                       NOT RECOMMENDED FOR PUBLICATION
                              File Name: 06a0218n.06
                               Filed: March 24, 2006

                                        No. 04-2527

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                       On Appeal from the United
v.                                                     States District Court for the Eastern
                                                       District of Michigan
MARK EDWARD COOK,

       Defendant-Appellant.
                                             /

BEFORE:       RYAN and COLE, Circuit Judges; SARGUS, District Judge.*

       RYAN, Circuit Judge.         Mark Edward Cook appeals the sentence of 169 months’

imprisonment he received after pleading guilty to five counts of bank robbery and one count

of attempted bank robbery in violation of 18 U.S.C. § 2113(a). The district court found that

Cook had two prior state convictions for bank robbery and, therefore, was a Career

Offender under United States Sentencing Guidelines Manual § 4B1.1(a) (2003). Cook

argues on appeal that he did not qualify for Career Offender status under U.S.S.G. §

4B1.1(a) because his two prior state bank robbery convictions were “related,” having been

functionally consolidated at his state sentencing. We conclude that the district court did not

err in finding that Cook’s prior convictions were not related and, therefore, did not err in

sentencing Cook as a Career Offender. Therefore,
                                        I.       we will AFFIRM Cook’s sentence.



       *
      The Honorable Edmund A. Sargus, Jr., United States District Judge for the
Southern District of Ohio, sitting by designation.
(No. 04-2527)                                 -2-

       U.S.S.G. § 4B1.1(a) provides that a defendant may be sentenced as 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 prior felony
       convictions of either a crime of violence or a controlled substance offense.

(Emphasis added.)

       U.S.S.G. § 4B1.2(c) explains that the requirement of “two prior felony convictions”

is satisfied if “the sentences for at least two of the aforementioned felony convictions are

counted separately under the provisions of § 4A1.1(a), (b), or (c).” To discover what

convictions count separately under § 4A1.1, however, one must turn to U.S.S.G. §

4A1.2(a)(2), which states that “prior sentences imposed in related cases are to be treated

as one sentence for purposes of § 4A1.1(a), (b), and (c).” (Emphasis added.) As a result,

for “two prior felony convictions” to count separately under § 4B1.1(a), they cannot be

related for purposes of U.S.S.G. § 4A1.1(a), (b), and (c). The Commentary to U.S.S.G. §

4A1.2 gives the meaning of the term “related” 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, comment. (n.3) (emphasis added).

       Cook argued before the district court, as he does now, that his two state convictions

for bank robbery are “related” under U.S.S.G. § 4A1.2(a)(2) and, therefore, the concurrent

sentences imposed for each robbery conviction should be “treated as one sentence” for the
(No. 04-2527)                                 -3-

purposes of U.S.S.G. § 4B1.1(a). Before the district court Cook argued that the two prior

robberies were related because they “were part of a single common scheme or plan“ and

the two cases “were consolidated for . . . sentencing.” Before this court, Cook has dropped

the “common scheme” argument and claims only that the two sentences were functionally

consolidated at the state sentencing hearing.

                                              II.

       In United States v. Hazelwood, we held that “the ‘functional consolidation’ of two

sentences is an inherently fact-specific determination and should be reviewed

deferentially.” 398 F.3d 792, 797 (6th Cir. 2005) (citing Buford v. United States, 532 U.S.

59, 66 (2001)). A district court’s fact determinations are binding on this court, unless they

are clearly erroneous. Id. at 797-98. In Hazelwood, we upheld the district court’s decision

that there was no functional consolidation where concurrent sentences were “separate[

and] individualized” and the “docket numbers” were also separate. Id. at 798.

       Likewise, in United States v. Horn, we held that “‘cases are not consolidated when

offenses proceed to sentencing under separate docket numbers, cases are not factually

related, and there was no order of consolidation.’” 355 F.3d 610, 614 (6th Cir.) (quoting

United States v. McAdams, 25 F.3d 370, 374 (6th Cir. 1994)), cert. denied, 541 U.S. 1082

(2004). In Horn, we also dismissed the argument that functional consolidation could be

shown by such things as a joint trial date, a joint sentencing hearing, or concurrent

sentences. Id. Our cases make clear that similar treatment of convictions is insufficient

to sustain a finding of functional consolidation absent “some explicit indication that the trial

court intended to consolidate the prior convictions.” Id.
(No. 04-2527)                                 -4-

       In support of his functional consolidation theory, Cook points out that he was

sentenced for the prior robberies at a single sentencing hearing; that both offenses were

discussed in a joint pretrial statement; a joint plea agreement for the robberies was entered

at a joint hearing; and he was given concurrent sentences. In addition, he offers as

evidence of functional consolidation both an affidavit by his former defense attorney stating

that the two cases were functionally consolidated and the language printed on the form

used to return him to jail after the sentencing hearing. On this foundation, Cook argues that

the two state convictions were functionally consolidated for sentencing. The district court

did not think they were and neither do we.

       No published case in this circuit has held that two or more convictions were “related”

for purposes of U.S.S.G. § 4B1.1(a) because they were functionally consolidated.

Defendants have often argued the theory, but not successfully. Cook offers nothing to

distinguish his argument from those that have failed in the past. He is content to point to

facts that are the same or logically similar to those argued before us in Hazelwood and

Horn without attempting to show any “explicit indication” by the trial court that it “intended

to consolidate the prior convictions.”      Those evidentiary matters our court has not

previously considered, such as the affidavit by Cook’s attorney and the language printed

on the form used to return Cook to jail, also give no indication of what the trial court

intended. Finally, the sentencing transcript provides clear evidence the two robberies

would not have been consolidated for trial. The state court made a point of informing Cook

that, absent his plea, he would be entitled to “two different trials.”

       We do not hold that there cannot be a case in which two or more prior convictions

were functionally consolidated at sentencing, only that this is not such a case. The learned
(No. 04-2527)                              -5-

district court did not err in its conclusion that Cook’s prior state convictions were not

functionally consolidated and, therefore, were not related.

                                           III.

      For the foregoing reasons, we AFFIRM the sentence imposed.
