                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 NOV 28, 2006
                                No. 06-12181                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                   D. C. Docket No. 05-00467-CR-UWC-JEO

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

CARL O'NEAL LEWIS,

                                                              Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________

                              (November 28, 2006)

Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

     Carl O’Neal Lewis pled guilty in the district court to a charge of felon in
possession of a firearm in violation of 18 U.S.C. § 922(g), and the court sentenced

him to prison for a term of 90 months. He now appeals his conviction and

sentence.

      Lewis challenges his conviction on the ground that the court erred in

denying his motion to suppress the firearm at issue which was obtained through a

search of his vehicle and statements he made to the police. He also contends that

the court erred in determining his sentence range under the Guidelines.

      We summarily reject Lewis’s challenge to his sentence. Lewis entered into

an unconditional plea agreement that waived his rights to appeal his conviction and

all previous motions. The record clearly shows that, in response to the court’s

questioning at the change-of-plea hearing, Lewis voluntarily and knowingly

entered his guilty plea. Given his waiver, Lewis lost the right to appeal the denial

of his motion to suppress.

      The plea agreement contained a sentence appeal waiver. Lewis, however,

did not waive his right to appeal his sentence because the district court never

specifically questioned him about the sentence appeal waiver while taking his

guilty plea. Because the district court did not question Lewis about the sentence

appeal waiver at the plea hearing and it is not manifestly clear from the record that

Lewis understood the significance of the sentence appeal waiver, the Bushert test



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stating the requirements for a knowing and voluntary waiver is not met. See

United States v. Bushert, 997 F.2d 1343 (11 th Cir. 1993). Therefore, Lewis did not

waive his right to appeal his sentence, and we therefore address the merits of his

argument regarding the court’s application of the Guidelines.

      Although the Supreme Court’s decision in United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), rendered the Guidelines advisory and

established a reasonableness standard for reviewing the ultimate sentence imposed

on a defendant, the district court still is obligated to consult the Guidelines and

properly calculate the Guidelines sentence range. United States v. Crawford, 407

F.3d 1174, 1178 (11th Cir. 2005). In his brief, Lewis questions whether the district

court correctly calculated his sentence range because it based its calculations on

two prior convictions that he alleges had been consolidated for sentencing and gave

a two-level increase to his offense level under § 2K2.1(b)(4) for possession of a

stolen firearm even though he did not know the gun was stolen.

      Under U.S.S.G. § 2K2.1(a)(2), the base offense level for felon in possession

of a firearm is 24 if the defendant committed the offense after sustaining at least

two felony convictions for crimes of violence. U.S.S.G. § 2K2.1(a)(2). The

commentary to that section provides that those felony convictions receiving points

under § 4A1.1(a), (b), or (c) that are counted separately should be used to



                                           3
determine the base offense level. U.S.S.G. § 2K2.1, comment. (n.12).

      Section 4A1.1 of the Sentencing Guidelines sets out the number of points to

assign to each conviction based on the length of imprisonment in order to

determine the criminal history category. U.S.S.G. § 4A1.1(a), (b), and (c).

Guidelines § 4A1.2 provides, “Prior sentences imposed in unrelated cases are to be

counted separately.” U.S.S.G. § 4A1.2(a)(2). Unrelated cases are those where an

intervening arrest occurred between offenses. U.S.S.G. § 4A1.2, comment. (n.3).

If there was no intervening arrest and the offenses were consolidated for sentencing

purposes, the cases are considered to be related. Id.

      Section 2K2.1(b)(4) of the Guidelines provides that the base offense level

should be increased by two if the weapon was stolen. U.S.S.G. § 2K2.1. The

commentary to that guideline provides that the two-level increase applies “whether

or not the defendant knew or had reason to believe that the firearm was stolen.”

U.S.S.G. § 2K2.1, comment. (n.16).

      Lewis first contends that his prior convictions should not have been counted

separately to determine his base offense level and, therefore, his base offense level

should have been lower. Because the offenses for which Lewis was convicted

were separated by an intervening arrest, they were unrelated and properly counted

separately. Therefore, the district court did not err in calculating the base offense



                                           4
level. See U.S.S.G. §§ 2K2.1, comment. (n.12), 4A1.2, comment. (n.3).

      Lewis next contends that the court erred in imposing a two-level increase

because he did not know the gun mentioned in the indictment was stolen.

However, it is irrelevant whether he knew the gun was stolen, and the two-level

increase was properly applied. See U.S.S.G. § 2K2.1 comment. (n.16).

      Finally, Lewis contends that two of his convictions should not have been

separately counted to determine his criminal history points because they were

consolidated for sentencing purposes. As previously stated, the offenses for which

Lewis was convicted were unrelated. U.S.S.G. §§ 2K2.1 comment. (n.12), 4A1.2

comment. (n.3). Thus, the district court properly counted each of these offenses

separately, and the district court did not err in calculating the guidelines range.

      In sum, for the reasons stated above, we dismiss Lewis’s challenge to his

conviction and affirm his sentence.

             DISMISSED IN PART, AFFIRMED IN PART.




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