                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-1161
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                            Quentin Leeaaron Tidwell

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                           Submitted: January 11, 2016
                              Filed: July 1, 2016
                                ____________

Before LOKEN, GRUENDER, and KELLY, Circuit Judges.
                          ____________

LOKEN, Circuit Judge.

       Quentin Tidwell pleaded guilty to a February 2012 charge that he conspired to
distribute more than 280 grams of crack cocaine. The mandatory minimum sentence
for that offense is 120 months in prison. See 21 U.S.C. § 841(b)(1)(A)(iii). At his
February 20, 2013, sentencing, the district court1 determined that Tidwell’s advisory
guidelines range was 135 to 168 months and sentenced him to 135 months in prison.
In October 2013, the government filed a motion to reduce Tidwell’s sentence below
the 120-month mandatory minimum due to substantial assistance he provided after
sentencing. See Fed. R. Crim. Pro. 35(b)(4). The district court granted the 30%
reduction recommended by the government and reduced Tidwell’s sentence to 94
months in prison.

        In February 2014, Tidwell filed a 28 U.S.C. § 2255 motion to vacate his
sentence, alleging that the district court committed procedural sentencing error when
it assigned three criminal history points to a 1992 conviction because the conviction
fell outside the 15-year limitation period in U.S.S.G. § 4A1.2(e). After a thorough
inquiry, the district court agreed, vacated Tidwell’s sentence, and ordered
resentencing under § 2255 on a date after November 1, 2014, the effective date of
Sentencing Guidelines Amendment 782, which would retroactively lower Tidwell’s
base offense level by two levels if Congress did not disapprove. See United States
v. Thomas, 775 F.3d 982, 982-83 (8th Cir. 2014).

       A revised PSR, prepared prior to the January 2015 resentencing, reduced
Tidwell’s base offense level consistent with Amendment 782, did not assign criminal
history points for his 1992 conviction, but did assign three points for a September
2013 Arkansas conviction for possession with intent to deliver ecstasy and cocaine,
firearm offenses, and misdemeanor animal cruelty, charges arising from Tidwell’s
February 16, 2012, arrest. At the resentencing hearing, the main issue was whether
criminal history points should be assessed for this 2013 conviction. The district court
concluded the conviction counted, granted the government’s renewed motions for a



      1
       The Honorable D.P. Marshall, Jr., United States District Judge for the Eastern
District of Arkansas.
                                         -2-
substantial assistance reduction,2 applied the same 30% reduction to the bottom of
Tidwell’s revised guidelines range, and resentenced him to 84 months in prison.
Tidwell appeals the revised sentence, arguing the district court committed procedural
sentencing error in counting the 2013 conviction as a “prior sentence” under
§ 4A1.2(a)(1). We affirm.

       On appeal, Tidwell argues, as he did in the district court, that the 2013
conviction should not be counted for two reasons: (1) it was imposed after his
original sentencing, and (2) the conduct underlying that conviction was relevant
conduct to the drug conspiracy offense of conviction. On the first issue, the
government argues the district court correctly applied Pepper v. United States, 562
U.S. 476 (2011), in concluding that a conviction imposed after the original sentencing
but before resentencing may be taken into account. On the second issue, the
government concedes that the firearm and drug-trafficking conduct underlying
Tidwell’s 2013 conviction was relevant conduct but argues the misdemeanor animal
cruelty conviction “had nothing to do with the conspiracy indictment” and should
have been assessed two criminal history points. The government also argues that any
procedural error was harmless because the 120-month mandatory minimum was
greater than the maximum of the revised advisory range Tidwell urges, and therefore
“the mandatory minimum sentence of 120 months was the guidelines sentence, and
thus the appropriate point from which to depart downward” for his substantial
assistance. United States v. Diaz, 546 F.3d 566, 568 (8th Cir. 2008), applying
U.S.S.G. § 5G1.1(b).

      The district court rejected Tidwell’s contentions, concluding that Pepper
authorized looking “anew” at Tidwell’s criminal history, including a post-original-

      2
       Because the court vacated Tidwell’s original sentence and conducted a de
novo resentencing, the government needed to file pre-sentence substantial assistance
motions under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), rather than renew its prior
post-sentence Rule 35(b)(4) motion.
                                         -3-
sentencing conviction. The court found that Tidwell’s conduct underlying the 2013
conviction was not relevant conduct because it involved different drugs and occurred
after the end of the drug conspiracy alleged in the indictment. The court determined
that 30% was an appropriate reduction for Tidwell’s substantial assistance. See
United States v. Williams, 474 F.3d 1130, 1131 (8th Cir. 2007) (a sentence below the
mandatory “minimum must be based exclusively on assistance-related
considerations”). Applying the 18 U.S.C. § 3553(a) sentencing factors, the court
determined that it would depart from the bottom of the revised guidelines range.
Relying on Diaz, it concluded that the 120-month mandatory minimum was the
lowest possible starting point. The court therefore imposed an 84-month sentence,
30% below the 120-month mandatory minimum.

       (1) We have not previously considered whether a district court may include a
conviction imposed after initial sentencing in determining a defendant’s criminal
history category at his resentencing. Tidwell urges us to follow the First Circuit’s
reasoning in United States v. Ticchiarelli, 171 F.3d 24 (1st Cir.), cert. denied, 528
U.S. 850 (1999). In that case, the First Circuit vacated the initial sentence and
remanded for resentencing. On remand, the district court considered a conviction
imposed during the intervening period to be a “prior sentence” under U.S.S.G.
§ 4A1.2(a)(1). The First Circuit reversed. Tidwell relies on the Court’s statement
that “the most sensible reading is that the guidelines’ reference to ‘prior sentence’
means, in this context, a sentence which is prior to the original sentence which was
vacated and remanded only for resentencing.” Id. at 35.

       We decline to apply this reasoning because the “context” in this case is
distinguishable. Tidwell was not resentenced on remand from this court. Rather, the
district court granted him a de novo resentencing as post-conviction relief under 28
U.S.C. § 2255. The First Circuit’s reasoning was based in part on its restrictive
“mandate rule.” Ticchiarelli, 171 F.3d at 35. We take a less restrictive approach in
construing the scope of our mandate when we remand for resentencing. See United

                                         -4-
States v. Pepper, 570 F.3d 958, 963-64 (8th Cir. 2009), aff’d on this ground, rev’d on
other grounds, Pepper, 562 U.S. at 506-07. Even more significantly, when a
resentencing is not the result of an appellate court remand, “a district court
proceeding under § 2255 may vacate the entire sentence so that the district court can
reconfigure the sentencing plan to satisfy the sentencing factors in 18 U.S.C.
§ 3553(a).” United States v. Parker, 762 F.3d 801, 806 (8th Cir. 2014) (quotation and
alterations omitted). Finally, Ticchiarelli was decided in the mandatory guidelines
era. Under the advisory guidelines regime now in place, even if Tidwell’s 2013
conviction was not a “prior sentence” for purposes of § 4A1.2(a)(1), the district court
could “justify an increased sentence by affirmatively identifying relevant conduct or
events that occurred subsequent to the original sentencing proceedings.” Pepper, 562
U.S. at 504 (quotation omitted).

       In conducting the de novo resentencing, the district court applied the guidelines
in effect at the time of resentencing, not at the time of the original sentencing. This
was clearly correct. See 18 U.S.C. § 3553(a)(4)(A)(ii); United States v. Polanco, 53
F.3d 893, 898 (8th Cir. 1995), cert. denied, 518 U.S. 1021 (1996).3 At that time,
Tidwell’s 2013 conviction was plainly a “prior sentence,” that is, “a sentence imposed
prior to sentencing on the instant offense.” U.S.S.G. § 4A1.2, comment. (n.1); see
United States v. Flowers, 995 F.2d 315, 317 (1st Cir. 1993) (Breyer, J.) (“in
calculating criminal history . . . the Guidelines do not focus on when the crimes were
committed. . . . They make no exception for a prior sentence imposed for a crime that
took place after the crime currently before the sentencing judge.”). Thus, there was
no procedural error in counting the 2013 conviction as a prior sentence under
§ 4A1.2(a)(1).

      3
       In the 2003 PROTECT Act, Congress enacted 18 U.S.C. § 3742(g)(1), which
provides “that when re-sentencing after appellate remand, a district court should
apply the Guidelines that were in place prior to the appeal.” United States v. Bordon,
421 F.3d 1202, 1205 (11th Cir. 2005). However, this limited exception to
§ 3553(a)(4) does not apply to a district court’s de novo resentencing under § 2255.
                                          -5-
       (2) “When calculating criminal history points, a sentencing court is to consider
‘any sentence previously imposed . . . for conduct not part of the instant offense,’
defined as conduct other than ‘relevant conduct’ under U.S.S.G. § 1B1.3.” United
States v. Pinkin, 675 F.3d 1088, 1090 (8th Cir. 2012), quoting U.S.S.G. § 4A1.2(a)(1)
& comment. (n.1). “We review ‘prior sentence’ and ‘relevant conduct’
determinations for clear error, remembering that such a determination is fact-intensive
and well within the district court’s sentencing expertise and greater familiarity with
the factual record.” United States v. Hernandez, 712 F.3d 407, 409 (8th Cir. 2013)
(quotation omitted).

       Tidwell argues that the conduct underlying his 2013 conviction was relevant
conduct because it “occurred around the same time as the offense of conviction,”
included drug and related firearm offenses, and nothing in the record “suggests a clear
stop date to the conspiracy.” But that is not the governing standard. Even when the
offense of conviction is a drug conspiracy, and a prior conviction was for a drug-
related offense committed during the conspiracy period, the question is whether the
prior conduct was a “severable, distinct offense,” and relevant factors include
“temporal and geographical proximity, common victims, common scheme, charge in
the indictment, and whether the prior conviction is used to prove the instant offense.”
Pinkin, 675 F.3d at 1091 (quotation omitted). Here, the indictment alleged a
conspiracy ending “on or about February 7, 2012,” the day before it was filed. The
Arkansas state offenses were committed on February 16. While there was temporal
and presumably geographical proximity, the federal indictment charged Tidwell with
four substantive drug distribution counts for conduct occurring between February
2010 and May 2011. This suggests that his February 2012 conduct was severable and
distinct. As this 2012 conduct occurred after the alleged conspiracy period, it clearly
was not “used to prove the instant offense.” And as the district court noted, the 2013




                                         -6-
conviction involved different drugs and “a time gap.” In these circumstances, there
was no clear error.4

       As we conclude the district court committed no procedural sentencing error in
counting the 2013 conviction as a “prior sentence” in determining Tidwell’s criminal
history category, we decline to consider the government’s alternative contention that
any error was harmless. We affirm the district court’s January 12, 2015, judgment.

KELLY, Circuit Judge, dissenting.

       The parties in this case negotiated a plea agreement in which they stipulated
to a two-level enhancement in Tidwell’s offense level “for possessing a dangerous
weapon in connection with the offense” pursuant to USSG § 2D1.1(b)(1). According
to the government, that enhancement was based on the firearms that were a subject
of Tidwell’s September 11, 2013, conviction. In other words, in negotiating the plea
agreement, the parties intended the firearms and drug trafficking conduct underlying
the 2013 conviction to be considered relevant conduct.5 At resentencing, Tidwell
received three criminal history points for the 2013 conviction. At the resentencing
hearing, the district court specifically asked the government whether the 2013
conviction was relevant conduct to the offense of conviction. The Assistant United
States Attorney who appeared on behalf of the government was filling in for the
Assistant United States Attorney who had prosecuted this case, and told the court it
was not. But that was not correct.

      4
       The government’s “concession” on appeal was ill-advised, and we give it no
consideration. The government ignored the clear error standard of review and our
well-established multi-factor standard for analyzing relevant conduct issues.
      5
       Tidwell was also convicted of misdemeanor animal cruelty on September 11,
2013. The government submits that this conviction was not contemplated as relevant
conduct under the plea agreement, but the district court did not resolve this factual
dispute.
                                         -7-
        The indictment in this case charged a conspiracy that occurred “through
February 7, 2012.” The 2013 conviction was based on conduct that occurred nine
days later, on February 16, 2012, the date on which Tidwell was arrested on the
federal charges. The parties expressly negotiated a plea agreement that included
relevant conduct occurring after the end date of the conspiracy, which they are free
to do. See United States v. Manzano-Huerta, 809 F.3d 440, 444 (8th Cir. 2016)
(“Plea agreements are contractual in nature, and are interpreted according to general
contract principles.”) (quoting Margalli-Olvera v. INS, 43 F.3d 345, 351 (8th Cir.
1994)). “When a guilty plea is induced by an agreement, the government must abide
by its terms.” United States v. Lovelace, 565 F.3d 1080, 1087 (8th Cir. 2009). To
count this conviction for purposes of calculating Tidwell’s criminal history category
at the resentencing risks violating USSG § 4A1.2(a)(1) and comment. (n. 1). I would
accept the parties’s agreement on this issue, because I think the record supports it.

        The district court considered the proper factors in determining whether the
2013 conviction was relevant conduct, but relied on misinformation in applying them.
When the district court granted Tidwell’s § 2255 motion and ordered resentencing,
it found the previous criminal history error (the one that warranted resentencing in the
first instance) was not harmless “because the Court can’t say how it would have
weighed the information or exactly what sentence it would have imposed.” Similarly,
I would give the district court the opportunity to decide what sentence it would
impose given the correct information about the terms of the original plea agreement
regarding relevant conduct. For these reasons, I respectfully dissent.
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