[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 13, 2006
No. 06-12679 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00003-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO S. DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(December 13, 2006)
Before ANDERSON, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Antonio S. Davis appeals his 178-month sentence imposed after
pleading guilty to possession with intent to distribute cocaine hydrochloride, in
violation of 21 U.S.C. § 841(a)(1). He argues that the district court erred in finding
that he had two separate aggravated assault convictions to qualify him as a career
offender under U.S.S.G. § 4B1.1 because: (1) according to the presentence
investigation report (“PSI”), he was arrested on January 16, 1994, for the first
aggravated assault, and on January 20, 1994, for the second, and, thus, “[t]he only
conclusion that can be drawn . . . is that the arrest of January 20, 1994, is for
offenses that occurred on January 16, 1994, since he was incarcerated on
January 20, 1994;” and (2) the two convictions might have been consolidated for
sentencing, thus constituting only one related offense 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. Hernandez-
Martinez, 382 F.3d 1304, 1306 (11th Cir. 2004).
Under § 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). The commentary 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 (1) occurred on the same occasion, (2) were part of a
single common scheme or plan, or (3) were consolidated for trial or
sentencing.
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U.S.S.G. § 4A1.2, comment. (n. 3).
We have held that the fact that joint sentencing for administrative
convenience and imposition of concurrent sentences does not render two offenses
related under the Guidelines. United States v. Smith, 385 F.3d 1342, 1346 (11th
Cir. 2004), vacated on other grounds, 543 U.S. 1181 (2005). In Smith, 385 F.3d at
1346, we noted: “(1) there was no formal consolidation order; (2) the cases had
been assigned different docket numbers; and (3) [the defendant] received separate
judgments.” Therefore, even though the defendant’s cases had been “heard by the
same state judge at the same time,” the district court did not clearly err in
determining that this was done for the administrative convenience of the court. Id.
After reviewing the record, we conclude that the district court did not clearly
err in finding that Davis’s prior aggravated assault offenses were unrelated under
§ 4A1.2. First, despite Davis’s assertion that the two offenses must have occurred
on the same date, the PSI’s factual description of each offense indicates that one
offense occurred on January 9, while the other occurred on January 16. Second,
our precedent provides that joint sentencing does not render two offenses related,
especially where, as here, the offenses had separate docket numbers, and there was
no formal consolidation order. See Smith, 385 F.3d at 1346. Accordingly, because
the district court did not clearly err in finding the offenses unrelated and Davis’s
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arguments are without merit, we affirm his sentence.
AFFIRMED.
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