                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 05-16506                   AUGUST 24, 2006
                           Non-Argument Calendar             THOMAS K. KAHN
                                                                 CLERK
                         ________________________

                     D. C. Docket No. 05-80073-CR-DMM

UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                     versus

TERRY POOLE,

                                                       Defendant-Appellant.


                         ________________________

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

                                (August 24, 2006)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     Terry Poole pled guilty pursuant to a plea agreement to two counts of a
three-count indictment: Count 1, distribution of cocaine base, in violation of 21

U.S.C. §841(a)(1); Count 3, attempted escape, in violation of 18 U.S.C. § 751(a).

The district court sentenced Poole to concurrent prison sentences of 151 months on

Count 1 and 60 months on Count 3. He now appeals his sentences, raising one

issue: Whether the district court properly found that his two prior felony

convictions for crimes of violence were not related and therefore qualified him as a

career offender under U.S.S.G. § 4B1.1(a).

      We review for clear error a district court’s determination of whether prior

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

Hernandez-Martinez, 382 F.3d 1304, 1306 (11th Cir. 2004). 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, 1319 (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, 63-66, 121 S.Ct. 1276, 1279-81, 149 L.Ed.2d

197 (2001).

      A defendant is a career offender if (1) he was at least 18 years old at the time

he committed the instant offense of conviction, (2) that offense is a felony, e.g., a

controlled substance offense such as the Count 1 offense in this case, and (3) the



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defendant has at least two prior felony convictions of either a crime of violence or

a controlled substance offense. U.S.S.G. § 4B1.1(a). Prior sentences imposed in

unrelated cases are counted separately, while prior sentences imposed in related

cases are treated as one sentence for the purpose of determining career offender

status. U.S.S.G. §§ 4A1.2(a)(2), 4B1.2(c). Prior sentences are considered related

if they resulted from offenses that (1) occurred on the same occasion, (2) were part

of a single common scheme or plan, or (3) were consolidated for trial or

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

        Here, the district court did not clearly err in finding that Poole qualified as a

career offender. The primary dispute is whether the district court erred in treating

his two prior felony convictions as unrelated for computation purposes. The two

convictions were for second degree murder, which Poole committed on April 19,

1989, and for burglary-while armed, which he committed on August 20, 1988. He

was arrested for the murder on April 19, 1989 and for the burglary on April 26,

1989.

        Poole contends the cases were related because they were “consolidated for

sentencing.” It is unclear, however, whether Poole is claiming that these cases

were formally consolidated by court order, functionally consolidated, or

consolidated under state law. Because Poole has failed to point to evidence of a



                                             3
formal court order of consolidation, we only consider whether the offenses were

functionally consolidated or consolidated under state law.

      Cases sentenced on the same day are not functionally consolidated when

they are not subject to a formal consolidation order, they are assigned different

docket numbers, and the defendant receives separated judgments. United States v.

Smith, 385 F.3d 1342, 1346 (11th Cir. 2004), vacated and remanded on other

grounds, 543 U.S. 1181 (2005), reinstated on remand, 416 F.3d 1350 (11th Cir.),

cert. denied, 126 S.Ct. 784 (2005). Cases are not functionally consolidated even if

the same attorney represents the defendant in both cases, and the court imposed

concurrent sentences. Id. Like the defendant in Smith whose offenses were found

to be unrelated, Poole was sentenced to concurrent sentences on the same day, and

he was represented by the same attorney for both offenses. Also like the defendant

in Smith, Poole received separate judgments under two different docket numbers.

      In United States v. Hernandez-Martinez, 382 F.3d 1304, 1307-08 (11th Cir.

2004), we held that the district court committed no error in determining that the

defendant’s offenses were not consolidated because: (1) there was no formal

consolidation order; (2) the cases had been assigned different docket numbers; (3)

the defendant received separate judgments; and (4) the defendant was represented

by two different attorneys at sentencing. The only possible distinguishing



                                          4
characteristic between the case at hand and Martinez is that Martinez was

represented by two different attorneys on the day of sentencing, and it may be – but

the record is not clear – that Poole was represented by the same attorney at

sentencing. Even if we were to give Pool the benefit of the doubt and assume that

he was represented by the same attorney, this “factual distinction” alone is

insufficient “to change the ultimate outcome in this case.” Smith, 385 F.3d at 1342,

n.2.

       Poole contends Martinez is nonetheless distinguishable because in Martinez

“two of the prior felonies occurred in different years and were clearly unrelated.”

Poole claims his case is different because his two arrests were only one week apart

and for similar conduct. His contention is unpersuasive; even though his prior

arrests occurred within one week of each other, the crimes leading to those arrests

were committed more than eight months apart. Additionally, although both crimes

were violent in nature, nothing in the record indicates that they were factually

related in any way.

       Finally, the prior convictions were not consolidated under Florida law. We

consider sentences to be consolidated for the purpose of § 4A1.2 if the sentences

have met the requirements for consolidation under state law. Hernandez-Martinez,

382 F.3d at 1308, n.3. Under Florida law, sentences are consolidated when they



                                          5
are imposed on the same day, by the same judge, using the same score sheet, and

made to run concurrently. Id. Poole’s sentences were imposed on the same day,

by the same judge, and made to run concurrently, but Poole has not shown that the

same score sheet was used. In short, the sentences were not consolidated for

sentencing under state law.

      AFFIRMED.




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