                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2673
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Donald Paul Rosenkrans,                  *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: November 17, 2000

                                   Filed: January 12, 2001
                                    ___________

Before LOKEN, LAY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

LOKEN, Circuit Judge.

       Donald Paul Rosenkrans pleaded guilty to one count of aiding and abetting the
distribution of methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C.
§ 841(a)(1). At sentencing, Larry Dennert testified that he purchased marijuana,
methamphetamine, and cocaine from Rosenkrans beginning in March 1996 and ending
with the January 1998 transaction underlying this conviction. The district court1 found
that all of these drug transactions were relevant conduct for sentencing purposes. The

      1
        The HONORABLE CHARLES B. KORNMANN, United States District Judge
for the District of South Dakota.
court determined drug quantity accordingly, see U.S.S.G. § 2D1.1(c), and it assessed
two criminal history points based upon an October 1987 alcohol-related traffic offense
for which Rosenkrans received a 180-day jail sentence, see U.S.S.G. § 4A1.2(c)(1)(A).
Rosenkrans appeals his 97-month sentence. He accepts the district court’s relevant
conduct finding but challenges the assessment of criminal history points for the October
1987 prior sentence. We affirm.

       The issue turns on the proper construction of U.S.S.G. § 4A1.2(e)(2), which
provides that a prior sentence of thirteen months or less shall be counted in the criminal
history calculation if it “was imposed within ten years of the defendant’s
commencement of the instant offense” (emphasis added). Rosenkrans argues that “the
instant offense” is his January 1998 offense of conviction, which occurred more than
ten years after the October 1987 prior sentence. However, in 1989 the Sentencing
Commission expressly addressed this issue by adding the following sentence to
Application Note 8 to guideline § 4A1.2:

      As used in § 4A1.2(d)(2) and (e), the term “commencement of the instant
      offense” includes any relevant conduct.

U.S.S.G. App. C, Amend. 265 (emphasis added). Concluding that Application Note
8 is controlling, the district court counted the October 1987 prior sentence because
Rosenkrans’s relevant conduct began less than nine years later in March 1996. On
appeal, Rosenkrans argues that the above-quoted sentence in Application Note 8 is
contrary to the plain meaning of § 4A1.2(e)(2), a guideline trumps inconsistent
commentary, and therefore his October 1987 prior sentence may not be counted.

      The purpose of this sentence in Application Note 8 is to “interpret the guideline
or explain how it is to be applied.” U.S.S.G. § 1B1.7. Interpretive guideline
commentary is controlling unless it violates the Constitution or a federal statute, or is
“plainly erroneous or inconsistent with” the guideline it interprets. Stinson v. United

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States, 508 U.S. 36, 45 (1993) (quotation omitted). An amended commentary, such as
the sentence in Application Note 8 here at issue, is binding “if the guideline which the
commentary interprets will bear the construction,” even if the amendment conflicts with
prior judicial interpretation of the guideline. Id. at 46.

       Applying this standard, we reject Rosenkrans’s contention that the above-quoted
sentence in Application Note 8 conflicts with the guideline it interprets. Section
4A1.2(e)(2) refers to “the instant offense,” not “the offense of conviction.” The term
“instant offense” is itself defined in the Guidelines:

      “Offense” means the offense of conviction and all relevant conduct under
      § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is
      otherwise clear from the context. The term “instant” is used in
      connection with “offense” . . . to distinguish the violation for which the
      defendant is being sentenced from a prior or subsequent offense . . . .

U.S.S.G. § 1B1.1 comment. (n.1(l)) (emphasis added). Thus, when the Commission
amended Application Note 8 to expressly provide that relevant conduct must be taken
into account in applying § 4A1.2(e)(2), it simply clarified that the usual meaning of
“instant offense” as defined in § 1B1.1 should be used in determining an applicable
criminal history time period under § 4A1.2(e). Such commentary is not plainly
erroneous or inconsistent with the guideline it interprets. Therefore, it must be
followed, as the few circuit court decisions to consider this issue have concluded. See
United States v. Kennedy, 32 F.3d 876, 890 (4th Cir. 1994); United States v. Smith,
991 F.3d 1468, 1470-71 (9th Cir. 1993) (construing the term “instant offense” in
§§ 4A1.1(d) and (e) as including relevant conduct, as required by Application Notes
4 and 5 to § 4A1.1); United States v. Kern, 1992 WL 80804 (8th Cir. Apr. 24, 1992)
(unpublished). In addition, this court and other circuits have followed Application Note
8 in including relevant conduct under § 4A1.2(e) without discussing the issue. See
United States v. Gibbs, 182 F.3d 408, 446 (6th Cir. 1999); United States v. Peck, 161


                                          -3-
F.3d 1171, 1173 (8th Cir. 1998); United States v. Lampton, 158 F.3d 251, 256 n.3 (5th
Cir. 1998); United States v. Gabel, 85 F.3d 1217, 1222-24 (7th Cir. 1996).

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

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




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