                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-3636
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Matthew M. Stone,                        *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: April 15, 2003

                                   Filed: April 21, 2003
                                    ___________

Before WOLLMAN, FAGG, and RILEY, Circuit Judges.
                          ___________

RILEY, Circuit Judge.

       Matthew M. Stone (Stone) pled guilty on October 20, 2000, to conspiracy to
manufacture and distribute methamphetamine in an amount of 100 grams or more in
violation of 21 U.S.C. §§ 841 and 846 (1994 & Supp. IV 1998). The presentence
report assigned Stone four criminal history points under U.S. Sentencing Guidelines
§ 4A1.1 (1998), resulting in a criminal history category of III. Finding category III
overstated the seriousness of Stone’s past criminal conduct, the district court departed
downward under U.S.S.G. § 4A1.3 to criminal history category I. The district court
also determined Stone was eligible for relief from the statutory mandatory minimum
sentence under the “safety valve” exception in U.S.S.G. § 5C1.2, and sentenced him
to 87 months imprisonment. We reversed and remanded for resentencing, holding
Stone was ineligible for relief under the safety valve exception because he had more
than one criminal history point. United States v. Stone, No. 01-3516, 2002 WL
1358791, at *1 (8th Cir. June 24, 2002) (unpublished) (citing U.S.S.G.
§ 5C1.2(a)(1)).

       On remand, the district court resentenced Stone to 121 months imprisonment
based on criminal history category II and the statutory mandatory minimum sentence
of ten years imprisonment. See 21 U.S.C. § 841(b)(1). Stone appeals, arguing the
district court erred by assessing three criminal history points because the underlying
conduct was “relevant conduct,” rather than criminal history. The government
disagrees and also contends Stone waived his right to appeal this issue in his plea
agreement and by his failure to raise the issue in the prior sentencing and appeal.

       “We review the district court’s factual determinations leading to the application
of a sentence enhancement for clear error and its legal conclusions de novo.” United
States v. Cave, 293 F.3d 1077, 1079 (8th Cir. 2002). Whether a conviction was
relevant conduct involves a fact intensive inquiry, an inquiry well within “the district
court’s sentencing expertise and greater familiarity with the factual record.” United
States v. Weiland, 284 F.3d 878, 882 (8th Cir. 2002).

       On June 2, 1997, Stone was convicted in state court of driving while
intoxicated on marijuana (DWI), for which he received a suspended sentence and two
years probation. In March 2000, an indictment charged Stone with, and he later pled
guilty to, a conspiracy to manufacture and distribute methamphetamine between June
1, 1996 and June 1, 1999. During the sentencing hearing, Stone testified that, at the
time of his DWI arrest, he was en route to obtain methamphetamine and marijuana
from a co-conspirator. The co-conspirator testified he and Stone manufactured
methamphetamine, but denied providing Stone with marijuana after the beginning of
1997. The district court determined Stone failed to prove by a preponderance of the

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evidence that the DWI was sufficiently related to the instant offense. The district
court assessed one criminal history point for the conviction and two additional points
because Stone was on probation for that conviction when he committed the instant
conspiracy. See U.S.S.G. § 4A1.1 (c)-(d). Based on an offense level of 31 and a
criminal history category of II, the district court sentenced Stone to 121 months
imprisonment, the lowest sentence in the range of 121-151 months.

       In Weiland, we held “drugs that are ‘part of the same course of conduct or
common scheme or plan’ of the conspiracy are to be counted as relevant conduct for
purposes of determining the base offense level. They are likewise to be considered
‘part of the instant offense’ when computing criminal history under the guidelines.”
Weiland, 284 F.3d at 882 (citing U.S.S.G. §§ 1B1.3(a)(2) and 4A1.2, cmt. n.1).
However, “[c]onduct resulting in a prior conviction is not relevant conduct to the
instant offense when it is a ‘severable, distinct offense.’” United States v. Davidson,
195 F.3d 402, 409 (8th Cir. 1999) (quoting United States v. Copeland, 45 F.3d 254,
256 (8th Cir. 1995)). Factors useful in determining whether the two offenses are
severable and distinct are temporal and geographical proximity, common victims,
common scheme, charge in the indictment, and whether the prior conviction is used
to prove the instant offense. Copeland, 45 F.3d at 256-57; see Weiland, 284 F.3d at
882. Stone contends the DWI occurred during the drug conspiracy, in the same
geographical location, and involved some of the same actors, and the marijuana was
used to “take the edge off the meth and for recreational use.”

       Stone argues his case is governed by Weiland. Weiland was charged with
conspiracy to distribute several drugs including marijuana and methamphetamine.
Weiland’s state court conviction for possession of marijuana was relevant conduct to
the conspiracy, that is distributing marijuana, and was “part of a common plan or
scheme.” Weiland, 284 F.3d at 882-84. In contrast, Stone’s offense conduct is
related to the manufacture and distribution of methamphetamine only. Neither the
distribution nor the possession of marijuana was included in Stone’s indictment. See

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Copeland, 45 F.3d at 256-57 (finding no clear error where firearm convictions were
severable and distinct because different firearms were used, the “prior incident was
not charged in the indictment as an act in furtherance of the drug conspiracy,” and it
was not part of the conduct of conspiring to distribute to which defendant pled
guilty). Moreover, the district court was unconvinced the DWI was in any way
related to the conspiracy to manufacture and distribute methamphetamine. We are
equally unconvinced.

      For the reasons stated above, the district court did not clearly err in finding
Stone’s convictions for conspiracy to manufacture and distribute methamphetamine
and for driving while intoxicated with marijuana were severable and distinct. The
government’s other arguments are, therefore, moot. We affirm.

      A true copy.

             Attest:

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




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