                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 02-2018
                               ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Western District of Missouri.
Anthony D. Paden,                        *
                                         *
            Appellant.                   *

                               ________________

                               Submitted: November 6, 2002
                                   Filed: June 6, 2003
                               ________________

Before HANSEN,1 Chief Judge, BEAM and SMITH, Circuit Judges.
                           ________________

HANSEN, Circuit Judge.
                                           I.
      Anthony Paden pleaded guilty to being a felon in possession of a firearm. Over
his objection, the district court2 assigned him a Category IV criminal history based


      1
       The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
      2
       The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
on convictions in two prior cases for armed criminal action, assault in the first degree,
and unlawful use of a weapon. On appeal, Paden argues that the district court erred
by refusing to consider his prior sentences as related under United States Sentencing
Guidelines § 4A1.2(a)(2) because his criminal actions in the prior cases were part of
a single common scheme or plan and because the cases were functionally
consolidated.

      In the first of his prior convictions, Paden pleaded guilty to assault in the first
degree and armed criminal action based on a shooting that occurred on January 1,
1990. His second prior conviction for unlawful use of a weapon resulted from a car
stop on January 5, 1990, during which police discovered that Paden possessed the .22
caliber revolver used in the January 1 shootings. Paden pleaded guilty to these
offenses on the same day, and the state court ordered that his sentences run
concurrently.

                                         II.
       A district court's "determinations with respect to the offenses in a criminal
history computation are factual determinations and are subject to a 'clearly erroneous'
standard of review." United States v. Lowe, 930 F.2d 645, 646- 47 (8th Cir. 1991).
We hold that the district court's computation of Paden's prior convictions was not
clearly erroneous.

       Application Note 3 to § 4A1.2 defines related cases as those 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. Sentencing Guidelines Manual § 4A1.2,
comment. (n.3) (2001). Paden's prior convictions fit none of these definitions. They
occurred on occasions five days apart. Paden's convictions were not part of a single
common scheme or plan. The elements of the crimes and the actions of Paden in
committing the crimes were different. The fact that the same gun was involved in
both cases is insufficient to characterize the crimes as related. "[A] single common

                                           2
scheme or plan involves something more than simply a repeated pattern of conduct."
United States v. Maza, 93 F.3d 1390, 1400 (8th Cir. 1996) (internal quotations
omitted), cert. denied, 519 U.S. 1138 (1997); see also United States v. Mau, 958 F.2d
234, 236 (8th Cir. 1992) ("[S]imilar crimes are not necessarily related crimes."
(internal quotations omitted)).

       Finally, although the pleas were entered on the same day and the sentences
were ordered to be served concurrently, the cases proceeded under separate docket
numbers and were never formally consolidated. See United States v. Klien, 13 F.3d
1182, 1185 (8th Cir.) ("[T]wo or more sentences imposed at the same time are not
related for purposes of § 4A1.2(a)(2) if the cases proceeded to sentencing under
separate docket numbers, and there was no formal order of consolidation." (internal
quotations omitted)), cert. denied, 512 U.S. 1226 (1994). Paden argues that we
should adopt the Seventh Circuit's "functional consolidation" approach because it has
been impliedly approved by the Supreme Court in Buford v. United States, 532 U.S.
59, 61 (2001) (citing United States v. Joseph, 50 F.3d 401, 404 (7th Cir.), cert.
denied, 516 U.S. 847 (1995)). We decline to read Buford so expansively, and believe
that, at most, it only established a deferential standard for reviewing district court
consolidation decisions.

                                            III.
        The district court did not err by counting Paden's prior convictions separately
in its criminal history calculation. Paden's sentence is affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.



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