); United States v. Stevens, 149 F.3d 747, 749
(8th Cir. 1998); United States v. Hascall, 76 F.3d 902, 906 (8th Cir. 1996).

       On the second issue, we require a sentencing court enter a formal consolidation
order to consolidate multiple convictions for sentencing purposes. Sentencing
Guideline § 4A1.1 notes that "prior sentences imposed in related cases are to be
treated as one sentence . . . ." Sentences are considered related if they "were
consolidated for trial or sentencing." Id. cmt. n.3. However, two or more sentences
imposed at the same time "are not related for purposes of § 4A1.2(a)(2) if the cases
proceeded to sentencing under separate docket numbers, and there was no formal
order of consolidation." United States v. Klein, 13 F.3d 1182, 1185 (8th Cir. 1994);
see also, e.g., United States v. Paden, 330 F.3d 1066, 1067 (8th Cir. 2003) (court
required formal order of consolidation and rejected Seventh Circuit's "functional
consolidation" approach to consolidation); United States v. Piggie, 316 F.3d 789, 796
(8th Cir. 2003) (formal order of consolidation required). Although Mills's prior state
cases were resolved with one plea agreement, the trial court did not formally
consolidate the cases. Therefore, we must reject his arguments on appeal.

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       Persons who are convicted of a crime of violence or a controlled substance
offense and who have two prior felony convictions for such crimes are sentenced as
"career offenders." U.S.S.G. § 4B1.1. Prior felony convictions are counted separately
for career offender purposes if they "are counted separately under the provisions of
§ 4A1.1(a), (b), or (c)." U.S.S.G. § 4B1.2(3). However, under U.S.S.G. § 4A1.2(a)(2),
"prior sentences imposed in related cases are to be treated as one sentence." To
determine whether prior sentences are related, U.S.S.G. § 4A1.2, cmt. n.3 provides,
"[P]rior 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." Furthermore, "a single common scheme
or plan involves something more than simply a repeated pattern of conduct." Maza,
93 F.3d at 1400 (internal quotations omitted); see also Lowe, 930 F.2d at 647
("[S]imilar crimes are not necessarily related crimes."); United States v. Mau, 958
F.2d 234, 236 (8th Cir. 1992).

       The district court relied upon United States v. Brothers, 316 F.3d 120 (2d Cir.
2003), in reaching its conclusion that Mills's prior burglary convictions were part of
a "single common scheme or plan."5 However, Eighth Circuit case law compels the
conclusion that Mills's prior burglaries were not part of a single common scheme or
plan. See, e.g., Paden, 330 F.3d at 1067 (shooting on January 1 and unlawful use of
the same weapon on January 5 were not "related cases" under U.S.S.G. § 4A1.2
because they occurred five days apart, the elements of the crimes and the defendant's


      5
        The Second Circuit listed nine factors to be considered when deciding
whether prior criminal convictions constituted a "single common scheme or plan"
under U.S.S.G. § 4A1.2: (1) the time period within which the offenses took place, (2)
the participants involved, (3) the victims targeted, (4) the motive, (5) the modus
operandi, (6) the geographic location of the crimes, (7) the substantive offenses
committed, (8) whether the acts were uncovered by a common investigation, and (9)
whether the offenses were jointly planned. Brothers, 316 F.3d at 123–24. These same
considerations appear throughout our circuit's case law.

                                         -5-
actions were different, and the fact that the same gun was involved in both cases was
insufficient to characterize the crimes as related); United States v. Bartolotta, 153
F.3d 875, 879 (8th Cir. 1998) (three burglaries and robberies committed by defendant
and others were unrelated because they did not occur on the same occasion, were not
part of a single plan, and were not formally consolidated below); Maza, 93 F.3d at
1400 (defendant's two prior drug convictions in California and Arizona were
unrelated because they occurred on different occasions almost six months apart in
different states, they involved different customers, the crimes were not "consolidated
for trial or sentencing" because no formal order of consolidation was issued, and the
cases proceeded to sentencing under separate docket numbers); Mau, 958 F.2d at 236
(two prior drug distribution offenses unrelated when they occurred within a year's
period because it "would lead to the illogical result that a defendant who is repeatedly
convicted of the same offense on different occasions could never be considered a
career offender under the guidelines" and the crimes were not formally combined for
sentencing); Lublin, 981 F.2d at 371 (we affirmed the district court's determination
that the defendant's prior federal crime for unlawful transportation of firearms was not
related to his prior state court conviction for stealing a car although defendant stole
the car to transport the guns); Lowe, 930 F.2d at 647 (six prior convictions for forging
bad checks over a two-year period to financial institutions in several locations via an
identical modus operandi were not part of a single common scheme or plan).

       Even the Second Circuit in Brothers affirmed the district court's determination
that the defendant's prior robbery convictions were not part of a single common
scheme or plan. The Brothers court noted that although the defendant's convictions
were for robberies in the same city and were motivated by greed, none of the other
facts–including that the robberies took place five weeks apart, included different
participants, targeted different victims, and resulted in separate convictions–
supported the conclusion that the crimes were part of a single common scheme or
plan. Brothers, 316 F.3d at 124. The court also noted that the defendant presented no



                                          -6-
evidence regarding the specific manner in which the crimes were carried out, the
planning of those crimes, or the investigations that led to defendant's arrest. Id.

       Although Mills's prior burglaries included the same participants using a similar
modus operandi, the three crimes took place over a six-month period, were committed
in different counties against different victims, and were not formally consolidated for
disposition at trial or sentencing. In addition, although generally the same actors
committed the burglaries, they did not plan all three burglaries at the same time.
Again, "similar crimes are not necessarily related crimes." Lowe, 930 F.2d at 647.

                                   III. Conclusion
       Mills's six-month crime spree does not establish a common scheme or plan
under the Sentencing Guidelines. As such, the district court erred in determining that
Mills's prior crimes were part of a "single common scheme or plan" for sentencing
purposes, and we reverse and remand for resentencing.
                       ______________________________




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