FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 September 2, 2004 

 THOMAS K. KAHN 

 CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-10467

Non-Argument Calendar

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D.C. Docket No. 03-00348-CR-T-TBM

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

versus

JOSE ANGEL HERNANDEZ-MARTINEZ,

a.k.a. Angel Martinez,

 Defendant-Appellant.

__________________________

Appeal from the United States District Court for the

Middle District of Florida

_________________________

(September 2, 2004)

Before CARNES, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

Jose Angel Hernandez-Martinez (“Martinez”) appeals the sentence imposed

after he pleaded guilty to illegal re-entry, in violation of 8 U.S.C. § 1326. 
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Specifically, he challenges the district court’s calculation of his criminal history

points under U.S.S.G. § 4A1.2. Martinez asserts that the district court, in 

computing his criminal history, should have counted his two prior state felony

convictions as a single conviction because the state sentences were not separated

by an intervening arrest. Here, we are asked to decide whether, under the facts of

this case, a defendant’s prior convictions count as one conviction for determining

a defendant’s criminal history. As there is no dispute that Martinez’s prior

convictions were not separated by an intervening arrest, the issue before us is

whether prior convictions are related when the offenses occurred on different days

and involved different victims, there was no intervening arrest, the offenses were

charged in separate indictments and the defendant received separate judgments,

but the defendant was sentenced to concurrent sentences on the same day before

the same judge. 

I. Background

In 2003, Martinez was arrested in Florida for aggravated battery. At that

time, he admitted that he had re-entered the United States illegally. The probation

officer calculated Martinez’s criminal history category based on two prior state

court convictions. In case number 95-2442, Martinez had pleaded nolo contendere

for attempted murder in the second degree with a firearm. He was sentenced to
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five years imprisonment and ten years probation on April 3, 1996. In case number

95-2687, Martinez pleaded nolo contendere to aggravated assault with a firearm

and was sentenced on April 3, 1996, to five years imprisonment, to be served

concurrently with the sentence in case number 95-2442. The probation officer

noted that Martinez was arrested for the aggravated assault offense while he was

incarcerated on the attempted murder charge. The probation officer also noted

that the two offenses involved different victims and occurred on different days. 

Martinez objected to the PSI, arguing, inter alia, that his criminal history

category should be IV under U.S.S.G. § 4A1.2 because his two prior state court

convictions were related, as they were not separated by an intervening arrest, and

that they were consolidated for sentencing. Although Martinez conceded that the

two offenses involved different crimes occurring on different days, he asserted that

the two offenses were consolidated because he was sentenced for both offenses on

the same day. In support of his arguments, Martinez submitted the docket sheets

and judgments from his state court convictions. These exhibits demonstrated that

Martinez pleaded to attempted murder in case 95-2442 and was sentenced on April

3, 1996, at 11 a.m. to five years imprisonment and ten years probation. Martinez

pleaded to aggravated assault in case 95-2687 and was sentenced on April 3, 1996,

at 11 a.m. to five years imprisonment, to run concurrent with his sentence in case
 A district court’s factual determination that a defendant’s prior convictions are independent 1

for purposes of determining criminal history will not be disturbed unless clearly erroneous. United

States v. Hunter, 323 F.3d 1314, 1322-23 (11th Cir. 2003); United States v. Mullens, 65 F.3d 1560,

1565 (11th Cir. 1995); see also Buford v. United States, 532 U.S. 59, 121 S.Ct. 1276, 149 L.Ed.2d

197 (2001) (applying deferential review to question of whether cases were consolidated for purposes

of career-offender status)

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95-2442. According to the records, Martinez was represented by two different

attorneys in these cases. 

At sentencing, the district court overruled the objection, finding that the fact

that the two crimes were sentenced on the same day did not equate with the

convictions being consolidated for sentencing. The court then sentenced Martinez

to 87 months imprisonment and 3 years supervised release. 

II. Martinez’s claim

Martinez argues that the court erred in calculating his criminal history

points because his two state offenses were not separated by an intervening arrest

under U.S.S.G. § 4A1.2. 

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

related under U.S.S.G. § 4A1.2 for clear error. United States v. Hunter, 323 F.3d 1

1314, 1322-23 (11th Cir. 2003). The U.S. Supreme Court has confirmed that

appellate courts should give “‘due deference’” to a district court’s application of a

‘Sentencing Guidelines term’ to the facts.” Buford v. United States, 532 U.S. 59,

63-64, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001); United States v. White, 335 F.3d
 The parties agree that the offenses did not occur on the same occasion and were not part of 2

a common scheme or plan.

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1314, 1318 (11th Cir. 2004) (noting that 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.’”). 

Under U.S.S.G. § 4A1.2, in calculating a criminal history score, prior

sentences imposed for related convictions should be counted as one sentence. See

U.S.S.G. § 4A1.2(a)(2). Application Note 3 provides: 

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. 

U.S.S.G. § 4A1.2, comment. (n. 3). 

Here, the parties agree that Martinez’s offenses were not separated by an

intervening arrest. Contrary to Martinez’s understanding of the guidelines,

however, our inquiry does not end there. Under U.S.S.G. § 4A1.2, we must

consider whether the offenses were part of a common scheme or whether they

were consolidated for sentencing. When determining whether cases are related,

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the commentary requires that “the first question is always whether the underlying
 Under Florida law, sentences are consolidated when they are imposed on the same day, by 3

the same judge, using the same score sheet, and made to run concurrently. See Clark v. Florida, 572

So.2d 1387, 1391 (Fla. 1991); Williamson v. Florida, 683 So.2d 193, 194 (Fla. Dist. Ct. App. 1996).

Moreover, the state court is required to use one score sheet for all offenses “pending” before the

court at sentencing. Clark, 572 So.2d at 1390-91. “Pending” refers to those offenses for which a

verdict of guilty or a plea of guilty or nolo contendere has been obtained. Id. In this case, it is

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offenses are separated by an intervening arrest. This inquiry is preliminary to any

consideration of consolidated sentencing, as reflected by use of the word

‘otherwise.’” Hunter, 323 F.3d at 1322-23; see also United States v. Bradley, 218

F.3d 670, 673 (7th Cir. 2000) (citing cases discussing the requirement that the

district court must look to other factors only if there was no intervening arrest). 

Convictions are related for criminal history calculations if, inter alia, they

“were consolidated for trial or sentencing.” United States v. Mullens, 65 F.3d

1560, 1565 (11th Cir. 1995) (citing U.S.S.G. § 4A1.2, comment. (n.3)). In United

States v. Veteto, 920 F.2d 823, 824 (11th Cir. 1991), we held that the fact that

sentences were to run concurrently did not consolidate the cases for sentencing,

but the defendant in that case was sentenced by different judges on different days.

Veteto, 920 F.2d at 826. 

We have not addressed whether cases are consolidated for purposes of the

criminal history calculations when the defendant was sentenced by the same judge

on the same day for offenses that were docketed separately and that received

separate judgments. The Seventh Circuit has held that in order to find that cases 3
unclear whether the state court utilized a single score sheet for Martinez’s two offenses, although

it was required to do so under state law, in which case, the sentences would have been considered

consolidated. Notably, Martinez does not raise the issue of whether his sentences were consolidated

under state law, and, therefore, we need not consider this argument.

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were consolidated, cases must be formally consolidated by an order or

“functionally consolidated,” where the “convictions were ‘factually or logically

related, and sentencing was joint.’” Buford, 201 F.3d 937, 940 (7th Cir. 2000),

aff’d 532 U.S. 59 (2001). The Seventh Circuit explained that cases are

functionally consolidated where the defendant was charged with the offenses in

the same indictment and he pleaded guilty at the same time in the same court. Id. 

Other circuits to address the issue of consolidation have reached similar

conclusions. See, e.g., United States v. Huskey, 137 F.3d 283, 286-88 (5th Cir.

1998) (addressing consolidation and reviewing other circuit court decisions,

finding that generally cases are not consolidated when they receive separate

docket numbers or separate judgments).

Here, Martinez had pleaded nolo contendere to two unrelated state offenses

on the same day before the same judge and was sentenced to concurrent sentences. 

There was no formal consolidation order, the cases had been assigned different

docket numbers, and Martinez does not dispute that he received separate

judgments. Moreover, Martinez was represented by two different attorneys at
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sentencing. Given these factors, the district court did not clearly err in concluding

that Martinez’s offenses were not consolidated for purposes of his criminal history

calculations. 

Accordingly, we AFFIRM Martinez’s sentence.