                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




           United States Court of Appeals
                               For the Seventh Circuit
                               Chicago, Illinois 60604

                              Submitted June 2, 2005*
                               Decided June 3, 2005

                                       Before

                     Hon. WILLIAM J. BAUER, Circuit Judge

                     Hon. ILANA DIAMOND ROVNER, Circuit Judge

                     Hon. TERENCE T. EVANS, Circuit Judge

No. 04-3449

UNITED STATES OF AMERICA,                       Appeal from the United States
    Plaintiff-Appellee,                         District Court for the Western
                                                District of Wisconsin
      v.
                                                No. 04-CR-53-S-01
ANGELA K. TRUDELLE,
    Defendant-Appellant.                        John C. Shabaz,
                                                Judge.

                                     ORDER

       Pursuant to a written agreement, Angela Trudelle pleaded guilty to one
count of conspiracy to distribute at least 500 grams methamphetamine. See 21
U.S.C. §§ 846, 841(a)(1). After crediting Trudelle for the 17 months already served
on a state conviction arising from the conspiracy, the district court imposed a term
of 119 months to run concurrent with the remainder of her state sentence. Trudelle
now challenges the calculation of her criminal history score. Having concluded that
the district court incorrectly calculated Trudelle’s criminal history score, we vacate
her sentence and remand to the district court.



      *
       After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 04-3449                                                                    Page 2

       Trudelle’s conspiracy ran from August 2001 to April 2003 and encompassed
three state convictions all for methamphetamine offenses. The first state offense
occurred in October 2002, when Trudelle was arrested in Wisconsin for possession
of methamphetamine with intent to distribute and released on bond. Before that
charge was resolved, she left for Minnesota and was caught there with
methamphetamine in November 2002. Upon conviction for this second offense, the
Minnesota court sentenced Trudelle to five days in jail and three years’ probation.
And once back in Wisconsin she was also convicted of what the parties describe as
“bail jumping.” Trudelle was still on probation for the Minnesota offense when she
was arrested yet again in Wisconsin for possession of methamphetamine in April
2003. In August 2003 she was sentenced to 10 years’ probation on this last offense,
and at the same time she was sentenced for her October 2002 offense to 30 months’
imprisonment. Trudelle began serving this Wisconsin sentence before the federal
prosecution commenced.

       In calculating Trudelle’s criminal history, the probation officer assigned her
zero criminal-history points for the three state drug convictions because, as both the
government and Trudelle agreed, all three are for conduct that was part of the
conspiracy prosecuted in federal court. See U.S.S.G. § 4A1.2, cmt. n.1 (explaining
that prior convictions arising from same conduct underlying current federal
prosecution are ignored in scoring defendant’s criminal history). But reasoning
that bail jumping is distinct from drug trafficking and thus not relevant conduct for
the conspiracy charge, the probation officer assigned 1 criminal-history point for
that conviction. And since Trudelle engaged in acts relating to the conspiracy while
on probation for her November 2002 offense committed in Minnesota, the probation
officer added 2 more points under § 4A1.1(d) on the theory that the conspiracy was
committed while Trudelle was under a “criminal justice sentence,” i.e., probation.
These 3 points resulted in a Criminal History Category of II and made Trudelle
ineligible for relief under the “safety valve.” See 18 U.S.C. § 3553(f) (should
defendant meet five criteria, including having no more than 1 criminal-history
point, court may impose sentence without regard to statutory mandatory minimum
penalties); U.S.S.G. § 5C1.2 (same); U.S.S.G. § 2D1.1(b)(7) (providing two-level
decrease in offense level for drug offenders who satisfy § 3553(f) criteria). This
criminal history calculation, coupled with the total offense level of 31 proposed by
the probation officer, yielded an imprisonment range of 121 to 151 months.

       The government endorsed the probation officer’s recommendations at
sentencing, but Trudelle posed several objections. First she argued that her
conviction for bail jumping should not lead to even 1 criminal history point because,
she said, it too arose from conduct comprising the federal conspiracy just like her
other three state offenses. See U.S.S.G. § 4A1.2, cmt. n.1. Likewise, Trudelle
argued, she should not be given 2 criminal history points for committing the
conspiracy while on probation for her Minnesota conviction because under the
No. 04-3449                                                                     Page 3

guidelines these points can be assessed only when the offense of conviction was
committed while under a “criminal justice sentence,” which by definition excludes
prior offenses like her Minnesota case that do not result in criminal history points.
See id. § 4A1.1(d), cmt. n.4. It followed, Trudelle explained, that her criminal
history score was really zero, and so she was eligible for relief under the safety
valve. Finally, Trudelle objected to being sentenced under the guidelines in light of
Blakely v. Washington, 124 S. Ct. 2531 (2004), and our then-recent decision in
United States v. Booker, 375 F.3d 508 (7th Cir. 2004).

      The district court rejected Trudelle’s objections to the criminal history points,
but sustained her Booker challenge and, consequently, proceeded as though the
guidelines were advisory. The district court selected 136 months as an appropriate
term but reduced that number to 119 to account for the time Trudelle already had
served on her 30-month Wisconsin sentence. See U.S.S.G. § 5G1.3(b). Section
5G1.3(b) authorized the court to impose a term below the otherwise-applicable 10-
year minimum mandatory term as necessary to account for the state time. See 21
U.S.C. § 841(b)(1)(A)(viii); United States v. Ross, 219 F.3d 592, 594-95 (7th Cir.
2000). Had Trudelle prevailed on just her objection to the 2 criminal history points
imposed by the court under § 4A1.1(d), a sentence as low as 70 months would have
been within the guideline range.

       And indeed, as the government candidly concedes, Trudelle should have
prevailed at least with respect to those criminal history points. When calculating
the criminal history score, the guidelines allow for 2 points to be added “if the
defendant committed the instant offense while under any criminal justice sentence,
including probation.” U.S.S.G. § 4A1.1(d). The guidelines define a “criminal justice
sentence” as a sentence countable under § 4A1.2. U.S.S.G. § 4A1.1, cmt. n.4. Here
the district court did not count the sentence imposed for the Minnesota conviction
because that offense was committed as part of the conspiracy prosecuted in federal
court. See U.S.S.G. § 4A1.2(a)(1) & cmt. n.1 (excluding from definition of “prior
sentence” countable under § 4A1.1 any sentence impose based on conduct that is
part of instant offense); United States v. Garecht, 183 F.3d 671, 674 (7th Cir. 1999).
And given that the district court did not count the Minnesota conviction, Trudelle’s
commission of the federal conspiracy while on probation for her Minnesota
conviction should not have resulted in the assessment of any points under
§ 4A1.1(d). Correcting this error reduces Trudelle’s criminal history score to 1,
making her eligible for the safety valve. See 18 U.S.C. § 3553(f). We need not
address whether imposing the additional 1 point for bail jumping was also error
because that additional point has no further impact on Trudelle’s sentence.

      Although after United States v. Booker, 125 S. Ct. 738 (2005), the sentencing
guidelines are advisory rather than mandatory, we have held that an incorrect
application of the guidelines still requires resentencing. See United States v. Scott,
No. 04-3449                                                                  Page 4

405 F.3d 615, 617 (7th Cir. 2005). In the post-Booker era the guidelines “continue
to inform the district courts,” so a sentencing judge must calculate the range
accurately and explain its reasons if it imposes a sentence outside that range.
United States v. George, 403 F.3d 470, 472-73 (7th Cir. 2005).

      Accordingly, we REMAND for resentencing in accordance with this order.
