* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 5 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RANDY BUTLER, Defendant-Appellant. No. 97-3148 (D.C. No. 96-CR-20075) (D. Kan.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.-2-

Randy Butler pled guilty to conspiracy to distribut e more than 100 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and was sentenced to 45 months imprisonment. On appeal, Mr. Butler cont ends the district court violated the ex post facto clause by applying the 1 991 amended version of U.S.S.G. § 4A1.2 application note three in computin g his criminal history. We disagree and affirm. In calculating a defendant’s criminal history, the sentencing guidelines instruct that “[p]rior sentences imposed in unrelat ed cases are to be counted separately,” while “[p]rior sentences imposed in re lated cases are to be treated as one sentence.” U.S.S.G. § 4A1.2(a)(2). Applicatio n note three to section 4A1.2 further defines “related” and “unrelated” cases. T his provision was amended, effective November 1, 1991, to state:

Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e. , the defendant is arrested for the first offense p rior to committing the second offense). Otherwise, prio r sentences are considered related if they resulted f rom offenses that (1) occurred on the same occasion, (2 ) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing. U.S.S.G. § 4A1.2, comment. (n.3). Before the 1991 amendment, application note three did not contain any “intervening arrest” lang uage and prior sentences were considered related if the offenses fulfilled one of the three grounds set forth above regardless of whether there had been an intervening arrest.-3-

Mr. Butler and several co-defendants were indicted on a charge of conspiracy to distribute marijuana from October 1, 1995 through November 8, 1996, to which Mr. Butler pled guilty. This was no t Mr. Butler’s first conviction for a drug-related offense. On March 25, 1990, state law enforcement officials arrested Mr. Butler for possession of over 30 kilog rams of marijuana at the Kansas City International Airport. Mr. Butler was released on bond for this arrest and the very next day federal law enforcement offic ials arrested him for marijuana he had delivered via Federal Express. At the sentencing hearing in the present case, the district court applied the 1991 amended version of U.S.S.G. § 4A1.2, counting Mr. Butler’s prior convictions for marijuana as two separate offenses since they were separated by an intervening arrest. As a result, with at least two prior felony convictions involving controlled substances, Mr. Butler qualifi ed as a career offender. See U.S.S.G. § 4B1.1. Mr. Butler’s criminal history category was therefore set at category VI which, together with his base offense l evel of fifteen, placed him in a sentencing range of 41 to 51 months. The court imp osed a 45-month sentence. Mr. Butler contends the court should have applied t he pre-1991 standard for related cases and treated his prior convictions as one sentence, placing him in a1 Mr. Butler has sought leave to amend his brief to a ssert that he should be

placed in a criminal history category lower than category IV, which is the category he asserted entitlement to in his initial brief. Because we conclude here that Mr. Butler is not entitled to anyreduction in his present criminal history category, further briefing is unnecessary. -4- lower criminal history category and drastically red ucing his sentencing range. 1 We review a district court’s factual findings for c lear error, but we review de novo questions of law regarding the interpretation of the sentencing guidelines.
See United States v. Wilson , 41 F.3d 1403, 1404 (10th Cir. 1994). Ordinarily a sentencing court must apply the guidel ines that are in effect on the date the defendant is sentenced. See 18 U.S.C. § 3553(a)(4)(A); United States v. Gerber , 24 F.3d 93, 95 (10th Cir. 1994). However, the expost facto clause, “bars the sentencing court from retroactively apply ing an amended guideline provision when that amendment disadvantages the def endant.” Id. (internal quotations and citation omitted). Thus, when an am ended guideline provision takes effect after the defendant commits the curren t offense of conviction and would increase the punishment for that offense, “we apply the guidelines section in effect at the time of the offense conduct.” Uni ted States v. Smith , 930 F.2d 1450, 1452 & n.3 (10th Cir. 1991); see also United States v. Rivers , 50 F.3d 1126, 1129 (2d Cir. 1995); Gerber , 24 F.3d at 96. It is undisputed that the version of application note three in effect at the time Mr. Butler was involved in the marijuana conspiracy was the same as the one in effect at the time of his2 The cases on which Mr. Butler relies, United State s v. Rivers , 50 F.3d

1126 (2d Cir. 1995); United States v. Lindholm , 24 F.3d 1078 (9th Cir. 1994); United States v. Bishop , 1 F.3d 910 (9th Cir. 1993), do not support his po sition. In all three cases, in contrast to the situation he re, the 1991 amendment to application note three went into effect after the d efendant committed the instant offense of conviction, and therefore the courts hel d the pre-1991 version of the (continued...) -5- sentencing. The sentencing court here clearly did not apply amended application note three to an offense committed before its enact ment. Mr. Butler nevertheless asserts that the court shou ld have applied the pre1991 version of the guidelines because the amended provision went into effect after he committed his priorconvictions for marijuana in March 1990. The Eighth Circuit summarily rejected this argument as “implausible.” United States v. Strange , 102 F.3d 356, 362 & n.8 (8th Cir. 1996). We agr ee. As we have stated, the underlying purpose of the ex post facto clause is to “restrain legislatures and courts from arbitrary and vindicti ve action and to prevent prosecution and punishment without fair warning.” Gerber , 24 F.3d at 96 (internal quotations and citation omitted). At the time Mr. Butler committed the instant offense, he had more than adequate warning that under the 1991 amended version of the guidelines his prior sentences wouldbe treated as two separate offenses for purposes of calculating his criminal h istory. “Consequently, he cannot seriously suggest that he should be the bene ficiary of the pre-1991 Guidelines.” Strange , 102 F.3d at 362. 22 (...continued)

guidelines should have been applied. See Rivers , 50 F.3d at 1129; Lindholm , 24 F.3d at 1082, 1087; Bishop , 1 F.3d at 912. -6- AFFIRMED. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge