201 F.3d 937 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee,v.Paula L. Buford,    Defendant-Appellant.
No. 99-1834
In the  United States Court of Appeals  For the Seventh Circuit
Argued November 17, 1999Decided January 12, 2000

Appeal from the United States District Court  for the Eastern District of Wisconsin.  No. 98-CR-210--J.P. Stadtmueller, Chief Judge.
Before Eschbach, Easterbrook, and Rovner, Circuit  Judges.
Easterbrook, Circuit Judge.


1
Following her plea of  guilty to armed bank robbery, see 18 U.S.C.  sec.2113(a) and (d), Paula Buford was sentenced  to 188 months' imprisonment. The judge calculated  an offense level of 31 (including all  adjustments) after finding that she is a career  offender. This led to a sentencing range of 188  to 235 months' imprisonment. If she is not a  career offender, then her sentencing range is  only 84 to 105 months.


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


3
U.S.S.G. sec.4B1.1. Buford was 42 when she robbed  the bank; armed bank robbery is a "crime of  violence", see U.S.S.G. sec.4B1.2(a)(1), even  though the object Buford described as a bomb  would not have exploded; and she has more than 22  prior convictions. Details of many convictions  are missing from the record, because state courts  have destroyed relevant documents (most of the  crimes are more than a decade old) and Buford has  not turned over information in her own  possession. But the district judge counted five  more-recent convictions that meet the standard of  sec.4B1.1. In 1992 Buford was convicted in a  Wisconsin court of four armed robberies and  possessing cocaine with intent to deliver it.


4
Five exceeds two, but this does not end the  discussion, because a definitional provision in  sec.4B1.2(c)(2) says that, when counting  convictions for purposes of the career offender  provision, the judge must determine that "at  least two of the aforementioned felony  convictions are counted separately under the  provisions of sec.4A1.1(a), (b), or (c)." Turning  back to sec.4A1.2(a)(2) we find: "Prior sentences  imposed in unrelated cases are to be counted  separately. Prior sentences imposed in related  cases are to be treated as one sentence for  purposes of sec.4A1.1(a), (b), and (c)." So when  are cases "related"? Application Note 3 to  sec.4A1.2 offers this advice:


5
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.


6
Buford's four armed robberies and one drug  offense did not occur on the same occasion. See  United States v. Hudspeth, 42 F.3d 1015 (7th Cir.  1994) (en banc) (defining "occasion" for purposes  of 18 U.S.C. sec.924(e)(1), the Armed Career  Criminal statute). Nor were they part of a common  scheme or plan. The district court sensibly  rejected Buford's argument that all crimes  designed to raise revenue are related by that  objective, which would treat a one-woman crime  wave as having but a single countable offense and  thus negate the principal function of the career  offender guideline. Buford therefore relies on  (C), asserting that the cases were consolidated  for sentencing. As is frequently true, the  details are messy and defy easy characterization--and the Sentencing Commission has not offered  guidance on intermediate situations.


7
Buford was arrested in Milwaukee on January 23,  1992, after robbing a gas station at gunpoint. A  search of her residence turned up a pistol, the  loot, and 73 grams of cocaine. Buford confessed  to three additional armed robberies of gas  stations during 1990 and 1991. On January 27,  1992, state prosecutors filed two criminal  complaints against Buford. The first charged her  with committing five armed robberies. The second  charged the drug offense and was assigned to a  branch of the circuit court designated to handle  drug prosecutions. Wis. Stat. sec.753.061(2). The  cases were handled by different prosecutors and  assigned to different judges. Buford pleaded  guilty to four of the robberies and to the drug  charge in separate hearings before the different  judges. Sentencing in both prosecutions occurred  on May 21, 1992, before the judge who had been  assigned to the drug case. The record does not  include an order of consolidation, though it does  contain a letter from Buford's lawyer consenting  to the procedure. The judge then imposed three  sentences: 6 years for the drug offense; 12 years  for two of the robberies; and 15 years for the  other two robberies. These sentences ran  concurrently. Two judgments (one for the robbery counts and one for the drug count)were entered.  Wisconsin did not follow a truth-in-sentencing  approach back in 1992; the 15-year sentence was  "withheld" (a form of probation), and the 12-year  term of imprisonment ended in less than 6 years,  allowing Buford to rob a bank in 1998. Her  federal 188-month sentence, which amounts to 15  years and 8 months, will keep her in prison for  much longer than her state "15-year" sentence.  (Wisconsin adopted a true-sentence approach  effective January 1, 2000, too late for Buford.)


8
Everyone agrees that the four armed robberies  were consolidated with each other for trial and  sentencing and thus count as but a single crime  of violence for purposes of sec.4B1.1. Buford  contends that the imposition of sentence by a  single judge on a single occasion was a  consolidation of the drug offense with the armed  robberies for sentencing, within the meaning of  Application Note 3. The federal prosecutor  replies that there was no consolidation: there is  no order of consolidation, and separate judgments  were entered following the sentencing. We have  held that joint sentencing for administrative  convenience is not "consolidation for sentencing"  under Application Note 3. United States v.  Bomski, 125 F.3d 1115, 1119 (7th Cir. 1997);  United States v. Stalbaum, 63 F.3d 537, 539 (7th  Cir. 1995); United States v. Russell, 2 F.3d 200,  204 (7th Cir. 1993). But we have also held that  a formal order of consolidation is unnecessary,  and that cases may be deemed functionally  consolidated when they are factually or logically  related, and sentencing was joint. United States  v. Joseph, 50 F.3d 401 (7th Cir. 1995). Here a  single sentencing hearing, informed by a single  presentence report, ended in concurrent  sentences. Buford contends that her crimes were  related through her addiction and would have been  charged in a single indictment or information but  for Wisconsin's decision to require drug  prosecutions to be handled separately. This is  not so clear; Wisconsin follows the approach of  Fed. R. Crim. P. 8(a), see Wis. Stat.  sec.971.12(1), and it might be hard to  characterize the robberies and drug offense as  "of the same or similar character or . . . based  on the same act or transaction or on two or more  acts or transactions connected together or  constituting parts of a common scheme or plan."  Anyway, the separate drug court cuts both ways:  the crimes might have been consolidated but for  their assignment to separate branches, but the  separation shows that Wisconsin does not want  such prosecutions consolidated--and Application  Note 3 defers to the state's practice on  consolidation rather than creating an independent  federal rule. (Wisconsin's provision for  separation is not airtight; the branches  designated under sec.753.061(2) are to handle  drug cases "primarily" but not exclusively, which  is why a single judge was able to sentence Buford  for both the robberies and the drug offense. But  the statute assuredly disfavors consolidation.)


9
Because elements of Buford's situation support  either characterization, the standard of  appellate review may be dispositive. If review is  deferential, then affirmance follows  straightaway, for the district court's conclusion  that Buford's state cases were not functionally  consolidated for sentencing cannot be called  clearly erroneous. But if our role is to make a  de novo decision, then this appeal could come out  either way. What, then, is the right appellate  posture? Until recently the court has treated  this as an unresolved question. See United States  v. Carroll, 110 F.3d 457, 460 (7th Cir. 1997);  United States v. Woods, 976 F.2d 1096, 1099 (7th  Cir. 1992); United States v. Connor, 950 F.2d  1267, 1270 (7th Cir. 1991); Joseph, 50 F.3d at  404; Russell, 2 F.3d at 204. Within the last few  months two panels have taken a firm stance--but  unfortunately the panels do not agree with each  other, and the more recent panel did not  acknowledge the prior, contrary decision. Compare  United States v. Joy, 192 F.3d 761, 770 (7th Cir.  1999) (relatedness is a factual issue reviewed  only for clear error), with United States v.  Jackson, 189 F.3d 655,658 (7th Cir. 1999) (all  questions about application of the career  offender guideline are reviewed de novo). Neither  Joy nor Jackson gives a reason for its conclusion  or evinces awareness that the issue had been  reserved by earlier panels. Divergence within the  circuit mirrors a conflict among the circuits.  Six review "relatedness" issues deferentially,  while three engage in de novo decisionmaking. See  United States v. Correa, 114 F.3d 314, 317 (1st  Cir. 1997) (de novo); United States v. Mapp, 170  F.3d 328, 338 (2d Cir. 1999) (deferential);  United States v. Huggins, 191 F.3d 532, 539 (4th  Cir. 1999) (deferential); United States v.  Huskey, 137 F.3d 283, 285 (5th Cir. 1998) (de  novo); United States v. Irons, 196 F.3d 634, 638 (6th Cir. 1999)(deferential); United States v. Bartolotta, 153 F.3d 875, 879 (8th Cir. 1998) (deferential);  United States v. Allen, 153 F.3d 1037, 1045 (9th  Cir. 1998) (de novo); United States v. Wiseman,  172 F.3d 1196, 1219 (10th Cir. 1999)  (deferential); United States v. Mullens, 65 F.3d  1560, 1565 (11th Cir. 1995) (deferential). By  revisiting the subject, we can create at least  intra-circuit harmony.


10
"Relatedness" and "consolidation" are not pure  questions of law. No legal rule specifies what it  means for cases to be "consolidated for  sentencing." If in Joseph we had adopted the view  that "consolidation" is a matter of form--cases  are consolidated if there is an order of  consolidation, otherwise not--then it would make  sense to engage in de novo consideration. A  record either contains an order of consolidation  or it doesn't, which dictates a legal outcome--  though if the existence of the order were  debatable, the district judge's resolution of  that wholly factual issue would be reviewed  deferentially. But once Joseph adopted a  functional approach to consolidation, it became  impossible to say that one characterization  rather than another is mandatory. We have instead  a classic mixed issue, where the court must apply  legal norms to classify the facts. And disputes  about the proper characterization of events, when  legal norms guide rather than determine the  answer, are principally committed to district  courts, with deferential appellate review. Thus  even though a finding of racial discrimination  requires the application of law to facts, the  existence of discrimination is itself a "fact"  and review is for clear error only. Pullman-  Standard v. Swint, 456 U.S. 273, 288 (1982).  Whether an employee is a "seaman" under a multi-  factor balancing approach likewise is a question  of fact, with deferential appellate review.  Icicle Seafoods, Inc. v. Worthington, 475 U.S.  709, 714 (1986). Even the question whether a  complaint is "frivolous" for purposes of Fed. R.  Civ. P. 11--a subject that requires no fact-  finding by the district court-- is reviewed  deferentially. Cooter & Gell v. Hartmarx Corp.,  496 U.S. 384, 401-05 (1990).


11
Cooter & Gell holds that when the legal inquiry  resists statement as a rule of general  applicability, and when the application of that  rule is a case-specific determination, courts of  appeals should treat the district judges'  conclusions deferentially. Our own cases likewise  emphasize that matters of characterization and  application, which lack general significance to  other litigants, are best resolved by the  district court, with a light appellate touch.  See, e.g., Mars Steel Corp. v. Continental Bank  N.A., 880 F.2d 928 (7th Cir. 1989) (en banc);  Morton Community Unit School District No. 709 v.  J.M., 152 F.3d 583 (7th Cir. 1998); Mucha v.  King, 792 F.2d 602, 604-06 (7th Cir. 1986);  Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d  1423, 1428-29 (7th Cir. 1985). As the second  circuit put the point in Mapp, 170 F.3d at 338  n.15, deferential review is appropriate  "[b]ecause of the (obviously) fact-intensive  nature of the inquiry and because a sentencing  court's findings regarding factual relatedness in  any given case are unlikely to establish widely-  applicable principles of law". (None of the three  circuits that has gone the other way has offered  a reasoned explanation for the choice, and the  fifth circuit in United States v. Garcia, 962  F.2d 479,481 (5th Cir. 1992), explained that  although the argument for deferential review is  "compelling," the circuit would continue to use  de novo review because of unexplained prior  decisions.)


12
How best to understand the events in the  Wisconsin courts in spring 1992 has no  significance beyond these parties. Someone has to  select a characterization of complex facts, and  the best candidate for that role is the district  judge. Questions concerning application of the  Guidelines generally are reviewed deferentially,  see Koon v. United States, 518 U.S. 81, 96-100  (1996), unless the district court makes an  identifiable legal mistake; that principle is as  applicable to "relatedness" as it was to the  questions under review in Koon. We hold  accordingly that whether cases have been  "consolidated" for trial or sentencing is a  matter of fact, to be reviewed deferentially by  the court of appeals. Other issues in the  application of the career-criminal guideline may  be strictly matters of law with general  application, and for those issues review would be  plenary. Because this conclusion resolves a  conflict among panels of this court, it was  circulated to all active judges under Circuit  Rule 40(e). None of the judges favored a hearing  en banc.


13
The district judge did not commit a clear error  in finding that the joint sentencing was a matter  of administrative convenience rather than a  "consolidation for sentencing." Separate  sentences were imposed and separate judgments  entered. Treating Buford as a career offender  makes a good deal of sense; her lengthy record  demonstrates that she is an incorrigible criminal  who regularly uses weapons (or, in her latest  robbery, the threat of a bomb). With a record of convictions past two dozen, she is a "career" offender.

Affirmed
