                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES COURT OF APPEALS                    SEP 7 2001
                            FOR THE TENTH CIRCUIT
                                                                 PATRICK FISHER
                                                                           Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 01-2064
                                                   (D.C. No. CR-00-1467-JC)
    OSCAR MARQUEZ-RAMOS,                                   (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before ANDERSON and BALDOCK , Circuit Judges, and BRORBY , Senior
Circuit Judge.



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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant Oscar Marquez-Ramos appeals the sentence imposed by the

district court , claiming error in the calculation of his criminal history level under


*
      This order and judgment is not binding precedent, except under the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.
§ 4A1.2(a)(2) of the United States Sentencing Guidelines. Finding no error, we

affirm.

       Mr. Marquez-Ramos pleaded guilty to reentering the United States after

being deported in violation of 8 U.S.C. § 1326. At sentencing the only contested

issue was the determination of Mr. Marquez-Ramos’s criminal history. The

district court concluded that the proper category was Level V, based upon

a total of eleven criminal history points. This calculation, which subjected

Mr. Marquez-Ramos to a sentencing range of forty-six to fifty-seven months,

included three points for an earlier state court conviction for possession of

a controlled substance. It also included an additional two points for a conviction

on a charge of abuse of public records in the same state court, albeit under

a different docket number.   1



       Mr. Marquez-Ramos objected to the additional two points for the abuse of

public records conviction on the ground that it was “related” to the drug

possession conviction as that term is defined by the sentencing guidelines. He

argued that it should not, in consequence, be counted separately in calculating his

criminal history level.   See USSG § 4A1.2(a)(2) (“Prior sentences imposed in




1
      Mr. Marquez-Ramos has still other prior state court convictions, but they
are not at issue in this appeal.

                                         -2-
unrelated cases are to be counted separately. Prior sentences imposed in related

cases are to be treated as one sentence . . .”).

       Rejecting this argument, the     district court sentenced Mr. Marquez-Ramos to

forty-six months in prison.    The court noted that Mr. Marquez-Ramos had been

arrested, charged, and released on bond with respect to the drug possession charge

at the time he committed the second offense, abuse of public records, for which

he was later arrested and convicted. (Mr. Marquez-Ramos’s conviction for abuse

of public records was the result of a plea bargain; he was originally arrested

and charged with a different offense.) Had the           district court agreed with

Mr. Marquez-Ramos’s contention that his prior offenses were related, his criminal

history category would have been IV and the resulting sentencing range would

have been lower.

       The district court ’s finding of unrelatedness was a factual determination

reviewed in this court only for clear error.         United States v. Alberty , 40 F.3d 1132,

1133 (10th Cir. 1994). Mr. Marquez-Ramos bears the burden of showing that his

two contested prior convictions were related.           Id. at 1134. Furthermore, as the

Supreme Court recently cautioned the courts of appeals, district courts enjoy an

institutional advantage in making the type of determination at issue here.            Buford

v. United States , 532 U.S. 59, 121 S. Ct. 1276, 1280 (2001) (holding that

deference is appropriate when appellate court reviews trial court’s determination


                                               -3-
as to whether prior convictions were related or “consolidated” under sentencing

guidelines). This is so, said the Court, “because a district judge sees many more

‘consolidations’ than does an appellate judge.”    Id. , 121 S. Ct. at 1280.

       On appeal Mr. Marquez-Ramos claims that his two prior state court

convictions were “functional[ly]” consolidated for sentencing by the state court

and are therefore related offenses. Appellant’s Br. at 11. He points principally to

the concurrent sentences he received for the two offenses, arguing that this fact

evinces the state court’s intent to consolidate the two offenses for sentencing.

He relies on the commentary to USSG § 4A1.2, which states that a defendant’s

earlier convictions are considered related if they resulted from offenses that were

“consolidated for . . . sentencing.”   See USSG § 4A1.2, cmt. n.3.   2



       But in making this argument Mr. Marquez-Ramos misreads or ignores other

portions of the commentary to § 4A1.2. The comment makes clear that “[p]rior

sentences are not considered related if they were for offenses that were separated


2
       The comment, in relevant part, reads:

       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.

USSG § 4A1.2, cmt. n.3.

                                           -4-
by an intervening arrest.”   Id. , cmt. n.3 (emphasis added) . There is no dispute

here that Mr. Marquez-Ramos’s two contested offenses were separated by an

intervening arrest; that is, he committed (and was arrested for) the later offense

after he committed the former offense. Thus, Mr. Marquez-Ramos’s intervening

arrest on the second offense defeats any claim that the two offenses were, or can

be considered, related offenses.       See United States v. Wilson , 41 F.3d 1403, 1405

(10th Cir. 1994) (relying on the “intervening arrest” provision of the commentary

to conclude that defendant’s two offenses were unrelated).

       Additionally, this court has never said that the existence of concurrent

sentences mandates a finding that two prior offenses were “consolidated” within

the meaning of the sentencing guidelines. To the contrary, we have said that

“the mere fact of the concurrent . . . sentencing [does] not convert the separate

convictions into a ‘related’ crime.”      United States v. Villarreal , 960 F.2d 117, 120

(10th Cir. 1992). This is particularly so, as here, “when the two charges retained

separate docket numbers.”     Alberty , 40 F.3d at 1135.

       Mr. Marquez-Ramos has failed to persuade us that the        district court

committed clear error in finding that his two state court convictions were




                                              -5-
unrelated. Accordingly, the judgment of the United States District Court for

the District of New Mexico is AFFIRMED.


                                                   Entered for the Court



                                                   Wade Brorby
                                                   Senior Circuit Judge




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