                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       October 17, 2005
                                   TENTH CIRCUIT
                                                                        Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 04-2033
                                                         (D. N.M.)
 OMAR MOHAMMED,                                  (D.Ct. No. CR-03-569-JB)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Appellant Omar Mohammed pled guilty to one count of bank robbery in

violation of 18 U.S.C. § 2113(a). He appeals his characterization as a career

offender based on two prior convictions, which he contends the district court

should have counted as one prior conviction. Mr. Mohammed also appeals the

district court’s mandatory application of the United States Sentencing

Commission, Guidelines Manual (U.S.S.G.), which he contends is in violation of

United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). We exercise

jurisdiction pursuant to 18 U.S.C. § 3742 (a) and 28 U.S.C. § 1291, and affirm.



                                  I. Background

      After Mr. Mohammed pled guilty to bank robbery in violation of 18 U.S.C.

§ 2113(a), a federal probation officer prepared a presentence report in which she

recommended sentencing Mr. Mohammed under U.S.S.G. § 4B1.1 as a career

offender, based on two prior felony convictions for aggravated battery and

robbery. With respect to the first prior conviction, on November 9, 1992, Mr.

Mohammed pled guilty to aggravated battery in the Second Judicial District

Court, Bernalillo County, Albuquerque, New Mexico, as charged in the

indictment in Case Number D-202-CR-9102126, for a crime he committed one

year earlier, on November 16, 1991. On the same day, November 9, 1992, Mr.

Mohammed also pled guilty to the second crime in the same court, as charged in


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the indictment in Case Number D-202-CR-9201080, for a robbery he committed

on March 7, 1992. Also on November 9, 1992, he agreed the underlying

sentences for those charges would run concurrent with one another, and the state

district court conducting the sentencing explicitly recognized the two matters

involved different offenses, committed on different days, in separate indictments,

with separate case numbers. While the state district court imposed a sentence of

three years for those offenses, it did not make reference to a “concurrent”

sentence. After determining these crimes constituted two separate convictions for

the purposes of the career offender guideline, U.S.S.G. § 4B1.1, the probation

officer increased Mr. Mohammed’s offense level to 32; she then reduced it three

levels for acceptance of responsibility, for a total offense level of 29, which,

together with his criminal history of VI, resulted in a total Sentencing Guidelines

range of 151 to 188 months imprisonment.



      At the sentencing hearing, Mr. Mohammed raised an objection to the

application of the career offender guideline, arguing his two prior convictions for

aggravated battery and robbery did not involve an intervening arrest as required

under § 4A1.2, application note 3, and instead were consolidated for plea and

sentencing purposes, making them “related” under the same application note.

After introducing the judgment and plea agreements for both convictions, Mr.


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Mohammed explained to the district court that he was in jail on the aggravated

battery charge when he robbed another inmate, and that even though he was

charged for that robbery, he was not separately arrested because he was already in

custody on the battery charge. In response, the probation officer explained she

received information from the Corrections Department which established two

separate arrests occurred and that the judgments introduced at the sentencing

hearing clearly established the separate dates the crimes were committed and that

the court processed them under different case numbers. The probation officer

also explained she contacted the state district court’s office on several occasions

and spoke with the supervisor to ensure no consolidation order was ever filed.



      In making the determination the offenses constituted two prior convictions

under § 4B1.1, the federal district court stated:

      I think the commentary indicates prior sentences are not considered
      related if they were offenses that were separated by an intervening
      arrest; i.e., the defendant was arrested for the first offense before
      committing the second offense. Even if Mr. Mohammed was in
      custody at the time that he was charged with the second offense, he
      was arrested for the first offense before committing the second
      offense. I don’t see anything that indicates these cases were
      consolidated, that ... [t]hey were simply sentenced as far as the
      record before the court. The sentencing for these two offenses
      occurred at the same time. The arrests were the results of two
      separate incidents on ... unrelated charges: One for aggravated
      battery, and one for robbery. And I do not think the prior sentences
      should be considered related because of the intervening arrest that
      occurred.

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The district court then reduced Mr. Mohammed’s sentence for acceptance of

responsibility. After hearing compelling testimony from a victim bank teller

describing the impact the instant robbery had on her, the district court determined

the applicable Guidelines range was 151 to 188 months imprisonment and

announced it was imposing a 188-month sentence. In response, Mr. Mohammed’s

counsel requested a sentence at the low end of the Guidelines range, pointing out

the presentence report suggested no victim-related adjustment, to which the

district court responded, “[i]t is ordered that the sentence is imposed as the Court

has stated it.”



       On appeal, Mr. Mohammed suggests the district court erred in ruling the

intervening charge between his two prior crimes equaled an intervening arrest for

the purposes of § 4A1.2, application note 3, and failed to consider the fact the two

prior cases were later consolidated into one proceeding for the plea and

sentencing hearing. Based on these alleged errors, Mr. Mohammed contends the

district court erred in sentencing him as a career offender under § 4B1.1.

However, he does not discuss the fact the judgment and amended judgment

impose only one sentence for both offenses, without any reference to a

“concurrent” sentence. The government, without any support in the record on

appeal, merely states the state court “ordered the sentences to run concurrently


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under the separate docket numbers.”



      Finally, in a supplemental brief, Mr. Mohammed contends for the first time

on appeal that the district court committed plain error by sentencing him under a

mandatory, rather than an advisory, Guidelines system, in violation of United

States v. Booker.



                                    II. Discussion

                                 A. Prior Convictions

      Since Mr. Mohammed filed his appeal, the Supreme Court issued Booker,

which applies its ruling in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531

(2004), to the Federal Sentencing Guidelines. 543 U.S. at ___, 125 S. Ct. at 755-

76. In United States v. Moore, 401 F.3d 1220 (10th Cir. 2005), we held that

under Booker the government is not required to charge in an indictment or prove

to a jury either: 1) the existence of prior convictions; or 2) their classification.

Id. at 1221, 1224-25 (relying, in part, on United States v. Moudy, 132 F.3d 618,

619 (10th Cir. 1998), which states “[r]eview of a sentence enhancement under the

Armed Career Criminal Act is a legal issue subject to de novo review”).



      With respect to the existence of prior convictions, Booker patently


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reaffirms Supreme Court precedent that a prior conviction is an exception to

factual jury submissions by stating, “[a]ny fact (other than a prior conviction)

which is necessary to support a sentence exceeding the maximum authorized by

the facts established by a plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at

___, 125 S. Ct. at 756 (emphasis added). Thus, it is clear the government did not

need to charge the “fact” of Mr. Mohammed’s prior convictions in the indictment

or submit it to a jury. See Moore, 401 F.3d at 1224.



      With respect to the characterization of prior convictions, we have

determined it involves a question of law and not fact, so it does not implicate the

Sixth Amendment for the purpose of requiring the characterization of the offense

to be charged in the indictment and proven to a jury. See id. at 1224-26. More

specifically, “[w]hether a defendant was erroneously classified as a career

offender is a question of law subject to de novo review.” United States v.

Zamora, 222 F.3d 756, 763 (10th Cir. 2000). Thus, we can readily conclude the

district court, and not a jury, should have determined any issue with respect to the

classification of Mr. Mohammed as a career offender. Given the district court

was the appropriate entity to determine Mr. Mohammed’s classification as a

career offender, the only issue left is whether it made the correct determination on


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that issue.



       The career offender provisions in the Sentencing Guidelines, Chapter 4,

Part A, explain how prior felony convictions are counted. See also § 4B1.2, cmt.

n.3. In advising how felony convictions are counted, § 4A1.2(a)(2) suggests the

courts look at the sentences imposed, and if they are imposed in unrelated cases

they should be counted “separately,” but “[p]rior sentences imposed in related

cases are to be treated as one sentence for the purposes of § 4A1.1(a), (b), and

(c).” In determining whether prior sentences are “related,” the applicable

Guidelines provision instructs:

       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.

§ 4A1.2, cmt. n.3. This application note, which speaks only in terms of

“sentences” imposed for the purpose of determining whether to apply the career

offender provisions, clearly instructs that if the prior offenses are separated by an

intervening arrest, the other factors are not relevant to our inquiry. See also

United States v. Asberry, 394 F.3d 712, 718-19 (9th Cir.), cert. denied, ___ S. Ct.

___, 2005 WL 1671542 (U.S. Oct. 3, 2005) (No. 05-5109). However, in the event


                                          -8-
no intervening arrest occurred, we have held the defendant bears the burden of

demonstrating the existence of the other factors, including whether some formal

order of transfer or consolidation supports the claim the offenses are related. See

United States v. Alberty, 40 F.3d 1132, 1134 (10th Cir. 1994). While a formal

judicial order is sufficient to permit a finding prior cases were “consolidated for

sentencing,” we have held it is not necessary. Id. However, in cases not

involving a formal order of consolidation or transfer, the defendant must show a

factual nexus between the prior offenses to demonstrate they are “related.” Id. at

1135. We review a district court’s functional consolidation determination

deferentially. See Buford v. United States, 532 U.S. 59, 66 (2001). We have held

the fact a district court handles two convictions on the same day for the

convenience of the court and defendant, and then issues concurrent sentences on

those offenses, does not per se establish a factual nexus between the offenses or

establish they were “consolidated for sentencing,” “especially when the two

charges retained separate docket numbers.” Alberty, 40 F.3d at 1134-35. See

also United States v. Guerrero-Hernandez, 95 F.3d 983, 987 (10th Cir. 1996);

United States v. Wilson, 41 F.3d 1403, 1405 (10th Cir. 1994). In addition to these

factors, we recognize other courts have considered additional factors to determine

whether the convictions are related, including whether they involve the same or

similar offenses which are treated a single plea agreement or in the same


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indictment or information. See, e.g., Asberry, 394 F.3d at 719 (considering

various factors for consolidation as contemplated in the Ninth Circuit); United

States v. Huskey, 137 F.3d 283, 285-88 (5th Cir. 1998) (reviewing other circuit

decisions and factors on consolidation issues). Finally, “[w]e are free to affirm a

district court decision on any grounds for which there is a record sufficient to

permit conclusions of law, even grounds not relied upon by the district court.”

United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994) (quotation marks

and citation omitted).



      Applying these principles, we begin by noting Mr. Mohammed incorrectly

suggests the district court ruled the intervening “charge” between his two prior

crimes equaled an intervening “arrest” for the purposes of U.S.S.G. § 4A1.2,

application note 3. Instead, the district court explicitly determined an intervening

arrest occurred, apparently basing its determination on the evidence presented at

the sentencing hearing, including the probation officer’s statements and the

judgment and amended judgment which described two separate prior offenses and

convictions thereon. The district court obviously rejected Mr. Mohammed’s

argument no intervening arrest technically occurred, given he was already in

custody for the previous crime, and further rejected his consolidation theory,

determining nothing “indicates these cases were consolidated.” Even if we were


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to accept Mr. Mohammed’s lack of intervening arrest argument, he has not

demonstrated, with respect to his consolidation argument, either the existence of

some formal order of transfer or consolidation, or any factual nexus between the

prior offenses. Alberty, 40 F.3d at 1134-35. He has also not shown the district

court’s decision to handle the two offenses on the same day involved anything

more than issues of judicial economy and convenience. Rather, the judgment and

amended judgment plainly show two separate, unrelated offenses (aggravated

battery and robbery), charged in separate indictments, under different docket

numbers, for different crimes which occurred almost four months apart, to which

he pled guilty. The only factor largely weighing in Mr. Mohammed’s favor is that

neither the judgment nor amended judgment specifically refer to more than one

sentence or “concurrent” sentences, even though the parties explicitly agreed the

sentences for the two offenses should run concurrently. Instead, the judgment and

amended judgment appear to enter a singular sentence of three years. It is unclear

from the record on appeal whether the state district court inadvertently omitted

discussion of separate sentences, concurrent or otherwise. However, even though

§ 4A1.2 and application note 3 speak only in terms of “sentences” in the plural,

and not singularly, in determining whether to apply the career offender

provisions, we note they are now only advisory. See Booker, 543 U.S. at ____,

125 S. Ct. at 757. In addition, Sentencing Guidelines Chapter 4, Part B, which


                                        -11-
also addresses career offender criteria and applies to Mr. Mohammed, speaks in

terms of the number of prior convictions, and not sentences, for the purpose of

determining if an individual qualifies as a career offender. See, e.g., § 4B1.1(a)

& cmt. n.1, and § 4B1.2(c). In this case, it is clear Mr. Mohammed received two

separate, prior convictions for aggravated battery and robbery under separate

docket numbers, regardless of how his sentencing was imposed on the same day.

Considering the issue de novo, in view of the applicable law and particular

circumstances involved in this case, we conclude the district court did not err in

applying both prior convictions for the purpose of characterizing Mr. Mohammed

as a career offender.



                              B. Mandatory Sentencing

      In this case, the district court applied the applicable Guidelines range of

151 to 188 months imprisonment, and imposed a 188-month sentence. We

consider whether the district court committed a non-constitutional Booker error by

mandatorily applying the Sentencing Guidelines, which we review for plain error,

given Mr. Mohammed failed to raise it before the district court. See United States

v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.), petition for cert. filed, (U.S.

Sep. 6, 2005) (No. 05-6407). “Plain error occurs when there is (1) error, (2) that

is plain, which (3) affects substantial rights, and which (4) seriously affects the


                                         -12-
fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation

marks and citation omitted).



      In reviewing Mr. Mohammed’s sentence, it is clear the first two factors in

our plain error analysis occurred, because the district court sentenced him under a

mandatory sentencing scheme. Id. In reviewing the third factor, as to whether

the error affected substantial rights, the burden is on Mr. Mohammed to show the

error is prejudicial; i.e., the error “‘must have affected the outcome of the district

court proceedings.’” Id. (citations omitted). In meeting this burden, he must

show “‘a reasonable probability that, but for the error claimed, the result of the

proceeding would have been different.’” Id. at 733 (citation omitted). Mr.

Mohammed can meet this burden by demonstrating a reasonable probability that,

under the specific facts of the case as analyzed under the sentencing factors in 18

U.S.C. § 3553(a), the district court would reasonably impose a sentence outside

the Guidelines range. See United States v. Dazey, 403 F.3d 1147, 1175 (10th Cir.

2005). In Dazey, we explained a defendant might make such a showing “if during

sentencing the district court expressed its view that the defendant’s conduct,

based on the record, did not warrant the minimum Guidelines sentence.” Id. We

have said “a defendant can show a non-constitutional Booker error affected

substantial rights with evidence of (1) a disconnect between the § 3553(a) factors


                                          -13-
and his sentence, and (2) the district court’s expressed dissatisfaction with the

mandatory Guidelines sentence in his case.” United States v. Clifton, 406 F.3d

1173, 1181 (10th Cir. 2005).



      In this case, nothing in the record indicates the district court would impose

a lesser sentence under an advisory, rather than a mandatory, sentencing scheme.

The district court sentenced Mr. Mohammed at the high end of the sentencing

range at 188 months, declined his subsequent request to reduce it to the low end

of that range at 151 months, and did not otherwise express a view his conduct

warranted a lesser sentence. The fact the district court imposed a sentence at the

top of the Guidelines range, even though it could have sentenced him anywhere

within that range, supports our conclusion Mr. Mohammed has failed to meet his

burden of showing the district court would impose a lesser sentence under an

advisory Guidelines scheme. See United States v. Ambort, 405 F.3d 1109, 1121

(10th Cir. 2005). Thus, he fails to establish “‘a reasonable probability that, but

for the error claimed, the result of the proceeding would have been different.’”

Id. at 1118 (quotation marks and citations omitted).




                                         -14-
                              III. Conclusion

      For the foregoing reasons, we AFFIRM Mr. Mohammed’s conviction and

sentence.



                                  Entered by the Court:

                                  WADE BRORBY
                                  United States Circuit Judge




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