                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-1076
                                    ___________

United States of America,                *
                                         *
                     Appellee,           * Appeal from the United States
                                         * District Court for the District
      v.                                 * of North Dakota.
                                         *
Stacy Lee Peltier,                       *
                                         *
                     Appellant.          *
                                    ___________

                              Submitted: October 18, 2001

                                   Filed: January 15, 2002
                                    ___________

Before WOLLMAN, Chief Judge, FAGG and RILEY, Circuit Judges.
                             ___________

FAGG, Circuit Judge.

       Over the course of 1992 and the beginning of 1993, Stacy Lee Peltier
burglarized commercial buildings on separate occasions in various North Dakota
counties. Peltier was often arrested for one burglary before committing the next.
Peltier pleaded guilty to eighteen counts of burglary, and in one consolidated
sentencing proceeding, the state court sentenced Peltier to concurrent five-year terms
of imprisonment. After Peltier’s release from state prison, he ran afoul of federal law.
In three separate indictments, the Government charged Peltier with gun and drug
offenses. A jury found Peltier guilty of being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g)(1) and of receiving a firearm and
ammunition while under felony indictment in violation of 18 U.S.C. § 922(n). Later,
Peltier pleaded guilty to possessing methamphetamine with intent to distribute in
violation of 21 U.S.C. § 841(a)(1), and the Government dropped other drug charges.
The gun and drug cases were consolidated for sentencing.

       On the drug case, the district court* found Peltier qualified as a career offender
under U.S.S.G. § 4B1.1 because he was at least eighteen and had two earlier
convictions for crimes of violence when he committed the drug offense. As a career
offender, Peltier’s base offense level was 34, based on a 40-year maximum penalty
on the drug charge, id. § 4B1.1(C), less a two-level reduction for acceptance of
responsibility, resulting in a final offense level of 32. The criminal history category
for career offenders is always VI, id. § 4B1.1, making Peltier’s sentencing range 210-
262 months on the drug conviction.

       On the gun case, the district court found Peltier had at least three earlier
convictions for violent felonies, and thus qualified as an Armed Career Criminal, 18
U.S.C. § 924(e), corresponding to a base offense level of 33. U.S.S.G. §
4B1.4(b)(3)(B). Because Peltier was out on bond from his drug case when he
committed the gun offense, an additional three-level enhancement applied for
committing a crime while on release, id. § 2J1.7, yielding a final offense level of 36.
In calculating Peltier’s criminal history, the district court followed the Government’s
recommendations in amendments to the presentence report (PSR). Treating the
burglary sentences as related because all eighteen offenses had been consolidated for
sentencing purposes, see id. § 4A1.2 n.3, the district court counted three points for
the first burglary conviction, id. § 4A1.1(a), three points for the remaining burglary
convictions, id. § 4A1.1(f), two points for a 1990 theft conviction, and two points for
a 1991 theft conviction, id. § 4A1.1(b). The ten criminal history points placed Peltier


      *
       The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.

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in criminal history category V. After adding two levels to the highest guideline
offense level of 36 on the gun charge under the grouping rule in U.S.S.G. § 3D1.4,
and taking the criminal history category of V on that charge, the district court found
the guidelines produced a 360-life sentencing range. Nevertheless, the district court
granted a downward departure under U.S.S.G. § 4A1.3 from criminal history category
V to category III, concluding Peltier’s criminal history was overstated. This yielded
a sentencing range of 292-365 months. The district court sentenced Peltier at the low
end to 292 months in prison on the gun charge, and to a concurrent 210 months on
the drug charge. Peltier appeals his sentence. The Government does not cross-
appeal. We affirm.

       Peltier first contends the earlier convictions used to enhance his gun sentence
should have been submitted to the jury, and the failure to do so violated Apprendi v.
New Jersey, 530 U.S. 466 (2000). Apprendi holds, “Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Id. at 490. Peltier’s contention fails because Apprendi specifically excepts
earlier convictions from the rule. We also reject Peltier’s assertion that Apprendi
effectively overruled Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998)
(refusing to interpret a statute to make the fact of an earlier conviction an element of
the crime, and thus a fact question for the jury). Although the Court in Apprendi
stated it was “arguable that Almendarez-Torres was incorrectly decided,” the Court
specifically refused to overrule the decision. Id. at 489-90. We must apply Supreme
Court precedent as it stands, and that precedent does not require that either the
existence or substance of Peltier’s earlier convictions be submitted to a jury and
proven beyond a reasonable doubt. United States v. Davis, 260 F.3d 965, 969 (8th
Cir. 2001), petition for cert. filed, No. 01-7268 (U.S. Nov. 9, 2001).

       Peltier next asserts the district court committed error in sentencing him as a
career offender under U.S.S.G. § 4B1.1. Because Peltier was at least eighteen when

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he committed the drug offense, he is a career offender if he has at least two earlier
felony convictions for crimes of violence. We have already held that burglary of a
commercial building is a crime of violence within the meaning of § 4B1.2(a), which
defines crime of violence for purposes of the career offender and criminal history
guidelines. United States v. Hascall, 76 F.3d 902, 904 (8th Cir. 1996); U.S.S.G. §
4A1.2(p). Peltier asks us to revisit Hascall, but one panel of this court cannot
overrule the decision of another. United States v. Reynolds, 116 F.2d 328, 329 (8th
Cir. 1997).

       Peltier also argues he does not have two earlier convictions because under the
guidelines consolidation rule, U.S.S.G. § 4A1.2(a)(2), his eighteen burglary
convictions are deemed related and thus count only as one. Section 4A1.2(a)(2)
provides, “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) [assigning numbers of criminal history points depending
on length of each earlier prison sentence].” The commentary to § 4A1.2 explains,
“Prior sentences are not considered related if they were for offenses that were
separated by an intervening arrest. Otherwise, prior sentences are considered related
if they resulted from offenses that . . . (C) were consolidated for trial or sentencing.”
 U.S.S.G. § 4A1.2 n.3. The provisions of § 4A1.2 (definitions and instructions for
computing criminal history) apply to the counting of convictions under § 4B1.1
(career offender). Id. § 4B1.2 n.4. Peltier lacks “two prior felony convictions”
qualifying him as a career offender unless “the sentences for at least two of the . . .
felony convictions are counted separately under the provisions of § 4A1.1(a), (b), or
(c).” U.S.S.G. § 4B1.2(c).

      We conclude many of Peltier’s burglary sentences are unrelated because the
burglaries were separated by intervening arrests. “The Guidelines require us to
consider the offenses unrelated if they were . . . separated by an intervening arrest.”
United States v. Aguilera, 48 F.3d 327, 330 (8th Cir. 1995). We inquire whether

                                          -4-
sentencing was consolidated only when there is a single arrest for multiple offenses.
Id. Although the parties have not briefed the issue, the PSR shows Peltier was
arrested for many of the burglaries before committing the next one. The PSR reflects
Peltier burglarized a bar on Feburary 3, 1992 and was arrested the same day, resulting
in two burglary convictions. On February 23 and April 24, 1992, Peltier again
burglarized bars and was immediately arrested. On November 17, 1992, Peltier
burglarized several businesses and was arrested, resulting in six burglary convictions.
Because the burglaries on each of these four days were separated by intervening
arrests, the sentences for at least four of the burglaries are unrelated and should be
counted separately when determining Peltier’s criminal history and his status as a
career offender. This means Peltier had the required two earlier convictions for
crimes of violence, so he is a career offender on his drug conviction. Accordingly,
we reject Peltier’s argument that because he is not a career offender, the Armed
Career Criminal Act, 18 U.S.C. § 924(e), should not apply.

       Peltier also challenges the criminal history calculation on his gun sentence.
Peltier correctly notes the district court should not have counted two points towards
his criminal history for his 1990 theft conviction because Peltier was under age 18
when he committed the crime, he received a sentence less than one year, and the
offense occurred more than five years before his gun conviction. U.S.S.G. §
4A1.2(d). We need not consider the issue because Peltier did not raise it in the
district court, but we conclude the mistake is harmless anyway. Peltier had a 1991
theft conviction resulting in a six-month sentence, worth two criminal history points.
Id. § 4A1.1(b). Because at least four of Peltier’s burglary offenses were separated by
intervening arrests, they should have been counted separately and were worth three
points each because the sentences exceeded one year and one month. Id. § 4A1.1(a).
Thus, Peltier had at least fourteen criminal history points, placing him in criminal
history category VI, one category higher than the category assigned by the district
court. Peltier’s combined offense level remains at 38, so his correct guidelines



                                         -5-
sentencing range is 360-life, the same range considered by the district court before
its departure.

       Although the district court found Peltier’s criminal history category was V
rather than VI, we conclude no remand is necessary. The district court used the
correct initial sentencing range of 360 to life, concluded criminal history category V
overstated Peltier’s criminal history, and determined the seriousness of Peltier’s
criminal history most closely resembled that of most defendants with criminal history
category III. The district court then departed from criminal history category V to
category III under U.S.S.G. § 4A1.3. Given the district court’s comments that
Peltier’s sentence remained harsh, we do not think the district court would depart to
a criminal history category higher than III on remand even though the initial criminal
history category should have been VI rather than V. The final offense level of 38
was correct, and a departure from criminal history category VI to category III would
produce the same final sentencing range of 292-365 months. In any event, the
Government does not cross-appeal or request a remand.

      Peltier last asserts the full faith and credit statute, 28 U.S.C. § 1738, required
the district court to deem his earlier burglaries nonviolent and consolidated for
sentencing as the state court did. We have considered the assertion and reject it
without discussion.

      We thus affirm Peltier’s sentence.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.



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