                                                           [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                    FEBRUARY 22, 2008
                                                    THOMAS K. KAHN
                              No. 07-10116
                                                         CLERK
                           Non-Argument Calendar
                         ________________________

                     D. C. Docket No. 06-60180-CR-KAM

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                    versus

JESSENG GUERRIER,

                                                     Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                             (February 22, 2008)

Before BIRCH, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Jesseng Guerrier appeals his 158-month sentence for possession with intent
to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The district judge

sentenced him as a career offender based on prior convictions. We affirm.

                                I. BACKGROUND

      Guerrier pled guilty to possession with intent to distribute cocaine, in

violation of § 841(a)(1). His Presentence Investigation Report (“PSI”) shows that

Guerrier was arrested while burglarizing a dwelling in December 1999, when he

was sixteen years old. The case originally was filed in juvenile court but

subsequently was filed in adult court, where Guerrier was sentenced on November

29, 2000, to two years of community supervision. That sentence, however, was

revoked on 6 June 2002 for violations of the terms of Guerrier’s supervision,

which resulted in a sentence of 364 days of imprisonment.

      Additionally, Guerrier was apprehended in August 2000, at age seventeen,

for possession with intent to distribute cocaine. That case also originally was filed

in juvenile court and later was filed in adult court. On November 29, 2000,

Guerrier was sentenced to two years of community supervision for that crime.

This sentence also was revoked on June 6, 2002, and resulted in a sentence of 364

days of imprisonment.

      Pursuant to the career-offender provision, Guerrier had an enhanced offense

level of 34, because he had two qualifying prior felony convictions. After a



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three-level reduction for acceptance of responsibility and assistance to the

government, Guerrier’s total offense level was 31. With a criminal history

category of VI, assigned pursuant to the career-offender enhancement, Guerrier’s

Sentencing Guidelines range was 188 to 235 months of imprisonment.

      At sentencing, Guerrier’s counsel argued that, because the two qualifying

crimes had occurred when Guerrier was a juvenile, and he had received the same

sentence on the same day from the same judge, the cases should be considered a

single, related case for purposes of scoring them under the career-offender

enhancement. He contended that there was no intervening arrest between the two

charges, because Guerrier was not arrested for either charge but was “taken into

custody” as a juvenile and cited a Florida statute that states that taking a child into

custody is not an arrest. R3 at 6. Defense counsel argued that the cases were not

criminal cases under the Sentencing Guidelines until the state filed them as adult

charges and that there was no intervening arrest because he was taken into custody

and not arrested.

      The district judge noted that, when offenses are separated by an intervening

arrest, the cases “are never related.” Id. at 30. Regarding Guerrier’s argument that

he never was arrested, the district judge stated that, “once these cases were direct

filed as adult cases, you have to, at the very least, relate back to the original date of



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his being picked up or taken into custody . . . as the date of the arrest for federal

guideline sentencing purposes.” Id. at 31. Accordingly, the district judge found

that the PSI properly categorized Guerrier as a career offender. The judge then

determined that a sentence below the Sentencing Guidelines advisory range would

be sufficient and sentenced Guerrier to 158 months of imprisonment. On appeal,

appellate counsel pursues Guerrier’s argument that he was sentenced erroneously

as a career offender.

                                   II. DISCUSSION

      Guerrier’s appellate counsel argues that he did not have two prior felony

convictions, because the two convictions that the district court used in applying the

career-offender enhancement should have been treated as related because they

were consolidated, and no intervening arrest separated the two, since he was “taken

into custody” as a juvenile rather than “arrested” as an adult for the crimes.

Counsel asserts that the fact that the state subsequently filed both cases in adult

court did not change the fact that Guerrier was taken into custody for both crimes

as a juvenile for juvenile-delinquency proceedings. Therefore, counsel contends

that taking Guerrier into custody was not an arrest.

      Our review of a district judge’s “application and interpretation” of the

Sentencing Guidelines is de novo and clear error for findings of fact. United States



                                            4
v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002). Specifically, we review a factual

finding that prior convictions are unrelated under U.S.S.G. § 4A1.2 for clear error.

United States v. Wilks, 464 F.3d 1240, 1243 (11th Cir.), cert. denied, __ U.S. __,

127 S.Ct. 693 (2006).

       The Sentencing Guidelines provide that:

       A defendant is a career offender if (1) [he] was at least eighteen years
       old at the time [he] committed the instant offense of conviction; (2)
       the instant offense of conviction is a felony that is either a crime of
       violence or controlled substance offense; and (3) [he] has at least two
       prior felony convictions of either a crime of violence or a controlled
       substance offense.

U.S.S.G. § 4B1.1(a) (2006). Section 4B1.2(c) states that “‘two prior felony

convictions’ means . . . the sentences for at least two of the . . . felony convictions

are counted separately under . . . § 4A1.1(a), (b), or (c),” which lists the number of

points assigned to prior sentences based on sentence length. Id. § 4B1.2(c). Prior

sentences imposed in unrelated cases are to be counted separately. Id. §

4A1.2(a)(2). At the time of Guerrier’s sentencing, application note 3 to § 4A1.2

stated that:

       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 . . . were consolidated for trial and sentencing.

Id. § 4A1.2 cmt. n.3. As amended in 2007, the Sentencing Guidelines now

                                            5
provide:

       If the defendant has multiple prior sentences, determine whether those
       sentences are counted separately or as single sentence. Prior
       sentences always are counted separately if the sentences are imposed
       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. § 4A1.2(a)(2) ( 2007) (emphasis added). The former phrase, “related

cases,” which had caused confusion, has been changed to “single” and “separate”

sentences. We can consider this clarifying amendment in reviewing Guerrier’s

sentence. United States v. Scroggins, 880 F.2d 1204, 1215 (11 th Cir. 1989).

       Additionally, § 4A1.2(d) provides that three criminal history points are

added if an offense is committed prior to age eighteen, and “the defendant was

convicted as an adult and received a sentence of imprisonment exceeding one year

and one month.”1 U.S.S.G. § 4A1.2(d)(1) (2006). It would be incongruous not to

count as two crimes a consolidated action that would have counted as two crimes

had the defendant been an adult based solely on the name used for the action of

apprehending the criminal. In the context of the Sentencing Guidelines, it is

reasonable to conclude that, when a juvenile is taken into custody after



       1
         In Wilks, we rejected the appellant’s argument that, because his two youthful offender
convictions were consolidated for sentencing, they should not have been counted as two separate
convictions. 464 F.3d at 1243-45. Wilks did not argue, however, based on the language of statutes
dealing with juvenile crimes, that there was no intervening arrest. Id. at 1243.

                                               6
burglarizing a house, and later is tried as an adult for this crime, his being taken

into custody constituted an arrest.

      The record shows that Guerrier was arrested, or taken into custody as a

juvenile, for burglary of a dwelling in December 1999 and again for possession

with intent to distribute cocaine in August 2000. Subsequently, he was charged

and convicted as an adult in a proceeding consolidating the two crimes. The arrest

for burglary, which occurred prior to his committing the crime of cocaine

possession, constituted an intervening arrest between the crimes of burglary and

cocaine possession, thereby making the consolidated cases unrelated. U.S.S.G.

§ 4A1.2 & cmt. n.3.

       Therefore, the arrest for burglary, which occurred prior to Guerrier’s

committing the crime of cocaine possession, constituted an intervening arrest

between the crimes of burglary and cocaine possession, which made the

consolidated cases unrelated. Id. Consequently, the district judge did not err in

finding that, once Guerrier was charged as an adult, the arrest date related back to

the time when he was taken into custody under the Sentencing Guidelines. R4 at

31. Therefore, the district judge did not err in applying the career-offender

enhancement in sentencing Guerrier. Nonetheless, the judge sentenced Guerrier to

a sentence below the Sentencing Guidelines advisory range, which he determined



                                           7
to be sufficient.

                               III. CONCLUSION

       Guerrier has appealed his 158-month sentence for possession with intent to

distribute cocaine as erroneous because the career-offender enhancement was

applied. As we have explained, the career-offender enhancement was appropriate.

Therefore, Guerrier’s sentence is AFFIRMED.




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