                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2271
                        ___________________________

                            United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                               Francisco Hernandez

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Nebraska - Omaha
                                ____________

                         Submitted: December 10, 2012
                             Filed: April 9, 2013
                                ____________

Before LOKEN, MELLOY, and COLLOTON, Circuit Judges.
                           ____________

LOKEN, Circuit Judge, with whom MELLOY, Circuit Judge, joins.

      Francisco Hernandez pleaded guilty to distributing more than five grams of
methamphetamine (actual) in violation of 21 U.S.C. § 841(a)(1) and (b)(1). He was
sentenced to 100 months in prison, the bottom of the advisory guidelines range.
Hernandez appeals, arguing the district court1 committed clear procedural sentencing
error when it assigned three criminal history points to a prior state drug conviction
because it was based on relevant conduct. Finding no clear error, we affirm.

       In November 2010, Omaha police officers stopped a vehicle driven by
Hernandez and found over twenty grams of methamphetamine. On March 11, 2011,
Hernandez accompanied an undercover federal agent and a third person to purchase
methamphetamine. The trio went to a residence in Omaha, where Hernandez was
handed the buy money, went into the residence, and returned with 34.65 grams of
actual methamphetamine for the undercover agent. On August 5, 2011, he pleaded
guilty to state charges for the November 2010 attempted distribution offense and was
sentenced by the state court to two to four years in prison. On August 24, 2011, based
on the March 2011 transaction, he was indicted for this federal offense, to which he
pleaded guilty on February 16, 2012.

      The Presentence Investigation Report (“PSR”) classified the 2011 state court
conviction as a “prior sentence” for purposes of U.S.S.G. § 4A1.1 and assigned it
three criminal history points. Hernandez objected and, at sentencing, presented
excerpts from an FBI agent’s affidavit supporting the assertion that, on both
occasions, Hernandez was acting as a “middle man” for the same supplier in order to
feed his longstanding methamphetamine addiction. Therefore, he contended, this
common “mode of operation” meant the prior offense was imposed for “relevant
conduct” and is not a “prior sentence.” The district court disagreed, explaining:


             [The indictment charged that] the defendant knowingly and
      intentionally distributed five grams or more of methamphetamine on
      March 11 of 2011. It’s not a conspiracy allegation covering any
      particular period of time.

      1
       The Honorable Laurie Smith Camp, Chief Judge of the United States District
Court for the District of Nebraska.

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             [The state conviction] deals with possession with intent to deliver
      methamphetamine on November 15 of 2010, four months earlier than the
      offense that gave rise to the charge in the indictment. So, it appears to
      me that those are separate and distinct acts that the defendant engaged in.
      . . . And because we are dealing with a charge that is simply one of
      distribution, five grams or more on a specific date, March 11, 2011, I do
      not consider the offense that took place on November 15 of 2010 to be
      relevant conduct under either the letter or the spirit of the guidelines.

       On appeal, Hernandez argues the November 2010 conduct underlying his state
court conviction was relevant conduct because it was “part of the same course of
conduct or common scheme or plan as the offense of conviction.” U.S.S.G.
§ 1B1.3(a)(2). The precise issue is whether the court erred in assigning criminal
history points to the 2011 state court drug conviction. Relevant conduct is more
commonly considered in determining a defendant’s base offense level. But Hernandez
is correct that the two issues overlap. “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. Boroughf, 649 F.3d
887, 890 (8th Cir. 2011) (quotation omitted); see Pinkin, 675 F.3d at 1091.

        As the district court recognized and Hernandez concedes, in determining under
§ 4A1.2(a)(1) whether a prior conviction should not be counted because it was
imposed for relevant conduct, “[c]onduct underlying a prior conviction is not relevant
to the instant offense if the former conviction was a ‘severable, distinct offense’ from
the latter.” United States v. Weiland, 284 F.3d 878, 881 (8th Cir. 2002) (citation
omitted). Factors we have consistently applied in reviewing this determination

                                          -3-
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).

       At issue here are two distinct distribution offenses that were committed four
months apart, uncovered during unrelated law enforcement operations, and charged
by two different jurisdictions. We have repeatedly affirmed district court findings that
prior drug possession offenses were “separate and distinct” when the conduct
underlying the prior conviction was neither alleged in the subsequent indictment nor
used to prove the offense of conviction. See Pinkin, 675 F.3d at 1091; United States
v. Ault, 598 F.3d 1039, 1041 (8th Cir. 2010); United States v. Davidson, 195 F.3d
402, 409 (8th Cir. 1999), cert. denied, 528 U.S. 1180 and 529 U.S. 1093 (2000);
United States v. Copeland, 45 F.3d 254, 256-57 (8th Cir. 1995). The district court did
not clearly err when it applied the proper standard and found that the 2011 state court
conviction was a “prior sentence” for criminal history purposes because it was
imposed for a “separate and distinct” offense.

      In arguing to the contrary, Hernandez relies on the relatively broad definitions
of “common scheme or plan” and “same course of conduct” in application note 9 to
U.S.S.G. § 1B1.3, which we have applied in reviewing base-offense-level findings in
cases such as United States v. Spence, 125 F.3d 1192, 1195 (8th Cir. 1997), cert.
denied, 523 U.S. 1087 (1998). Given the clear error standard of review, it is not
relevant whether we would have affirmed a contrary relevant conduct finding in an
appeal challenging the determination of Hernandez’s base offense level, and we do
not consider that question. Moreover, there are important differences in the context
in which the two issues arise that explain any apparent anomalies in our case law.

        When the issue is whether prior conduct should increase the base offense level,
it often involves uncharged conduct that will otherwise go unpunished. But when the
issue is whether a prior conviction was a “prior sentence” for criminal history

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purposes, the prior conduct has been punished; the question is the extent of
incremental punishment to impose in sentencing the offense of conviction. This case
well illustrates the distinction. Hernandez argued to the district court, as he does on
appeal, that the twenty grams of methamphetamine found in his possession in
November 2010 should be added to drug quantity in determining his base offense
level, but he should have three fewer criminal history points. Defense counsel
candidly explained to the district court that these offsetting adjustments would
produce the same advisory guidelines range of 100 to 125 months in prison.
However, the relevant conduct determination would make Hernandez eligible for a
downward departure crediting time served for the state offense under U.S.S.G.
§ 5K2.23. Hernandez also filed complementary motions for this downward departure,
and for a downward variance based on various mitigating circumstances.

       The district court overruled the criminal history objection, denied the motions
for a downward departure and a variance, and sentenced Hernandez to 100 months in
prison. Under the advisory guidelines, the district court had discretion to allow
Hernandez the sentence credit he was seeking either by sustaining his criminal history
objection and granting a downward departure, or by granting his alternative motion
for a variance. The court did not do so, no doubt because Hernandez’s extensive
criminal history (removing three criminal history points would reduce him from
Criminal History Category V to Category IV), and his refusal to stop drug trafficking
following the November 2010 arrest, demonstrated the need for this level of
incremental punishment. The overriding objective in making this type of sentencing
determination is “to achieve a reasonable punishment for the instant offense.”
U.S.S.G. §§ 5G1.3(c), 5K2.23. In these circumstances, the alleged procedural error
borders on being harmless error.

      The judgment of the district court is affirmed.




                                         -5-
COLLOTON, Circuit Judge, with whom MELLOY, Circuit Judge, joins, concurring
in the judgment.

       This appeal turns largely on the deferential “clear error” standard of review that
applies in this circuit to determinations of whether uncharged conduct is “part of the
instant offense” of conviction under the sentencing guidelines. E.g., United States v.
Boroughf, 649 F.3d 887, 890 (8th Cir. 2011). Uncharged conduct is “part of the
instant offense” for purposes of USSG § 4A1.2(a)(1) if the conduct “is relevant
conduct to the instant offense under the provisions of § 1B1.3.” See USSG § 4A1.2,
comment. (n.1). In this case, therefore, the question is whether Francisco Hernandez’s
attempted distribution of methamphetamine in November 2010 was part of the same
course of conduct, or common scheme or plan, as his distribution of
methamphetamine in March 2011. See USSG § 1B1.3(a)(2). As illustrated by United
States v. Spence, 125 F.3d 1192, 1195 (8th Cir. 1997), a finding by the district court
that the November 2010 conduct was part of Hernandez’s instant offense likely would
have survived appellate review. One course of conduct, or a single common scheme
or plan, can span several months, enter multiple jurisdictions, and encounter different
law enforcement operations.

       At the same time, I cannot say that the district court’s contrary conclusion—that
the November 2010 attempted distribution was not part of the same course of conduct
or common scheme as the March 2011 distribution—was clearly erroneous, that is,
a finding that leaves the court with “the definite and firm conviction that a mistake has
been committed.” See Anderson v. City of Bessemer City, 470 U.S. 564, 573-74
(1985) (internal quotation omitted). Hernandez’s argument is stronger, in one respect,
than those of the defendants in cases where this court held that simple possession or
use of drugs or drug paraphernalia was not part of the same course of conduct or
common scheme as a drug trafficking or manufacturing offense. E.g., United States
v. Pinkin, 675 F.3d 1088, 1090-91 (8th Cir. 2012) (affirming finding that marijuana
possession offense was not part of the instant offense of conspiring to distribute

                                          -6-
cocaine); United States v. Ault, 598 F.3d 1039, 1041-42 (8th Cir. 2010) (conviction
for use of drug paraphernalia was not part of conspiracy to manufacture
methamphetamine); United States v. Nastase, 329 F.3d 622, 623-24 (8th Cir. 2003)
(marijuana possession offense was not part of conspiracy to distribute
methamphetamine offense); United States v. Davidson, 195 F.3d 402, 409 (8th Cir.
1999) (“[S]imple possession of an amount of methamphetamine consistent with
personal use is not in itself preparation or furtherance of a conspiracy to manufacture
methamphetamine.”). Here, both offenses involved trafficking of the same controlled
substance (methamphetamine), and Hernandez contends that he received the drugs
involved in both offenses from the same drug supplier.

       But there was a four-month break between Hernandez’s offenses, cf. Davidson,
195 F.3d at 409, and the record included no evidence of intervening activity that
convincingly linked the two offenses in a single course of conduct or common
scheme. True, we did not require such an intervening link to affirm a finding of
relevant conduct in Spence, but that, too, was a close judgment call. A reasonable
sentencing judge could find that the evidence here established distinct transactions
that were not sufficiently connected to be part of the same offense. See United States
v. Darmand, 3 F.3d 1578, 1582 (2d Cir. 1993). One might think that whether conduct
is “part of the instant offense” is a question of law that should be reviewed de novo
to ensure uniform treatment, see United States v. Dozier, 555 F.3d 1136, 1139 (10th
Cir. 2009), but our circuit precedent forecloses that approach.2

      2
        Part of the district court’s explanation suggests that the court might have
thought mistakenly that Hernandez’s prior conduct was not “part of the instant
offense” because the instant offense was a substantive count of distribution that
occurred on a single date rather than a conspiracy to distribute that occurred over time.
S. Tr. 8-9. Even when a defendant is charged only with a substantive drug trafficking
count, the guidelines provide that an uncharged conspiracy is relevant conduct to a
substantive offense that is part of the conspiracy. See USSG § 1B1.3(a)(1)(B) &
comment. (n.2); United States v. Bennett, 708 F.3d 879, 888-90 (7th Cir. 2013). The
district court, however, also cited the fact that Hernandez’s offenses were “separated

                                          -7-
       I do not join the suggestion, however, that “differences in . . . context,” ante,
at 4, may allow sentencing courts to apply different standards for determining the
scope of the “instant offense” when calculating, respectively, a criminal history
category under § 4A1.2 and a base offense level under § 2D1.1. The same legal
standard of USSG § 1B1.3 and “relevant conduct” applies in both contexts. The
Sentencing Commission amended § 4A1.2 in 1993 to make this clear. The original
version of § 4A1.2 did not define when uncharged conduct is “part of the instant
offense,” see United States v. Blumberg, 961 F.2d 787, 792 (8th Cir. 1992) (applying
a “severable, distinct offense” standard), but the 1993 amendment specified that
“[c]onduct that is part of the instant offense means conduct that is relevant conduct to
the instant offense under the provisions of § 1B1.3 (Relevant Conduct).” The
Commission explained that “[t]his amendment expressly provides that the term ‘part
of the instant offense’ in § 4A1.2(a)(1) means relevant conduct as defined in § 1B1.3
(Relevant Conduct) to avoid double counting and ensure consistency with other
guideline provisions.” USSG App. C, amend. 493 (emphasis added). Since then, this
court has harmonized the pre-1993 “severable, distinct offense” standard with the
relevant conduct standard that applies under the amended guideline. Davidson, 195
F.3d at 409 (“Conduct resulting in a prior conviction is not relevant conduct to the
instant offense when it is a ‘severable, distinct offense.’”) (internal quotation omitted);
see Pinkin, 675 F.3d at 1090-91; United States v. Stone, 325 F.3d 1030, 1032 (8th Cir.
2003); United States v. Weiland, 284 F.3d 878, 881-82 (8th Cir. 2002); United States
v. Berry, 212 F.3d 391, 395 n.3 (8th Cir. 2000).

       Sentencing courts presented with a question under § 4A1.2(a)(1) should
consider carefully whether uncharged conduct that the government says is not part of
the instant offense for purposes of a defendant’s criminal history score would be



substantially in time,” S. Tr. 8, to support its finding that this case involved “separate
and distinct acts.” Id. at 3. The overall explanation does not establish that the district
court applied an erroneous legal standard.

                                           -8-
considered relevant conduct for purposes of the base offense level calculation under
§ 2D1.1 if the shoe were on the other foot. Disparity of treatment arising from a
deferential standard of review will be minimized if the sentencing courts apply a
consistent substantive standard in both contexts.
                       _______________________________




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