FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 9, 2006

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-12898

Non-Argument Calendar

_____________________________

D.C. Docket No. 04-14025-CR-DMM

UNITED STATES OF AMERICA,

 

Plaintiff-Appellee, 

versus

JESSIE DEBOUGH MERCER,

 Defendant-Appellant. 

_____________________________

Appeal from the United States District Court

for the Southern District of Florida 

______________________________

(May 9, 2006)

Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.

PER CURIAM:
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Jessie Debough Mercer appeals his 212-month sentence, imposed pursuant

to his guilty plea, for conspiracy to possess with intent to distribute five or more

kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), 846. Mercer

challenges his designation as a career offender, under U.S.S.G. § 4B1.1. No

reversible error has been shown; we affirm.

The presentence investigation report (PSI) listed Mercer as a career offender

because the instant offense was a felony drug-trafficking offense and because

Mercer had at least two earlier state felony convictions for crimes of violence. 

Mercer’s criminal history showed that, on 25 June 1990, when Mercer was 16

years old, he was arrested for aggravated assault with a deadly weapon. On 19

July 1990, Mercer was arrested for burglary. On 4 December 1990, Mercer

received three years’ probation for these offenses. On 7 December 1992, when

Mercer was 17 years old, he was sentenced to 7 years’ imprisonment for an armed

robbery conviction. On 14 September 1993, Mercer’s probation for the

aggravated assault and burglary convictions was revoked and he received sevenyear prison sentences, to run concurrently with the sentence for his armed robbery

conviction. The district court agreed with the PSI’s designation of Mercer as a

career offender based on his aggravated assault and armed robbery convictions.
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Mercer does not challenge the use of the armed robbery conviction as

qualifying toward his career offender designation. But he contends that the

district court erred in counting the aggravated assault conviction because he

received only a sentence of probation. He contends that, although he later was

sentenced to seven years’ imprisonment for violating probation, this sentence was

concurrent to another sentence he already was required to serve. Mercer argues

that he, thus, never was confined for his probation revocation: he did not spend the

year and a month in prison necessary to count the aggravated assault conviction. 

He also contends that his seven-year sentence should not count because it was the

result of a conviction for a probation violation, not for a violent crime.

We review de novo a district court’s decision to classify a defendant as a

career offender under U.S.S.G. § 4B1.1. United States v. Gibson, 434 F.3d 1234,

1243 (11 Cir. 2006). We review for clear error a district court’s fact th

determination that prior convictions are unrelated for criminal history purposes. 

United States v. Hernandez-Martinez, 382 F.3d 1304, 1306 (11th Cir. 2004).

Under the Sentencing Guidelines, a defendant is a career offender if, among

other things, “the 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). To

qualify as the two prior felony convictions, the sentences for these convictions
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must be counted separately under § 4A1.1(a), (b), or (c). U.S.S.G. § 4B1.2(c). For

a sentence to count under § 4A1.1(a)--when the offense was committed before a

defendant’s eighteenth birthday--the term of imprisonment must exceed one year

and one month and must result from an adult conviction. See U.S.S.G. § 4A1.1,

comment. (n.1); U.S.S.G. § 4A1.2(d) & comment. (n.7). And when the prior

conviction involves a revocation of probation, the Guidelines require courts to add

the original term of imprisonment to the term of imprisonment imposed upon

revocation. See U.S.S.G. § 4A1.1, comment. (n.1); U.S.S.G. § 4A1.2(k)(1) &

comment. (n.11).

Here, Mercer initially received only probation for the aggravated assault

conviction. But he later received seven years’ imprisonment after his probation

was revoked. So, Mercer’s sentence for the aggravated assault conviction was

seven years’ imprisonment, which is greater than the one year and one month

sentence necessary to count as a prior felony conviction under § 4A1.1(a). 

Further, even though Mercer’s seven-year aggravated assault sentence ran

concurrent with his seven-year armed robbery sentence, these sentences are

unrelated and, thus, are counted separately. See U.S.S.G. § 4A1.2(a)(2) (prior

sentences in unrelated cases are to be counted separately). These offenses were

separated by the intervening burglary arrest. See U.S.S.G. § 4A1.2, comment.
5

(n.3). Further, the offenses occurred on different dates and were not part of a

common scheme. See id. And the sentences were not consolidated: they were

imposed on different days, had different docket numbers, and involved different

crimes. See United States v. Veteto, 920 F.2d 823, 826 (11th Cir. 1990)

(defendant’s sentences not consolidated for career offender purposes when

imposed on different days, by different judges, and for different crimes against

different victims). The aggravated assault and armed robbery sentences, although

concurrent, count as two different seven-year sentences. See United States v.

Smith, 385 F.3d 1342, 1346 (11th Cir. 2004) (that defendant received concurrent

sentences for state convictions does not render those convictions related under §

4A1.2), vacated, 125 S.Ct. 1401 (2005), opinion reinstated, 416 F.3d 1350 (11th

Cir.), cert. denied, 126 S.Ct. 784 (2005). These sentences are not related for

purposes of calculating Mercer’s criminal history status.

In sum, Mercer received a long enough sentence for the aggravated assault

conviction for that conviction to qualify under the career offender provisions. 

And Mercer’s aggravated assault sentence was separate from his armed robbery

sentence. The district court properly counted Mercer’s aggravated assault

conviction as a prior felony conviction for career offender purposes.

AFFIRMED.