United States v. Tisdale

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS FEB 12 2003

TENTH CIRCUIT PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 01-3380
v. D.C. No. 99-CR-10016-001
(D. Kansas)
BRYAN E. TISDALE,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR, HENRY and LUCERO, Circuit Judges.

Bryan E. Tisdale pled guilty to one count of possession with intent to

distribute crack cocaine. The incident giving rise to this charge occurred while

Mr. Tisdale was serving sentences of probation in connection with three Kansas

state cases. Based upon that conduct, each of the three Kansas sentences was

revoked. The district court calculated Mr. Tisdale’s sentence accordingly. Mr.

Tisdale appealed his sentence for the instant drug offense and we remanded for

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
resentencing. See United States v. Tisdale, 248 F.3d 964 (10th Cir. 2001). Mr.

Tisdale now appeals his new sentence. We affirm.

In his original appeal, Mr. Tisdale contended that his criminal history score

had been incorrectly calculated and that his federal sentence should not have been

imposed to run consecutive to his state sentence. We affirmed Mr. Tisdale’s

conviction, found no plain error in the calculation of his criminal history score

because we lacked sufficient facts, but vacated the sentence and remanded to the

district court to reconsider its decision on concurrent sentencing. On remand, Mr.

Tisdale offered new exhibits to the district court in support of a motion to

reconsider the criminal history score as well as the concurrent sentencing issue.

The district court allowed the exhibits to become part of the record but

determined that it lacked jurisdiction to revisit the criminal history score

calculation in light of the limited mandate with which we remanded the case. The

court also concluded that “even if it had jurisdiction to consider the issue, the

initial determination of the criminal history was nevertheless correct under the

guidelines.” Rec. vol. I, doc. 71 at 3.

Mr. Tisdale appeals, contending the district court erred in concluding it

lacked jurisdiction to reconsider the criminal history score calculation, and that

the court erred on the merits in its failure to apply U.S.S.G. § 4A1.2 application

note 11 in determining the criminal history score.

-2-
 As to the issue of the district court’s jurisdiction to reconsider the

calculation of Mr. Tisdale’s criminal history score, we held in United States v.

Gama-Bastidas, 222 F.3d 779, 784-85 (10th Cir. 2000), that neither the law of the

case doctrine nor the mandate rule is jurisdictional; rather, they are discretion-

guiding rules. The district court thus did have jurisdiction to consider the

arguments Mr. Tisdale presented in his motion to reconsider the score calculation.

Because the district court alternatively determined that its calculation of Mr.

Tisdale’s criminal history score was correct, we turn to the merits.

Application note 11 to U.S.S.G. § 4A1.2 indicates that the guideline is

applicable where a single revocation applies to multiple sentences. That is not the

situation here. The state court journal entries of the revocations show that the

court treated each revocation separately. Rec. vol. I, doc. 72 (each revocation in

separate journal entry).

It is of no significance that the Kansas state court disposed of each of the

three probation revocations in one hearing; nor is it of significance that each was

revoked on the grounds of the same offense. The crucial point is simply that the

revocations were separate. Because there are three single revocations each

applying only to a single sentence, § 4A1.2 and the illustration provided in note

11 do not apply. The district court correctly concluded that it had accurately

determined Mr. Tisdale’s criminal history score.

-3-
We AFFIRM.

ENTERED FOR THE COURT

Stephanie K. Seymour
Circuit Judge

-4-