                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
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                                   No. 02-1729
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United States of America,                  *
                                           *
             Appellee,                     *
                                           *      Appeal from the United States
      v.                                   *      District Court for the
                                           *      Western District of Missouri.
Joshua D. Stapleton,                       *
                                           *
             Appellant.                    *

                                ________________

                                Submitted: September 10, 2002
                                    Filed: January 9, 2003
                                ________________

Before HANSEN, Chief Judge, RICHARD S. ARNOLD and LOKEN, Circuit Judges.
                            ________________

HANSEN, Circuit Judge.

       Joshua Stapleton pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g). The district court calculated a total offense level of
seventeen, a Category VI criminal history, and a resulting Guidelines imprisonment
range of fifty-one to sixty-three months. The court imposed a sentence of sixty-three
months in prison and three years of supervised release, and Stapleton appealed.

      In an earlier appeal, we vacated Stapleton’s sentence because, in overruling his
objection to the assessment of criminal history points for two municipal assault
convictions in Jackson County, Missouri, the district court erroneously relied on only
the presentence report and the unsworn statements of the probation officer who
prepared it. We remanded for resentencing and reopened the record to allow the
parties to submit evidence regarding the disputed convictions. See United States v.
Stapleton, 268 F.3d 597, 598-99 (8th Cir. 2001.)

      At resentencing, the district court received additional evidence and again
assessed the criminal history points for the two assault convictions. Also, based on
Stapleton’s attempts to intimidate a witness at the resentencing hearing, the court
applied a two-level enhancement for obstruction of justice. Based on a total offense
level of nineteen and a Category VI criminal history, Stapleton’s Guidelines
imprisonment range was sixty-three to seventy-eight months. The court sentenced
him to seventy-eight months in prison and three years of supervised release.

       Stapleton appeals, challenging the district court’s assessment of the criminal
history points and its application of the obstruction-of-justice enhancement. For the
reasons discussed below, we affirm in part and reverse in part.

                                        I.
                     A. Stapleton’s criminal history category

      At resentencing, the government introduced into evidence two documents
regarding the Jackson County assault charges. First, on April 14, 2000--while
Stapleton was serving a 120-day sentence in Buchanan County, Missouri--he had
completed a petition to plead guilty and waive his appearance on "all charges"
pending against him in Jackson County. Second, a police report showed that the
assault charges were disposed of by Stapleton's guilty plea on April 19, 2000.

      In response, Stapleton introduced a letter from his municipal court attorney,
who recalled that he had reached an agreement with the municipal judge providing

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that if Stapleton pleaded guilty to seven charges pending against him in Jackson
County (fleeing a police officer, speeding, careless driving, disobeying a traffic
control signal, leaving the scene of an accident, interfering with police, and
possessing drug paraphernalia), he would receive a sentence concurrent with the term
he was already serving in Buchanan County. On April 19, counsel had presented the
municipal judge with Stapleton's petition and the court files for the seven charges.
Counsel had not intended to enter Stapleton's guilty plea to the two unrelated assault
charges, and it had been his experience that the municipal court would not accept
guilty pleas to assault charges without the defendant appearing in person.

      Stapleton argues that this evidence shows that his assault convictions were
obtained in violation of his right to counsel. He had a constitutional right to counsel
because he was sentenced to and served ninety days in jail for these misdemeanors,
see Scott v. Illinois, 440 U.S. 367, 373-74 (1979), and criminal history points cannot
be assessed for uncounseled misdemeanor convictions that result in prison time, see
U.S. Sentencing Guidelines Manual § 4A1.2, comment. (backg'd) (2001).

       Once the government met its initial burden of proving that Stapleton was
convicted, the burden shifted to him to prove by a preponderance of the evidence that
his convictions were constitutionally invalid. See United States v. Early, 77 F.3d 242,
245 (8th Cir. 1996) (per curiam); United States v. Solomon, 998 F.2d 587, 591 (8th
Cir.), cert. denied, 510 U.S. 1026 (1993). Although this case presents a close
question, we conclude that Stapleton showed that it was more likely than not that he
was convicted without the benefit of counsel.

      Read together, Stapleton’s petition to plead guilty in Jackson County, the
police report, and the letter from Stapleton's municipal court attorney show that
Stapleton and his counsel intended to limit his plea to the seven traffic and drug
charges. When Stapleton wrote "all charges" on the petition where he was supposed



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to indicate the case numbers for those charges, however, the municipal court
apparently mistook his plea as also encompassing the two assault charges.

      The preponderance of the evidence demonstrates that Stapleton’s assault
convictions were uncounseled. The district court therefore clearly erred in assessing
criminal history points based on them, and Stapleton’s proper criminal history
category is V rather than VI. See United States v. Bobo, 994 F.2d 524, 528 (8th Cir.)
(standard of review), cert. denied, 510 U.S. 891 (1993).

       In light of this conclusion, we need not reach Stapleton’s argument that the
district court erred in allowing the government to introduce the petition and the police
report into evidence at resentencing.

                          B. Stapleton’s total offense level

       After testifying at the resentencing hearing, but while still under oath, the
probation officer advised the district court that Stapleton had "stared at" him, "shook
his head," and "moved his lips" during the hearing. Based on his "experience in
dealing with defendants," the probation officer concluded that Stapleton was
conveying the message "I am going to get you" or "I am going to get even with you."
The prosecutor urged the court to enhance Stapleton’s offense level for obstruction
of justice based on this conduct. Stapleton's attorney, after speaking with four of the
people present in the courtroom, reported that two of them confirmed having seen the
"staring" and "nodding." Additionally, the courtroom deputy advised the court that
she had seen the behavior the probation officer had described. The district court
found that Stapleton's conduct was "hostile" and "intimidating" and therefore applied
a two-level obstruction-of-justice enhancement to his offense level under USSG
§ 3C1.1 & comment. (n.4(a)). (Resent. Tr. at 32-34, 36.)




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       On appeal, Stapleton argues that the district court's application of the
obstruction-of-justice enhancement at resentencing violated the scope of the remand.1
We do not think that the district court's action violated the general rule regarding the
scope of a remand. "On remand, . . . all issues decided by the appellate court become
the law of the case, and the sentencing court is bound to proceed within the scope of
any limitations imposed on its function at resentencing by the appellate court."
United States v. Behler, 100 F.3d 632, 635 (8th Cir. 1996) (quoted sources and
internal marks omitted), cert. denied, 522 U.S. 855 (1997). In our prior opinion, we
did not decide any issues relating to obstruction of justice, and we did not establish
any restrictions preventing the district court from considering obstruction of justice.
Stapleton's obstructive conduct at resentencing was simply not an issue in the prior
appeal because he had not yet committed it.

      Neither Stapleton nor the government has pointed us to any case either
authorizing or prohibiting a district court's application of an obstruction-of-justice
enhancement based on a defendant's conduct at resentencing, and we have found
none. Although our precedent "prohibits consideration of post-sentencing
rehabilitation at resentencing" as the basis for a downward departure, United States
v. Hasan, 245 F.3d 682, 688 (8th Cir.) (en banc), cert. denied, 122 S. Ct. 238 (2001),
we do not find it inconsistent to allow consideration of post-sentencing obstructive
conduct that occurs in the judge's presence at resentencing as the basis for an
obstruction-of-justice enhancement. Otherwise, the judge would lack an effective
remedy for obstructive conduct that interferes with the resentencing process.

      Obstruction of justice is concerned with a different time period than is
acceptance of responsibility. Most of the acceptance-of-responsibility inquiry focuses

      1
       Stapleton does not argue that the conduct itself was not a valid basis for the
enhancement. Cf. United States v. Moss, 138 F.3d 742, 745-46 (8th Cir. 1998)
(defendant who made throat-cutting gesture at witness during recess in sentencing
hearing qualified for obstruction-of-justice enhancement).
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on the defendant's conduct through the time he pleads guilty. See USSG § 3E1.1,
comment. (nn.1, 3, 6). Even in the rare situations when a defendant proceeds to trial
to contest an issue unrelated to factual guilt, acceptance of responsibility hinges
"primarily upon pre-trial statements and conduct." See id., comment. (n.2). The
obstruction-of-justice inquiry, on the other hand, takes into account the entire case
from investigation through sentencing. See USSG § 3C1.1 & comment. (n.4).

       Because a defendant who attempts to threaten or intimidate a witness at a
resentencing hearing obstructs justice as much as a defendant who attempts to
threaten or intimidate a witness at an original sentencing hearing does, we conclude
that an obstruction-of-justice enhancement may be applied based on the defendant's
conduct at resentencing.

                                         II.

       For the reasons stated above, we vacate Stapleton’s sentence and remand this
case to the district court for resentencing within a Guidelines imprisonment range of
fifty-seven to seventy-one months, based on a total offense level of nineteen and a
Category V criminal history.



      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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