* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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.

** Honorable G. Thomas Van Bebber, Chief Judge, UnitedStates District Court for the District of Kansas, sitting by design ation.

UNITED STATES COURT OF APPEALS Filed 10/22/96 FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. CHARLES MICHAEL KISSICK,

Defendant-Appellant. No. 96-6108 (D.C. No. CIV-94-1428-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, ** District Judge.

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 p arties’ requests2 -2- to submit the case on the briefs are granted, and t he case is ordered submitted without oral argument. This case returns to this court following our reman d in United States v. Kissick , 69 F.3d 1048 (10th Cir. 1995)(Kissick) . In Kissick , defendant-appellant Charles Michael Kissick appealed the district court ’s denial of his motion to vacate, set aside, or correct his sentence pursuantto 28 U.S.C. § 2255. This court vacated the district court’s order and remanded forfurther proceedings. The facts in this case were set forth fully in Kiss ick , and only those necessary to this decision will be repeated here. In 1989, Mr. Kissick was convicted of conspiracy to distribute cocaine and thirteen counts of possession with intent to distribute and the distribution of c ocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Finding an offense level of thirty-six and a criminal history category of VI, the trial court sentenced M r. Kissick to 328 months’ imprisonment for count one and counts four through fourteen. On counts two and three the court sentenced him to ten-years’ impriso nment to run concurrently with the sentences on the other counts. Mr. Kissick’s c onviction was affirmed on appeal, and a subsequent motion to reduce sentence was denied. In 1994, Mr. Kissick filed his § 2255 motion allegi ng that (1) he should be resentenced under United States Sentencing Guidelin es (USSG) Amendment 4871 Amendment 487 amended USSG § 2D1.1(c) to clarify th e definition of

“cocaine base.” See Kissick , 69 F.3d at 1051-52. 3 -3- which became effective on November 1, 1993; 1 and (2) the trial court erred in sentencing him as a career offender. The district court denied the motion, and Mr. Kissick appealed. This court concluded that Amendment 487 was not lis ted in USSG § 1B1.10, listing specific amendments which may be applied retroactively to reduce a defendant’s sentence. Kissick , 69 F.3d at 1053. In order for an amendment not listed in USSG § 1B1.10 to be conside red for retroactive application the amendment must be “‘clarifying’” an d not substantive. Kissick , 69 F.3d at 1052 (quoting United States v. Capers , 61 F.3d 1100, 1109 (4th Cir. 1995), cert. denied , 116 S. Ct. 1830 (1996)). Because Amendment 487 w as not listed in USSG § 1B1.10, we applied certain factors to determine that the amendment was substantive and not subject to retroa ctive application. See Kissick , 69 F.3d at 1052-53. As to the trial court’s classification of Mr. Kissi ck as a career offender under USSG §§ 4B1.1 and 4B1.2, we determined that i t was unclear whether a 1986 Florida conviction for possession of cocaine c onstituted a “controlled substance offense” as defined in USSG § 4B1.2. Kis sick , 69 F.3d at 1056-57. This court thus held that counsel’s failure to chal lenge the Florida conviction at2 USSG § 4B1.2(2) defines a “controlled substance off ense” as “an offense under a federal or state law prohibiting the manufa cture, import, export, distribution, or dispensing of a controlled substan ce (or a counterfeit substance) or the possession of a controlled substance (or a c ounterfeit substance) with intent to manufacture, import, export, distribute, or disp ense.” The definition does not include simple possession. See Kissick , 69 F.3d at 1053-54 and n.3. 4 -4- Mr. Kissick’s sentencing constituted constitutional ly deficient representation. Further, when this deficient representation was coupled with the prejudice resulting from the enhanced sentence, we held that Mr. Kissick met the Strickland v. Washington , 466 U.S. 668 (1984) standard for establishing ine ffective assistance of counsel. Kissick , 69 F.3d at 1055-56. Because the record on appeal was lacking in evidenc e concerning Mr. Kissick’s Florida conviction, and because this conv iction had a significant impact on Mr. Kissick’s sentence, we remanded to the distr ict court for a determination of “whether the Florida conviction was for mere pos session of cocaine or whether it involved the additional elements required under USSG § 4B1.2 to constitute a ‘controlled substance offense.’” Kissick , 69 F.3d at 1057. 2We directed that if the Florida conviction was for simple possession, c ounsel’s ineffective assistance in failing to challenge the use of the conviction at Mr. Kissick’s sentencing hearing satisfied the cause and prejudice standard for procedural default, and Mr. Kissick would be entitled to resentencing. Id. We noted that “[a]s to any resentencing, . . . the district court ‘will be gov erned by the guidelines in effect at5 -5- the time of resentence.’” Id. (quoting United States v. Ziegler , 39 F.3d 1058, 1063-64 (10th Cir. 1994)). On remand, the district court determined that the F lorida offense was one for simple possession and should not have been usedto sentence Mr. Kissick as a career offender. At resentencing, counsel for Mr. Kissick argued that, in spite of this court’s ruling that Amendment 487 should not b e applied retroactively, the remand decision stated that the district court shou ld apply current guidelines at the time of resentencing and, therefore, the distri ct court should apply Amendment 487. The district court disagreed, interpreting the mandate in Kissick as a remand on the career offender issue only. Acc ordingly, the court resentenced Mr. Kissick to 262 months imprisonment on counts on e and four through fourteen and 120 months on counts two and three to run concu rrently. On appeal, Mr. Kissick asserts that the district co urt erred in refusing to apply the guidelines in effect at the time he was r esentenced. In addition to his contention that Kissickshould be interpreted to require the district court to apply Amendment 487, he also contends that the district c ourt should have considered his claims that twenty-eight grams of the cocaine w ere double counted at the original sentencing, and that his original sentence should not have been enhanced on a finding that he was a leader or an organizer o f a criminal activity involving five or more participants, see USSG § 3B1.1(a).6 -6- The threshold and ultimately dispositive question h ere concerns the proper interpretation of this court’s order vacating the d istrict court’s denial of Mr. Kissick’s § 2255 motion and remanding “for proceedi ngs consistent with this opinion.” Kissick , 69 F.3d at 1057. When the district court originally sentenced Mr. Ki ssick, he was classified as a career offender under USSG §§ 4B1.1 and 4B1.2. One of the prior felony convictions used to enhance his sentence as a caree r offender was a 1986 Florida conviction for possession of cocaine. “‘Simple pos session, as defined by 18 U.S.C. § 844 [sic], is not included in the list of crimes that constitute a controlled substance offense under the Career Offender provisi on’” Kissick , 69 F.3d at 1054 (quoting Hansen v. United States Parole Comm’n , 904 F.2d 306, 310 (5th Cir. 1990), cert. denied , 498 U.S. 1052 (1991)); see also United States v. Galloway , 937 F.2d 542, 549 (10th Cir. 1991). In Kissickthe record did not provide the basis for a definit ive conclusion regarding the elements of the Florida conviction. Kissick , 69 F.3d at 1056-57. If in fact the Florida conviction was for simple posse ssion, Mr. Kissick should not have been sentenced as a career offender. It was o n this basis alone that we vacated the district court’s order and remanded. S ee id. at 1057. Under 18 U.S.C. § 3553(a)(4), a sentencing court is generally required to apply the guidelines in effect at the time of sente ncing, unless to do so would run3 “‘[T]he mandate rule’: where the appellate court h as not specifically

limited the scope of the remand, the district courtgenerally has discretion to expand the resentencing beyond the sentencing errorcausing the reversal.” Moore , 83 F.3d at 1234 (citing United States v. Moored , 38 F.3d 1419, 1421 (6th Cir. 1994); United States v. Cornelius , 968 F.2d 703, 705 (8th Cir. 1992)). 7 -7- afoul of the Ex Post Facto Clause. United States v . Gerber , 24 F.3d 93, 95 (10th Cir. 1994). We have held this to apply to resenten cing as well. See Ziegler , 39 F.3d at 1063-64; United States v. Smith , 930 F.2d 1450, 1456 (10th Cir.), cert. denied , 502 U.S. 879 (1991). In United States v. Moore , 83 F.3d 1231, 1234 (10th Cir. 1996), this court held that “when a defe ndant’s sentence is vacated on appeal and remanded for new sentencing, the lower c ourt must begin anew with de novo proceedings.” See also United States v. Ortiz , 25 F.3d 934, 935 (10th Cir. 1994). The Moore court held that “the mandate rule” 3 gives the district court discretion on remand to expand the scope of the res entencing to issues that were not the subject of the remand. 83 F.3d at 1234-35 (holding that the vacation of a defendant’s sentence requires “the district court t o exercise its inherent discretion to determine the appropriate scope of the resentenc ing proceedings”). Our remand in Kissick , however, did not vacate Mr. Kissick’s sentence. We vacated the district court’s order denying his § 2255 motion as to the career offender issue and remanded for a decision by the d istrict court as to whether Mr. Kissick’s sentence should be vacated and he should be resentenced. Although the Kissickopinion did not explicitly limit the district court’s authority on remand,8 -8- “[t]he trial court must implement both the letter a nd the spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces.” United States v. Moored , 38 F.3d 1419, 1421 (6th Cir. 1994)(quotation omitted). The district court, construing our mandate narrowly , concluded that all other aspects of the district court’s order had bee n affirmed, including the issue of the retroactive application of Amendment 487, and t herefore considered it improper to revisit any other sentencing issues. I n interpreting its resentencing limitations, the district court considered the circ umstances embraced by the remand opinion, and properly implemented “the lette r and the spirit of the mandate.” Id. (quotation omitted). Accordingly, after careful r eview of our decision in Kissick , we conclude that the district court’s constructio n of our mandate was correct.-9-

The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge