                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 3, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-20123



UNITED STATES OF AMERICA

          Plaintiff - Appellee

v.

CHARLES EARL SMITH

          Defendant - Appellant


          Appeal from the United States District Court
           for the Southern District of Texas, Houston
                      USDC No. 4:05-CR-212-3


Before KING, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM:*

     Defendant-appellant Charles Earl Smith appeals the sentence

imposed by the district court upon his convictions for one count

of conspiracy to steal mail, in violation of 18 U.S.C. §§ 371 and

1708, and two counts of aiding and abetting in the theft of mail,

in violation of 18 U.S.C. §§ 2 and 1708.   He argues on appeal

that the district court erred by: (1) sua sponte departing from

the Sentencing Guidelines range without giving advance notice to


     *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

                                  1
the defense and (2) refusing to treat his four 1999 Texas forgery

convictions as “related” sentences under § 4A1.2(a)(2) of the

Sentencing Guidelines.   For the following reasons, we AFFIRM the

sentence imposed by the district court.

               I. FACTUAL AND PROCEDURAL BACKGROUND

     Defendant-appellant Charles Earl Smith admitted to stealing

outgoing mail from mailboxes to obtain checks on two occasions,

once in September 2004 and again in October 2004.     His co-

defendants, Ronald Gale Thibodeaux and Dezra Omar Duff, also

participated in this scheme.   After obtaining the checks the

defendants would take the checks to a “guy named Rex.”     Rex would

then take the checks to someone else who would “wash” them and

insert new dollar amounts and name either Smith, Duff, or

Thibodeaux as the new payee.   Then the new payee would cash the

check, keeping half and giving half to Rex.

     Smith, Thibodeaux, and Duff were charged in an indictment

with one count of conspiracy to steal mail, in violation of 18

U.S.C. §§ 371 and 1708, and two counts of aiding and abetting

each other in the theft of mail, in violation of 18 U.S.C. §§ 2

and 1708.   Smith pleaded guilty to the charges.

     Applying the U.S. Sentencing Guidelines (“U.S.S.G.”), the

Presentence Investigation Report (“PSR”) calculated Smith’s total

offense level at eight and his criminal history at VI, resulting

in an advisory sentencing range of eighteen to twenty-four



                                 2
months’ imprisonment.    Smith raised two objections to the PSR.

First, Smith objected to the amount of loss attributed to him

based on holding him accountable for co-defendants who cashed

stolen mail checks before he entered the conspiracy.    Second,

Smith objected that the four forgery offenses from 1999 should

not be counted separately, but rather considered “related” cases

under U.S.S.G. § 4A1.2(a)(2).    The court granted Smith’s

objection to the amount of loss attributed to Smith, which

lowered the total offense level to six, with an advisory

sentencing range of twelve to eighteen months, but denied the

objection relating to the forgery offenses.

     The district court sentenced Smith to thirty months’

imprisonment on each count to run concurrently.

                           II. DISCUSSION

A.   Rule 32(h) Notice

     Smith does not claim that the extent of the departure was

unreasonable or that the resulting sentence was unreasonable.

Rather, Smith argues that the district court erred by sua sponte

departing1 upwardly without any advance notice to the defense, as


     1
        The briefs for Smith and the government both treat the
sentence as a Guidelines sentence, as distinguished from a non-
Guidelines sentence, and the government concedes error, see
infra, in the failure of the district court to give notice that
it was considering an upward departure. Neither party has
identified or briefed the question whether, post United States v.
Booker, 543 U.S. 220 (2005), the district court is required to
give such notice in the case of a Guidelines sentence or a non-
Guidelines sentence. Accordingly, we assume, without deciding,

                                  3
required by Rule 32(h) of the Federal Rules of Criminal

Procedure.    The government concedes that the district court erred

by departing from the Sentencing Guidelines without providing

advance notice to the parties but contends that the error was

harmless.    The doctrine of harmless error applies because Smith

timely objected to the lack of notice.        See United States v.

Olano, 507 U.S. 725, 734 (1993).        Harmless error, which must be

disregarded, is “[a]ny error, defect, irregularity, or variance

that does not affect [the] substantial rights” of the defendant.

FED. R. CRIM. P. 52(a).    “An error affects substantial rights []

if it affects the outcome of the district court proceedings.”

United States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005)

(citing Olano, 507 U.S. at 734; United States v. Akpan, 407 F.3d

360, 377 (5th Cir. 2005); United States v. Munoz, 150 F.3d 401,

413 (5th Cir. 1998)).      Smith objected to the lack of notice at

sentencing; thus, the burden is on the government to show that

the error was harmless and did not affect the sentence received.

Id.   The government has met its burden.

      Rule 32(h) states:

            Before   the  court   may  depart   from  the
            applicable sentencing range on a ground not
            identified for departure either in the
            presentence report or in a party’s prehearing
            submission, the court must give the parties
            reasonable notice that it is contemplating
            such a departure. The notice must specify any
            ground on which the court is contemplating a


that such a notice was required.

                                    4
          departure.

FED. R. CRIM. P. 32(h).

      At sentencing, the district judge made clear that he

departed upward from the Guidelines range not only because of

the nature and circumstances of the offense but also because the

shorter sentences Smith received in the past had not adequately

deterred Smith from committing additional forgeries and similar

crimes.

      Smith argues that had he been given notice that the

district court was considering departing upward from the range

based on Smith’s criminal record, then he could have

investigated the criminal history of his two co-defendants, who

received shorter sentences.   However, this evidence would have

changed the sentence given by the district judge.   Although

Thibodeaux did have three felony forgery convictions on his

record, those convictions were not as recent as Smith’s and

Thibodeaux was in a lower criminal history category.2   Because

the district judge stated that he thought the range suggested by

the Sentencing Guidelines substantially understated the

seriousness of this defendant’s conduct, it is highly unlikely

that the district judge would have adjusted Smith’s sentence

merely because his co-defendant had three felony convictions for



     2
        Two of Thibodeaux’s convictions were from 1980, and the
other was from 1998.

                                5
forgery.3    Accordingly, we find that the failure of the district

court to give notice of a potential upward departure, if error

it was, constituted harmless error.

B.    “Related” Cases Under U.S.S.G. § 4A1.2(a)(2)

      Smith claims that the trial court erroneously failed to

treat his four prior forgery sentences from 1999 as related

under U.S.S.G. § 4A1.2(a)(2) and erroneously assigned separate

criminal history points for each.       The Sentencing Guidelines

provide that, in assessing a defendant’s criminal history

points, “[p]rior sentences imposed in related cases are to be

treated as one sentence for purposes of § 4A1.1(a),(b), and

(c).”    U.S.S.G. § 4A1.2(a)(2).       The commentary to the U.S.S.G.

§ 4A1.2 defines “related cases” as follows:

            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.

U.S.S.G. § 4A1.2, cmt. n.3.     Smith’s argument focuses on whether

his prior forgery convictions were functionally consolidated for

     3
        That it is unlikely that the judge would have sentenced
Smith to a lesser sentence had Smith presented more detailed
descriptions of the co-defendants’ history is underscored by the
fact the judge knew that both co-defendants were in lower
criminal history categories than Smith. Smith’s argument makes
clear that the only new information he would have presented is
that Thibodeaux had forgery convictions.

                                   6
trial or sentencing.

     Generally, we review de novo the district court’s

application of the Sentencing Guidelines.     See United States v.

Villegas, 404 F.3d 355, 359 (5th Cir. 2005).    However, the

determination whether prior convictions were functionally

consolidated for trial or sentencing is a question of fact that

is afforded deferential review under the clear-error standard.

See Buford v. United States, 532 U.S. 59, 66 (2001).     A finding

is not clearly erroneous if it is plausible in light of the

record as a whole.     See Anderson v. City of Bessemer City, North

Carolina, 470 U.S. 564, 574 (1985).

     Smith committed four forgery offenses in January 1999 on

different dates, in different locations, against different

individuals and banks, with different amounts.    He was arrested

for all four offenses on the same day.    He also received his

sentence for all four offenses by the same court on the same

date and received one year in jail, to be served concurrently,

for each offense.    However, there was no formal consolidation

order, and the cases had different docket numbers.

     Smith argues that his prior forgery convictions should be

considered consolidated because the requirements under LaPorte

v. State, 840 S.W.2d 412 (Tex. Crim. App. 1992), have been met.

LaPorte held that in certain situations in which a defendant

stands trial for more than one offense in a single proceeding,

the lack of formal consolidation will not prevent application of

                                  7
the Texas statute which prohibits consecutive sentencing for

consolidated sentences.    Id. at 413-14.   However, Smith’s

argument fails because this court has determined that LaPorte is

not dispositive of the consolidation issue for § 4A1.2 purposes.

United States v. Fitzhugh, 984 F.2d 143, 147 n.18 (5th Cir.

1993).

     As part of this argument, Smith also contends that the four

forgeries would be considered the same criminal episode pursuant

to the Texas Penal Code and that the probation officer conceded

this fact in the PSR.   But Smith has not supported this argument

with facts other than to state that the offenses are part of the

same criminal episode because they are repeated commissions of

the same offense.    The probation officer merely stated that they

appear to be part of a common scheme or plan, presumably in

light of the fact that all four occurred in the same month and

involved similar activity.   The PSR does not concede that the

cases are related.   Rather it cites United States v. Ford and

notes that similar offenses are not necessarily part of a common

scheme or plan for relatedness purposes.     See 996 F.2d 83, 86

(5th Cir. 1993).    To be part of a common scheme or plan, there

must be evidence that they were jointly planned or that the

commission of one would entail the commission of the other.        See

United States v. Robinson,187 F.3d 516, 520 (5th Cir. 1999)

(holding that crimes were related when the defendant planned the

commission of the second crime during the course of the first

                                 8
crime).   No such evidence exists in this case.

     The district court’s findings that the forgeries were not

consolidated and thus not related is also consistent with Fifth

Circuit authority.   We have held that in the absence of a formal

consolidation order, the listing of multiple offenses in the

same criminal information under the same docket number is

sufficient to find those offenses were functionally

consolidated.   See United States v. Huskey, 137 F.3d 283, 288

(5th Cir. 1998).   Whether a case was functionally consolidated

is less clear when cases have different docket numbers, but

cases will not be deemed consolidated just because the defendant

was sentenced for each offense on the same day or received

identical, concurrent sentences.    See United States v. Kates,

174 F.3d 580, 584 (5th Cir. 1999) (holding two drug possession

offenses that occurred one week apart were not related even

though the defendant was sentenced by the same judge on the same

date for each offense and the sentences were concurrent).

     The district court did not clearly err in concluding that

the four prior forgery sentences were unrelated.

                        III. CONCLUSION

     For the foregoing reasons, we AFFIRM Smith’s sentence.




                                9
