United States v. Groves

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 3 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
No. 02-3387
TIMOTHY ALLEN GROVES,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 94-CR-20071-01-GTV)

Submitted on the briefs: *

Michael L. Harris, Assistant Federal Public Defender, Kansas City, Kansas, for
Defendant-Appellant.

Eric F. Melgren, United States Attorney, and Robert S. Streepy, Assistant United
States Attorney, Kansas City, Kansas, for Plaintiff-Appellee.

Before TACHA, Chief Circuit Judge, EBEL and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case
therefore is ordered submitted without oral argument.
 Defendant Timothy Allen Groves pled guilty to one count of trafficking in

child pornography in violation of 18 U.S.C. § 2252(a)(2). Although the offense

took place in 1994, in calculating Groves’ sentence the district court relied on two

aspects of the commentary accompanying a 1996 amendment to § 2G2.2(b)(4) of

the U.S. Sentencing Guidelines. First, the court observed that under the 1996

amendment, USSG § 2G2.2(b)(4)’s five-level enhancement for engaging in a

“pattern of activity involving the sexual abuse or exploitation of a minor” applied

whether or not the abuse or exploitation occurred during the course of the offense.

Second, the court noted that under the 1996 amendment, prior convictions taken

into account for purposes of setting the offense level as part of a pattern of abuse

or exploitation under USSG § 2G2.2(b)(4) may also be used in determining the

defendant’s criminal history.

Groves now argues that the court’s reliance on the 1996 amendment

violated the Ex Post Facto Clause. We hold that the district court’s use of the

1996 guideline amendment to determine the scope of the pattern of abuse

enhancement was consistent with the Ex Post Facto Clause because that aspect of

the amendment merely clarified preexisting law. However, we conclude that the

1996 amendment substantively changed preexisting law with respect to double

counting for purposes both of establishing the offense level and the criminal

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history, and that it was improper to apply this aspect of the 1996 amendment to

Groves’ 1994 offense. We REVERSE and REMAND for resentencing.

I. BACKGROUND

In September 1994, Groves was indicted on two counts of trafficking in

material involving the exploitation of minors in violation of 18 U.S.C. § 2252(a). 1

The first count charged him with shipping child pornography in foreign commerce

on November 27, 1993, in violation of § 2252(a)(1); the second count charged

him with receiving child pornography that had been transported in interstate or

foreign commerce on February 17, 1994, in violation of § 2252(a)(2). Groves had

fled from the police sometime in 1994, and he was ultimately arrested almost

eight years later, on April 4, 2002. He then pled guilty to the second count of the

1
18 U.S.C. §2252(a) provides for criminal punishment for anyone who:
(1) knowingly transports or ships in interstate or foreign commerce by any means
including by computer or mails, any visual depiction, if--
(A) the producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct; [or]
(2) knowingly receives, or distributes, any visual depiction that has been mailed,
or has been shipped or transported in interstate or foreign commerce, or which
contains materials which have been mailed or so shipped or transported, by any
means including by computer, or knowingly reproduces any visual depiction for
distribution in interstate or foreign commerce or through the mails, if--
(A) the producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct.

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indictment, and the United States dismissed the first count. Under Groves’ plea

agreement, he stated that he “waives any right to appeal any sentence imposed by

the Court within the applicable sentencing guideline range as determined by the

Court; the defendant does reserve the right to appeal either an upward departure

or an illegal sentence.”

During sentencing, the district court applied the 1993 edition of the

Guidelines Manual and calculated Groves’ total offense level at 21. The base

level for the offense was 15, and certain adjustments were made pursuant to the

Sentencing Guidelines. Only one of those adjustments is relevant to the issues

raised on appeal: The court increased Groves’ offense level by five levels under

USSG § 2G2.2(b)(4) because he “engaged in a pattern of activity involving the

sexual abuse or exploitation of a minor.”

To support this five-level enhancement, the Pre-Sentence Investigation

Report (“PSR”) listed several separate instances in which Groves had sexually

abused or exploited a minor. Specifically, Groves had been convicted in 1978 for

molesting minors in two separate incidents, 2 police in 1978 found videos of other

juvenile males performing sexual acts on Groves, and Groves entered into a

2
In June 1978, Groves was convicted in Greene County, Missouri, of
molesting a minor. In November 1978, he was convicted in Jefferson County,
Missouri, of two additional counts of child molestation arising out of a separate
incident involving different victims.

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sexual relationship with a 16- or 17-year-old male in 1994. None of these

instances took place in the course of the underlying offense, i.e., Groves’

knowing receipt of child pornography in February 1994.

The district court held that a pattern of activity involving the abuse or

exploitation of a minor under USSG § 2G2.2(b)(4) can include instances such as

those listed above that occurred outside the course of the underlying offense. In

particular, the court relied upon the 1996 amendment to the guidelines

commentary, which expressly states that § 2G2.2(b)(4) applies whether or not the

pattern of abuse or exploitation occurred during the course of the offense.

Next, the district court determined that Groves had nine criminal history

points, giving him a criminal history category of IV. Those criminal history

points arose out of a 1977 theft conviction (three points) and his 1978 convictions

for child molestation (six points). Thus, the district court found Groves’ 1978

child molestation convictions relevant in determining both his offense level and

his criminal history category. The defendant’s offense level of 21 and criminal

history category of IV set his presumptive sentence in a range of 57 to 71 months.

The district court sentenced Groves to 65 months imprisonment.

II. WAIVER

We must first determine whether Groves waived the right to bring this

appeal. As part of his plea agreement, Groves generally waived the right to

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appeal his sentence, but significantly he reserved the right to appeal “an upward

departure or an illegal sentence.” He now appeals on the ground that his sentence

violates the Ex Post Facto Clause of the United States Constitution. Because the

defendant reserved the right to appeal an “illegal sentence,” and because an

unconstitutional sentence is “illegal,” we hold that the defendant is entitled to

challenge his sentence on ex post facto grounds.

We strictly construe waivers of appellate rights, reading any ambiguities in

the waiver agreement against the government and in favor of the defendant’s right

to appeal. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en

banc). The sentencing court is not authorized to impose an unconstitutional

sentence – such as a sentence that violates the Ex Post Facto Clause – and such a

sentence is therefore illegal. United States v. Lightsey , 886 F.2d 304, 305 (11th

Cir. 1989). This appeal is plainly outside the scope of Groves’ waiver agreement.

III. EX POST FACTO CLAUSE

The ex post facto provisions of the U.S. Constitution prohibit criminal laws

that are both retrospective in nature and disadvantageous to the defendant. U.S.

Const. art. I, § 9, cl.3; id. at art. I, § 10, cl. 1; Miller v. Florida, 482 U.S. 423, 430

(1987). In particular, use of a sentencing guideline that was not in effect at the

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time the offense was committed violates the Ex Post Facto Clause when the later

guideline disadvantages the defendant. Miller , 482 U.S. at 428-30.

Nevertheless, we have repeatedly held that it is proper to consider

amendments to the guidelines enacted after the date of the offense so long as they

are only “clarifying,” as opposed to “substantive.” United States v. Mondaine ,

956 F.2d 939, 942 (10th Cir. 1992) (“Although courts frequently consider

clarifying amendments to discern the Sentencing Commission’s intent as to

application of the pre-amendment guideline, relying on a substantive amendment

that occurs after the date of the offense at issue ... raises critical ex post facto

problems.”) (emphasis in original); see U.S. Sentencing Guidelines Manual §

1B1.11(b)(2) (1993) (“[I]f a court applies an earlier edition of the Guidelines

Manual, the court shall consider subsequent amendments, to the extent that such

amendments are clarifying rather than substantive changes.”). As we explained in

United States v. Gigley , we may “apply clarifying amendments retroactively to

help us understand an older version of the guidelines.” 213 F.3d 503, 506 n.3

(10th Cir. 2000).

Although distinguishing between substantive and clarifying amendments is

often difficult, we have previously identified three factors that guide this analysis.

United States v. Alvarez-Pineda , 258 F.3d 1230, 1236 (10th Cir. 2001). We must

consider (1) whether the amendment alters the controlling pre-amendment

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interpretation of the guideline, (2) how the Sentencing Commission characterized

the amendment, and (3) whether the amendment changes the text of the

sentencing guideline or merely the accompanying commentary. Id.

The first factor – whether the amendment alters a prior controlling

interpretation – is a threshold test that contains two distinct inquiries. We must

decide both (1) whether the pre-amendment guideline and its commentary is fairly

capable of being construed consistent with the amendment, and (2) whether the

amendment contradicts prior controlling case law interpreting the pre-amendment

guideline and its commentary. If a guideline amendment contradicts either the

plain meaning of the preexisting guideline or controlling case law, that

amendment is necessarily substantive. See Mondaine, 956 F.2d at 942 (noting

that a change is substantive unless it does no more than “clarify a meaning that

was fairly to be drawn from the original version”); United States v. Frederick, 897

F.2d 490, 494 (10th Cir. 1990) (same). If the amendment instead is consistent

with the previous version of the guideline and controlling case law, then we

consider all of these factors together. United States v. Neilssen, 136 F.3d 965,

969 (4th Cir. 1998) (“[I]f the pre-amendment text of a guideline and its

commentary are ambiguous on the subject of the amendment, and no circuit

precedent exists resolving the ambiguity, then an amendment to the commentary

of the guideline is most likely clarifying.”) .

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 Groves contends that the district court’s use of two separate parts of the

1996 amendment violated the Ex Post Facto Clause. First, he argues that the 1996

amendment substantively changed the definition of “a pattern of activity

involving the sexual abuse or exploitation of a minor” because it states that the

five-level enhancement under § 2G2.2(b)(4) applies regardless of whether the

abuse or exploitation occurred during the course of the offense. Second, he

argues that the 1996 amendment was a substantive change because it provides that

prior convictions considered as part of a pattern of abuse or exploitation and used

to enhance the offense level under § 2G2.2(b)(4) may also be used in calculating

the defendant’s criminal history points. We address these arguments in turn.

A. Pattern of Activity Involving Sexual Abuse or Exploitation of a Minor

With respect to § 2G2.2(b)(4), the “pattern of abuse” enhancement, the

1996 amendment changed only the commentary to the guideline, not the guideline

itself. Both before and after the amendment, the guideline read:

If the defendant engaged in a pattern of activity involving the sexual abuse
or exploitation of a minor, increase by 5 levels.

U.S. Sentencing Guidelines Manual § 2G2.2(b)(4) (1993); U.S. Sentencing

Guidelines Manual §2G2.2(b)(4) (1997). However, the amended commentary to

the guidelines modified the definition of the term “pattern of activity involving

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the abuse or exploitation of a minor.” The pre-amendment commentary defined

that term as:

any combination of two or more separate instances of the sexual abuse or
the sexual exploitation of a minor, whether involving the same or different
victims.

U.S. Sentencing Guidelines Manual § 2G2.2 cmt. n.4 (1993). The amended

commentary elaborated somewhat on this definition, stating that the term means:

any combination of two or more separate instances of the sexual abuse or
sexual exploitation of a minor by the defendant, whether or not the abuse or
exploitation (A) occurred during the course of the offense, (B) involved the
same or different victims, or (C) resulted in a conviction for such conduct.

U.S. Sentencing Guidelines Manual § 2G2.2 cmt. n.1 (1997). The amended

guideline thus specifically explains that this sentence enhancement applies even if

the pattern of abuse occurred outside the course of the offense, whereas the pre-

amendment version was silent with respect to that issue. Applying the factors

outlined above, we conclude that the 1996 amendment merely clarifies the scope

of the pattern of abuse enhancement under USSG § 2G2.2(b)(4).

We first address the threshold question of whether the 1996 amendment

was consistent with the prior controlling interpretation of the law. We conclude

that the amendment’s position that a pattern of abuse or exploitation under USSG

§ 2G2.2(b)(4) can include incidents outside the course of the underlying offense

was at minimum a fair interpretation of the text of the pre-amendment guideline

and that there was no controlling case law to the contrary.

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 The plain language of the pre-amendment guideline and its commentary did

not suggest that an offense level enhancement for a “pattern of activity involving

sexual abuse or exploitation of a minor” should be limited to events occurring

during the course of the charged offense. Rather, the pre-amendment commentary

stated that a pattern of abuse or exploitation includes “any combination of two or

more separate instances of the sexual abuse or the sexual exploitation of a minor.”

U.S. Sentencing Guidelines Manual § 2G2.2 cmt. n.4 (1993) (emphasis added).

On the other hand, it is true that this sentence enhancement was listed

under the heading “Specific Offense Characteristics.” Id. at § 2G2.2(b). Also,

when the commentary generally addresses whether sexual abuse of a minor by the

defendant should result in increased punishment, the commentary says that a

departure may be warranted “whether or not such sexual abuse occurred during

the course of the offense.” However, when the commentary talks about an

explicit five-level enhancement for a pattern of abuse, it lacks similar broadening

language. Id. at § 2G2.2 cmt. n.4, 5.

Accordingly, “it is fair to say that the [pre-amendment] version of USSG §

2G2.2 and its accompanying commentary is ambiguous with respect to whether

acts unrelated to the offense ... may be considered.” Neilssen, 136 F.3d at 971

(ultimately holding that the amendment to the commentary of § 2G2.2(b)(4)

addressing pattern of abuse is clarifying). For purposes of our analysis, it suffices

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to observe that the 1996 amendment presents at least a fair interpretation of this

guideline, thus suggesting that the amendment was merely clarifying.

Furthermore, we note that there was no prior controlling case law in this

circuit or from the Supreme Court that was inconsistent with this aspect of the

1996 amendment. It is true that before the 1996 amendment came into effect two

other circuits had held that the pattern of abuse enhancement under § 2G2.2(b)(4)

applied only to incidents that occurred during the course of the offense. United

States v. Surratt , 87 F.3d 814, 818-19 (6th Cir. 1996) ; United States v. Chapman ,

60 F.3d 894, 901 (1st Cir. 1995). However, under this factor we look only to

controlling precedent in our Circuit, not to the case law of other Courts of

Appeals. See United States v. Farrow , 277 F.3d 1260, 1265 (10th Cir. 2002)

(deeming an amendment clarifying because it did not “compel this court to

overrule existing circuit precedent ”) (emphasis added); Gigley , 213 F.3d at 506

n.3 (considering an amendment clarifying in part because it “did not overrule

existing precedent in this circuit ”) (emphasis added); cf. United States v. Kissick ,

69 F.3d 1048, 1051-53 (10th Cir. 1995) ( holding that an amendment was

substantive because “our Circuit had reached a conclusion contrary to the

Sentencing Commission’s interpretation”) (emphasis added) (abrogated on other

grounds by Glover v. United States, 531 U.S. 198 (2001)). Because out-of-circuit

case law does not create an interpretation of the guideline that is controlling here,

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Surratt and Chapman do not render the 1996 amen dment a substantive change to

the law of this Circuit.

Indeed, if out-of-circuit cases rendered contrary guideline amendments

substantive, the Sentencing Commission’s ability to issue clarifying amendments

would be severely curtailed. As the facts of this case demonstrate, the

Commission is often prompted to clarify a sentencing guideline only after some

court interprets the guideline differently than how the Commission intended.

Before the meaning of a guideline becomes controversial, no clarification is

needed. Expanding the controlling case law factor to include case law from other

circuits would frustrate the Commission’s interest in clarifying ambiguous

sentencing guidelines.

The other two factors in our analysis require only brief discussion. The

Sentencing Commission specifically characterized the 1996 amendment as

clarifying. The Commission explained that “the amendment clarifies that the

‘pattern of activity’ may include acts of sexual abuse or exploitation that were not

committed during the course of the offense.” U.S. Sentencing Guidelines Manual,

app. C, amend. 537 (1997) (emphasis added). Finally, the text of the guideline

itself remained unchanged with respect to the pattern of abuse enhancement, and

only the commentary to § 2G2.2 was amended.

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 In conclusion, all three factors indicate that the Sentencing Commission’s

amended definition of “pattern of activity involving the sexual abuse or

exploitation of a minor” is clarifying, not substantive. See United States v.

Neilssen , 136 F.3d 965, 970-71 (4th Cir. 1998) (holding the amended definition

of pattern of abuse or exploitation under the commentary to § 2G2.2(b)(4) to be

clarifying); United States v. Anderton , 136 F.3d 747, 750-51 (11th Cir. 1998)

(same). Therefore, the district court’s use of the 1996 amendment in enhancing

the defendant’s offense level under § 2G2.2(b)(4) did not violate the Ex Post

Facto Clause.

B. Use of Past Convictions

Groves also challenges the district court’s conclusion that his prior

convictions for child molestation could be used both to enhance his offense level

under § 2G2.2(b)(4) and to determine his criminal history category. The pre-

amendment commentary to § 2G2.2 did not mention whether convictions could be

properly counted under both the pattern of abuse offense enhancement and in

determining a defendant’s criminal history. See U.S. Sentencing Guidelines

Manual §2G2.2 (1993). The amended commentary to § 2G2.2, in contrast,

expressly provides that “[p]rior convictions taken into account under subsection

(b)(4) are also counted for purposes of determining criminal history points.” U.S.

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Sentencing Guidelines Manual § 2G2.2 cmt. n.2 (1997). The Commission stated

that this “amendment clarifies that prior convictions counted as part of the

‘pattern of activity’ also may be counted as part of the defendant’s criminal

history.” Id. at app. C, amend. 537 (1997).

Again, the Commission expressly declared the change to be clarifying, and

the amendment altered only the commentary accompanying § 2G2.2, not the text

of the guideline itself. Accordingly, whether this aspect of the 1996 amendment

was clarifying or substantive depends wholly on whether it was contrary to prior

controlling law. As noted above, this analysis requires consideration of both the

plain meaning of the pre-amendment Sentencing Guidelines and any prior

controlling Tenth Circuit or Supreme Court case law.

We are mindful of the general rule that “the Sentencing Commission plainly

understands the concept of double counting, and expressly forbids it where it is

not intended.” See United States v. Duran, 127 F.3d 911, 918 (10th Cir. 1997).

Yet with respect to calculating a defendant’s criminal history points, the

Sentencing Commission has expressly taken action to limit double counting.

To understand what properly could have been considered as criminal

history, we must navigate our way through a number of interconnected provisions

of the guidelines and commentary. We begin with the various sections of the

guidelines that provide that criminal history points are to be assessed for the

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defendant’s “prior sentences.” Next, we note that USSG § 4A1.2(a)(1) defines

the term “prior sentence” to mean only a sentence previously imposed for

“conduct not part of the instant offense.” See U.S. Sentencing Guidelines Manual

§ 4A1.2(a)(1) (1993). As of 1993, the commentary to § 4A1.2 further has defined

“conduct that is part of the instant offense” as “conduct that is relevant conduct to

the instant offense under the provisions of § 1B1.3 (Relevant Conduct).” See id.

at § 4A1.2 cmt. n.1; United States v. Williamson, 53 F.3d 1500, 1526 (10th Cir.

1995) (recounting the history of the 1993 amendment to the commentary to USSG

§ 4A1.2). Taken together, these provisions of the guidelines and commentary

provide that, prior to the 1996 amendment to the commentary, a conviction for

conduct that is characterized as relevant conduct under § 1B1.3 for the instant

offense would not also be counted as criminal history.

We next turn to what counts as relevant conduct under § 1B1.3. Among the

examples of relevant conduct in that section, as pertinent to this case, is “any ...

information specified in the applicable guideline.” See U.S. Sentencing

Guidelines Manual § 1B1.3(a)(4) (1993). This provision steers us to the guideline

that the district court must apply in computing the defendant’s offense level — in

our case the pre-amendment interpretation of § 2G2.2. Section 2G2.2 specified

various information that the district court was to consider in calculating the

offense level, including whether “the defendant engaged in a pattern of activity

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involving the sexual abuse or exploitation of a minor.” Id. at § 2G2.2(b)(4). The

pre-amendment version of the guidelines did not contain any specific provision in

either the text or the commentary that expressly permitted or prohibited double

counting under these particular circumstances.

The guidelines are admittedly not a model of organizational clarity with

respect to double counting. Yet this odyssey ultimately leads us to the conclusion

that, prior to the 1996 amendment, a “pattern of activity involving the sexual

abuse or exploitation of a minor” was “relevant conduct” with regard to the

offense at issue, and that such conduct therefore could not also have been used as

criminal history.

This interpretation of the guidelines and commentary is supported by the

purpose of the 1993 commentary amendment excluding all relevant conduct from

the definition of a “prior sentence.” According to the Sentencing Commission,

this change was designed “to avoid double counting and ensure consistency with

other guideline provisions.” Williamson, 53 F.3d at 1526 (quoting U.S.

Sentencing Guidelines Manual App. C ¶ 493 (1993)).

This analysis is also reflected in our case law. As we held in United States

v. Torres, “[i]f the district court did take the prior sentence into account in

calculating the offense level, then it is clear that to prevent double counting the

court cannot use that same sentence in its criminal history calculation.” 182 F.3d

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1156, 1160 (10th Cir. 1999). Moreover, even when the district court did not

actually consider the defendant’s prior sentences in calculating the offense level,

we will review the district court’s underlying finding that the criminal activity

was not relevant conduct. Id. A correct determination of whether the prior

sentence constituted relevant conduct is an essential predicate to the criminal

history assessment. Id. In short, “a prior sentence counts as criminal history if it

does not involve relevant conduct under § 1B1.3.” Id. at 1159; see also United

States v. Rice, 358 F.3d 1268, 1276-77 (10th Cir. 2004) (it is improper to double

count uncharged criminal activity that was used as relevant conduct in calculating

the offense level to justify a criminal history category departure).

Furthermore, by the time the 1996 commentary amendment came into

effect, we had already explained that under the preexisting version of the

guidelines, at a minimum, “[i]f the prior sentence was actually considered by the

court in calculating the defendant’s offense level, then the [1993] amendment to

note 1 of § 4A1.2 clarifies that the prior sentence may not be used to enhance the

defendant’s criminal history score.” Williamson, 53 F.3d at 1526 (discussing

double counting in the context of plain error review). 3

3
There is broad language in some of our past cases that seems in tension
with Williamson, Torres and Rice. See, e.g., United States v. Alessandroni, 982
F.2d 419, 421 (10th Cir. 1992) (“[T]he structure of the Sentencing Guidelines
suggests that the criminal history category is to be determined independently of
(continued...)

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 Thus, prior to the 1996 amendment, it was clear that convictions that had

already been considered as relevant conduct under USSG § 2G2.2(b)(4) could not

have been used to calculate the defendant’s criminal history. First, the text of

USSG §§ 4A1.2 (Definitions and Instructions for Computing Criminal History)

and 1B1.3 (Relevant Conduct) and their accompanying commentary compelled

that result, and there is no fair interpretation of the Sentencing Guidelines and

accompanying commentary to the contrary. 4 Additionally, a prior Tenth Circuit

3
(...continued)
the offense level....”). This language pre-dated the 1993 amendment to the
commentary to USSG § 4A1.2 defining conduct that is part of the instant offense
as all relevant conduct. It is no longer controlling in light of that amended
commentary.
Additionally, United States v. Jones, 332 F.3d 1294 (10th Cir. 2003), is
distinguishable. In that case, the defendant’s offense level for involuntary
manslaughter on an Indian Reservation was set at 14 because his conduct was
reckless, and the court increased his offense level by another five levels as an
upward departure for “extreme recklessness.” Id. at 1297-98. We held that it was
proper to count his multiple prior convictions for drunk driving in computing his
criminal history score even though that prior conduct was considered as evidence
of his recklessness (the court explained that this prior conduct put him on notice
that such conduct was dangerous). Id. at 1303-04. In that case, the relevant
conduct was the defendant’s recklessness at the time of the underlying offense;
his prior convictions were only evidence that his later conduct was reckless, id.,
and the court did not consider those prior criminal acts themselves as elements of
the defendant’s reckless conduct in the instant offense. In other words, the
defendant’s prior convictions in Jones were not relevant conduct to the instant
offense under USSG § 1B1.3. Any broader reading of Jones would be
inconsistent with our prior decision Torres, and would not accurately state the law
of this Circuit.
4
Commentary in the Guidelines Manual that interprets or explains a
guideline is authoritative unless it violates the Constitution or a federal statute, or
(continued...)

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case had already explained that, under this framework, convictions taken into

account as relevant conduct to determine the defendant’s offense level could not

also be used in computing criminal history points. See Williamson, 53 F.3d at

1526 (ultimately finding no plain error when the prior conviction was not actually

considered as relevant conduct in determining the defendant’s offense level).

Because the 1996 amendment to the commentary to § 2G2.2(b)(4) modified

this controlling framework by expressly allowing this kind of double counting, we

must consider this aspect of the amendment to be substantive, not merely

clarifying. 5 Therefore, the district court’s application of the 1996 amendment’s

double counting rule to criminal conduct that occurred before that amendment

went into effect, to the defendant’s detriment, ran afoul of the limits imposed by

the Ex Post Facto Clause.

4
(...continued)
is inconsistent with, or a plainly erroneous reading of, that guideline. Stinson v.
United States, 508 U.S. 36, 38 (1993).
5
Groves does not question the prospective validity of the 1996
amendment’s double counting provision. If a particular guideline specifically
speaks to double counting, that instruction is controlling. United States v.
Coldren, 359 F.3d 1253, 1256 (10th Cir. 2004); see also United States v. Castro-
Rocha, 323 F.3d 846, 851 (10th Cir. 2003) (it is a fundamental canon of statutory
construction “that, when there is an apparent conflict between a specific provision
and a more general one, the more specific one governs”). We hold only that this
aspect of the 1996 amendment was a substantive change in the law for ex post
facto purposes.

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 Under the 1993 version of the Sentencing Guidelines, once the court

considered Groves’ prior child molestation convictions as relevant conduct for the

instant offense, it then should have excluded those convictions from its criminal

history analysis. This approach would have given Groves a total offense level of

21 and a criminal history category of II. His guideline range would have been 41

to 51 months. See U.S. Sentencing Guidelines Manual § 5A (1993).

IV. CONCLUSION

The district court was entitled to rely on clarifying commentary in the

Sentencing Commission’s 1996 amendment to §2G2.2 in determining that a

pattern of abuse or exploitation can include acts committed outside the course of

the underlying offense. However, it should not have relied on that amendment’s

double counting provision because that aspect of the amendment constituted a

substantive change in the law. We REVERSE Groves’ sentence and REMAND

for resentencing consistent with this opinion.

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