Appeal from the United States District Court for the Southern District of Illinois. No. 06 CR 40008-J. Phil Gilbert, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge
Before MANION, EVANS, and WILLIAMS, Circuit Judges.
Defendant Joshua Liddell pled guilty to two federal drug charges and was sentenced to 240 months in prison as a career offender. He claims the district court erred by not grouping these two charges together when it calculated his sentencing guideline range. Liddell also contends that resentencing is necessary in light of the Supreme Court's decision in Kimbrough v. United States, 128 S.Ct. 558 (2007), and he claims that his sentence is unreasonable. We conclude Kimbrough does not affect Liddell's sentence on count one and the district court did not err in issuing this sentence. Pursuant to the parties' stipulation, we issue a limited remand on count two in light of Kimbrough.
This is the second time we have encountered this case. Because we already discussed the underlying facts in some detail in our previous opinion, we will only mention the facts necessary to resolve this appeal. See United States v. Liddell, 492 F.3d 920 (7th Cir. 2007).
On May 4, 2006, Liddell pled guilty to two counts of possession with the intent to distribute five grams or more of a mixture or substance containing cocaine base. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). The charges were based on incidents occurring on May 9, 2003 (count two) and November 22, 2005 (count one).
In between these two incidents, Liddell was convicted in Illinois state court of two other felonies-possession with intent to distribute cocaine and aggravated domestic battery-for which he served 60 days' imprisonment. For count one of the federal charges (corresponding to the last drug transaction), the district court had to decide whether the two prior state convictions qualified Liddell for sentencing as a career offender. See United States Sentencing Commission Guidelines Manual (U.S.S.G.) § 4B1.1 (2006) (to be eligible for career offender sentencing, a defendant must have "at least two prior felony convictions of either a crime of violence or a*fn1 controlled substance offense"). Adopting the probation office's recommendation, the court concluded that the state conviction for cocaine possession was related to the conduct charged in count one and did not count toward career offender status. So the court did not apply the career offender guidelines and sentenced Liddell to the statutory minimum of 120 months' imprisonment on count one, and 105 months' imprisonment on count two, with the sentences to run concurrently.
The government appealed the district court's sentence. We vacated the sentence and remanded, concluding that the state cocaine conviction was not related to the charged conduct and so the court should have applied the career offender guidelines when sentencing Liddell on count one. See Liddell, 492 F.3d at 922-24 (citing United States v. Hernandez, 330 F.3d 964, 987 (7th Cir. 2003)). On remand, the district court computed the sentencing guideline range for each count separately (rather than grouping the two counts and calculating a single range) and determined that the career offender provisions yielded a range of 262-327 months' imprisonment on count one. The court then sentenced Liddell to a below-guideline term of 240 months' imprisonment on count one, and 87 months' imprisonment on count two, to run concurrently. Liddell then filed this appeal.
A. The District Court Properly Declined to Group Counts One and Two
Liddell claims the district court should have grouped counts one and two together before determining whether he was a career offender. We review the court's decision not to group these counts de novo. United States v. Alcala, 352 F.3d 1153, 1156 (7th Cir. 2003); United States v. Sherman, 268 F.3d 539, 545 (7th Cir. 2001). Liddell seems to believe (but doesn't explicitly argue) that if the counts are grouped, his two intervening state convictions would no longer be "prior felony convictions" because they would occur after the earlier of the two grouped offenses, and so Liddell could not be sentenced as a career offender. We do not agree, however, that grouping the two counts would change Liddell's career offender status. Even if the two counts were grouped, we would use the date of the later offense in the group in determining whether the unrelated state felony convictions were "prior" to the group. See United States v. Belton, 890 F.2d 9, 10 (7th Cir. 1989) ("Nothing in the guidelines' definition of a career offender requires . . . that every act constitutive of the offense underlying his current conviction have been committed after the prior conviction, and we can think of no reason for such a requirement."). We have suggested that an unrelated felony conviction is "prior" to a conspiracy for purposes of the career offender guidelines when the conspiracy begins before the conviction and continues afterward. Id. at 10-11; see also United States v. Garecht, 183 F.3d 671, 675 (7th Cir. 1999) (modifying Belton by holding that a felony conviction that occurs during an ongoing conspiracy can be a "prior" conviction only if it is unrelated to the conspiracy).
Similarly, it makes sense that an unrelated felony conviction is prior to a "group" of offenses if the conviction occurs before at least one of the offenses in the group. To hold otherwise would lead to a nonsensical result- Liddell would be better off because he was charged with two grouped offenses that straddled his unrelated state felony convictions than if he had been charged on just count one (which involved the later-occurring offense in the group). See Belton, 890 F.2d at 10-11 (noting that "[t]he only practical effect" of a similar argument in the drug conspiracy context "would be to give the ...