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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-5684
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CARLOS GARCIA,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(May 28, 1992)
Before SNEED,1 REAVLEY, and BARKSDALE, Circuit Judges.
BARKSDALE, Circuit Judge:
Carlos Garcia appeals only his sentence, contending that the
two prior convictions relied on for his career offender enhancement
constitute only one conviction, pursuant to the Sentencing
Guidelines. We AFFIRM.
I.
In April 1991, Garcia pleaded guilty to distribution of heroin
in violation of 21 U.S.C. § 841(a)(1). In issue at sentencing was
the application of the career offender enhancement based on two
1
Senior Circuit Judge of the Ninth Circuit, sitting by
designation.

prior state convictions for distribution of heroin.2 Although the
Presentence Investigation Report (PSI) did not recommend
enhancement, the government urged it.3 Garcia asserted, as in his
earlier objection, that the prior convictions were "related", as
defined in U.S.S.G. § 4A1.2, and therefore counted for only one
prior conviction for career offender purposes, based on his
contentions, taken from the commentary to § 4A1.2, that the state
convictions were part of a common scheme or plan and that they had
been consolidated for sentencing. The district court found to the
contrary and sentenced Garcia, as a career offender, to 168 months'
imprisonment.4
II.
The guidelines provide for enhanced punishment for "career
offenders". One of the criteria for such status is that "the
defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense." U.S.S.G. §
4B1.1.5 Section 4B1.2(3) defines "two prior felony convictions"
and provides that, in determining whether prior convictions are to
2
At the time of the federal ("instant") offense, Garcia was on
parole from the state convictions.
3
Before sentencing and after Garcia filed his objection to the
recommended enhancement, the PSI had been amended by deleting the
recommendation.
4
The applicable guideline sentencing range without career
offender status was 21-27 months; with it, 168-210 months.
U.S.S.G. Ch. 5, Pt. A (Sentencing Table); § 4B1.1.
5
The other criteria are that "the defendant was at least
eighteen years old at the time of the instant offense, [and] the
instant offense of conviction is a felony that is either a crime of
violence or a controlled substance offense". U.S.S.G. § 4B1.1.
2

be counted separately, § 4A1.1(a)-(c) controls. Section 4A1.1,
which concerns computing the defendant's criminal history category,
speaks of "prior sentences". Section 4A1.2 defines a "prior
sentence" and provides that "[p]rior 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)." U.S.S.G. § 4A1.2(a)(2) (emphasis added).
The official commentary to § 4A1.2 states that "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. § 4A1.2, comment. (n.3). This court looks
to that commentary on this question. See, e.g., United States v.
Castro-Perpia, 932 F.2d 364, 365 (5th Cir. 1991); United States v.
Ainsworth, 932 F.2d 358, 360 (5th Cir.), cert. denied, __ U.S. __,
112 S. Ct. 327 (1991), and cert. denied, __ U.S. __, 112 S. Ct. 346
(1991); United States v. Metcalf, 898 F.2d 43, 46 n.6 (5th Cir.
1990). Garcia maintains that his two prior state convictions for
delivery of heroin are related; that they resulted from offenses
that (1) were part of a common scheme or plan and (2) were
consolidated for trial and sentencing; and that, therefore, the
district court erred in finding that they were not related and in
applying the career offender enhancement.
This court will uphold a sentence unless it was imposed in
violation of law; imposed as a result of an incorrect application
of the sentencing guidelines; or outside the range of the
3

applicable sentencing guideline and is unreasonable. United States
v. Buenrostro, 868 F.2d 135, 136-37 (5th Cir. 1989) (citing 18
U.S.C. § 3742(d) and (e)), cert. denied, 495 U.S. 923 (1990).
Application of the guidelines is a question of law subject to de
novo review. E.g., Castro-Perpia, 932 F.2d at 365. However,
factual findings by the district court are reviewed for clear
error. E.g., Metcalf, 898 F.2d at 44.

The initial query is the standard of review for a district
court finding on whether prior convictions are related. Although
the question is in large part one of fact, this court, without
expressly ruling, has viewed this issue as an application of the
guidelines, subject to de novo review. This much is certain; it
has not applied the clearly erroneous standard. See Castro-Perpia,
932 F.2d at 366 ("[t]he district court correctly applied the
Sentencing Guidelines"); Ainsworth, 932 F.2d at 361 ("[w]e thus
hold that the district court did not err"); United States v. Paulk,
917 F.2d 879, 884 (5th Cir. 1990) (the district court "was not [in]
error"); Metcalf, 898 F.2d at 46 ("we conclude that they were not
consolidated for sentencing"); United States v. Flores, 875 F.2d
1110, 1114 (5th Cir. 1989) ("[w]e find that [the defendant] has
more than two convictions that are `unrelated' as to their trials
and sentences"). Accordingly, we apply that de novo standard here,
even though a strong -- indeed compelling -- argument can be made
that the clearly erroneous standard of review is appropriate for
whether prior convictions are related. The circuits are split on
4

this question;6 and this court, in an appropriate case, should
consider giving this issue en banc consideration.7
A.
Garcia's first basis for contending that the two state
convictions were "related" is that they were part of a "common
scheme or plan". In 1989, he pleaded guilty to two separate
indictments for delivery of heroin: the first delivery was to one
undercover officer for $25.00; the second, to another undercover
officer for $19.00. The two sales occurred within a nine-day
period and in the same vicinity. In the first, Garcia had to go
elsewhere to retrieve the heroin; in the second, he had it with
him.
6
The Eight Circuit applies the clearly erroneous standard, see
United States v. Mau, 958 F.2d 234, 236 (8th Cir. 1992) ("The
district court's decision [regarding whether prior convictions are
related] is a factual determination subject to the `clearly
erroneous' standard of review."); and the Seventh Circuit appears
to be leaning towards that standard. See United States v. Brown,
No. 91-1821, 1992 WL 69074, at *5 (7th Cir. April 8, 1992). The
Tenth Circuit applies a hybrid standard of review. United States
v. Villarreal, No. 91-2102, 1992 WL 52607, at *1-2 (10th Cir. Mar.
23, 1992) (district court findings regarding the facts of the prior
convictions are factual, however, "[t]he meaning of the word
`related' is a legal issue that we review de novo"). The Ninth and
Second Circuits also review de novo the determination of
relatedness. See United States v. Houser, 929 F.2d 1369, 1373 (9th
Cir. 1990) (application of career offender status is reviewed de
novo); United States v. Lopez, No. 91-1561, 1992 WL 71133, at *2
(2d Cir. April 13, 1992) (relatedness viewed de novo).
7
At the sentencing hearing, which was videotaped, the district
judge did not enter detailed findings of fact. On the
consolidation prong, he stated only that the cases were not
consolidated. Accordingly, it is most questionable whether the
findings of fact were sufficient for review under a clearly
erroneous standard.
5

Although the guidelines do not define "common scheme or plan",
Garcia contends that the term is to be used for § 4A1.2 purposes as
it is used for the relevant conduct guideline, § 1B1.3(a)(2).8 We
have interpreted the relevant conduct language broadly. See, e.g.,
8
Section 1B1.3 provides:
Relevant Conduct (Factors that Determine the
Guideline Range)
(a)
Chapters Two (Offense Conduct) and Three
(Adjustments). Unless otherwise specified,
(i) the base offense level where the guideline
specifies more than one base offense level,
(ii) specific offense characteristics and
(iii) cross references in Chapter Two, and
(iv) adjustments in Chapter Three, shall be
determined on the basis of the following:
(1)
all acts and omissions committed or aided
and abetted by the defendant, or for
which the defendant would be otherwise
accountable, that occurred during the
commission of the offense of conviction,
in preparation for that offense, or in
the course of attempting to avoid
detection or responsibility for that
offense, or that otherwise were in
furtherance of that offense;
(2)
solely with respect to offenses of a
character for which § 3D1.2(d) would
require grouping of multiple counts, all
such acts and omissions that were part of
the same course of conduct or common
scheme or plan as the offense of
conviction;
(3)
all harm that resulted from the acts or
omissions specified in subsections (a)(1)
and (a)(2) above, and all harm that was
the object of such acts or omissions; and
(4)
any other information specified in the
applicable guideline.
(Emphasis added.)
6

United States v. Thomas, 932 F.2d 1085, 1088 (5th Cir.), cert.
denied, ___ U.S. ___, 112 S. Ct. 264 (1991), and cert denied, ___
U.S. ___, 112 S. Ct. 428 (1991), and cert. denied, ___ U.S. ___,
112 S. Ct. 887 (1992). Garcia maintains that we should do the same
for "common scheme or plan" in determining whether convictions were
related; and that, because the heroin deliveries involved almost
identical conduct and occurred within the same area and within days
of each other, they were part of a common scheme or plan.
Even if we were to adopt Garcia's analysis and broadly
construe the language of § 4A1.2, an issue we need not reach, the
facts underlying the two state convictions do not establish a
common scheme or plan. Although the facts surrounding the cases
may be similar, "`[s]imilar crimes are not necessarily related
crimes.'" United States v. Mau, 958 F.2d 234, 236 (8th Cir. 1992)
(quoting United States v. Lowe, 930 F.2d 645, 647 (8th Cir. 1991)).
"[A] relatedness finding requires more than mere similarity of
crimes." United States v. Brown, No. 91-1821, 1992 WL 69074, at *4
(7th Cir. April 8, 1992). Garcia's "argument ... would lead to the
illogical result that a defendant who is repeatedly convicted of
the same offense on different occasions could never be considered
a career offender under the guidelines." Mau, 958 F.2d at 236.
Garcia executed two distinct, separate deliveries of heroin.
Although the crimes may have been temporally and geographically
alike, they were not part of a common scheme or plan that would
preclude imposition of career offender status.
7

B.
Alternatively, Garcia asserts that the two cases are "related"
because they were "consolidated for trial and sentencing": the two
indictments had consecutive numbers and were filed on the same day;
the same attorney was appointed to represent Garcia in both cases
and submitted one statement for both representations; the clerk
scheduled the two cases in the same court for the same date and
time; the plea agreements for the two cases refer to each other;
and the ten year sentences for each conviction run concurrently.9
Garcia notes the consecutive indictment numbers, the
scheduling of the cases for the same day and time, the plea
agreements which refer to each other, and the concurrent sentences
to support his position. The government emphasizes the separate
indictments and docket numbers, the separate plea agreements and
sentences, the lack of an order of consolidation, and the
simultaneous resolution of a pending motion to revoke parole for a
1985 heroin possession case, as discussed in note 9, supra.
This court has already "rejected the proposition that cases
must be considered consolidated `simply because two convictions
have concurrent sentences.'" Ainsworth, 932 F.2d at 361 (quoting
Flores, 875 F.2d at 1114). Likewise, "[w]e also rejected the
notion that `sentencing on two distinct cases on the same day
necessitates a finding that they are consolidated.'" Id. (quoting
Metcalf, 898 F.2d at 46). Although Garcia contends that his case
9
At the same sentencing proceeding, the state court also
sentenced Garcia to seven years for violation of his parole, to run
concurrently with the sentences for the above convictions.
8

presents a unique combination of these factors, especially a close
factual relationship between the convictions, this precedent
obviously weakens his argument.
Garcia maintains, in any event, that consolidation in Texas
can occur two ways: formally, through the operation of Chapter 3 of
the Texas Penal Code; or informally, through the acquiescence or
consent of a defendant. According to Garcia, an order of
consolidation is not necessary for either procedure.
Under Chapter 3 of the Texas Penal Code, formal consolidation
may occur when the state moves to consolidate two or more offenses
"arising out of the same criminal episode". Tex. Penal Code §
3.02(a). Section 3.01, as amended in 1987, defines criminal
episode as "the commission of two or more offenses ... [that are]
committed pursuant to the same transaction or pursuant to two or
more transactions that are connected to constitute a common scheme
or plan; or ... are the repeated commission of the same or similar
offenses." Tex. Penal Code § 3.01 (emphasis added).10 If the
defendant fails to object to the written motion to consolidate,
consent is implied. Garza v. State, 687 S.W.2d 325, 330 (Tex.
Crim. App. 1985); Yohey v. State, 801 S.W.2d 232, 244 (Tex. App.--
San Antonio 1990, pet. ref'd). The state, however, did not file
the required notice of consolidation for the two state convictions.
10
Garcia's state offenses occurred in 1988. Prior to 1987,
"criminal episode" was defined to apply only to offenses set out in
Title 7 of the Texas Penal Code, Offenses Against Property. Tex.
Penal Code Ann. § 3.01 (1974), amended by Acts 1987, 70th Leg., ch.
387, § 1 (eff. Sept. 1, 1987).
9

See Tex. Penal Code § 3.02(b). Therefore, there was no
consolidation motion to which Garcia could have consented.
As for the informal consolidation that Garcia maintains can
occur absent such a motion, he cites cases which hold that "pending
indictments may be consolidated in a single trial with the consent
or absent an objection by and with the implied consent of the
defendant." Garza, 687 S.W.2d at 330. In several of these cases,
however, the state did move for formal consolidation; and the
defendant failed to object. See id.; Gordon v. State, 633 S.W.2d
872, 874 (Tex. Crim. App. [Panel Op.] 1982). Moreover, Yohey,
rendered in 1990, states that "[t]here is no authorization in Texas
law for any other type of consolidation than that provided by
Chapter 3 of the Texas Penal Code". 801 S.W.2d at 244. Therefore,
Garcia's contention that informal consolidation can occur in Texas
is unpersuasive.11
11
Garcia argues that the facts of this case are almost identical
to those in Castro-Perpia, where the defendant was sentenced in
state court in 1988 for cocaine offenses that occurred in 1984 and
1987. 932 F.2d at 365. Apparently, at the same proceeding, his
1985 sentence of probation for another cocaine offense was revoked;
he received concurrent sentences for all three cases. Id. at 365-
66. Upon a subsequent federal conviction, the district court
determined that the 1985 offense was not related to the other two,
but that the 1984 and 1987 cases were related. Id. at 365. Garcia
maintains that this consolidation must have been informal because
at that time, Texas Penal Code § 3.01 did not provide for
consolidation of nonproperty offenses.
Castro-Perpia is not persuasive, because the relatedness of
the 1984 and 1987 offenses was not an issue on appeal. This
court's opinion merely stated that the cases were consolidated; it
did not discuss what procedures led to the consolidation. 932 F.2d
at 365. Moreover, § 3.01 has been amended to allow for
consolidation of nonproperty offenses.
10

Although the concurrent sentences and sentencing on the same
day are factors to consider when evaluating whether cases are
consolidated, "we ... see little reason automatically to consider
cases to be consolidated where state law is to the contrary.
Instead, a district court must determine for itself whether the
crimes in fact were related ...." Ainsworth, 932 F.2d at 361. We
agree with the district court; the evidence does not establish that
the state cases were consolidated for trial or sentencing. The
state did not move to consolidate the cases; and the state court
treated the two convictions separately, entering separate
sentences, judgments and plea agreements.
III.
The judgment of the district court is
AFFIRMED.
11