1 The Honorable Linda R. Reade, Chief J udge, United States District Court for the Northern District of Iowa, sitting by designation.

2 The Honorable Michael J. Davis, United States District Judge for the District of Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-2894

___________ United States of America, *
* Plaintiff-Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. Cordova Jamal Lynch, * * Defendant-Appellant. *

___________ Submitted: January 9, 2007 Filed: February 26, 2007

___________ Before MURPHY and SMITH, Circuit Judges, and READE, 1 District Judge.

___________ READE, District Judge.

Cordova Jamal Lynch pled guilty to onecount of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On appeal, Lynch contends that the district court 2erred in calculating his advisory Sentencing Guidelines range and imposed an unreasonable sentence. We affirm.3 In the plea agreement, the parties a ttempted to calculate Lynch’s possible advisory Sentencing Guidelines ranges. Th e parties agreed that Lynch would be a Criminal History Category VI, but they in correctly estimated th at a career offender finding would increase Lynch’s total Offens e Level from 23 to 28. Therefore, they assumed that, if the district court found th at Lynch qualified as a career offender, his advisory Sentencing Guidelines range w ould be 140 to 175 months of imprisonment, and, if the district court found that Lync h did not qualify as a career offender, his advisory Sentencing Guidelines range w ould be 92 to 115 months of imprisonment. The United States Probation Office (“USPO”) poi nted out to the district court that the parties mistakenly calculated the possibl e advisory Sentencing Guidelines ranges. Rather than rely on a total Offense Level 28, the USPO correctly calculated that, as
-2- I.

In June of 2005, law enforcement officer s executed a search warrant at Lynch’s home in Crystal, Minnesota, and found approximately 81 grams of powder cocaine and 11 grams of cocaine base. Pursuant to a plea agreement, Lynch pled guilty to one count of possession with intent to distribut e powder cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). As part of the pl ea agreement, the parties agreed to litigate a number of sentencing issues, including whether Lynch qualified as a “career offender” under USSG § 4B1.1.

After an evidentiary hearing, the distri ct court held that Lynch qualified as a career offender. The district court found that Lynch had two unrelated, prior felony assault convictions. In 1988, a Minnesotastate court convicted Lynch of Second Degree Assault on two occasions.

At sentencing, Lynch moved for a downward departure pursuant to USSG § 4A1.3(b) for overstatement of criminal history and USSG § 5H1.4 in light of his physical condition. The district court denied the motion for a downward departure and calculated Lynch’s adviso ry Sentencing Guidelines range to be 151 to 188 months of imprisonment. 3 After considering all of the factors at 18 U.S.C. § 3553(a),a career offender, Lynch’s to tal Offense Level would be 29. A Criminal History Category VI and a total Offens e Level 29 results in an advisory Sentencing Guidelines range of 151 to 188 months of imprisonment.
-3- however, the district court varied downw ard and imposed a sentence of 141 months of imprisonment.

Lynch appeals. He contends: (1) the district court erred in determining that he qualified as a career offender; (2) the district court should have departed downward; and (3) the district court failed to properl y analyze the factors at 18 U.S.C. § 3553(a).

II.

“A sentencing court must first determine the advisory [Sentencing] [G]uidelines range and then consider th e factors set forth in 18 U.S.C. § 3553(a) to determine whether to impose a sentence under the [Sente ncing] [G]uidelines.” United States v. Davis , 457 F.3d 817, 825-26 (8th Cir. 2006) (citing United States v. Haack , 403 F.3d 997, 1003 (8th Cir. 2005)). We review the district court’s application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Davidson , 437 F.3d 737, 739-40 (8th Cir. 2006) (citing United States v. Hadash , 408 F.3d 1080, 1082 (8th Cir. 2005)). We then review the se ntence the district court imposed for reasonableness. Id. at 740.

III.

A.

Lynch argues that the district court erre d in determining that he qualified as a career offender, because his two prior fel ony convictions were related and should not count separately. “Prior fe lony convictions are counted se parately for career offender purposes if they ‘are counted separately under the provisions of USSG § 4A1.1(a), (b),-4- or (c).’” United States v. Mills , 375 F.3d 689, 691 (8th Cir. 2004) (quoting USSG § 4B1.2(c)). “Prior sentences impose d in unrelated cases are to be counted separately,” but “[p]rior sentences imposed in related cases are to be treated as one sentence . . . .” USSG § 4A1.2(a)(2).

Application Note 3 to USSG § 4A1.2 defines “related.” It states: 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 occas ion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing. USSG § 4A1.2, cmt. (n.3). In assessing wh ether the offenses were part of a single common scheme or plan, we consider (1) th e time period, (2) the participants, (3) the victims, (4) the motive, (5) the modus opera ndi, (6) the location, (7) the offenses, (8) whether a common investigation uncovere d the offenses and (9) whether the defendant jointly planned the offenses. Davidson , 437 F.3d at 740 (citing Mills , 375 F.3d at 692 n.5).

The district court did not err when it found that Lynch’s tw o prior convictions for Second Degree Assault were unrelated. The following evidence is not disputed:

In April of 1988, a criminal complain t alleged that, on March 15, 1988, Lynch and a juvenile male were driving separate cars when they tried to block a third car. Lynch fired shots at the car and its two occupants. In July of 1988, a separate criminal complaint alleged that, on March 14, 1988, Lynch engage d in similar conduct that involved three different victims and a different location.4 The evidence was admitted pursu ant to State v. Spreigl , 139 N.W.2d 167, 172- 73 (Minn. 1965). In Minnesota, “[e]vidence of past crimes, frequently referred to as Spreigl evidence . . . can be admitted to show motive, intent, absence of mistake, identity, or a common scheme or plan.” State v. Gomez , 721 N.W.2d 871, 877 (Minn. 2006) (citing Minn. R. Evid. 404(b) and Spreigl , 139 N.W.2d at 167).
-5- Lynch went to trial on the first criminal complaint, which alleged the March 15, 1988 assault. At trial, the Minnesota stat e court permitted the prosecution to present evidence of the March 14, 1988 incident. The evidence was oste nsibly admitted to show identity, modus operandi or a common scheme or plan. 4 A jury found Lynch guilty. In October of 1988, th e Minnesota state court sent enced Lynch to ten years of imprisonment. Lynch subse quently pled guilty to the second complaint, and the Minnesota state court sentenced him to a consecutive term of three years of imprisonment.

The undisputed evidence shows that Lync h’s two sentences are “unrelated” for purposes of USSG § 4A1.2. First, the se ntences resulted from offenses that occurred on two different dates. Sec ond, the offenses were not part of a single common scheme or plan. The offenses took place at differe nt locations and invol ved different victims. Although the two assaults took place on c onsecutive dates and involved a similar modus operandi, “‘a single common scheme or plan involves something more than simply a repeated pattern of conduct.’” Davidson , 437 F.3d at 740 (quoting United States v. Maza , 93 F.3d 1390, 1400 (8th Cir. 1996)); see also United States v. Joy , 192 F.3d 761, 771 (7th Cir. 1999) (“Crimes are not related . . . simply because they have a similar modus operandi,” and “[n]either close temporal proximity nor the similar nature of two crimes requires a finding th at the offenses were part of a common scheme.” (Citations omitted.)). “‘[S]imilar crimes are not necessarily related crimes.’” Mills , 375 F.3d at 693 (quoting United States v. Lowe , 930 F.2d 645, 647 (8th Cir. 1991)); see, e.g. , United States v. Paden , 330 F.3d 1066, 1067-68 (8th Cir. 2003) (rejecting the defendant’s argument that hi s two convictions, which stemmed from his use of the same firearm only four days ap art, should be “functionally consolidated”-6- for purposes of USSG § 4A1.2(a)(2) because the defendant pled guilty to both charges on the same date and the sentences ran conc urrently). Third, the offenses were not consolidated for trial or sentencing. SeeUnited States v. Nicholson , 231 F.3d 445, 456 (8th Cir. 2000) (“Where prior convicti ons are sentenced under separate docket numbers, and there is no formal order of consolidation, the convictions are counted separately for purposes of USSG § 4A1.2(a)(2).” (Citation omitted.)).

Lynch stresses that the state prosecutor could have charged Lynch in the same instrument with both offenses and that th e Minnesota state court held that evidence of the March 14, 1988 incident was admissibl e at his trial. Such considerations, however, are not binding upon our interpretati on of the Sentencing Guidelines. See, e.g. , United States v. Postley , 449 F.3d 831, 832 (8th Cir. 2006) (disregarding state legislature’s characterization of an offens e as an “aggravated misdemeanor,” because it qualified as a “felony” unde r the advisory Sentencing Guidelines). We apply federal law, not state law, and we apply it to actual, not hypothetical, convictions.

In a related argument, Lynch contends that USSG § 4A 1.1, § 4A1.2 and § 4B1.1 violate due process. Lynch cont ends that the Sentencing Guidelines are arbitrary, because they allow the districtcourt to unpredictably “contradict” the Minnesota state court’s apparent finding that the March 14 and March 15, 1988 incidents were part of a co mmon scheme or plan. As a consequence, Lynch concludes that the Sentencing Guidelines lack definabl e standards. We disagree. There is no contradiction, because the two prosecutions involved different sovereigns. See, e.g. , Heath v. Alabama , 474 U.S. 82, 89 (1985) (applying dual sovereignty doctrine and remarking that federal and state governme nts may separately prosecute and punish crimes) (citations omitted); see also United States v. Turpin , 920 F.2d 1377, 1388 (8th Cir. 1990) (holding that the mere fact th at a defendant was subject to a harsher sentence in federal court than in state court did not imp licate the due process clause). Further, the district court’s decision was grounded in the Sentencing Guidelines’ career offender provisions, which have definable standards. See, e.g. , United States-7- v. Luersen , 278 F.3d 772, 774 (8th Cir. 2002) (rejecting an argument that an application of the career offender provisi ons of the Sentencing Guidelines was “unforeseeable,” “unexpected” and “indefensible”); cf. United States v. Green , 902 F.2d 1311, 1313 (8th Cir. 1990) (holding that USSG § 4B1.1 survived a due process challenge, because it did not remove too much discretion from the sentencing judge).

Accordingly, we hold that the district court did not err when it found that Lynch qualified as a career offender under USSG § 4B1.1.

B.

Lynch argues that the district court should have departed downward pursuant to USSG § 4A1.3(b) and USSG§ 5H1.4. “‘The discretionary denial of a motion for downward departure is unreviewable unless th e [district] court failed to recognize its authority to depart.’” United States v. Vasquez , 433 F.3d 666, 670 (8th Cir. 2006) (quoting United States v. Andreano , 417 F.3d 967, 970 (8th Cir. 2005)). The sentencing transcript reveals that the distri ct court recognized its authority to depart from the Sentencing Guidelines but declined to exercise such authority. Therefore, the district court’s denial of Lynch’s mo tion for downward departure is unreviewable.

IV.

Lynch contends that the district court did not properly analyze the factors at 18 U.S.C. § 3553(a), and, therefore, his senten ce is unreasonable. The record, however, shows that the district court analyzed the § 3553(a) factors. In its written statement of reasons, the district court explicitly considered all of the § 3553(a) factors in arriving at Lynch’s sentence. “Nothing in § 3553(a) or in the Booker remedy opinion requires ‘robotic incantations’ that each statut ory factor has been considered.” United States v. Lamoreaux , 422 F.3d 750, 756 (8th Cir. 2005) (quoting United States v. Crosby , 397 F.3d 103, 113 (2d Cir. 2005)).5 The propriety of the district court’s downward variance is not at issue in this appeal.
-8- In a similar claim, Lynch argues that th e district court erred, because it treated the career offender portions of the Sentenci ng Guidelines as mandatory. Lynch argues that the district court should have exercised discretion under Booker in the midst of its Sentencing Guidelines calculations to find that Lynch did not qualify as a career offender under USSG § 4B1.1. Even in this post-Booker era, however, the district court must still consider the Sentencing Guid elines, and such “‘consideration . . . will normally require determination of the appl icable [Sentencing] Guidelines range.’” Haack , 403 F.3d at 1002 (quoting Crosby , 397 F.3d at 113). The district court did not resurrect the mandatory nature of the Sentencing Guidelines or violate Bookersimply by calculating the Sentencing Guidelines range. The district court clearly treated the Sentencing Guidelines as advisory. Its downward variance belie s any suggestion that it treated the Sentencing Guidelines as mandatory. 5

V.

Finding that Lynch’s allegations lack merit, we affirm.

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