                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                FILED
                                                        U.S. COURT OF APPEALS
                               No. 05-10646               ELEVENTH CIRCUIT
                                                             November 10, 2005
                           Non-Argument Calendar
                                                           THOMAS K. KAHN
                         ________________________                CLERK

                  D.C. Docket No. 02-00019-CR-OC-10-GRJ

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                    versus

JERMAINE MCMULLEN,

                                                       Defendant-Appellant.

                       __________________________

              Appeal from the United States District Court for the
                          Middle District of Florida
                        _________________________

                            (November 10, 2005)

Before ANDERSON, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Jermaine McMullen appeals his 151-month sentence, imposed after he pled

guilty to distributing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C). On appeal, McMullen argues that the district court erred at sentencing

by finding his prior convictions were not functionally consolidated, and therefore not

related, for purposes of classifying him as a career offender and enhancing his

sentence, under U.S.S.G. § 4B1.1.1 McMullen also suggests that the overall sentence

imposed was not reasonable because the district court did not adequately consider

mitigating circumstances in imposing the career-offender enhancement. After

thorough review of the record and the parties’ briefs, we affirm.

        We review for clear error a district court’s determination of whether or not

prior convictions are related for purposes of U.S.S.G. § 4A1.2. See United States v.




        1
         As for McMullen’s other challenges to the career-offender enhancement, including that the
prior convictions were consolidated under Florida law and were part of a common scheme or plan,
he asserts these claims for the first time on appeal. For a defendant to preserve an objection to his
sentence for appeal, he must raise the issue in “such clear and simple language that the trial court
may not misunderstand it.” United States v. Riggs, 967 F.2d 561, 565 (11th Cir. 1992). The
objection must be clear enough to inform the district court of its legal basis. Id. Where the
defendant lodges an objection during the sentencing hearing, but relies on a different legal theory,
he has failed to preserve that objection for appeal. See United States v. Reyes-Vasquez, 905 F.2d
1497, 1499-1500 (11th Cir. 1990). Thus, where the appealing party does not clearly state the grounds
for an objection in the district court, this Court is limited to reviewing for plain error. United States
v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003) (citation omitted). This Court may only correct an
error that was not raised in the district court if there is an “error” that is “plain” and that “affects
substantial rights.” United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776-77, 123 L. Ed.
2d 508 (1993). When the previous three elements are present, this Court should only exercise its
discretion to correct an error if it “seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. From our review, we discern no plain error based on McMullen’s newly
asserted challenges to the career-offender enhancement.



                                                   2
Hernandez-Martinez, 382 F.3d 1304, 1306 (11th Cir. 2004).2 We will not find clear

error unless our review of the record leaves us “with the definite and firm conviction

that a mistake has been committed.” United States v. White, 335 F.3d 1314, 1318

(11th Cir. 2003). A district court’s determination of whether cases are functionally

consolidated, and hence related, is entitled to due deference on review. United States

v. Buford, 532 U.S. 59, 64-66, 121 S. Ct. 1276, 1280-81, 149 L. Ed. 2d 197 (2001).

We review the sentence finally imposed on a defendant for reasonableness. United

States v. Crawford, 407 F.3d at 1174, 1178 (11th Cir. 2005).

       The relevant facts are straightforward. After entering a guilty plea, McMullen

proceeded to sentencing. The pre-sentence investigation report (“PSI”) recommended

that McMullen receive an enhanced sentence under U.S.S.G. § 4B1.1 as a career

offender based on two prior felony convictions, one for selling cocaine and the other

for possessing cocaine with intent to sell it. The first offense occurred on August 12,

1997 and the second on August 23, 1997. McMullen was sentenced for both offenses

before the same judge in separate cases on August 28, 1998. Based on McMullen’s

career-offender status, the PSI set his base offense level at 34. After a 3-point



       2
         While the Sentencing Guidelines are now advisory under United States v. Booker, 543 U.S.
---, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), they must still be consulted and correctly applied in
each case, and we review applications of the Guidelines using the standards we established prior to
Booker. See United States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir. 2005).

                                                 3
reduction for acceptance of responsibility, McMullen’s adjusted offense level was 31,

which, when combined with a criminal history category of VI, resulted in a

Guidelines sentencing range of 188-235 months’s imprisonment.

      At the sentencing hearing, McMullen objected to the career-offender

enhancement, arguing that the two prior felony convictions were related. More

specifically, McMullen argued that the prior convictions, although not formally

consolidated, were functionally consolidated because all aspects of the offenses --

arrest, arraignment, sentencing and subsequent violation of probation -- were handled

simultaneously. Over McMullen’s objection, the district court adopted and confirmed

the PSI’s findings of fact and conclusions of law relating to imposition of sentence.

      The district court then gave McMullen the opportunity to present arguments

concerning the ultimate sentence to be imposed upon him. McMullen again argued

against applying the career-offender enhancement, highlighting the following: (1) the

non-serious nature of his prior convictions; (2) his limited mental capacity; and (3)

the advisory nature of the guidelines under Booker. The government argued in reply

that McMullen’s criminal history demonstrated potential danger to the community,

that evidence from the PSI showed that he exaggerated his mental problems, that he

was “characterized as a malingerer and demonstrating antisocial personality traits,”

and that a sentence within that range would be appropriate.

                                         4
      The district court concluded that a criminal history category VI overstated the

seriousness of McMullen’s criminal record: “I’m inclined in this case to be guided by

the guidelines and impose, as it were, a guideline sentence, but it does seem to me

that the categorization of this defendant as a career offender in criminal history

category VI has the result of overstating the seriousness of his prior record and that

he should be held accountable for his criminal history points as actually incurred

placing him in criminal history category IV.” The adjustment of McMullen’s

criminal history category from a VI to a IV resulted in a Guidelines sentencing range

of 151-188 months. The court imposed a sentence of 151 months, followed by a 6-

year term of supervised release. This appeal followed.

      McMullen argues that the district court erred by refusing to find that his two

prior felony convictions for controlled substance offenses were related for purposes

of sentencing him as a career offender. More specifically, McMullen contends that

his convictions were functionally consolidated, within the meaning of § 4B1.1, when

they were sentenced on the same date to run concurrently. We disagree.

      The three pre-requisites for career-offender status are: (1) the defendant must

be at least eighteen years old at the time of the offense; (2) the charged offense must

be a felony that is either a crime of violence or a controlled substance offense; and (3)

the defendant must have at least two prior felony convictions of either a crime of

                                           5
violence or a controlled substance offense. See U.S.S.G. § 4B1.1. The term “two

prior felony convictions” is defined in U.S.S.G. § 4B1.2(c), as meaning that the

sentences “are counted separately under the provisions of § 4A1.1(a), (b), or (c).”

U.S.S.G. § 4B1.2(c). “Prior 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).

      Prior sentences are considered related if they resulted from offenses that

occurred on the same occasion, were part of a single common scheme or plan, or were

consolidated for trial or sentencing. U.S.S.G. § 4A1.2, comment. (n.3). We are

satisfied that McMullen’s offenses, which occurred more than one month apart, and

both involved sales of drugs to different undercover investigators, with no evidence

that the sales were made to the same person or as part of the same ongoing

investigation, did not occur on the same occasion and were not part of a single

scheme or plan.

      As for McMullen’s “functional consolidation” argument, we are not persuaded.

We have found that sentences imposed on the same day were not functionally

consolidated when they were not subject to a formal consolidation order; they were

assigned different docket numbers; the defendant received separate judgments; the

same attorney represented the defendant in both cases; and concurrent sentences were

imposed. United States v. Smith, 385 F.3d 1342, 1346 (11th Cir. 2004), vacated and

                                         6
remanded on other grounds by Smith v. United States, 543 U.S.___, 125 S. Ct. 1401,

161 L. Ed. 2d 175 (2005), reinstated on remand by United States v. Smith, 416 F.3d

1350 (11th Cir. 2005). Here, like in Smith, McMullen was sentenced to concurrent

sentences on the same day for his prior convictions, and was represented by the same

attorney in both cases, but received separate judgments under two different docket

numbers. Thus, the district court did not clearly err in finding that McMullen’s prior

controlled substance felony convictions were not functionally consolidated based on

the record.

       Finally, McMullen asserts his sentence was not reasonable because the district

court did not fully consider mitigating circumstances in imposing the career-offender

enhancement.3 Once a district court has accurately calculated the Guidelines range,

it “may impose a more severe or more lenient sentence” that this Court will review

for reasonableness. Winingear, 2005 WL 207787 at *3; Crawford, 407 F.3d at 1179

(citing Booker, 543 U.S. at ___, 125 S. Ct. at 767). In adjusting a sentence, district

courts need not consider every factor enumerated in 18 U.S.C. § 3553(a) on the


       3
         As a preliminary matter, to the extent McMullen seeks a greater departure under § 4A1.3,
a district court’s discretionary decision not to impose a downward departure from the applicable
Guidelines sentencing range cannot be reviewed, even after Booker. See United States v. Winingear,
--- F.3d ---, 2005 WL 2077087, at *3 (11th Cir. Aug. 30, 2005) (“After Booker, our review of
decisions regarding downward departures remains limited. . . . We agree with the Eighth and Tenth
Circuits that our precedent similarly remains intact, and, therefore, we lack jurisdiction to review the
decision of the district court not to apply a downward departure”).

                                                   7
record. Rather, some indication in the record that the court considered appropriate

factors in conjunction with the sentence will be sufficient, particularly when the

district court imposes a sentence within the Guidelines range. Cf. United States v.

Robles, 408 F.3d 1324, 1328 (11th Cir. 2005) (observing that “the more insight a

district court can provide us with [on its consideration of the § 3553(a) factors], the

better it will be for appellate review, especially when the court sentences outside of

the guidelines; however, when a district court sentences within the guidelines, we

could not expect a court to do more than was done in this case”).

      Based on our review, the district court treated the Guidelines as advisory rather

than mandatory when McMullen was sentenced, as a result of Booker. The court

announced at the outset of McMullen’s sentencing hearing that “as recently as three

or four days ago the Supreme Court of the United States has held in Booker and

Fanfan that the sentencing guidelines should be treated as advisory rather than

mandatory in order to preserve the defendant’s right to trial by jury in some cases.”

The court went on to state that “the decision in Booker and Fanfan does not impact

this case except with respect to the advisory nature of the sentencing guidelines.”

Moreover, the district court imposed a sentence on McMullen that was a downward

departure from the Guidelines under § 4A1.3, based on the non-serious nature of

McMullen’s criminal history, and expressly noted McMullen’s limited mental

                                          8
capacity, which is an appropriate factor for consideration under § 3553(a). Finally,

the ultimate sentence imposed included a little over 12 years of prison time, which

was less than the possibility of nearly 20 years at the high end of the Guidelines range

of 188 to 235 months, and significantly less than the statutory maximum of 30 years.

See Winingear, 2005 WL 2077087, at *4 (comparing, as one indication of

reasonableness, the actual prison term imposed against the statutory maximum).

Based on these considerations, McMullen’s sentence was reasonable.

      AFFIRMED.




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