In the

United States Court of Appeals

For the Seventh Circuit

Nos. 00-4208 & 01-1882

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT MARO,

Defendant-Appellant.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 CR 635--Wayne R. Andersen, Judge.

Argued September 20, 2001--Decided November 8, 2001

 Before BAUER, MANION, and EVANS, Circuit

Judges.

 EVANS, Circuit Judge. One of the

questions presented in this appeal is

whether Robert Maro is a "career

offender" under the United States

Sentencing Guidelines. What cannot be in

question, however, is that Maro is a very

unsuccessful serial robber of banks.

 Soon after his latest crime spree, Maro

was charged with two counts of bank

robbery, in violation of 18 U.S.C. sec.

2113(a): one was a July 6, 1999, robbery

of the Firstar Bank in Geneva, Illinois;

the other was the August 20, 1999,

robbery of the First American Bank, also

in Geneva. After his motion to suppress

evidence was denied, he went to trial

before a jury, which convicted him on

both counts. His motion for a new trial

was denied, and he was sentenced to 210

months in prison. He appeals both his

sentence and the denial of his request

for a "Franks" hearing in regard to his

suppression motion.

 At trial, teller Jamie Nichols testified

that a white male, approximately 5’ 7"

tall, with an average build, wearing a

baseball cap, a gray sweatshirt, jeans,

and sunglasses, approached her teller

window at the Firstar Bank. The man

pushed a checkbook cover toward her that
contained a post-it note stating, "Give

me all your 50s and 20s now. I have a

gun." The total take from the robbery was

$1,900. Nichols identified Maro as the

robber; she was "absolutely positive" of

her identification.

 First American Bank teller Susan

Rosenstein said the person who robbed

that bank was a white male a little tall

er than 5’ 7" with a slight build and a

mustache. He approached Rosenstein’s

teller window and held open a checkbook

containing a note that stated: "Give me

all your 50s, 20s, 10s, and 5s. This is

a robbery. This is no joke. I have a

gun." When Rosenstein hesitated, the

robber made a gesture as though he were

reaching for a gun. She then handed the

robber a bundle of 20s totaling $500, as

well as all of the loose 50s and 20s in

her drawer. This time the robber obtained

$1,830. The robber told Rosenstein to be

quiet; he left the bank and began

running.

 At the same time, a very alert fellow

named Michael Koehlar was working as a

construction supervisor at a site across

the parking lot from the bank. He

testified that at approximately 1:20 p.m.

he saw a person sprinting from the First

American Bank into a nearby parking lot

and then saw a red Ford Taurus driving

from that section of the parking lot

towards him. Koehlar testified that both

the person he saw running from the bank

and the driver of the Taurus were wearing

white baseball caps and that the driver

also had dark sunglasses and a large

mustache that looked fake. Because

Koehlar felt that the individual running

from the bank and the "way he was

driving" were suspicious, he focused on

the car’s license plate and recorded it

on a piece of drywall at the construction

site. Four minutes later, police cars

pulled into the parking lot, and Koehlar

advised them of what he had seen. He gave

the police the number he recorded--

C863096--but he said he was not certain

of the last three numbers. From a

photograph, Koehlar later identified the

defendant’s car as the red Ford Taurus.

 License plate number C863096 was not

registered to a Ford Taurus, but when

agents transposed the last two numbers

recorded by Koehlar and traced C863069,

they discovered that a 1993 Ford Taurus
was, in fact, registered in the name of

the defendant, Robert Maro. Agents then

investigated Maro’s criminal record and

learned that he had committed eight bank

robberies in 1989, had been released from

federal custody in September 1997, and

was on federal supervised release. Agents

also learned from Maro’s probation

officer that he was 5’ 8" tall, 165

pounds, and 38 years old, with brown hair

and brown eyes.

 Special Agent Beth Mullarkey of the FBI

filed a request for a search warrant for

Maro’s residence and car. The warrant was

issued and FBI agents and Geneva police

officers conducted a search of Maro’s

Ford Taurus, during which they recovered

a post-it note in the glove compartment

with some calculations on it and the

number 1830--which was the exact dollar

amount taken in the First American

robbery. Maro’s checkbook and check

register were also found in the glove

compartment; the register indicated that

the defendant had written $2,300 in

checks on the day of the First American

robbery. Amazingly, deposit slips in the

checkbook, notations in the check

register, and Maro’s bank records further

showed $800 in cash deposits during the

week after the Firstar robbery, a $700

cash deposit at 2:33 p.m. on the day of

the First American robbery, and an

additional $900 in cash deposits in the 4

days following the First American

robbery. It was stipulated that Maro’s

ordinary income could not account for the

cash deposits and that he had no other

bank accounts.

 From a pouch behind the passenger seat

of the Taurus, agents recovered a false

mustache, a bottle of spirit gum for

applying the mustache, and a receipt

indicating that the items were purchased

between the time of the Firstar and First

American robberies. Under the driver’s

seat, agents discovered a gray sweatshirt

similar to the one worn in the bank

robberies, together with baseball caps.

In the spare tire compartment in the

trunk, they found a pair of pants and

another baseball cap. Maro was arrested.

 Witnesses from the Firstar and First

American Banks viewed a lineup. Nichols,

the teller from Firstar Bank, positively

identified Maro as the robber. At trial,

she said she "recognized him so clearly
and [she] just knew it was him." Another

witness from Firstar Bank, Stephan Nowak,

was unable to make a positive

identification but tentatively selected

another participant in the lineup, an FBI

agent, as the robber.

 Before the teller from the First

American Bank viewed the lineup, each

participant glued on an identical false

mustache. When teller Susan Rosenstein

saw the lineup, she immediately

recognized Maro as the robber. She

testified that her heart began pounding

when she saw him and that she was

"totally positive of her identification."

 Maro filed a motion to suppress the

evidence and requested an evidentiary

hearing, pursuant to Franks v. Delaware,

438 U.S. 154 (1978). The motion was

denied, and that denial is the basis for

one of Maro’s grounds for appeal. We

review a Franks request for clear error.

United States v. Pace, 898 F.2d 1218 (7th

Cir. 1980).

 Maro contends that Special Agent

Mullarkey’s affidavit, filed in support

of the request for the search warrant,

knowingly contained false and misleading

information and omitted witness

descriptions of the robber which were

inconsistent with Maro’s appearance.

Before trial, the district judge said

that he did not think that "there was a

false affidavit or that it was so

inaccurate that the warrants were

inappropriately issued." At a hearing on

post-trial motions, the judge reaffirmed

his earlier ruling that the evidence was

properly admitted at trial. He indicated

that he often held hearings on these

issues but that Maro’s motion was not

even close to the kind that would trigger

the need for a hearing:

 With respect to the suppression hearing

issue and whether or not the search

should be suppressed, I am going to deny

that motion for the same reasons that I

previously did before the trial but also

I am--I tend to--I tend to have hearings.

If it is--if it is even within range, I

like to have a hearing so that I can

understand things and defendants get a

fair shot at getting evidence suppressed.

 In this case I felt there was so many

similarities in terms of the descriptions
that there was a probable cause. I am not

ignorant to the fact that meaningful

evidence was discovered. But I--I think

it was the correct decision at that point

in time. And I am, around here, pretty

liberal about giving hearings. So in this

case I didn’t think it was a good use of

time.

 In order to obtain a hearing, commonly

called a Franks hearing, to explore the

validity of a search warrant affidavit, a

defendant must make a "substantial

preliminary showing" that: (1) the

affidavit contained a material false

statement; (2) the affiant made the false

statement intentionally, or with reckless

disregard for the truth; and (3) the

false statement was necessary to support

the finding of probable cause. 438 U.S.

at 155-56. As we have noted, "[t]hese

elements are hard to prove, and thus

Franks hearings are rarely held." United

States v. Swanson, 210 F.3d 788, 790 (7th

Cir. 2000). A defendant seeking a Franks

hearing "bears a substantial burden to

demonstrate probable falsity." United

States v. Hornick, 815 F.2d 1156, 1158

(7th Cir. 1987). Moreover, "an

unimportant allegation, even if viewed as

intentionally misleading, does not

trigger the need for a Franks hearing."

Swanson, 210 F.3d at 791. We agree with

the district court that no hearing was

necessary here.

 Maro’s primary claim in his suppression

motion was that there was a fatal

discrepancy between witness Michael

Koehlar’s trial testimony and what

Special Agent Mullarkey’s affidavit said

of Koehlar’s observations. The affidavit

said that Koehlar saw "a white male

running from the bank, through the bank

parking lot to a maroon Taurus parked in

the parking lot." Koehlar then "watched

the man drive toward the building that he

was working in . . . ." Furthermore, Maro

says Koehlar’s rendition of the license

plate was off. At trial, Koehlar

testified that he saw an individual

wearing a white baseball hat running at a

fast rate of speed across the parking lot

in front of the bank, but that he could

not tell whether the person was male or

female. He testified that he did not see

the man actually leave the bank. He also

said he could not see the person get into

a Taurus, but he did testify that while

he watched the area where he lost sight
of the person, a red Ford Taurus appeared

driven by a male with a mustache, wearing

a white baseball hat.

 Another example of allegedly false and

misleading statements in the affidavit is

found in the description of the

surveillance which was conducted. Special

Agent Mullarkey said in her affidavit

that she surveilled Maro’s home and saw a

white male leaving the residence; he was

in his late thirties, wearing a baseball

cap and sunglasses. That description

would be consistent with Maro’s

appearance. Special Agent Mullarkey also

said she followed him for a couple of

miles to confirm that he had a mustache

and resembled the bank surveillance

photograph. What she did not say, and

what is critical, according to Maro, is

that the car in which the person drove

off was not a red or maroon Taurus and

that Special Agent Mullarkey could not

confirm at that time that the person she

observed was Maro--that despite her

having a recent photo of Maro obtained

from his parole officer.

 Further damning to the affidavit,

according to Maro, is that despite the

fact that Special Agent Mullarkey knew

that Geneva police officers may have

taken photos during the surveillance of

the home, there were no photos of Maro.

Finally, Maro contends that conflicting

physical descriptions of the robber were

omitted from the affidavit. These

discrepancies involve weight and height

estimates-- particularly a weight

estimate from teller Nichols which

estimated Maro’s weight as significantly

heavier than he is. Nichols testified at

trial that her original estimate was off.

 These alleged affidavit shortcomings do

not come close to the kind of egregious

errors necessary to conduct a Franks

hearing. Koehlar’s statements, while

technically contradictory, do not reveal

a disregard of the truth. That the car in

which the suspect was driving from Maro’s

house was not the Taurus is not

significant. The affidavit also included

the fact that the Taurus was parked at

Maro’s house. Omission of the fact that

he drove off on one occasion in another

car is hardly fatal. That no pictures of

him were taken at his home is also not

significant. The problem for law enforce

ment was establishing that he was at the
banks, not that he lived at his own home.

As to the weight estimates, even if the

omission of conflicting weight estimates

could be considered a significant

omission, Maro has not shown that it was

an intentional omission.

 As to his sentence, Maro’s first

argument--that it constituted a violation

of Apprendi v. New Jersey, 530 U.S. 466,

120 S. Ct. 2348 (2000)--cannot be

sustained. Maro thinks that an

enhancement for making a threat of death

was tantamount to sentencing him as an

armed bank robber. The government argues

the finding that he made a threat of

death was not related to whether he was

armed. The enhancement, according to the

government, was based on his saying he

had a gun, not on his actually having

one. In any case, under these

circumstances there is no Apprendi

violation; the 2-level increase in his

base offense level of which he complains

did not raise the penalty above the

statutory maximum for his offense. See,

e.g., United States v. Behrman, 235 F.3d

1049 (7th Cir. 2000).

 His other contention is that the upward

departures in both his criminal history

category and his offense level were

improper and do not reflect the structure

of the guidelines, as required by United

States v. Cruz-Guevara, 209 F.3d 644 (7th

Cir. 2000). The departures here were

significant. Maro fell into criminal

history category III, but the judge said

that he did not believe that criminal

history category was adequate. He placed

him in category VI. As to the offense

level, Maro fell into level 26, which

again the judge did not think adequately

represented the seriousness of the crime,

so he departed upward to level 31, giving

Maro a range of 188 to 235 months. The

judge also said (an observation we share)

that he saw "zero expression of remorse"

and was convinced that within a year or

two after getting out of jail, he "will

be robbing banks again." The sentence

imposed was 210 months.

 The way this issue is offered presents

us with a sticky wicket. Maro says the

enhancements were too great and that his

sentence of 210 months is too long. The

government, although defending the

enhancements, mostly argues that the

district court should have treated Maro
as a career offender under the guidelines

and that if he were treated as one, his

present sentence would be at the bottom

of the applicable range. So essentially

the government says Maro has nothing

practical to complain about. The problem

is that the government has not crossappealed on the district judge’s failure

to treat Maro as a career offender. But

should a cross-appeal be necessary? After

all, the government is satisfied with the

sentence Maro received. Given these

unusual circumstances, we think it best

not to require a formal cross-appeal in

order for us to consider the issue of

whether or not Maro was, in fact, a

career offender. And so, we will review

the issue of whether or not Maro is a

career offender as if there was a formal

cross-appeal presented to us on that

issue. For the reasons we are about to

make clear, we think this is a sensible

approach to take in a situation where we

determine that a correct sentence was

imposed, perhaps for an incorrect reason.

 With that said, we review the question

of whether or not Maro was a career

offender under the guidelines.

Importantly, we note first that embarking

on this review comes as no surprise to

Maro, who argued the inapplicability of

career offender status in his reply

brief. Second, we note that in a

situation like this, the standard of

review--de novo, clear error, or abuse of

discretion--is unimportant, for the

outcome would be the same under any

standard.

 At sentencing, the government requested,

and the United States Probation Office

recommended, that Maro be treated as a

career offender. He had, after all,

committed eight bank robberies in 1989

and, after being released from prison,

committed the two involved in this case.

Robbing banks seemed to come naturally to

him. The judge declined to sentence him

as a career offender, however, finding

that his federal conviction and his state

conviction based on the 1989 robberies

were related and thus did not qualify as

separate convictions for purposes of the

career offender guideline. The judge

thought it was a close question and said

he did not "claim to have the magically

truthful answer to it." We will answer

the question.
 A person is a career offender if

(1) the defendant was at least eighteen

years old at the time the defendant

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.

USSG sec.4B1.1. For prior convictions to

count under subsection (3) at least two

must be "counted separately under the

provisions of sec.4A1.1(a), (b), or (c)."

USSG sec.4B1.2(c)(2). Prior sentences

"imposed in unrelated cases are to be

counted separately." But prior sentences

imposed in related cases are not.

sec.4A1.2(a)(2). Application Note 3 to

sec.4A1.2 says that "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."

 Maro committed eight robberies in 1989,

six in Illinois and two in Wisconsin. He

was charged in both the Northern District

of Illinois and the Western District of

Wisconsin. The Wisconsin case was

transferred to Illinois, pursuant to Rule

20 of the Federal Rules of Criminal

Procedure. Maro entered guilty pleas to

two counts from both indictments-- four

counts in all. In his plea agreement he

stipulated to the other robberies, and

the others were listed in the presentence

report. For sentencing in those cases,

the offense levels for each robbery were

calculated and the offense level

determination included a 5-level

increase, pursuant to USSG sec.3D1.4. A

5-level increase is the maximum allowed

under that section and in this case

resulted from grouping the four bank

robberies to which Maro pled guilty and

one other robbery, leaving three which

had no effect on his sentence. Later,

Maro was charged and convicted in one of

the four stipulated robberies, the Will

County robbery of the Lincoln Way Federal

Savings and Loan Association in

Frankfort, Illinois. His sentence in that

case was ordered to run concurrent with

his federal sentence.
 The question for us is whether the

district judge in the present case was

wrong to find that the Will County

proceeding was not a prior conviction for

purposes of sec.4B1.1 because it fell

under subsection (C) of the application

note: that it and the federal case "were

consolidated for trial or sentencing" and

thus the Will County case could not be

counted as a prior offense for purposes

of the present sentencing. The easy

answer, of course, is that the Will

County robbery was a prior conviction

because it was not consolidated with the

robberies charged in federal court either

for trial or for sentencing. But we are

not literalists. We will decide whether

the fact that the Will County robbery was

acknowledged in the plea agreement and

the presentence report in the federal

case is enough to prevent it from being

counted as a prior offense after Maro

robbed the two Illinois banks in 1999.

 The question comes down to how many free

passes Maro is entitled to under the

guidelines. Because of the Rule 20

transfer, he is tagged with only one

prior conviction from the two indictments

in two different districts in which he

entered pleas to four of the 1989

robberies. Clearly a good deal. Does he

also get a free pass for a state court

conviction in Will County because it also

was a bank robbery which he acknowledged

pulling off? We have previously cautioned

that because a person lives a "life of

crime" does not mean that all his

criminal actions come under the umbrella

of a giant criminal plan. United States

v. Brown, 962 F.2d 560 (7th Cir. 1992).

We also know that the fact that a person

goes on a crime spree does not make all

his criminal acts related. United States

v. Sexton, 2 F.3d 218 (7th Cir. 1993). We

know that concurrent sentences do not

necessarily make crimes related. Brown.

Maro has two prior convictions: one in

federal court, one in state court.

Because he committed so many robberies in

1989 it was not necessary, at the time of

the federal sentencing, to rely on the

Will County robbery to support the 5-

level increase under sec.3D1.4 for his

combined offense level. The Will County

case retains sufficient independence to

be considered a separate conviction for

purposes of the sentencing guidelines.

Consequently, it was as clear as crystal

that Maro had two prior countable convic
tions--and was thus a career criminal--

when he was convicted again in 1999.

 As a career criminal, his sentencing

range is 210 to 262 months. His sentence

of 210 months is, obviously, at the low

end of the range. As we have noted, the

government has informed us that it is

satisfied with the length of the sentence

imposed. So what we have is the right

sentence for the wrong reasons. We see no

reason to require a new sentencing

hearing. This judgment is AFFIRMED in

part, MODIFIED in part, and the case

REMANDED for the entry of a corrected

judgment of conviction reflecting Maro’s

status as a career offender.