In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-3720

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CURTIS GRAVES,

Defendant-Appellant.

____________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 02 CR 127—David F. Hamilton, Judge.

____________

ARGUED MAY 13, 2005—DECIDED AUGUST 12, 2005

____________

Before CUDAHY, EASTERBROOK, and KANNE, Circuit

Judges.

KANNE, Circuit Judge. Curtis Graves was arrested and

charged with two counts of possession with intent to

distribute 50 or more grams of crack cocaine. On appeal he

argues that his conviction should be overturned and that he

was improperly sentenced as a career criminal under the

sentencing guidelines. For the reasons stated herein, we

affirm his conviction but vacate his sentence and remand

for resentencing.
2 No. 04-3720

I. Background

On March 29, 2002, Curtis Graves sold 72 grams of crack

cocaine to Tona Jones. Unfortunately for Graves, Jones was

working as an informant for the FBI Safe Streets Task

Force at the time of the controlled purchase. Jones was

wearing a tape-recording device and the sales transaction

between Graves and Jones was observed by law enforcement officers. The recorded conversation included statements by Graves saying that he was “cooking all this dope”

and that Jones should let it dry before use. On April 15,

2002, Jones made a second controlled purchase of crack

cocaine from Graves, this time buying more than 110

grams.

Graves was charged with two counts of distributing 50 or

more grams of crack cocaine. See 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(iii). At trial, the government presented testimony from the FBI officers who had worked with Jones and

observed the drug purchases. The recorded conversations

between Graves and Jones were played for the jury. On

February 3, 2004, one day after the trial began, a jury

convicted Graves on both counts.

At sentencing, the district court found that based on the

quantity of drugs sold, Graves’s base offense level was 34.

The court then found that Graves was a career offender

according to U.S.S.G. § 4B1.1. This enhancement increased

the offense level to 37 and, combined with a criminal history category VI, led to a sentencing range of 360 months to

life. The court sentenced Graves to 360 months on each

count, to be served concurrently.
No. 04-3720 3

1 At the suggestion of the court at oral argument, Graves withdrew his ineffective assistance of counsel challenge.

2 The government suggests that Judge Hamilton might have

chosen to divide the jury pool into two groups because of the

limited space in his courtroom.

II. Analysis

Graves makes several arguments contesting the validity

of his conviction.1

 His prosecutorial misconduct and sufficiency of the evidence challenges are without merit. His

argument relating to the jury selection process is also

flawed, but will be discussed.

Graves claims that his conviction should be overturned

because the “exceptionally confused jury-selection process”

impaired his right to the intelligent exercise of his peremptory challenges. Graves’s trial counsel had used only one of

his ten peremptory challenges when the jury was seated,

apparently because of a mistaken understanding of when

the jury members to try the case would ultimately be

selected. We find, however, that Judge Hamilton’s explanation of the process was clear.

The venire had been divided into two groups—A and B.2

When voir dire had been completed for group A, the court

heard challenges for cause and two jurors were dismissed.

Then Judge Hamilton directed counsel to prepare the

peremptory strikes for group A and stated, “We will seat the

12 jurors with the highest priority seating positions who

remain unstruck after this.” He further explained that

“once this group clears, they are in, and then we will move

on to the second group.”

When the peremptory strikes had been completed for

group A—one peremptory strike by Graves’s trial counsel

and four by the government—Judge Hamilton indicated

that twelve regular jurors had been chosen from the

thirteen remaining unstruck.
4 No. 04-3720

The court then asked Graves’s counsel, “You follow where

we are . . .? We have got 12 jurors now.” The government

indicated that it was “comfortable going with thirteen if the

court is.” Graves’s counsel responded, “That is fine, Judge.”

Finally, the court asked “Do any of you want to exercise

a challenge for the 13th juror?” Both the government and

Graves’s counsel responded that they did not. The court

concluded by saying, “So she will be the alternate. We will

go with that.”

At that point, twelve regular jurors and one alternate had

been selected from group A. The jurors in group B were

dismissed and the court recessed for lunch. Following that

recess, the jury was sworn and the trial commenced. It is

apparent that counsel for Graves did not object at any time

to the jury selection process or to going forward with the

jury that had been selected.

“Peremptory challenges come from [Federal Rules of

Criminal Procedure] Rule 24, and Rule 52(a) adds: ‘Any

error, defect, irregularity or variance which does not affect

substantial rights shall be disregarded.’ ” United States v.

Patterson, 215 F.3d 776, 781 (7th Cir.), vacated on other

grounds by 531 U.S. 1033 (2000). Trial courts have wide

discretion in the procedures they may use to select juries

under Rule 24. See Fed. R. Crim. P. 24(b). In United States

v. Williams, for example, the trial judge utilized a method

of jury selection with which the Florida lawyers on the case

were not familiar. 447 F.2d 894 (5th Cir. 1971), overruled on

other grounds by United States v. Archer, 733 F.2d 354 (5th

Cir. 1984). The defendant argued that this method was

prejudicial, but failed to indicate any legitimate reason why

that was the case. The Fifth Circuit found that the jurors

who served were not biased or prejudiced and, therefore,

“[t]here is no authority known to us for so limiting the

discretion of trial judges in the federal system of courts.

Indeed the whole procedure outlined by Rule 24 . . . empha-
No. 04-3720 5

sizes the wide discretion committed to the trial judge in the

methods employed to select juries.” Id. at 896-97.

In this case, Graves argues that his right to an impartial

jury was violated when two potential jurors, whom he had

previously challenged for cause, were seated on the jury.

One of the jurors was the wife of a police officer and one

had lived next door to drug dealers who had shot a bullet

into her home. Each of the empaneled jurors, when asked

individually by Judge Hamilton, stated that none of their

experiences or relationships would affect their judgment as

jurors. Judge Hamilton found that the seated jury was impartial. We grant deference to the experienced trial judge’s

assessment and decision as to whether potential jurors are

impartial. See United States v. Beasley, 48 F.3d 262, 267

(7th Cir. 1995).

The jury that sat for Graves’s trial was impartial, and so

his substantial rights were not violated. See Fed. R. Crim.

P. 52(a). “Peremptory challenges enable defendants to feel

more comfortable with the jury that is to determine their

fate, but increasing litigants’ comfort level is only one goal

among many, and reduced peace of mind is a bad reason to

retry complex cases decided by impartial juries.” Patterson,

215 F.3d at 782. We find that the court did not abuse its

discretion in the method chosen to empanel the jury, and

that the jury-selection process was explained clearly and

was far from “exceptionally confused.” Graves’s conviction

will be affirmed.

The sentencing issues that Graves raises are closer questions. Graves first argues that the career offender enhancement should not have been used to determine his

sentence because he did not have the requisite number of

prior felony convictions. According to the sentencing guidelines:

A defendant is a career offender if (1) the defendant was

at least eighteen years old at the time the defendant
6 No. 04-3720

committed the instant offense of conviction; (2) the

instant offense of conviction is a felony that is either a

crime of violence or a controlled substance offense; and

(3) 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). The guidelines further instruct that

“[p]rior sentences imposed in related cases are to be treated

as one sentence . . . .” U.S.S.G. § 4A1.2(a)(2). “Therefore,

whether any two prior convictions may be counted separately for purposes of the career offender provision depends

upon whether the sentences imposed for the convictions

were ‘related.’ ” United States v. Best, 250 F.3d 1084, 1094

(7th Cir. 2001). The last step in this “relatedness” analysis

is to consider Application Note 3 to § 4A1.2:

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 single common scheme or plan, or (C)

were consolidated for trial or sentencing.

There is no question that Graves meets the first two criteria

of the career offender enhancement because he was over 18

when he committed the instant controlled substance

offense. Graves argues, however, that his two prior convictions were consolidated for sentencing and thus should

qualify as “related” offenses.

A short discussion of Graves’s criminal history is required. On April 10, 1993, Graves fired a gun inside a

townhouse in which two adults and two young children

resided. On January 5, 1994, Graves shot a man in the back

of the neck and the leg with a semi-automatic handgun.

After committing both aggravated battery offenses, Graves
No. 04-3720 7

was arrested only for the first offense. While out on bond,

he was arrested for the second shooting. These two offenses

were prosecuted as different cases and resolved by different

plea agreements. The crimes occurred nine months apart

and had different, unrelated victims. Graves was sentenced

to serve concurrent terms, but the two sentencings took

place on different days in front of different judicial officers.

Sentences are considered consolidated when there is a

formal order consolidating them, or if the defendant can

show “functional consolidation.” See Best, 250 F.3d at 1095.

“Functional consolidation occurs when there is a record that

shows the sentencing court considered the cases sufficiently

related for consolidation and effectively entered one sentence for multiple convictions.” United States v. Vallejo, 373

F.3d 855, 858 (7th Cir. 2004) (internal quotations and

citation omitted). We review the district court’s decision as

to whether the sentences were functionally consolidated for

clear error. See United States v. Buford, 201 F.3d 937, 942

(7th Cir. 2000).

The district court noted that although the sentences were

concurrent and there was a reference in one plea agreement

to the other, those facts alone did not support a finding that

the sentences were consolidated. We agree. “[C]oncurrent

sentences do not automatically create cases consolidated for

sentencing.” United States v. Sexton, 2 F.3d 218, 219 (7th

Cir. 1993); see also Vallejo, 373 F.3d at 859 (finding sentences not consolidated when each case had a different

docket number, the judge referred to the cases as separate,

and sentencing orders were entered separately); Best, 250

F.3d at 1095 (affirming district court’s decision on consolidation when the sentencing court retained separate docket

numbers, entered separate judgments and sentences, and

the crimes occurred one month apart and were not logically

related). The facts supporting a finding that the sentences

were not consolidated are even stronger here than they

were in Vallejo and Best; Graves committed two aggravated
8 No. 04-3720

batteries nine months apart, the cases were prosecuted as

separate crimes, there were two separate plea agreements,

and the sentencings took place on different days in front of

different judges. We cannot say that the district court erred

in finding that Graves’s two prior felonies were not “related”; thus, sentencing him as a career offender was

proper.

Graves next argues that his sentence violates the Sixth

Amendment because the district court, in determining that

he was a career offender, made findings of fact which exceeded the judicial factfinding exception for recidivism that

was recognized in Almendarez-Torres v. United States, 523

U.S. 224 (1998), and preserved in United States v. Booker,

125 S. Ct. 738 (2005). It is true that a court makes a factual

determination when it decides whether a case has been

consolidated for sentencing, and until recently we believed

that these factual findings fell within the exception for prior

convictions. See United States v. Ngo, 406 F.3d 839, 842-43

(7th Cir. 2005). Shepard v. United States, 125 S. Ct. 1254

(2005), however, “suggests that the recidivism exception

exempts only those findings traceable to a prior judicial

record of ‘conclusive significance.’ ” Ngo, 406 F.3d at 842.

The sentencing court may only examine “the terms of the

charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the

factual basis for the plea was confirmed by the defendant,

or to some comparable judicial record of this information.”

Shepard, 125 S. Ct. at 1263.

“The finding that [Graves’s] crimes were not consolidated

falls within the narrow parameters permitted by Shepard,

i.e., those findings that can be made by resorting only to

information with the ‘conclusive significance’ of a prior

judicial record.” Ngo, 406 F.3d at 843. We explained previously that sentences can be considered consolidated only

“when there is a record that shows the sentencing court
No. 04-3720 9

considered the cases sufficiently related for consolidation . . . .” Vallejo, 373 F.3d at 858. “Our precedent accordingly requires that a district court decide a disputed

consolidation question by resorting to a formal order or a

sentencing transcript, both sources that presumably have

‘the conclusive significance of a prior judicial record’ as

required by Shepard.” Ngo, 406 F.3d at 843.

As explained above, we find that Graves’s Sixth

Amendment rights were not violated. However, the district

court did commit error by sentencing Graves under the nowdefunct mandatory guidelines scheme. See United States v.

Schlifer, 403 F.3d 849, 853 (7th Cir. 2005). Because Graves

preserved his Blakely/Booker claim by objecting to the presentence report on those grounds, he is entitled to plenary

review of the sentencing error. Id. at 854. The district

court’s error in treating the guidelines as mandatory is, in

effect, a misapplication of the guidelines, and so Graves’s

sentence must be vacated unless the error was harmless.

Id. “When an error relates to the validity of a defendant’s

sentence, it is harmless only if it did not affect the district

court’s choice of sentence.” Id. (citations omitted).

We can find no evidence in the record proving conclusively

that the district court would have chosen the exact same

sentence for Graves had he known that the guidelines were

merely advisory. The court stated that Graves had “a track

record in both vicious violence with guns and trafficking in

the most destructive drug around and, so, the sentence is

appropriately a heavy one.” The court also noted that if it

had decided that the career offender enhancement could not

be applied, it might have “consider[ed] the possibility of an

upward departure based on an under representative

criminal history.” And although these statements seem to

indicate that the court was satisfied with the 360 month

sentence, “we require a higher degree of certainty” for a

conclusion that the guideline misapplication was harmless.

See Schlifer, 403 F.3d at 854. Based on the record, “this
10 No. 04-3720

court would have to speculate that the district court’s error

in thinking itself bound by the guidelines did not affect the

sentence.” Id. at 855. Therefore, we must vacate Graves’s

sentence and remand for resentencing.

III. Conclusion

Graves’s conviction is AFFIRMED. However, we VACATE his

sentence and REMAND the case to the district court for

resentencing consistent with this opinion and Booker.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-12-05