1The Honorable Donald D. Alsop, United States District Judge for the District

of Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-2929

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United States of America, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the Southern

Ryan Dale Oetken, * District of Iowa.

*

Appellee. *

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Submitted: January 9, 2001

Filed: February 28, 2001 

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Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and ALSOP,1

District Judge.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

Ryan Dale Oetken was convicted of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). The government maintained at sentencing that

Mr. Oetken's base offense level should be increased from 14, see U.S.S.G.

§ 2K2.1(a)(6)(A), to 20, see § 2K2.1(a)(4)(A), to reflect a burglary conviction that he

received after he had committed the instant offense. The sentencing guidelines
2The Honorable Charles R. Wolle, Chief United States District Judge for the

Southern District of Iowa.

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establish a base offense level of 20 if the defendant "had one prior felony conviction

... [for] a crime of violence," see § 2K2.1(a)(4)(A). Mr. Oetken conceded that his

burglary conviction constitutes a "crime of violence" for sentencing purposes but

contended that § 2K1.2(a)(4)(A) did not apply because the burglary conviction came

after he had committed the firearms offense. 

The district court2 held that a post-offense conviction was not a "prior felony

conviction ... [for] a crime of violence" under § 2K2.1(a)(4)(A) and thus refused to

increase Mr. Oetken's base offense level. The government appeals Mr. Oetken's

sentence. We review de novo the district court's application of the sentencing

guidelines, see United States v. Hunt, 171 F.3d 1192, 1196 (8th Cir. 1999), and affirm.

I.

We have not previously addressed the issue of whether § 2K2.1(a)(4)(A)

encompasses post-offense convictions, and those circuits that have addressed it have

not reached a consensus. Some courts have excluded post-offense convictions from the

sentencing determination. See United States v. Pedragh, 225 F.3d 240, 245 (2d Cir.

2000), and United States v. Barton, 100 F.3d 43, 46 (6th Cir. 1996). Others have

included them. See United States v. Laihben, 167 F.3d 1364, 1366, 1366 n.2 (11th Cir.

1999), cert. denied, 527 U.S. 1029 (1999); United States v. Pugh, 158 F.3d 1308, 1311

(D.C. Cir. 1998), cert. denied, 526 U.S. 1125 (1999); and United States v. Gooden,

116 F.3d 721, 724-25 n.5, 725 (5th Cir. 1997), cert. denied, 522 U.S. 938 (1997). See

also United States v. McCary, 14 F.3d 1502, 1506 (10th Cir. 1994). 

The language of § 2K2.1(a)(4)(A) does not specify when, for the guideline to

apply, Mr. Oetken must have "had one prior felony conviction." Mr. Oetken contends

that he must have had a prior felony conviction at the time that he committed the
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offense for which he is being sentenced, while the government maintains that

§ 2K2.1(a)(4)(A) applies so long as he had one prior felony conviction at the time of

sentencing. We believe that Mr. Oetken's reading of the guideline is superior from both

a grammatical and a logical point of view.

The use of the past-tense verb "had" indicates to us that the guideline refers to

convictions that a defendant possessed at some point prior to sentencing. See Pedragh,

225 F.3d at 245-46. If the Sentencing Commission had intended to include

post-offense convictions, we think it more likely that it would have used the

present-tense "has" instead of the past-tense "had." See id. at 246. To satisfy the "had"

language, a sentencing judge must therefore look to some point in the past and

determine whether the defendant had a "prior" conviction at that time. We believe that

the most obvious time to look to would be the time that the defendant committed the

offense of conviction.

Our confidence in this proposed construction of the guideline is increased when

we consider that § 2K2.1 establishes base offense levels that increase with the

offender's history of violence, reflecting, we think, the Sentencing Commission's belief

that it is a more serious offense for violent felons to possess a firearm. Cf. Barton, 100

F.3d at 45. The fact that Mr. Oetken was convicted of a crime of violence after he

committed the instant offense ought not to transform his possession of a firearm into

a more serious offense retroactively, see id. and Pedragh, 225 F.3d at 246, and we note

that his post-offense burglary conviction is reflected in his criminal history calculation.

We thus conclude that the better reading of § 2K2.1(a)(4)(A) is that Mr. Oetken's postoffense conviction may not be used to increase his base offense level.

II.

The government correctly points out that "commentary in the Guidelines Manual

that interprets or explains a guideline is authoritative unless it violates the Constitution

... or is inconsistent with, or a plainly erroneous reading of, that guideline," Stinson v.
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United States, 508 U.S. 36, 38 (1993). Thus, if we were to find that some relevant

commentary instructs that post-offense convictions should be counted under § 2K2.1,

we might well be obliged to follow it. Because we find nothing in the commentary to

support this conclusion, however, our interpretation of the guideline is unaffected.

Application note 5 to § 2K2.1 states that the term "prior felony conviction" is

defined in application note 1 to § 4B1.2 (the definitions guideline with respect to career

offenders). This definition, however, sheds no light on the meaning of the word "prior";

it concentrates, instead, on what a "felony conviction" is. See § 4B1.2, application

note 1, ¶ 9. Application note 5 to § 2K2.1 then states that "[f]or purposes of

determining the number of such [prior] convictions ... count any such prior conviction

that receives any points under § 4A1.1 (Criminal History Category)." That section, in

turn, defines what convictions receive criminal history points and notes that certain

convictions, for one reason or another, receive no criminal history points. See § 4A1.1,

application notes 1-3. Nothing in § 4A1.1 contributes to a definition of "prior

conviction."

The commentary to § 4A1.1 also notes, however, that the section should be read

in conjunction with § 4A1.2. The government lays great emphasis on the statement in

application note 1 to § 4A1.2 that a "prior sentence" means "a sentence imposed prior

to sentencing on the instant offense" to support its argument that § 2K2.1(a)(4)(A)

includes post-offense convictions. We believe that the government's reliance on this

language is misplaced, however, because § 2K2.1 refers to § 4A1.1 (and thus § 4A1.2)

to determine which prior convictions receive criminal history points but only after the

number of prior convictions has been calculated under § 4B1.1 (career offenders) and

§ 4B1.2 (definitions relevant to career offenders). The definition of "prior sentence"

in § 4A1.2(a) is therefore applicable to § 2K2.1 only insofar as it determines what prior

convictions receive criminal history points; it has no bearing whatever on what

constitutes a prior conviction for the purposes of determining an offense level.

 
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Because we find nothing in the sentencing guidelines or the accompanying

commentary and application notes that compels us to alter the interpretation of

§ 2K2.1(a)(4)(A) that we previously posited, we hold that only a conviction occurring

prior to the commission of the instant offense can constitute a "prior felony conviction."

Thus, because Mr. Oetken was convicted of burglary after he committed his firearms

offense, the burglary conviction cannot be used to increase his base offense level on the

firearms offense.

Even if we were to find that the government's reading of § 2K2.1(a)(4)(A) was

a plausible one, moreover, we would reach the same result. Where there are two

plausible readings of a guideline provision, we apply the rule of lenity and give the

defendant the benefit of the reading that results in the shorter sentence. See United

States v. Pharis, 176 F.3d 434, 436 (8th Cir. 1999). The rule of lenity would thus

require us to adopt the construction of the guidelines that we have already proposed in

any event, because it results in a shorter sentence for Mr. Oetken.

III.

For the foregoing reasons, we affirm the judgment of the district court.

A true copy.

Attest:

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