1 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 09

- 2438

_____________ UNITED STATES OF AMERICA

v. DARIN RICHARDSON, Appellant.

_____________ On Appeal from the United States District Court For the District of New Jersey (No. 08

- cr - 00292

- 1 ) District Judge: Honorable Jose L. Linares

_____________ Submitted Under Third Circuit L.A.R. 34.1(a) November 15, 2011 BEFORE: FUENTES, CHAGARES, Circuit Judges , and RESTANI , Judge * (Opinion Filed : December 21, 2011 )

_____________ OPINION OF THE COURT

_____________ FUENTES, Circuit Judge :
Darin Richardson appeals his final sentence, following his guilty plea to one count of distribution and possession with intent to distribute heroin in violation of 21 U.S.C.

* The Honorable Jane A. Restani, Judge of the United States Court of International Trade, sitting by designation

.2 § § 841(a)( 1), (b)(1)( C ) . He argues that the District C ourt erred: (1) in consulting the
2008 Federal Sen tencing Guidelines Manual , instead of the 2006 version , when imposing his sentence ; (2) in determining that his prior state criminal convictions wer e not “relate d” for purposes of U.S.S.G. § 4A1.2; (3) in classifying him as a career offender
under U.S.S.G. § 4B1.1; (4) in denying his motion for a downward departure; and (5) in imposing a substantively unreasonable sentence. For the reasons that follow , we will af firm the District C ourt’s O rder and
Sentence.
I. Because we write primarily for the parties, we discuss only those facts relevant to our analysis. In the summer of 2008, following a nine

- month investigation by the U.S. Drug Enforcement Agency, Richardson was arrested and charged with one count of conspiracy to distribute heroin in violation of 21 U.S.C. § 846, and one count of distribution and possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1), (b)(1)( C )

. On July 24, 2008, R ichardson appeared before the District Court and , subject to a written plea agreement, entered a guilty plea to C ount II of the
I ndictment. In the plea agreement, Richardson stipulated that he had three prior convictions for the distribution of a controll ed dangerous substance

. I n the fall of 1991, Richardson received a single, concurrent sentence for the three prior convictions in one consolidated proceeding. He was released from a New Jersey state penitentiary in 1992. Prior to Richardson’s sentencing on the current charges , the Probation Office filed a presentence investigation report, applying the 2008 Federal Sentencing Guidelines

.3 Noting his three prior convictions, the Probation Office recommended that Richardson be sentenced as a career offender

. Richardson objected to the use of the 2008 Guidelines , asserting that application of the 2006 Guidelines would preclude a career offender classification. He maintained that , under the 2006 Guidelines, “ cases which have been consolidated for sentencing are classified as being ‘related’ and warrant scoring as a single criminal conviction.” PSR at 18. The Probation Office filed a second addendum to the fi nal presentence report, which rejec ted Richardson ’s argument that the 2006 Guidelines would produce a more favorable result

. Richardson then moved for a downward departure . He argu ed that “the prior convictions were so old that rigid adherence to the Guidelines analysis overstated [his] criminal history ” and would result in “substantial hardship” to hi s family. Richardson br. at 4. At his sentencing hearing, the District Court held that Richardson’s prior convictions were not “related” under either the 2006 or the 2008 version s of the Guidelines because each conviction was separated by an intervening arrest. 1

1 As correctly noted by the district judge, the 2005 version was in at the time Richardson was arrested. See DA49:5

- 15. N evertheless, t he 2005 and 2006 versions of federal sentencing g uideline s do not differ in ways relevant to this appeal, since both contain the same application note with regards to “related” offenses under § 4 A 1. 2

. In imposing

a career offender enhancement, t he court assigned Richardson an offense level of 29 with a criminal history category of IV, yielding a total advisory sentence range of 15 1 to 188 months’ imprisonment. After hearing further arguments by both parties, the District Court declined Richardson’s request for a downward departure, finding a variance4 unwarranted under the circumstances. On May 1, 2009, the court imposed a sentence of 151 months.
T his timely appeal followed

. 2
II. We turn firs t to Richardson’s argument that the District C ourt erred in applying the 2008 Federal Sentencing Guidelines. The essence of Richardson’s challenge is that the 2006 sentencing guidelines sho uld apply because they are more favorable to his particular circum stances. Specifically, Richardson contends that application of the 2006 Guidelines would allow him to argue that his three prior convictions were consolidated and “related” for purposes of § 4A1.2. W e disag ree. As a thresh old matter, we exercise plenary r eview over the District C ourt’s interpretation of the Federal Sentencing Guidelines. United States v. McKoy , 452 F.3d 234, 236 (3d Cir. 2006). T he United States Sentencing Commission mandates that a federal court “shall use the Guidelines Manual in effec t on the date that the defendant is sentenced,” except when such application would violate the ex post facto clause of the United States Constitution

. U.S.S.G. § 1B1.11(a), (b). Generally, a violation of the ex post facto clause occurs when a federal cou rt applies “ a law enacte d after the date of the offense that ‘inflicts a greater punishment [] than the law annexed to the crime when committed. ’ ” United States v. Pennavaria , 445 F.3d 720 , 723 (3d Cir. 2006) ( quoting Calder v. Bull , 3 U.S. 386, 390 (1798) ).

2 The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).5 E ven if Richardson could raise a viable ex post facto claim , t he consideration of the 2008 Guidelines did not result in a harsher punishment for Richardson. The text of Application Note 3 in the 2006 Guidelines provides that “ [ p ] rior sentences are no t considered related if they were for offenses that were separated by an intervening arrest.”
U.S. Sentencing Guidelines Manual § 4 A 1. 2 cmt. 3 (2006)

. Incorporating the relevant commentary note, § 4A.1.2(a)(2) of the 2008 Guidelines now reads , “ [p] rior se ntences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2) (2008). Thus, as the District Court determined, an intervening arrest, whether con sidered under the 200 6 version o r the 2008 version, precludes counting prior convictions as “related” for the purposes of § 4A1.2. Richardson further relies on a specific provision of the 2006 Guidelines , which

states that “ [ p ] rior sentences are considered related if they re sulted 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. Sentencing Guidelines Manual § 4 A 1. 2

cmt. 3 (2006). However, as Richardson concedes, the rule of Application Note 3 applies only if offenses were not separated by an intervening arrest. Here, a s part of his guilty plea, Richardson stipulated that he had been arrested on three occasions for three separate drug

- related offenses. Hence, whether Richardson’s sentence was calculated under the 2006 or 2008 Guidelines, the argument that his three prior convictions are “related” is unavailing. Further, application of the 2008 Guidelines was not only within the sound discretion of the district court judge , but mandated by the United States Sentencing6 Commission. Next, Richardson maintains that the District Court erred in finding him to be a career offender. The Federal Sentencing Guidelines classifies a def endant as a career offender if, among other factors, “ 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) (2008). Because the state prosecutor consolidated his prior conviction s for sentencing on the same day , Richardson argues , his convictions were consolidated, thereby resulting in

a single related conviction

. However, we have already ruled that “the imposition of

sentence s for multiple offenses at the same time by the same judge does not render the
cases ‘ consolidated for sentencing,’ and, therefore, related within the meaning of § 4A1.2(a)(2). ” United States v. Wood , 526 F.3d 82, 87 (3d Cir. 2008). Because Richardson’s pr ior convictions are not related under either version of the Guidelines, the District C ourt did not abuse its discretion in classifying him as a career offender under U.S.S.G. § 4B1.1. Similarly, there is no merit to Richardson’s argument that the D istrict
C ourt erred in imposing a total of nine criminal history points fo r his prior convi ctions, and thus we deny his appeal for a category reduction in his criminal history. 3
III. Finally, in evaluating Richardson’s claim that the District Court’s sentence of 151 months is substantively unreasonable, w e review the substantive reasonableness of that

3 As the Government properly indicates in its brief, this Court lacks appellate jurisdiction to review the denial of a downward departure application. See United States v. Khalil , 132 F.3d 897, 898 (3d Cir. 1997) (declining to review appeals by defendants challenging the e xtent of a downward departure).7 sentence for an abuse of discretion. Wood , 526 F.3d at 85 (citing Gall v. United States , 552 U.S. 38, 41 (2007 ). Applying that standard, we will affirm.
T he District Court imposed a sentence at the bottom of the applicable guidelines
range ba sed on Richardson’s particular circumstances . Moreover, a careful review of the record demonstrates that the District Court carefully considered all of the arguments advanced and discussed the relevant factors governing the imposition of a sentence under
18 U .S.C. § 3553(a)

. See United States v. Levinson , 5 43 F.3d 190, 196 (3d Cir. 2008) ( noting that the record must reflect meaningful consideration of the § 3553(a) factors to support the sentencing conclusion ). Equally important, the defendant bears the burd en of proving that a within

- guideline sentence is unreasonable

. United States v. Cooper , 437 F.3d 324, 331

- 332 (3d Cir. 2006). While we recognize the hardship associated with caring for his children and the fourteen

- year lapse between his prior convictio ns and now , Richardson fails to satisfy the burden of proving that his sentence was substantively unreasonable.
Because we believe that the District Court , consider ing the arguments of both parties, had “ a reasoned basis for exercising [its] own legal deci sionmaking authority ,” Rita v. United States , 551 U.S. 338, 356 ( 2007 ) , we conclude that the District Court did

not err when it imposed a sentence of 151 months’ imprisonment.
VI. For the above reasons, w e will affirm the District Court’s Order and S enten ce.