                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          MAY 5 1998

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 97-3148
 v.                                               (D.C. No. 96-CR-20075)
                                                         (D. Kan.)
 RANDY BUTLER,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Randy Butler pled guilty to conspiracy to distribute more than 100

kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and was sentenced to

45 months imprisonment. On appeal, Mr. Butler contends the district court

violated the ex post facto clause by applying the 1991 amended version of

U.S.S.G. § 4A1.2 application note three in computing his criminal history. We

disagree and affirm.

       In calculating a defendant’s criminal history, the sentencing guidelines

instruct that “[p]rior sentences imposed in unrelated cases are to be counted

separately,” while “[p]rior sentences imposed in related cases are to be treated as

one sentence.” U.S.S.G. § 4A1.2(a)(2). Application note three to section 4A1.2

further defines “related” and “unrelated” cases. This provision was amended,

effective November 1, 1991, to state:

             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.

U.S.S.G. § 4A1.2, comment. (n.3). Before the 1991 amendment, application note

three did not contain any “intervening arrest” language and prior sentences were

considered related if the offenses fulfilled one of the three grounds set forth

above regardless of whether there had been an intervening arrest.

                                          -2-
      Mr. Butler and several co-defendants were indicted on a charge of

conspiracy to distribute marijuana from October 1, 1995 through November 8,

1996, to which Mr. Butler pled guilty. This was not Mr. Butler’s first conviction

for a drug-related offense. On March 25, 1990, state law enforcement officials

arrested Mr. Butler for possession of over 30 kilograms of marijuana at the

Kansas City International Airport. Mr. Butler was released on bond for this arrest

and the very next day federal law enforcement officials arrested him for marijuana

he had delivered via Federal Express.

      At the sentencing hearing in the present case, the district court applied the

1991 amended version of U.S.S.G. § 4A1.2, counting Mr. Butler’s prior

convictions for marijuana as two separate offenses since they were separated by

an intervening arrest. As a result, with at least two prior felony convictions

involving controlled substances, Mr. Butler qualified as a career offender. See

U.S.S.G. § 4B1.1. Mr. Butler’s criminal history category was therefore set at

category VI which, together with his base offense level of fifteen, placed him in a

sentencing range of 41 to 51 months. The court imposed a 45-month sentence.

      Mr. Butler contends the court should have applied the pre-1991 standard for

related cases and treated his prior convictions as one sentence, placing him in a




                                         -3-
lower criminal history category and drastically reducing his sentencing range. 1

We review a district court’s factual findings for clear error, but we review de

novo questions of law regarding the interpretation of the sentencing guidelines.

See United States v. Wilson, 41 F.3d 1403, 1404 (10th Cir. 1994).

      Ordinarily a sentencing court must apply the guidelines that are in effect on

the date the defendant is sentenced. See 18 U.S.C. § 3553(a)(4)(A); United States

v. Gerber, 24 F.3d 93, 95 (10th Cir. 1994). However, the ex post facto clause,

“bars the sentencing court from retroactively applying an amended guideline

provision when that amendment disadvantages the defendant.” Id. (internal

quotations and citation omitted). Thus, when an amended guideline provision

takes effect after the defendant commits the current offense of conviction and

would increase the punishment for that offense, “we apply the guidelines section

in effect at the time of the offense conduct.” United States v. Smith, 930 F.2d

1450, 1452 & n.3 (10th Cir. 1991); see also United States v. Rivers, 50 F.3d

1126, 1129 (2d Cir. 1995); Gerber, 24 F.3d at 96. It is undisputed that the

version of application note three in effect at the time Mr. Butler was involved in

the marijuana conspiracy was the same as the one in effect at the time of his


      1
       Mr. Butler has sought leave to amend his brief to assert that he should be
placed in a criminal history category lower than category IV, which is the
category he asserted entitlement to in his initial brief. Because we conclude here
that Mr. Butler is not entitled to any reduction in his present criminal history
category, further briefing is unnecessary.

                                         -4-
sentencing. The sentencing court here clearly did not apply amended application

note three to an offense committed before its enactment.

      Mr. Butler nevertheless asserts that the court should have applied the pre-

1991 version of the guidelines because the amended provision went into effect

after he committed his prior convictions for marijuana in March 1990. The

Eighth Circuit summarily rejected this argument as “implausible.” United States

v. Strange, 102 F.3d 356, 362 & n.8 (8th Cir. 1996). We agree. As we have

stated, the underlying purpose of the ex post facto clause is to “restrain

legislatures and courts from arbitrary and vindictive action and to prevent

prosecution and punishment without fair warning.” Gerber, 24 F.3d at 96

(internal quotations and citation omitted). At the time Mr. Butler committed the

instant offense, he had more than adequate warning that under the 1991 amended

version of the guidelines his prior sentences would be treated as two separate

offenses for purposes of calculating his criminal history. “Consequently, he

cannot seriously suggest that he should be the beneficiary of the pre-1991

Guidelines.” Strange, 102 F.3d at 362. 2


      2
         The cases on which Mr. Butler relies, United States v. Rivers, 50 F.3d
1126 (2d Cir. 1995); United States v. Lindholm, 24 F.3d 1078 (9th Cir. 1994);
United States v. Bishop, 1 F.3d 910 (9th Cir. 1993), do not support his position.
In all three cases, in contrast to the situation here, the 1991 amendment to
application note three went into effect after the defendant committed the instant
offense of conviction, and therefore the courts held the pre-1991 version of the
                                                                       (continued...)

                                           -5-
      AFFIRMED.

                                             ENTERED FOR THE COURT


                                             Stephanie K. Seymour
                                             Chief Judge




      2
       (...continued)
guidelines should have been applied. See Rivers, 50 F.3d at 1129; Lindholm, 24
F.3d at 1082, 1087; Bishop, 1 F.3d at 912.

                                       -6-
