dissenting.
As is acknowledged by the majority opinion, Wood was sentenced on the same day for all three offenses. Two of the offenses were consolidated for trial. All three were consolidated for plea and sentencing. The District Court found that the three offenses were consolidated for sentencing in state court. Both the government and the defendant agree that the offenses were consolidated. Notwithstanding this, the majority concludes that the offenses were somehow not consolidated and therefore not “considered related” under the Guideline. I respectfully disagree.
At issue here is U.S.S.G. § 4A1.2(2), which provides that “[pjrior sentences imposed in unrelated cases are to be counted separately. Prior sentences imposed in related cases are to be treated as one sentence for purposes of § 4A1.1(a), (b), and (c).” The Application Note 3 to U.S.S.G. § 4A1.2(2) defines “[rjelated cases.” Provided there is not an intervening arrest separating the offenses, “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.” U.S.S.G. § 4A 1.2, cmt. n. 3 (emphasis added). The Application Note continues:
The court should be aware that there may be instances in which this definition is overly broad and will result in a criminal history score that underrepresents the seriousness of the defendant’s criminal history and the danger that he presents to the public. For example, if a defendant was convicted of a number of serious non-violent offenses committed on different occasions, and the resulting sentences were treated as related because the cases were consolidated for sentencing, the assignment of a single set of points may not adequately reflect the seriousness of the defendant’s criminal history or the frequency with which he has committed crimes. In such cir*89cumstances, an upward departure may be warranted.
Id. (emphasis added).
In coming to the conclusion that the third definition of “relatedness,” namely that the cases were consolidated for trial or sentencing, was not fulfilled, the majority opinion ignores the record. With respect to U.S.S.G. § 4A1.2(2)’s application to the present case, the District Court here was presented with unrebutted testimony that, in Pennsylvania, consolidation is the rule, not the exception, and the procedure that is followed in order to consolidate eases does not include an actual court order of consolidation. On the issue of whether the offenses had been consolidated for trial or sentencing, the Court heard from John Moore, an attorney who has engaged in criminal practice in Erie County for almost thirty years and represented Wood with regard to these three prior convictions. He testified that, when the District Attorney’s office gives notice pursuant to Pennsylvania Rule of Criminal Procedure 582(B)(1) (formerly Rule 1127(B)(1)) that an offense in one information will be tried with offenses in a separate information, the two cases are joined for trial. An order of consolidation is never entered. Under Pennsylvania rules, a signed order is not required to consolidate cases where notice of consolidation is filed with the clerk and served on the defendant prior to arraignment. Rather, the consolidation is accomplished by way of a checkoff notice of joint trial and/or sentencing. Informations Nos. 2749 and 2750 were checked off to give notice under Rule 1127(B)(1) that the offenses in PSR paras. 34 and 35 would be tried together. If there had been a trial, the two cases would have kept their separate docket numbers, although tried together. If notice is not given by the time of arraignment, the Commonwealth of Pennsylvania would still have the right to consolidate the charges, but Moore had never seen a case where that was done. Moore testified that he had never seen a separate order by an Erie County Court of Common Pleas judge indicating that cases would be tried together.
In Erie County Court of Common Pleas, it is standard procedure to consolidate all cases which are pending in that court against a single defendant for plea and/or sentencing. Moore testified that the routine method for consolidating cases for plea or sentencing is through a plea agreement that lists all informations in one agreement, sets the standards for the plea, and schedules sentencing in front of the same judge. The judge then signs the plea sheet, approving and accepting the plea. Under Pennsylvania Rule of Criminal Procedure 701, the defendant has a right to plead guilty to other offenses that he committed within the jurisdiction of the sentencing court; consolidation for sentencing is mandatory upon the defendant’s request. The comment to the Rule states that “[t]he objective of this rule is to enable consolidation of all outstanding charges within the jurisdiction of the sentencing court for sentencing at one time.” Pa. R.Crim. Pro. 701 cmt.
The District Court accepted this testimony, noting that “the two burglary convictions were in fact consolidated under Pennsylvania practice” and that the state court judge’s “approval of the plea agreement by virtue of which the gun charge was lumped with the burglary charges at sentencing represented a ‘consolidation’ for sentencing purposes.” (App.309). That should have ended the inquiry. The Application Note directs the court to consider “related” offenses that were “consolidated for trial or sentencing.” Once a determination has been made that the of*90fenses were consolidated, they must be “considered related” and counted as one.
However, the District Court then proceeded to consider whether the offenses were in fact functionally or factually related, concluding they were not. The judge stated “I believe it is appropriate for the court to critically examine, in the absence of a formal consolidation order, the relatedness of crimes ‘that were consolidated for sentencing.’ [sic] To determine whether the crimes were lumped together for administrative convenience or other purposes quite unrelated to any factual or legal similarities between them.” (App.308-09).
I submit that this last step was error. The plain language of the provision makes clear that the test is not whether offenses were consolidated because they are related. Rather, offenses are “considered related” for the purpose of the Guideline because they were consolidated for trial or sentencing. The District Court here added a “purpose” requirement, such that where offenses have been consolidated because they are adequately factually similar, they are “related,” but if they have been consolidated for administrative convenience, they are not “related.” This interpretation reads the “or” in the Application Note’s definitions of what qualifies offenses as “related” as an “and,” incorrectly requiring that at least two of the three tests are met. This defies the plain language of the provision, invites unwarranted speculation and conjecture as to the reasoning behind each consolidation, and complicates an otherwise simple inquiry.
The District Court here acknowledged that the offenses were indeed consolidated for sentencing. The Court erred, however, in insisting upon an order of consolidation in a court system which does not effectuate consolidation through an order, and in looking beyond the issue of consolidation to determine actual “relatedness.” The majority’s opinion has compounded that error by disregarding the District Court’s finding here — that the cases had in fact been consolidated. Moreover, the majority’s opinion penalizes any defendant who has had factually dissimilar offenses consolidated for trial or sentencing in the Commonwealth of Pennsylvania, because, by contrast to courts in other states, there will never be a formal order of consolidation.
As the majority opinion notes, it seems strange that the fact that many offenses were consolidated for sentencing would result in a lower criminal history score. However, the Guideline itself acknowledges this and notes: “there may be instances in which this definition is overly broad and will result in a criminal history score that underrepresents the seriousness of the defendant’s criminal history and the danger that he presents to the public.” U.S.S.G. § 4A1.2, cmt. n. 3. I submit that the only way the definition could be “overly broad” is if it includes offenses as related that would otherwise be viewed as separate and quite different. Admittedly, counting offenses consolidated for trial or sentencing as “related” is a necessarily artificial test that may well group very different offenses and conduct. The Guideline recognizes this. It makes very explicit that an upward departure may be warranted in some situations precisely because “if a defendant was convicted of a number of serious non-violent offenses committed on different occasions, and the resulting sentences were treated as related because the cases were consolidated for sentencing,” his criminal history score may not reflect his criminal past. U.S.S.G. § 4A1.2, cmt. n. 3. The interpretation adopted by the majority effectively reads this commentary out of the provision.
Since Wood’s sentencing, the Guideline has been amended to make clear that: “If *91there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day.” While I agree that the amendment to this Guideline was substantive in that it did more than clarify, nonetheless its language and the reason for its adoption tend, I believe, to support my view that the test for considering offenses to be related is a straightforward one, to be applied without consideration of how “related” the offenses are. Specifically, the rationale for its adoption was the significant amount of litigation and confusion over the meaning of “related” and the consolidation provision in particular. U.S.S.G. § 4A1.2, 2007 Amendments, Reason for Amendment (effective Nov. 1, 2007). Notwithstanding this, the majority’s analysis perpetuates the confusion over the term “related.” I submit the Guideline was clear before and is even clearer now.
Consolidated means consolidated. Once a court determines that the offenses were consolidated under the laws of the relevant jurisdiction, the inquiry comes to an end. Here, in light of the District Court’s determination that the cases were consolidated for trial and sentencing, the offenses should have been considered related pursuant to U.S.S.G. § 4A1.2(2).