                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0330n.06
                                                                                           FILED
                                            No. 10-5901
                                                                                      Mar 23, 2012
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
       Plaintiff-Appellee,                                )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
               v.                                         )        COURT FOR THE EASTERN
                                                          )        DISTRICT OF TENNESSEE
BRODERICK MCNAIR,                                         )
                                                          )
       Defendant-Appellant.                               )
                                                          )


BEFORE: Merritt, Rogers, Circuit Judges, and Polster, District Judge.*

       ROGERS, Circuit Judge. This case is another in the line of problematic cases involving the

application of the Fair Sentencing Act in light of United States v. Carradine, 621 F.3d 575, 580 (6th

Cir. 2010). Defendant Broderick McNair appeals his sentence stemming from his guilty plea to

various offenses involving cocaine base. The district court sentenced McNair to 130 months’

imprisonment, at the bottom of the applicable Sentencing Guidelines range. Nineteen days later,

Congress passed the Fair Sentencing Act of 2010, Pub. L. No. 11-220, 124 Stat. 2372 (2010), which

lowered the minimum statutory penalties for offenses involving cocaine base. The Sentencing

Commission followed with corresponding amendments to the Guidelines’s base offense levels.

McNair appeals, arguing for the retroactive application of the Fair Sentencing Act, and contending

that the district court miscalculated his criminal history category. Although we have concerns about

       *
        The Honorable Dan Aaron Polster, United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 10-5901
United States v. McNair


the applicability of the FSA to a sentence that is not yet final, our binding precedent dictates that the

Fair Sentencing Act is not retroactive. See United States v. Carradine, 621 F.3d 575, 580 (6th Cir.

2010). Further, the district court properly calculated McNair’s criminal history category.

                                                   I.

        On August 12, 2009, McNair pled guilty to conspiracy to distribute and possess with intent

to distribute at least fifty grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)

and 846. McNair admitted that he “cooked” crack cocaine, delivered the crack cocaine to a co-

defendant, and drove the co-defendant to various locations for distribution. Presentence Report

(“PSR”) at ¶¶ 6-10. McNair was responsible for at least 50 grams of cocaine base. Id. at ¶ 11.

        The PSR assigned McNair a base offense level of 30, based on the stipulated drug quantity.

Id. at ¶ 16. McNair received a three-level reduction for acceptance of responsibility, resulting in a

base offense level of 27. Id. at ¶¶ 22-23. The PSR assigned McNair fourteen criminal history

points, placing him in a criminal history category of VI. Id. at ¶ 52. Based on this, McNair faced

a Guidelines range of 130 to 162 months’ imprisonment, and a statutory minimum sentence of ten

years’ imprisonment. Id. at ¶ 85.

        In response, McNair moved to continue the sentencing hearing based on then-pending

legislation regarding crack-cocaine offenses. R. 111. The district court continued sentencing until

December 19, 2009, but otherwise denied the motion. R. 114. The district court explained that the

mandatory minimum sentence had not yet been amended, and it would not indefinitely await all

pending legislation. Id. at 2. Further, the district court found waiting for the passage of FSA was


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United States v. McNair


unnecessary because the court already had the discretion to reject and vary from the guidelines

ranges for crack-cocaine. Id. The district court concluded: “the Court will not continue the

sentencing in this matter in light of the pending bill in Congress. Until a bill does pass and becomes

law, the Court will follow the law as it is presently in this circuit.” Id. at 2.

        On December 16, 2009, McNair filed a sentencing memorandum challenging the PSR’s

calculation of his criminal history category. McNair argued that three offenses for which he was

sentenced on December 19, 1996, were functionally consolidated because the offenses were resolved

in a single day with a single plea agreement. For the same reason, McNair argued that the two

offense for which he was sentenced on October 26, 1999, were functionally consolidated. At

sentencing, the district court addressed McNair’s criminal history category calculation:

                [W]hile the court notes that a formal order of consolidation is not
                required, the Sixth Circuit in United States v. Horn, [355 F.3d 610
                (6th Cir. 2004),] has stated that absent an explicit indication that the
                trial court intended to consolidate the prior convictions, similar
                treatment of convictions for sentences imposed on the same day, for
                different offenses, is insufficient to sustain a finding of consolidation.

                Moreover, as noted by counsel for the government, under the
                Guideline provision under which the defendant’s criminal history
                points are determined, Sentencing Guideline § 4A1.2(a)(2), if prior
                sentences are separated by an intervening arrest, such are to be
                considered separate sentences and counted separately.

                Accordingly, . . . the facts and circumstances of the defendant’s prior
                convictions do not warrant a finding of functional consolidation.
                Given that the defendant’s prior sentences were for events separated
                by intervening arrests; the [cases] proceeded to sentencing under
                separate docket numbers; there was no order of consolidation or other
                indication that the sentencing judge regarded the cases as


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No. 10-5901
United States v. McNair


               consolidated; and that the offenses were not factually related, the
               defendant’s objection to the presentence report will be overruled.

R. 136, Sentencing Hr’g Tr. 4-5. McNair then reiterated a request for a downward departure,

emphasizing that the Senate had passed a version of what would become the FSA, in which the

applicable statutory minimum would be reduced to five years’ imprisonment. Id at 9-10. However,

McNair did not request a continuance on that basis. Id. The government requested that McNair be

sentenced within the Guidelines range of 130 to 162 months. Id. at 11-12.

       The district court then balanced the § 3553(a) factors, rejected McNair’s reasons for

downward departure, and sentenced McNair to 130 months’ imprisonment. Id. at 14-28. When

asked, McNair stated that he did not have any additional objections. McNair timely appealed.

                                               II.

1.     Fair Sentencing Act

       The FSA does not apply retroactively to reduce McNair’s sentence. At the time McNair was

sentenced, he faced a mandatory ten-year minimum term under 21 U.S.C. § 841, because his offense

involved over 50 grams of cocaine base. On August 3, 2010, the President signed the FSA, which

increased the amount of cocaine base necessary to trigger the mandatory ten-year minimum from 50

grams to 280 grams. Pub. L. No. 11-220, 124 Stat. 2372 (2010). The Sentencing Commission

subsequently realigned the base offense levels to conform to this revised statutory penalty. Under

this new alignment, an offense involving between 28 grams and 280 grams is subject to a five year

mandatory minimum. See 21 U.S.C. § 841(B)(iii). McNair asks the court to retroactively apply the

FSA and the revised Guidelines to his sentence.

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No. 10-5901
United States v. McNair


       McNair’s request cannot be granted in light of the “general savings statute,” 1 U.S.C. § 109,

which governs the retroactive application of statutes that release or extinguish a penalty. The statute

“requires us to apply the penalties in place at the time the crime was committed, unless the new

enactment expressly provides for its own retroactive application.” Carradine, 621 F.3d at 580. In

Carradine, we held that defendants who are convicted and sentenced before the enactment of the

FSA are not eligible for a reduction in sentence under the Act. Id. We noted that the FSA “contains

no express statement that it is retroactive nor can we infer any such express intent from its plain

language.” Id. Because Carradine is a prior published opinion of this court, we are bound by its

pronouncement regarding the non-retroactivity of the FSA, and McNair’s challenge fails.

       It bears noting that ten other circuits have considered this question and held that the FSA is

not retroactive to persons in McNair’s position. See, e.g., United States v. Goncalves, No. 10-1367,

642 F.3d 245, 252-255 (1st Cir. 2011); United States v. Acoff, 634 F.3d 200, 202-03 (2d Cir. 2011)(

per curiam); United States v. Reevey, 631 F.3d 110, 113–15 (3d Cir. 2010); United States v. Wilson,

401 F. App’x 760, 762 (4th Cir. 2010) (per curiam); United States v. Doggins, 633 F.3d 379, 384

(5th Cir. 2011); United States v. Bell, 624 F.3d 803, 814–15 (7th Cir. 2010); United States v. Brewer,

624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Hall, 403 F. App’x 214, 217 (9th Cir.2010);

United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Gomes, 621 F.3d

1343, 1346 (11th Cir.2010) (per curiam).

       McNair makes no attempt to distinguish Carradine. Instead he argues that Carradine does

not apply to defendants whose offense predates the enactment of the FSA but who were sentenced


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No. 10-5901
United States v. McNair


afterwards (so-called “straddle cases”). The Supreme Court recently granted certiorari on this very

issue in Hill v. United States, No. 11-5721, 2011 WL 3472365, at *1 (Nov. 28, 2011) and Dorsey

v. United States, No. 11-5683, 2011 WL 3422126, at *1 (Nov. 28, 2011). Both of those cases

involve defendants that have been sentenced after the effective date of the FSA. As discussed above,

McNair’s case is not a straddle case: both his offense and sentence predate the enactment of the FSA.

Therefore, we need not decide whether the FSA applies to straddle cases.

       McNair’s reliance on a district court case from Maine does not compel a different conclusion

because that case only addresses straddle cases. See United States v. Douglas, 746 F. Supp. 2d 220

(D. Me. 2010). The Douglas court held that the FSA applied to a defendant whose offensive conduct

preceded the Act’s enactment, but whose sentencing occurred afterward. Id. at 221. The court

recognized that Congress had debated “whether the new penalties [in the FSA] should apply

retroactively to those already sentenced and in prison . . . . The decision was no.” Id. at 224. The

Douglas court was not concerned with such defendants, but instead worried about the inequity of

applying the pre-FSA sentencing structure to straddle cases. The court determined that the revised

penalties applied to all post-FSA sentencings, reasoning that the FSA’s purpose of reestablishing

“fairness” would be undercut were judges to “continue to impose new sentences that are not ‘fair’”

going forward. Id. at 229 (emphasis in original). In light of Carradine, Douglas does not apply to

a defendant, such as McNair, sentenced before the FSA was enacted.

       Further, the district court did not abuse its discretion when it denied McNair’s motion for a

continuance of sentencing. We review the denial of a motion for a continuance for abuse of


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No. 10-5901
United States v. McNair


discretion. United States v. Roberge, 565 F.3d 1005, 1011 (6th Cir.2009). The district court’s

decision not to grant a continuance was not unreasoned or arbitrary. Defendant requested the court

to continue the sentencing hearing indefinitely, based on then-pending legislation regarding offenses

involving crack cocaine. The court ultimately denied the motion, reasoning that Congress had not

yet amended 21 U.S.C. §841 and that the court already had discretion, under Kimbrough v. United

States, 552 U.S. 85 (2007) to vary from the crack-cocaine sentencing guidelines based on a policy

disagreement with the guidelines. Further, the court noted its authority to vary from the Guidelines

to impose a sentence that was fair and reasonable under 18 U.S.C. §3553(a). R. 114. This was not

an abuse of discretion because the district court was not required to forecast potential future

legislation when deciding the motion. See Anderson v. Wilson, 289 U.S. 20, 27 (1933). In fact, at

the time the motion was decided, the FSA was still nine months away from being adopted. Further,

as the district court noted, it was not necessary to await the result of the FSA legislative process

because the district court already possessed the power to consider the inequity of the crack–cocaine

guidelines. For these reasons, it was reasonable for the district court to deny the motion for a

continuance.

2.     Criminal History Category

       The district court correctly calculated McNair’s criminal history category. McNair claims

that a number of his prior convictions were “functionally consolidated” into two sentences, which

would have reduced his criminal history points and category. McNair is wrong. The Guidelines

mandate the method by which a district court calculates a criminal history for a defendant with


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No. 10-5901
United States v. McNair


multiple prior sentences. “Prior sentences always are counted separately if the sentences were

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).

       Under this standard, the offenses for which McNair was sentenced on December 19, 1996,

were separate offenses. As set forth in the presentence report, McNair was arrested on September

16, 1996 for driving with a suspended licenses. PSR at ¶ 34. Two months later, on November 5,

1996, he was again arrested and charged with driving with a suspended license, as well as fleeing

and criminal trespass.1 Id. at ¶ 35. On December 6, 1996, McNair was arrested for simple

possession of a controlled substance. Id. at ¶ 37. On December 19, 1996, McNair pled guilty to

these offenses. McNair admits that “these offenses were separated by arrests, occurred on different

dates, and were charged under separate docket numbers.” Appellant Br. 27. McNair also admits

there was no formal consolidation order.        However, McNair contends that the cases were

“functionally consolidated” because he entered into a universal plea agreement to serve all of these

sentences concurrently. Although we have acknowledged that consolidation can occur absent a

formal consolidation order, United States v. Hazelwood, 398 F.3d 792, 798 (6th Cir. 2005), “this

court has consistently held that there is no functional consolidation ‘when offenses proceed to

sentencing under separate docket numbers, cases are not factually related, and there was no order of

consolidation.’” United States v. Atkinson, 354 F. App’x 250, 253 (6th Cir. 2009) (quoting United


       1
          The Presentence Report counted these offenses, on November 5, 1996, as one offense
when calculating McNair’s criminal history category. PSR at ¶ 35. McNair does not challenge
this determination.

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No. 10-5901
United States v. McNair


States v. Carson, 469 F.3d 528, 531 (6th Cir. 2006)). McNair’s offenses were separated by arrests,

proceeded to sentencing under separate docket numbers, the cases were not factually related, and

there was no order of consolidation. Thus, McNair’s offenses for which he was sentenced on

December 19, 1996, were not formally or functionally consolidated.

       Similarly, the three offenses for which McNair was sentenced on October 26, 1999, were

separated by intervening arrests. Defendant was arrested for being a habitual motor vehicle offender

on February 10, 1997, July 14, 1998, and July 21, 1998. PSR ¶ 38, 40, 41. The offenses occurred

over a period of seventeen months, were separated by arrests, were charged in separate indictments,

and had separate case numbers. Id. Further, although McNair was sentenced for all three offenses

on October 26, 1999, he received consecutive sentences. This demonstrates that the state court did

not consider the offenses to be functionally consolidated into one offense. Accordingly, the district

court properly calculated McNair’s criminal history category.

                                                III.

       The district court’s order imposing McNair’s sentence is affirmed.

       We note that, subsequent to the briefing in this case, the Sentencing Commission has

retroactively applied the amendments to the Drug Quantity Table in U.S.S.G. § 2D1.1(c). See

U.S.S.G. § 1B1.10(a),(c). Under these revised Guidelines, McNair’s Guidelines range would have

been below the applicable 120-month statutory minimum. We take no position whether this requires

re-sentencing, and the issue would be best considered after the district court had the opportunity to

consider a motion under 18 U.S.C. § 3582.


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