                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-2567
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Donald L. Dixon,                         *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: January 13, 2004

                                   Filed: March 11, 2004 (Corrected: 04/02/04)
                                    ___________

Before BYE, LAY, and SMITH, Circuit Judges.
                             ___________

BYE, Circuit Judge.

       Donald L. Dixon pleaded guilty to possession of ammunition by a convicted
felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and was sentenced to
thirty-six months imprisonment and three years of supervised release. He appeals
contending the district court incorrectly added two points to his criminal history score
under United States Sentencing Guideline (U.S.S.G.) § 4A1.1(e). We reverse and
remand for resentencing.
                                          I

      Dixon and three other teenagers were accused of robbing and killing an elderly
couple in Kansas City, Missouri, on November 27, 1983. Dixon was taken into
custody days later on December 1, 1983, and remained in custody until his trial in
May 1985, when a jury convicted him of two counts of first degree felony murder,
two counts of armed criminal action, and one count of robbery. See State v. Dixon,
716 S.W.2d 815, 816 (Mo. Ct. App. 1986). Dixon received consecutive life sentences
on the two murder counts, three-year sentences on the two armed criminal action
counts to be served concurrent with each murder sentence, and a ten-year sentence
on the robbery count to be served concurrent with the first murder sentence. Id.

       On April 11, 2001, after serving over seventeen years in prison, Dixon's
convictions for the two counts of murder and two counts of armed criminal action
"were set aside by a Jackson County, Missouri, Circuit Judge, on grounds that the
Jackson County Prosecutor violated the due process clause which forbids a state from
using inconsistent irreconcilable theories to secure convictions against two or more
defendants in prosecution for the same offense arising out of the same event."
Presentence Report (PSR) at ¶ 31. See also Smith v. Groose, 205 F.3d 1045, 1052
(8th Cir. 2000) (holding the prosecutor also violated the due process rights of one of
Dixon's accomplices, Jon Smith, by using "inherently contradictory theories" to
obtain the convictions of Smith and another of Dixon's accomplices, Anthony Lytle).
The only conviction left intact was Dixon's robbery count, and since he had
completed serving that ten-year sentence on December 1, 1993, he was immediately
released from prison.

       On October 29, 2002, less than two years after his release, Dixon committed
the instant offense for unlawfully possessing ammunition. The government brought
charges against him to which he pleaded guilty, and the case proceeded to sentencing.
In calculating Dixon's criminal history score, the PSR recommended adding two

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points under U.S.S.G. § 4A1.1(e), which provides "[a]dd 2 points if the defendant
committed the instant offense less than two years after release from imprisonment on
a sentence counted under [U.S.S.G. § 4A1.1](a) or (b) . . . ."

       Dixon objected contending he was not serving a sentence counted under §
4A1.1(a) or (b) when he was released from prison on April 11, 2001, because the
convictions underlying those sentences had been set aside for violations of the due
process clause. He further contended the only sentence that counted, the ten-year
robbery sentence, had expired well before he was released from prison. The PSR
nonetheless recommended adding the two points, reasoning "[t]he application of these
points is focused on release from confinement, not the expiration of a prior sentence."
The district court agreed and added two points to Dixon's criminal history score.
Consequently, Dixon received a criminal history category of III and a sentencing
range of 30-37 months. Without the two points, Dixon's criminal history category
would have been II, and the sentencing range would have been 27-33 months. The
district court sentenced Dixon to thirty-six months. Dixon filed a timely appeal
challenging the application of § 4A1.1(e).

                                          II

       We review the district court's application of the sentencing guidelines de novo,
United States v. Ross, 279 F.3d 600, 603 (8th Cir. 2002), and conclude the district
court erred in adding two points to Dixon's criminal history score. Dixon was not
serving a sentence counted under § 4A1.1(a) or (b) at the time he was released from
prison on April 11, 2001, because the convictions underlying the sentences he was
serving had all been declared constitutionally invalid. See U.S.S.G. § 4A1.2 cmt. n.6
("Sentences resulting from convictions that (A) have been reversed or vacated
because of errors of law or because of subsequently discovered evidence exonerating
the defendant, or (B) have been ruled constitutionally invalid in a prior case are not
to be counted.") (emphasis added).

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       The government contends our decision in United States v. Wajda, 1 F.3d 731
(8th Cir. 1993), required the district court to add two points under § 4A1.1(e). We
disagree. In Wajda, the defendant contended § 4A1.1(e) did not apply to him
because, although he was released from prison within two years of committing the
instant offense, he should have been released on parole more than two years before
he committed the instant offense. He contended the government illegally held him
past his proper release date and his proper parole release date should have been used
to start the two-year period under § 4A1.1(e). 1 F.3d at 732.

       On appeal, we rejected Wajda's claim, making several points. First, we noted
the claim was subject to plain error review because Wajda failed to object to the
application of § 4A1.1(e) in the district court. Id. at 732-33. Next, we noted "Wajda
provided no documentation showing, as he asserts in his brief, that a proper
application of the Parole Guidelines would have resulted in his release more than two
years prior to the date he committed the instant offense." Id. at 733. Finally, we held
"the focus of section 4A1.1(e) is on the 'recency' of the commission of the instant
offenses, rather than on the length of confinement for past offenses [and thus] Wajda's
claim that he should have been released on parole sooner than he was is not relevant."
Id.

       None of the three points made in Wajda apply here. First, Dixon properly
objected to the district court's application of § 4A1.1(e) and thus his claim is reviewed
de novo rather than for plain error. Second, Dixon's claim is documented: the PSR
indicates the two murder and armed criminal action counts were set aside and states
the reason why, i.e., "the Jackson County Prosecutor violated the due process clause."
PSR at ¶ 31. Finally, Wajda's alleged parole-date violation was directly related to a
conviction which counted under the Guidelines, whereas Dixon's contention involves
convictions which have been set aside and do not count. The Guidelines specifically
require convictions which are reversed or vacated are not to be counted under §
4A1.1(a) or (b). See § 4A1.2 cmt. n.6. In contrast, the Guidelines say nothing about

                                          -4-
excluding sentences on which the government may have violated a defendant's parole
release date.

        In addition, although Wajda indicates the focus of § 4A1.1(e) is on the recency
of the commission of the instant offense in relation to a release from imprisonment,
this does not change the fact that § 4A1.1(e) has two requirements. The focus of the
first requirement is on the recency of the release from imprisonment. That is, two
points may be added to a defendant's criminal history score if he is released from a
prior sentence within two years of the commission of the instant offense. The
presence of that first requirement is not enough to trigger the two-point addition,
however, for the guideline also requires the sentence the defendant is serving at the
time of his release to "count" under subsections (a) or (b) of § 4A1.1. Such
requirement has not been satisfied here because the convictions underlying the
sentences Dixon was still serving when he was released from prison in April 2001
were set aside and do not count under (a) or (b).

       The only sentence that could properly be used to trigger two points under §
4A1.1(e) was Dixon's ten-year robbery sentence. In our view, it defies logic to
conclude Dixon was still serving that sentence when he was released from prison in
April 2001, over seventeen years after he began serving that sentence. The district
court therefore erred in adding two points to Dixon's criminal history score under §
4A1.1(e).

                                          III

      For the foregoing reasons, we reverse and remand for resentencing.




                                         -5-
SMITH, Circuit Judge, concurring.

      I fully concur in the well-reasoned opinion of the majority. I write separately
only to point out that U.S.S.G. § 4A1.2 cmt. n.6, which indicates that convictions
declared invalid not be counted, nonetheless permits the sentencing court to consider
whether the defendant's underlying conduct warrants consideration for upward
departure under U.S.S.G. § 4A1.3.
                        ______________________________




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