United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-1729

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United States of America,

Appellee,

v.

Joshua D. Stapleton,

Appellant.

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Appeal from the United States

District Court for the

Western District of Missouri.

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Submitted: September 10, 2002

 Filed: January 9, 2003 

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Before HANSEN, Chief Judge, RICHARD S. ARNOLD and LOKEN, Circuit Judges.

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HANSEN, Circuit Judge.

Joshua Stapleton pleaded guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g). The district court calculated a total offense level of

seventeen, a Category VI criminal history, and a resulting Guidelines imprisonment

range of fifty-one to sixty-three months. The court imposed a sentence of sixty-three

months in prison and three years of supervised release, and Stapleton appealed.

In an earlier appeal, we vacated Stapleton’s sentence because, in overruling his

objection to the assessment of criminal history points for two municipal assault
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convictions in Jackson County, Missouri, the district court erroneously relied on only

the presentence report and the unsworn statements of the probation officer who

prepared it. We remanded for resentencing and reopened the record to allow the

parties to submit evidence regarding the disputed convictions. See United States v.

Stapleton, 268 F.3d 597, 598-99 (8th Cir. 2001.)

At resentencing, the district court received additional evidence and again

assessed the criminal history points for the two assault convictions. Also, based on

Stapleton’s attempts to intimidate a witness at the resentencing hearing, the court

applied a two-level enhancement for obstruction of justice. Based on a total offense

level of nineteen and a Category VI criminal history, Stapleton’s Guidelines

imprisonment range was sixty-three to seventy-eight months. The court sentenced

him to seventy-eight months in prison and three years of supervised release.

Stapleton appeals, challenging the district court’s assessment of the criminal

history points and its application of the obstruction-of-justice enhancement. For the

reasons discussed below, we affirm in part and reverse in part.

I.

A. Stapleton’s criminal history category

At resentencing, the government introduced into evidence two documents

regarding the Jackson County assault charges. First, on April 14, 2000--while

Stapleton was serving a 120-day sentence in Buchanan County, Missouri--he had

completed a petition to plead guilty and waive his appearance on "all charges"

pending against him in Jackson County. Second, a police report showed that the

assault charges were disposed of by Stapleton's guilty plea on April 19, 2000.

In response, Stapleton introduced a letter from his municipal court attorney,

who recalled that he had reached an agreement with the municipal judge providing
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that if Stapleton pleaded guilty to seven charges pending against him in Jackson

County (fleeing a police officer, speeding, careless driving, disobeying a traffic

control signal, leaving the scene of an accident, interfering with police, and

possessing drug paraphernalia), he would receive a sentence concurrent with the term

he was already serving in Buchanan County. On April 19, counsel had presented the

municipal judge with Stapleton's petition and the court files for the seven charges.

Counsel had not intended to enter Stapleton's guilty plea to the two unrelated assault

charges, and it had been his experience that the municipal court would not accept

guilty pleas to assault charges without the defendant appearing in person.

Stapleton argues that this evidence shows that his assault convictions were

obtained in violation of his right to counsel. He had a constitutional right to counsel

because he was sentenced to and served ninety days in jail for these misdemeanors,

see Scott v. Illinois, 440 U.S. 367, 373-74 (1979), and criminal history points cannot

be assessed for uncounseled misdemeanor convictions that result in prison time, see

U.S. Sentencing Guidelines Manual § 4A1.2, comment. (backg'd) (2001).

Once the government met its initial burden of proving that Stapleton was

convicted, the burden shifted to him to prove by a preponderance of the evidence that

his convictions were constitutionally invalid. See United States v. Early, 77 F.3d 242,

245 (8th Cir. 1996) (per curiam); United States v. Solomon, 998 F.2d 587, 591 (8th

Cir.), cert. denied, 510 U.S. 1026 (1993). Although this case presents a close

question, we conclude that Stapleton showed that it was more likely than not that he

was convicted without the benefit of counsel.

Read together, Stapleton’s petition to plead guilty in Jackson County, the

police report, and the letter from Stapleton's municipal court attorney show that

Stapleton and his counsel intended to limit his plea to the seven traffic and drug

charges. When Stapleton wrote "all charges" on the petition where he was supposed
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to indicate the case numbers for those charges, however, the municipal court

apparently mistook his plea as also encompassing the two assault charges.

The preponderance of the evidence demonstrates that Stapleton’s assault

convictions were uncounseled. The district court therefore clearly erred in assessing

criminal history points based on them, and Stapleton’s proper criminal history

category is V rather than VI. See United States v. Bobo, 994 F.2d 524, 528 (8th Cir.)

(standard of review), cert. denied, 510 U.S. 891 (1993).

In light of this conclusion, we need not reach Stapleton’s argument that the

district court erred in allowing the government to introduce the petition and the police

report into evidence at resentencing.

B. Stapleton’s total offense level

After testifying at the resentencing hearing, but while still under oath, the

probation officer advised the district court that Stapleton had "stared at" him, "shook

his head," and "moved his lips" during the hearing. Based on his "experience in

dealing with defendants," the probation officer concluded that Stapleton was

conveying the message "I am going to get you" or "I am going to get even with you."

The prosecutor urged the court to enhance Stapleton’s offense level for obstruction

of justice based on this conduct. Stapleton's attorney, after speaking with four of the

people present in the courtroom, reported that two of them confirmed having seen the

"staring" and "nodding." Additionally, the courtroom deputy advised the court that

she had seen the behavior the probation officer had described. The district court

found that Stapleton's conduct was "hostile" and "intimidating" and therefore applied

a two-level obstruction-of-justice enhancement to his offense level under USSG

§ 3C1.1 & comment. (n.4(a)). (Resent. Tr. at 32-34, 36.)
1 Stapleton does not argue that the conduct itself was not a valid basis for the

enhancement. Cf. United States v. Moss, 138 F.3d 742, 745-46 (8th Cir. 1998)

(defendant who made throat-cutting gesture at witness during recess in sentencing

hearing qualified for obstruction-of-justice enhancement).

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On appeal, Stapleton argues that the district court's application of the

obstruction-of-justice enhancement at resentencing violated the scope of the remand.1

We do not think that the district court's action violated the general rule regarding the

scope of a remand. "On remand, . . . all issues decided by the appellate court become

the law of the case, and the sentencing court is bound to proceed within the scope of

any limitations imposed on its function at resentencing by the appellate court."

United States v. Behler, 100 F.3d 632, 635 (8th Cir. 1996) (quoted sources and

internal marks omitted), cert. denied, 522 U.S. 855 (1997). In our prior opinion, we

did not decide any issues relating to obstruction of justice, and we did not establish

any restrictions preventing the district court from considering obstruction of justice.

Stapleton's obstructive conduct at resentencing was simply not an issue in the prior

appeal because he had not yet committed it.

Neither Stapleton nor the government has pointed us to any case either

authorizing or prohibiting a district court's application of an obstruction-of-justice

enhancement based on a defendant's conduct at resentencing, and we have found

none. Although our precedent "prohibits consideration of post-sentencing

rehabilitation at resentencing" as the basis for a downward departure, United States

v. Hasan, 245 F.3d 682, 688 (8th Cir.) (en banc), cert. denied, 122 S. Ct. 238 (2001),

we do not find it inconsistent to allow consideration of post-sentencing obstructive

conduct that occurs in the judge's presence at resentencing as the basis for an

obstruction-of-justice enhancement. Otherwise, the judge would lack an effective

remedy for obstructive conduct that interferes with the resentencing process.

Obstruction of justice is concerned with a different time period than is

acceptance of responsibility. Most of the acceptance-of-responsibility inquiry focuses
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on the defendant's conduct through the time he pleads guilty. See USSG § 3E1.1,

comment. (nn.1, 3, 6). Even in the rare situations when a defendant proceeds to trial

to contest an issue unrelated to factual guilt, acceptance of responsibility hinges

"primarily upon pre-trial statements and conduct." See id., comment. (n.2). The

obstruction-of-justice inquiry, on the other hand, takes into account the entire case

from investigation through sentencing. See USSG § 3C1.1 & comment. (n.4).

Because a defendant who attempts to threaten or intimidate a witness at a

resentencing hearing obstructs justice as much as a defendant who attempts to

threaten or intimidate a witness at an original sentencing hearing does, we conclude

that an obstruction-of-justice enhancement may be applied based on the defendant's

conduct at resentencing.

II.

For the reasons stated above, we vacate Stapleton’s sentence and remand this

case to the district court for resentencing within a Guidelines imprisonment range of

fifty-seven to seventy-one months, based on a total offense level of nineteen and a

Category V criminal history.

A true copy.

Attest:

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