                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           APR 8, 2009
                            No. 08-13716
                                                         THOMAS K. KAHN
                        Non-Argument Calendar
                                                             CLERK
                      ________________________

                  D. C. Docket No. 07-00070-CR-A-N

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

PEREZ ALLEN MANN,

                                                       Defendant-Appellant.


                      ________________________

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

                             (April 8, 2009)

Before CARNES, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
      Perez Allen Mann appeals his 96-month sentence for possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), possession of a

sawed-off shotgun, in violation of 26 U.S.C. § 5861(d), and possession of body

armor by a person previously convicted of a felony that is a crime of violence, in

violation of 18 U.S.C. § 931(a)(1). Mann contends that the district court erred in

calculating his criminal history under the Sentencing Guidelines because it

counted two of his previous convictions, which were separated by an intervening

arrest but consolidated for sentencing, as two separate offenses.

                                         I.

      We review a district court’s determination that prior convictions are not

related under U.S.S.G. § 4A1.2 only for clear error. United States v.

Hernandez-Martinez, 382 F.3d 1304, 1306 (11th Cir. 2004). According to the

2006 version of the Guidelines, prior sentences imposed in unrelated cases are

counted separately in calculating the criminal history category. U.S.S.G. §

4A1.2(a)(2) (2006). When determining whether prior sentences are related, the

commentary to the Guidelines instructed that:

      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

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      single common scheme or plan, or (C) were consolidated for trial or
      sentencing.

U.S.S.G. § 4A1.2, comment. (n.3) (2006).

      We have previously held that “[t]he language of Note 3 is clear. In

determining whether cases are related, the first question is always whether the

underlying offenses are separated by an intervening arrest. This inquiry is

preliminary to any consideration of consolidated sentencing . . . .” United States v.

Hunter, 323 F.3d 1314, 1322-23 (11th Cir. 2003). When there is an intervening

arrest, prior convictions are counted separately in determining criminal history

score. Id. at 1323. While the 2007 Guidelines eliminated Advisory Note 3, it did

not change the substance of the rule. Instead, the 2007 Guidelines make clear that

the initial inquiry is to be “whether the prior sentences were for offenses that were

separated by an intervening arrest[,] . . . [and i]f so, they are to be considered

separate sentences, counted separately, and no further inquiry is required.”

U.S.S.G. App. C, amend. 709 (Reason for Amendment). See also U.S.S.G.

§ 4A1.1.2 (a)(2) (2007) (instructing that “[p]rior sentences always are counted

separately if the sentences were imposed for offenses that were separated by an

intervening arrest”).




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      What all of this means is that the district court did not clearly err in counting

two of Mann’s previous convictions separately because an intervening arrest did

separate the two criminal acts for which Mann was assigned criminal history

points.



      AFFIRMED.




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