                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT

      ___________

      No. 06-2447
      ___________

United States of America,               *
                                        *
           Appellant,                   *
                                        *
      v.                                *
                                        *
Patrick James McMannus,                 *
                                        *
           Appellee.                    *

      ___________                               Appeals from the United States
                                                District Court for the
      No. 06-2555                               Northern District of Iowa.
      ___________

United States of America,               *
                                        *
           Appellant,                   *
                                        *
      v.                                *
                                        *
Sheri Brinton,                          *
                                        *
           Appellee.                    *

                                ________________

                            Submitted: June 13, 2007
                                Filed: August 2, 2007
                               ________________
Before MELLOY, SMITH and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.

       Patrick James McMannus and Sheri Brinton pled guilty to conspiracy to
distribute methamphetamine and other offenses. On a prior appeal by the
Government, a panel of this court vacated the sentences initially imposed on
McMannus and Brinton as unreasonable. The Government now appeals the sentences
imposed by the district court on remand. For the reasons discussed below, we vacate
both sentences and remand to the district court for resentencing.

I.    BACKGROUND

       McMannus and Brinton were two of sixteen individuals charged in an eight-
count drug-conspiracy indictment. McMannus pled guilty to conspiracy to distribute
50 grams or more of methamphetamine mixture and conspiracy to distribute marijuana
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846. Brinton pled guilty to
conspiracy to distribute 500 grams or more of methamphetamine mixture, and
conspiracy to distribute marijuana, in violation of §§ 841(a)(1), 841(b)(1)(A) and 846,
plus conspiracy to use a communication facility (the U. S. Postal Service) and to use
a person under the age of 18 to distribute methamphetamine and marijuana in
violation of §§ 843(b), 861 and 846.

       At Brinton’s first sentencing, post-Blakely1 but pre-Booker,2 the district court
held that the sentencing guidelines were unconstitutional under Blakely and sentenced


      1
       Blakely v. Washington, 542 U.S. 296 (2004).
      2
       United States v. Booker, 543 U.S. 220 (2005).

                                         -2-
Brinton to the statutory mandatory minimum of 120 months. Although the district
court did not attempt to calculate Brinton’s sentencing guidelines range, it did note
that she had no prior criminal history points. Her Presentence Investigation Report
(“PSIR”) suggested a guidelines range of 262 to 327 months, including a two-level
increase for obstruction of justice under U.S.S.G. § 3C1.1 based on her plea-
agreement stipulation that she “contacted her daughter . . . and told her to not tell law
enforcement anything about the defendant’s involvement in drug distribution and
about defendant’s utilization of her juvenile daughter in the distribution of controlled
substances.” Brinton Plea Agreement ¶ 34F.

       At McMannus’s first sentencing (also post-Blakely but pre-Booker), the district
court calculated a sentencing guidelines range of 57 to 71 months but held that the
guidelines were unconstitutional under Blakely. The district court found that
McMannus was eligible for 18 U.S.C. § 3553(f) safety-valve relief from the 60-month
statutory mandatory minimum. Utilizing its discretion within the statutory range of
zero to forty years, the district court sentenced McMannus to 24 months. The district
court pronounced alternative sentences at the low end of the guidelines range for each
defendant in the event the guidelines were held to be constitutional.

      On consolidated appeals, post-Booker, a panel of this court vacated both
sentences as unreasonable and remanded for resentencing. With respect to Brinton,
the panel stated:

      [W]e do not believe that Brinton’s lack of criminal history, which is one
      of the considerations that determined her advisory guidelines range, see
      U.S.S.G. ch. 4, or anything else in the record justifies a variance of this
      magnitude. The sentence selected by the district court, a 54 percent
      variance, was outside the range of reasonableness.

United States v. McMannus, 436 F.3d 871, 875 (8th Cir. 2006). Similarly, with
respect to McMannus, the panel stated:

                                          -3-
      While we can identify factors that may warrant a minor variance from
      the guidelines range, e.g., McMannus put himself through community
      college while on pretrial release, see 18 U.S.C. § 3553(a)(1), we find
      nothing in the record which would justify a variance of this magnitude
      under § 3553(a). The sentence selected by the district court, a 58 percent
      variance, was outside the range of reasonableness.

Id.

       At Brinton’s resentencing hearing, the district court first rejected the plea
agreement stipulation regarding Brinton’s sentencing guidelines enhancement for
obstruction of justice. The district court stated that “the one sentence in [the PSIR,
copied from the plea agreement stipulation] does not constitute obstruction of justice.”
Brinton Resent. Tr. at 13. Without that two-level enhancement, Brinton’s advisory
sentencing range decreased from 262 to 327 months to 210 to 262 months. The
district court indicated that were this court to hold on appeal that the obstruction-of-
justice enhancement should have been applied, the district court would, in the
alternative, vary downward “not down to 210 but down to something close to 210”
based on the non-threatening nature of the obstruction. Id. at 25.

       The district court then proceeded to hear evidence in support of a downward
variance. Brinton introduced evidence of her positive activities while in prison after
her original sentencing, as well as supportive letters from her family. Brinton also
cited the relatively low sentences received by others in the same conspiracy who
played more significant roles than Brinton. The district court varied downward to 160
months, citing the need to avoid unwarranted disparity with the 180-month sentence
imposed on the “kingpin” of the operation, Raul Canales, Sr. The district court also
stated that if that ground for variance was overturned on appeal, it instead would vary
downward to 180 months based on Brinton’s uncredited cooperation and lack of
criminal history.



                                          -4-
        By the time of McMannus’s resentencing, he had already discharged his
originally pronounced 24 months’ imprisonment by completing a six-month Intensive
Confinement Center or “boot camp” program followed by almost eight months at a
halfway house.3 At the resentencing hearing, the parties agreed that the advisory
guidelines range was 57 to 71 months. McMannus reintroduced his exhibits from the
original sentencing proceeding. He then presented testimony from probation officer
Sandra Dodge, who supervised him during his original pretrial release and after his
release from the halfway house. Dodge testified that McMannus passed all his
urinalysis drug testing and found employment during his pretrial release. She then
testified at length regarding his exemplary conduct since the first sentencing, noting
his full-time employment after his release. She opined that, based on his post-
sentence rehabilitation, further prison time would not “help [McMannus] any or help
society.” McMannus Resent. Tr. at 8. On cross-examination by the Government,
Dodge stated that she also based her opinion on McMannus’s behavior “prior to going
to prison” and her “years of being a probation officer.” Id. at 9.

        McMannus next presented testimony from Steven Korger, a residential officer
at the halfway house. Korger also met McMannus before his first sentencing because
McMannus had reported to the halfway house for some of his urinalysis testing during
pretrial release. Korger stated that while McMannus was on pretrial release, he
complied with program requirements, was employed by an employer that usually did
not hire from the halfway house and was enrolled in community college. Korger then
testified at length about McMannus’s positive post-sentencing impact on the
community and concluded that returning McMannus to prison would have a “very


      3
       See 18 U.S.C. § 4046 (giving the Bureau of Prisons discretion to adjust the
term and conditions of incarceration of inmates who complete a “shock incarceration
program”); Castellini v. Lappin, 365 F. Supp. 2d 197, 199 (D. Mass. 2005) (“A shock
incarceration program is based upon an inmate serving a shorter, but more arduous,
term.”). The Bureau of Prisons has since discontinued the boot camp program. See
United States v. Fason, 2006 WL 751282 (E.D. Ark. Mar. 21, 2006).

                                         -5-
negative impact on his recovery program.” Id. at 15. On cross-examination, Korger
admitted that his “in-depth” contact with McMannus began post-sentencing. Id. at 18.

       McMannus’s uncle, Troy Deal, testified that McMannus stopped using drugs
after his arrest in 2001, that McMannus had developed a bond with Deal’s daughter
that would be damaged if he returned to prison, and that McMannus graduated from
community college while on pretrial release. McMannus’s step-father also testified
to his rehabilitation. Finally, probation officer Stacy Koolstra recommended no
further prison time as well, based on all the above-mentioned factors plus
McMannus’s uncredited cooperation with investigators.

        The district court pronounced a sentence of 24 months’ imprisonment, identical
to McMannus’s original sentence. The district court found that, because of the new
evidence introduced during the resentencing hearing, this court’s previous opinion did
not preclude the district court from pronouncing a term of imprisonment identical to
the one vacated previously as unreasonable. The district court stated that it considered
McMannus’s post-sentencing conduct in determining the extent of the variance, but
it also stated that it would pronounce the same sentence even if it had not considered
that conduct. Finally, the district court clarified that it was not considering
McMannus’s uncredited cooperation as a factor in the variance, because the district
court recognized that the cooperation already had been considered in granting
McMannus’s safety-valve reduction.

II.   DISCUSSION

      A. Brinton

       The Government argues that the district court erred in rejecting the obstruction-
of-justice enhancement for Brinton. “We review de novo a sentencing court’s
determination that section 3C1.1 applies to specific conduct, but we review for clear

                                          -6-
error the court’s factual findings.” United States v. Hare, 49 F.3d 447, 453 (8th Cir.
1995) (quoting United States v. McCoy, 36 F.3d 740, 742 (8th Cir. 1994)). Section
3C1.1 applies if “the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of conviction . . . .” U.S.S.G.
§ 3C1.1. In this case, Brinton stipulated that she told her daughter to withhold
information regarding Brinton’s involvement in the criminal enterprise from
investigators. The district court accepted the factual basis of the stipulation but
determined that § 3C1.1 did not apply to this specific conduct. Therefore, our review
is de novo.

         We note that Brinton did not challenge the obstruction-of-justice enhancement,
as it would have been a breach of her plea agreement to do so; the district court raised
the issue sua sponte. The district court, citing the Fifth Amendment, held that the
enhancement should not apply where a mother simply advises her daughter to remain
silent about criminal activity. However, the stipulation states that Brinton, “after
being approached by law enforcement and knowing that there was an investigation in
this matter,” attempted to influence her daughter not to reveal Brinton’s involvement
in the criminal enterprise to law enforcement: “[Brinton] told her to not tell law
enforcement anything about the defendant’s [i.e., Brinton’s] involvement in drug
distribution and about defendant’s [i.e., Brinton’s] utilization of her juvenile daughter
in the distribution of controlled substances.” Brinton Plea Agreement ¶ 34F
(emphases added). In other words, the stipulation demonstrates not advice to the
daughter to keep silent to protect herself, but instructions to the daughter to conceal
Brinton’s involvement in the illegal activity, including Brinton’s use of a juvenile,
from investigators. This specific conduct certainly qualifies as an “attempt[] to
obstruct or impede . . . the administration of justice with respect to the investigation
. . . of the instant offense of conviction . . . .” § 3C1.1.

      The district court also relied on the absence of any evidence of threats or
intimidation in the stipulation. The commentary to § 3C1.1 provides a “non-

                                          -7-
exhaustive list of examples” of applicable obstructive conduct including “(a)
threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness,
or juror, directly or indirectly, or attempting to do so.” § 3C1.1 cmt. n.4. Because the
list of examples is non-exhaustive, the district court erred to the extent it held that
evidence of overt threats or intimidation is required in order to apply the enhancement.
See, e.g., United States v. Holland, 884 F.2d 354, 358-59 (8th Cir. 1989) (affirming
application of the enhancement where the “defendant requested a co-defendant not to
mention the involvement of two individuals when making statements to law
enforcement officials”). We conclude that the district court erred in not applying the
§ 3C1.1 two-level enhancement for obstruction of justice to the stipulated conduct.

       An error in the advisory guidelines calculation requires remand unless the error
is harmless. United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005) (citing 18
U.S.C. § 3742(f)(1)). A district court’s pronouncement of an alternative sentence may
allow for such a finding of harmless error. United States v. Icaza, Nos. 06-
2882/2883/3003, slip op. at 7 (8th Cir. Jul. , 2007). “[T]o support a finding of
harmless error, the record clearly must show not only that the district court intended
to provide an alternative sentence, but also that the alternative sentence is based on an
identifiable, correctly calculated guidelines range.” Id. at 8. In this case, the district
court stated that were this court to hold on appeal that the obstruction-of-justice
enhancement should have been applied, the district court would, in the alternative,
vary downward “not down to 210 but down to something close to 210” months based
on the non-threatening nature of the obstruction. Brinton Resent. Tr. at 25. This
statement, while suggesting an intent to pronounce an applicable alternative sentence,
does not indicate precisely what the variance based on the non-threatening nature of
the obstruction would have been. Moreover, it is unclear whether the district court
would have increased the portion of the downward variance based on other factors to
arrive at the same 160-month sentence. Because we have no specific alternative
sentence to review, we must vacate Brinton’s sentence based on the advisory
guidelines calculation error and remand for resentencing without reaching the
reasonableness of her sentence. See Mashek, 406 F.3d at 1017.

                                           -8-
      B.   McMannus

        McMannus received a downward variance from an advisory guidelines range
of 57 to 71 months to a sentence of 24 months, a 58 percent reduction, equivalent to
a decrease of eight offense levels. The Government argues that the district court erred
in relying on evidence of McMannus’s post-sentencing rehabilitation at the
resentencing hearing. Where this court vacates a sentence and remands for
resentencing, the district court upon resentencing may “hear any relevant evidence
that it could have heard at the first sentencing hearing.” United States v. Jenners, 473
F.3d 894, 899 (8th Cir. 2007). “However, evidence of . . . post-sentencing
rehabilitation is not relevant and will not be permitted at resentencing because the
district court could not have considered that evidence at the time of the original
sentencing.” Id.

        In McMannus’s case, the district court heard extensive and compelling
evidence about McMannus’s post-sentencing rehabilitation and admittedly relied on
that evidence in pronouncing his new sentence. McMannus Resent. Tr. at 65, 72.
Because the district court gave significant weight to McMannus’s post-sentencing
rehabilitation, an impermissible factor, we must vacate McMannus’s sentence and
remand for resentencing. See United States v. Bonahoom, 484 F.3d 1003, 1006 (8th
Cir. 2007) (“A sentencing court abuses its discretion if it fails to consider a relevant
factor that should have received significant weight, gives significant weight to an
improper or irrelevant factor, or considers only the appropriate factors but commits
a clear error of judgment in weighing those factors.”) (quotation omitted).

      The district court also announced that it would impose the same sentence on
McMannus even had it not considered the evidence related to his post-sentencing
rehabilitation. McMannus Resent. Tr. at 72. However, any harmless error analysis is
precluded because the record on resentencing (excluding the impermissible evidence
of post-sentencing rehabilitation) is substantially identical to the record at


                                          -9-
McMannus’s first sentencing.4 A panel of this Court has already held that a 24-month
sentence is unreasonable based on that record. See McMannus, 436 F.3d at 875.
Therefore, a 24-month sentence on the same record cannot be affirmed by a new
panel. See United States v. Collins, 321 F.3d 691, 698 n.5 (8th Cir. 2003). We
reiterate the prior panel’s holding that, while a downward variance from the advisory
guidelines range certainly may be warranted, the 58 percent or eight-level reduction
pronounced by the district court is unreasonable on this record. Cf. United States v.
Jensen, Nos. 06-2284/2497, slip op. at 5 (8th Cir. June 28, 2007) (“A reduction of six
guideline ranges is significant in the context of an advisory guideline system where
the degree of most aggravating and mitigating adjustments is two, three, or four
offense levels.”).

III.   CONCLUSION

     We hold that the district court erred in not including an obstruction-of-justice
enhancement in Brinton’s advisory guidelines calculation and in giving significant

       4
        With regard to the permissible factors in the resentencing record that might
justify a downward variance, the record at the first sentencing already established that
McMannus quit using drugs after his first arrest in 2001, McMannus Sent. Tr. at 6;
that he put himself through community college while on pre-trial release, id. at 6, 8;
that he was employed while on pretrial release and was highly commended by his
employer, McMannus PSIR ¶ 69; that he was a “model” citizen while on pretrial
release and never failed a urinalysis drug test, McMannus Sent. Tr. at 6; and that he
cooperated to some extent, but not enough to merit a substantial assistance motion, id.
at 11.

       While the probation officers’ opinion testimony at the resentencing hearing had
not been presented at McMannus’s first sentencing, the record reflects that those
opinions also were based for the most part on the officers’ observations of
McMannus’s post-sentencing rehabilitation. While it is difficult not to be swayed by
McMannus’s post-sentencing rehabilitation successes, allowing this evidence to
influence his sentence would be grossly unfair to the vast majority of defendants who
receive no sentencing-court review of any positive post-sentencing rehabilitative
efforts.

                                         -10-
weight to evidence of McMannus’s post-sentencing rehabilitation. Accordingly, we
vacate the sentences of Brinton and McMannus and remand to the district court for
resentencing.

MELLOY, Circuit Judge, with whom SMITH, Circuit Judge, joins, concurring.

       Based on current Eighth Circuit precedent, I concur in the judgment in this case.
As to appellee Sheri Brinton, I concur fully in the analysis and discussion by the
majority. As to appellee Patrick James McMannus, I agree that our prior decision in
this case, United States v. McMannus, 436 F.3d 871 (8th Cir. 2006), has previously
determined that absent consideration of post-sentencing rehabilitation, the sentence
of twenty-four months was outside the range of reasonableness. There is nothing I can
see in the record, other than post-sentencing rehabilitation, that was not before the
circuit panel in the previous McMannus appeal. If we must exclude any consideration
of post-sentencing rehabilitation, as the majority rightly notes we must under current
circuit precedent, then the unreasonablenss of a twenty-four month sentence has
already been determined by a prior panel of this court.

       My concern with this case, and the reason for my concurrence, is the binding
precedent upon which the McMannus decision rests, that is, the inability to consider
post-sentencing rehabilitation. I would join the Third Circuit and hold that post-
sentencing rehabilitation is not normally relevant, however, there are exceptional
cases in which it may be considered. United States v. Lloyd, 469 F.3d 319, 325 (3rd
Cir. 2006); see also, United States v. Butler, 221 Fed. Appx. 616, 617 (9th Cir. 2007)
(unpublished). I would also find that this is such an exceptional case and that if we
could consider post-sentencing rehabilitation, the sentence in this case would be
reasonable. The majority has outlined the post-sentencing rehabilitation testimony
and characterizes the evidence the district court heard as “ . . extensive and compelling
. . .” ante at 9. While I do not disagree with the concept that post-sentencing
rehabilitation should not normally be considered because of the potential windfall to
those defendants who are the beneficiaries of resentencings, I also do not believe that


                                          -11-
we should have a rule that never allows an experienced district judge to consider that
evidence. Certainly, such evidence is valuable in a case such as this where the post-
sentencing rehabilitation not only involves conduct while incarcerated, but exceptional
performance while in a half-way house and then following release to the community.
Both the state probation officer who supervised Mr. McMannus in the half-way house
and the federal probation officer who is currently supervising him on supervised
release testified to his exceptional conduct.

       In assessing at least three of the Section 3553(a) factors, deterrence, protection
of the public and rehabilitation, 18 U.S.C. § 3553(a)(2)(B)(C) & (D), there would
seem to be no better evidence than a defendant's post-incarceration conduct. In an
exceptional case, such as this, I would permit the district court to consider that
evidence in fashioning a reasonable sentence.
                         ______________________________




                                          -12-
