United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-3636

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Matthew M. Stone, *

*

Appellant. *

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Submitted: April 15, 2003

Filed: April 21, 2003

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Before WOLLMAN, FAGG, and RILEY, Circuit Judges.

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RILEY, Circuit Judge.

Matthew M. Stone (Stone) pled guilty on October 20, 2000, to conspiracy to

manufacture and distribute methamphetamine in an amount of 100 grams or more in

violation of 21 U.S.C. §§ 841 and 846 (1994 & Supp. IV 1998). The presentence

report assigned Stone four criminal history points under U.S. Sentencing Guidelines

§ 4A1.1 (1998), resulting in a criminal history category of III. Finding category III

overstated the seriousness of Stone’s past criminal conduct, the district court departed

downward under U.S.S.G. § 4A1.3 to criminal history category I. The district court

also determined Stone was eligible for relief from the statutory mandatory minimum

sentence under the “safety valve” exception in U.S.S.G. § 5C1.2, and sentenced him
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to 87 months imprisonment. We reversed and remanded for resentencing, holding

Stone was ineligible for relief under the safety valve exception because he had more

than one criminal history point. United States v. Stone, No. 01-3516, 2002 WL

1358791, at *1 (8th Cir. June 24, 2002) (unpublished) (citing U.S.S.G.

§ 5C1.2(a)(1)).

On remand, the district court resentenced Stone to 121 months imprisonment

based on criminal history category II and the statutory mandatory minimum sentence

of ten years imprisonment. See 21 U.S.C. § 841(b)(1). Stone appeals, arguing the

district court erred by assessing three criminal history points because the underlying

conduct was “relevant conduct,” rather than criminal history. The government

disagrees and also contends Stone waived his right to appeal this issue in his plea

agreement and by his failure to raise the issue in the prior sentencing and appeal.

“We review the district court’s factual determinations leading to the application

of a sentence enhancement for clear error and its legal conclusions de novo.” United

States v. Cave, 293 F.3d 1077, 1079 (8th Cir. 2002). Whether a conviction was

relevant conduct involves a fact intensive inquiry, an inquiry well within “the district

court’s sentencing expertise and greater familiarity with the factual record.” United

States v. Weiland, 284 F.3d 878, 882 (8th Cir. 2002).

On June 2, 1997, Stone was convicted in state court of driving while

intoxicated on marijuana (DWI), for which he received a suspended sentence and two

years probation. In March 2000, an indictment charged Stone with, and he later pled

guilty to, a conspiracy to manufacture and distribute methamphetamine between June

1, 1996 and June 1, 1999. During the sentencing hearing, Stone testified that, at the

time of his DWI arrest, he was en route to obtain methamphetamine and marijuana

from a co-conspirator. The co-conspirator testified he and Stone manufactured

methamphetamine, but denied providing Stone with marijuana after the beginning of

1997. The district court determined Stone failed to prove by a preponderance of the
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evidence that the DWI was sufficiently related to the instant offense. The district

court assessed one criminal history point for the conviction and two additional points

because Stone was on probation for that conviction when he committed the instant

conspiracy. See U.S.S.G. § 4A1.1 (c)-(d). Based on an offense level of 31 and a

criminal history category of II, the district court sentenced Stone to 121 months

imprisonment, the lowest sentence in the range of 121-151 months.

In Weiland, we held “drugs that are ‘part of the same course of conduct or

common scheme or plan’ of the conspiracy are to be counted as relevant conduct for

purposes of determining the base offense level. They are likewise to be considered

‘part of the instant offense’ when computing criminal history under the guidelines.”

Weiland, 284 F.3d at 882 (citing U.S.S.G. §§ 1B1.3(a)(2) and 4A1.2, cmt. n.1).

However, “[c]onduct resulting in a prior conviction is not relevant conduct to the

instant offense when it is a ‘severable, distinct offense.’” United States v. Davidson,

195 F.3d 402, 409 (8th Cir. 1999) (quoting United States v. Copeland, 45 F.3d 254,

256 (8th Cir. 1995)). Factors useful in determining whether the two offenses are

severable and distinct are temporal and geographical proximity, common victims,

common scheme, charge in the indictment, and whether the prior conviction is used

to prove the instant offense. Copeland, 45 F.3d at 256-57; see Weiland, 284 F.3d at

882. Stone contends the DWI occurred during the drug conspiracy, in the same

geographical location, and involved some of the same actors, and the marijuana was

used to “take the edge off the meth and for recreational use.”

Stone argues his case is governed by Weiland. Weiland was charged with

conspiracy to distribute several drugs including marijuana and methamphetamine.

Weiland’s state court conviction for possession of marijuana was relevant conduct to

the conspiracy, that is distributing marijuana, and was “part of a common plan or

scheme.” Weiland, 284 F.3d at 882-84. In contrast, Stone’s offense conduct is

related to the manufacture and distribution of methamphetamine only. Neither the

distribution nor the possession of marijuana was included in Stone’s indictment. See
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Copeland, 45 F.3d at 256-57 (finding no clear error where firearm convictions were

severable and distinct because different firearms were used, the “prior incident was

not charged in the indictment as an act in furtherance of the drug conspiracy,” and it

was not part of the conduct of conspiring to distribute to which defendant pled

guilty). Moreover, the district court was unconvinced the DWI was in any way

related to the conspiracy to manufacture and distribute methamphetamine. We are

equally unconvinced.

For the reasons stated above, the district court did not clearly err in finding

Stone’s convictions for conspiracy to manufacture and distribute methamphetamine

and for driving while intoxicated with marijuana were severable and distinct. The

government’s other arguments are, therefore, moot. We affirm.

A true copy.

Attest:

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