ORDER

D.P. MARSHALL, Jr., Senior District Judge.

Had Tidwell's lawyer challenged Tidwell's 1994 custody status, the Government would have had to prove at sentencing by a preponderance of the evidence that Tidwell was incarcerated at some point in the fifteen-year period before committing the offense for which he is now in prison. U.S.S.G. § 4A1.2(e). The United States candidly concedes that there isn't any certainty about where Tidwell was living while on work release. No. 357 at 2. It may have been in a prison facility, but it may have been at home or a halfway house. Edwards v. Lockhart, 908 F.2d 299,302 (8th Cir. 1990). Given the fog around Tidwell's living situation in 1994, the Court's award of criminal-history points for his aggravated-robbery conviction was a mistake.

The error is not harmless, as the Government argues, because the Court Can't say how it would have weighed the information or exactly what sentence it would have imposed. The slight overlap that the Government argues doesn't eliminate any problem. Tidwell's counsel should have raised this issue at sentencing; it was objectively unreasonable not to do so. Strickland v. Washington, 466 U.S. 668, 687 (1984). Tidwell was prejudiced. Therefore, the motion to vacate, No. 320, is granted. The Court will re-sentence Tidwell sometime after 1 November 2014 — after the drug-quantity Guideline amendment is expected to go into effect.

Some loose ends. New CJA counsel will be appointed by separate Order. Tidwell's motion to withdraw his notice of appeal, No. 359, is granted. Notice of appeal, No. 354, withdrawn. The Court requests, in due course, a revised pre-sentence report that conforms to this Order and the Court's earlier Order on point, No. 352.

So Ordered.