In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-3749
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellant,
                               v.

JOSHUA M. LIDDELL,
                                             Defendant-Appellee.
                        ____________
           Appeal from the United States District Court
              for the Southern District of Illinois.
            No. 06 CR 40008—J. Phil Gilbert, Judge.
                        ____________
        ARGUED APRIL 3, 2007—DECIDED JULY 12, 2007
                        ____________


  Before MANION, EVANS, and WILLIAMS, Circuit Judges.
  MANION, Circuit Judge. Joshua M. Liddell pleaded
guilty to two counts of possession of crack cocaine with
intent to distribute. The government moved for Liddell
to be sentenced as a career offender, but the district court
denied the government’s motion. The government ap-
peals. We vacate Liddell’s sentence and remand for
resentencing.
2                                                No. 06-3749

                              I.
  Joshua Liddell is a serial cocaine dealer. On February 8,
2006, a federal grand jury returned a two-count indict-
ment against Liddell, charging him with possession with
intent to distribute five grams or more of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Specifi-
cally, Count One charged that on November 22, 2005,
Liddell knowingly and intentionally possessed with the
intent to distribute five grams or more of cocaine base,
while Count Two was based on a similar incident on May
9, 2003. The facts giving rise to those charges are not at
issue on this appeal. On May 4, 2006, Liddell pleaded
guilty to both counts.
   Liddell, however, was no stranger to the justice system.
At the time he pleaded guilty to the federal charges, he
had two earlier state convictions. On August 10, 2005, an
Illinois court accepted Liddell’s plea of guilty to possession
with intent to distribute cocaine occurring on August 30,
2004, and to aggravated domestic battery occurring on
May 29, 2005. The Illinois court sentenced Liddell to
concurrent terms of 68 days of imprisonment and 48
months of supervised release.
  On June 29, 2006, the United States Probation Office
issued its presentence report (“PSR”) for Liddell’s federal
convictions. Despite Liddell’s earlier state felony con-
victions, the PSR recommended that, with respect to Count
One, Liddell not be classified as a career offender as
defined at U.S.S.G. § 4B1.1. This distinction is important
because if Liddell were not sentenced as a career of-
fender for Count One, he would have received a manda-
No. 06-3749                                                 3

tory minimum sentence of 120 months of imprisonment.1
If, however, Liddell was deemed a career offender for
Count One, his guideline range would rise to 262 to 327
months of imprisonment. There was no dispute that
Liddell’s guideline rage for Count Two (his earliest
charged incident, May 9, 2003) was calculated correctly
at 84 to 105 months of imprisonment.
  The government filed an objection to the PSR, arguing
that Liddell’s two previous state convictions rendered
him a career offender for purposes of Count One, be-
cause he had been released from his state incarceration
before he committed the offense charged in Count One. In
response to the government’s objection, the United States
Probation Office issued an addendum to the PSR, ex-
plaining its rationale for declining to find that Liddell
qualified as a career offender. Liddell also filed a response
brief. During Liddell’s sentencing hearing, the district court
heard oral argument on the issue. The district court denied
the government’s objection and declined to sentence
Liddell as a career offender. Accordingly, the district court
sentenced Liddell to the mandatory minimum 120 months
of imprisonment for Count One, and 105 months of


1
  During Liddell’s sentencing hearing, the district court
pointed out that the PSR’s guideline calculation for Count One
did not include the government’s requested enhancement
pursuant to 21 U.S.C. § 851 for one or more prior drug con-
victions, namely Liddell’s August 10, 2005, state cocaine con-
viction. Thus, while the PSR recommended a guideline range
of 84 to 105 months for Count One, the district court granted
the government’s motion and sentenced Liddell to the 120-
month mandatory minimum pursuant to § 851. The parties
and the district court agreed that the enhancement did not
apply for Count Two.
4                                                No. 06-3749

imprisonment for Count Two, with the sentences to run
concurrently. The government appeals the district court’s
calculation of Liddell’s sentence.


                             II.
  On appeal, the government argues that the district court
should have calculated Liddell’s guideline ranges sepa-
rately for each count of the federal indictment, thus the
presence of the pre-state imprisonment charge (Count
Two) should not have prohibited the district court from
classifying Liddell as a career offender for purposes of
his post-state imprisonment charge (Count One). This is
a question of guideline interpretation, which this court
reviews de novo. United States v. Alcala, 

,
1156 (7th Cir. 2003).
  We begin our analysis by looking to the guidelines’
definition of “career offender” to determine whether
Liddell satisfies that three-prong test for Count One.
Section 4B1.1 states that a defendant is a career offender if:
    (1) the defendant was at least eighteen years old at the
    time the defendant committed the instant offense of
    conviction;
    (2) the instant offense of conviction is a felony that is
    either a crime of violence or a controlled substance
    offense; and
    (3) the defendant has at least two prior felony con-
    victions of either a crime of violence or a controlled
    substance offense.
U.S.S.G. § 4B1.1. Liddell satisfies the first element of
§ 4B1.1, as he was twenty-one years of age when he
committed the offense charged in Count One. He also
No. 06-3749                                                 5

satisfies the second element because the offense alleged in
Count One—possession with intent to distribute five
grams or more of cocaine base in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B)—is a felony controlled
substance offense. Neither the government nor Liddell
contests these points. Finally, Liddell appears to satisfy
the third element of § 4B1.1 because his two state felony
convictions (including a crime of violence and a con-
trolled substance offense) occurred earlier in time than
the conduct charged in Count One. However, our analysis
of whether Liddell’s state court convictions were “prior”
for purposes of the third element of § 4B1.1 does not end
here.
  In order to satisfy the third element of § 4B1.1, the
defendant’s earlier convictions cannot be related to the
instant offense. See United States v. Garecht, 

,
674 (7th Cir. 1999). To determine whether a defendant’s
earlier convictions are related to the instant offense, and
therefore whether they were “prior” to the charged of-
fense under § 4B1.1, the guidelines direct us to U.S.S.G.
§ 1B1.3. U.S.S.G. § 4A1.2 cmt. 1 (“Conduct that is part of the
instant offense means conduct that is relevant conduct to
the instant offense under the provisions of § 1B1.3 (Rele-
vant Conduct).”). “Under U.S.S.G. § 1B1.3, a criminal
offense constitutes relevant conduct to another offense if
the two offenses are part of a common scheme or plan,
connected by at least one common factor (for example, a
common victim or purpose).” United States v. Hernandez,

, 986-87 (7th Cir. 2003) (citation and internal
quotation omitted).
  We previously had the opportunity to construe U.S.S.G.
§ 1B1.3 as applied to drug offenses, and both the govern-
ment and Liddell rely on our past decisions that are
6                                                No. 06-3749

instructive, but not directly on point.2 First, the government
relies on United States v. Hernandez, 

(7th Cir.
2003). In Hernandez, the defendant argued that his instant
conviction was related to his conviction three years earlier
because both convictions involved the sale of drugs in the
same geographic area and the same criminal gang. 

We held that there was not a close relationship be-
tween the earlier conviction by citing to an example in
§ 1B1.3, which states that offenses are not related if,
“[i]mmediately, upon release from prison, he again sold
cocaine to the same person, using the same accomplices
and modus operandi.” 

§ 1B1.3 cmt. 8).
The government thus argues that, as in the guideline
example, Liddell was convicted of a earlier drug offense by
an Illinois court, was imprisoned for that offense, and then
committed the drug dealing offense charged in Count One.
Accordingly, the government contends that Liddell’s drug
convictions are unrelated because of his intervening state
incarceration, despite the fact that all of Liddell’s drug
offenses involve the same general geographic area and a
recurring cast of characters.
  Liddell, on the other hand, relies on United States v.
Garecht, 

(7th Cir. 1999). In Garecht, the defen-
dant participated in a conspiracy to distribute cocaine
and marijuana from 1988 to 1993. 

In October
1993, the defendant was arrested after receiving a ship-
ment of several pounds of marijuana, and he eventually
pleaded guilty to a federal charge of conspiracy to possess
marijuana with intent to distribute spanning those years.

In 1992, during the period of time charged in


2
  Both parties relied on the same respective cases during
briefing and oral argument before the district court.
No. 06-3749                                                  7

the conspiracy, a state court convicted the defendant of
possession with intent to distribute cocaine. 

dant served six months of his ten-year sentence before
being released on parole, and resumed his cocaine and
marijuana activities. 

addition to his cocaine
conviction, the defendant previously was convicted of
battery in 1981. 

time of his sentencing for the
federal drug conspiracy charge,3 the government sought to
enhance the defendant’s sentence by classifying him as a
career offender based on his earlier battery and cocaine
convictions. 

The defendant countered that his
earlier cocaine conviction arose out of the same drug
conspiracy for which he was sentenced by the district
court, and thus the instant conviction was related to the
previous conviction under U.S.S.G. § 4B1.2. 

comment 8 to U.S.S.G. § 1B1.3, we found that
the defendant’s situation fell somewhere between the
scenario where an intervening imprisonment separates the
two convictions (in which the first offense would not be
relevant conduct to the second) and a scenario where the
defendant makes two drug sales with no intervening
sentence and is convicted for one in state court and one in
federal court (in which the state court conviction would be
relevant conduct). 

§ 1B1.3 cmt. 8).
However, because the federal indictment charged the
defendant with conspiracy to sell marijuana both before
and after his imprisonment on the state cocaine charge, we
could not conclude that the defendant was arrested for the



3
  Following his October 1993 arrest on marijuana charges,
the defendant cooperated with the authorities and was not
indicted on the federal drug conspiracy charge until July 1997.

8                                                No. 06-3749

cocaine offense before committing the marijuana offense
charged in the federal indictment. 

We thus
held that the defendant’s “cocaine conviction [was] rele-
vant conduct to the marijuana conviction,” and concluded
that the district court erred in sentencing the defendant as
a career offender. 

In this case, Liddell argues
that Garecht is analogous because, as in Garecht, the federal
indictment against Liddell included drug possession
charges that occurred both before and after his imprison-
ment for his state drug conviction. He further contends that
all of the drug dealing giving rise to his conviction was part
of a continuous pattern of behavior, which involved the
same method and confederates, and thus is analogous to
the conspiracy charged in Garecht.
  As the government points out, the critical distinguish-
ing element between Hernandez and Garecht is the fact
that the defendant in Hernandez was charged with two
discrete incidents of drug possession, while the defendant
in Garecht was charged with a conspiracy that began be-
fore his state conviction and continued after the defendant
was released from prison. The discrete incident of drug
possession in Hernandez, like that charged in Count 1 of
this case, occurred after the defendant’s imprisonment on
the state charge, and did not rely upon or implicate any
pre-imprisonment conduct. Conversely, in Garecht the drug
conspiracy at issue spanned a five-year period during
which the conduct at issue in the state conviction occurred,
making it impossible to determine definitively if the earlier
offense occurred before or after the federal offense. The
Garecht conspiracy problem does not exist here, because it
is undisputed that the facts supporting Count One oc-
curred after Liddell was released from his state incarcera-
tion. Accordingly, this case is controlled by our decision in
No. 06-3749                                                  9

Hernandez. Because Liddell’s state incarceration separated
the conduct charged in Count One from the conduct
charged in both his state conviction and in Count Two, we
find that those earlier offenses are not related to Count
One. Accordingly, the district court should have deter-
mined that Liddell qualified as a career offender for Count
One when it calculated his guideline range for that count.
See United States v. Roberson, 

, 434-37 (7th Cir.
2005) (discussing the proper application of the advisory
guidelines following United States v. Booker, 

(2005)).
  It also bears mentioning that our holding in this case is
in no way impacted by the fact that the federal indict-
ment against Liddell contained two separate charges,
including a possession charge based on a discrete inci-
dent of drug possession (Count Two) that occurred before
Liddell’s incarceration for the state cocaine distribution
conviction. If Count One stood alone, the facts of this case
would be nearly indistinguishable from those at issue in
Hernandez. For sentencing purposes, however, absent the
conspiracy scenario set forth in Garecht, that is exactly how
the district court should have viewed Count One. The
guidelines explicitly state that district courts should
compute sentencing guideline ranges on a count-by-count
basis. See U.S.S.G. § 1B1.1(d); see also United States v. De la
Torre, 

, 609 (7th Cir. 2003). Liddell made no
effort to rebut this point and focused his argument
entirely on whether the conduct charged in the state
conviction was related to the conduct charged in the
federal indictment, which we rejected above. If the guide-
line ranges for Count One and Count Two are calculated
separately, then the Hernandez approach would apply for
Count One and not apply for Count Two. This should
10                                               No. 06-3749

have resulted in Liddell being sentenced as a career
offender for the former count and not the latter count. To
hold otherwise not only would conflict with the guide-
lines, but it would strain judicial resources by forcing
the government to bring multiple, separate indictments
against defendants like Liddell to ensure that such defen-
dants do not get a more lenient sentence simply because
all of their offenses are consolidated in a single indictment.


                             III.
  The district court erred by not sentencing Liddell as a
career offender for Count One of the federal indictment.
The conduct charged in Count One was not related to
Liddell’s earlier state cocaine conviction, and, coupled with
his earlier battery conviction, it rendered him a career
offender under U.S.S.G. § 4B1.1. Accordingly, we VACATE
Liddell’s sentence and REMAND for resentencing in ac-
cordance with this opinion.

A true Copy:
       Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                    USCA-02-C-0072—7-12-07