AppellanU-Defendant, Alfredo Torres, challenges his sentence on conviction of conspiracy to distribute marijuana and cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). Mr. Torres contends that the district court misapplied certain provisions of the United States Sentencing Guidelines to improperly include three prior sentences in determining his criminal history category. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
Mr. Torres, along with eleven other co-conspirators, operated a drug importation and distribution enterprise in the greater Kansas City area from 1994 until June 1996. The government indicted Mr. Torres for multiple drug-related offenses. He subsequently pleaded guilty to the charge of conspiracy to distribute marijuana and cocaine in violation of 21 U.S.C. § 846. The presentence report established Mr. Torres’ base offense level for the conspiracy conviction at 32. In addition, the report recommended a four-level increase under United States Sentencing Guidelines § 3B.l.l(a) because of Mr. Torres’ role as leader or organizer of a criminal activity involving five or more participants but allowed a three-level decrease for acceptance of responsibility under § 3El.l(b). These adjustments resulted in a final recommended total offense level of 33.
The presentence report also recommended the assessment of nine criminal history points against Mr. Torres, placing him in criminal history category IV. The report calculated Mr. Torres’ criminal history points as follows: (1) one point for a thirty-day sentence imposed in 1992 for violating the terms of probation imposed in a 1985 juvenile conviction for driving while intoxicated; (2) two points for a ninety-day sentence imposed in 1986 for driving while intoxicated; (3) two points for a 132-day sentence for misdemeanor possession of marijuana in 1994; (4) one point for a two-year probationary sentence for felony possession of marijuana in 1995; (5) two points for committing the present offense while on supervised release and probation for other crimes; and (6) one point for committing the present offense less than two years after release from another term of imprisonment. Adopting the recommended total offense level of 33 and a criminal history category of IV, the district court sentenced Mr. Torres to 188 months in prison with a five-year term of supervised release-the minimum allowable sentence within the guideline range. See U.S.S.G. Ch. 5, Pt. A.
Mr. Torres does not contest his conviction or the calculation of his total offense level. Instead, he raises two issues challenging the district court’s criminal history assessment. First, Mr. Torres cites guideline provisions explicitly disallowing the double-counting that results from assessing criminal history points for prior sentences which are part of the present offense or that were already considered in setting the base offense level. Based on these rules, he contends that the court should not have considered his 1994 and 1995 sentencés for possession of marijuana because they form part of the instant offense of conspiracy to distribute drugs and are not separate, unrelated prior sentences. In his second claim, Mr. Torres contends that the court improperly assessed one criminal history point against him for the thirty-day sentence he served in 1992. He argues that if the court had properly interpreted the applicable guideline sections, it would have used the date of his “original sentence” for the juvenile offense in 1985 as instructed in § 4A1.2(k)(2)(B)(iii) instead of the “date of [his] last release from confinement,” as instructed in § 4A1.2(k)(2)(B)(ii), and thus would have decided that the prior sentence was beyond the five-year limitation for including the prior sentence in assessing his criminal history.
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We first address Mr. Torres’ claim of error with regard to the district court’s assignment of three criminal history points for his 1994 and 1995 misdemeanor and felony marijuana possession sentences. A challenge to the district court’s determination of whether the two prior offenses were part of the instant offense is a factual determination which we review for clear error.
See United States v. Hopson,
Under the Sentencing Guidelines, criminal history points are given for each “prior sentence,” which is defined as “any sentence previously imposed upon adjudication of guilt ... for conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(l). The commentary accompanying § 4A1.2 provides that “[cjonduct that is part of the instant offense means conduct that is relevant conduct to the instant offense under the provisions of § IB 1.3 (Relevant Conduct).” Id. § 4A1.2, comment. (n.l). Thus, a prior sentence counts as criminal history if it does not involve relevant conduct under § IB 1.3. In cases of jointly undertaken criminal activity such as the conspiracy charged in this instance, “relevant conduct” is defined to include both “acts and omissions committed ... by the defendant ... and ... all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of ... [and] in preparation for” the offense of conviction. Id. § lB1.3(a).
Courts have taken different approaches in determining whether a prior sentence constitutes relevant conduct for purposes of calculating criminal history. One approach asks whether the prior sentence was actually taken into account by the sentencing court in determining the total offense level.
See, e.g., United States v. Crosson,
Other courts have approached this criminal history determination differently. These courts have simply analyzed whether the prior sentence constituted relevant conduct without inquiring whether the sentencing court took the sentence into account in determining the total offense level. In other words, these courts make an independent evaluation of whether the pri- or sentence constituted relevant conduct
*1160
based on factors such as the similarity, temporal proximity, and regularity of the indicted offense and the prior offense.
See, e.g., United States v. Walling,
Because this court has utilized both of these approaches, albeit under different standards of review, and because neither of the approaches seems sufficiently disciplined, standing alone, to prevent manipulation of the Sentencing Guidelines, we think that combining the two approaches provides a more appropriate analytic framework. Without explicitly so stating, this court recently utilized such a hybrid approach in
United States v. Wiseman,
As a threshold matter, we must first examine whether the district court took the prior sentence into account in determining the base offense level. If 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.
See
U.S.S.G. § 4AI.2(a)(1) & comment. (n.l). However, in a case like this one, where the record shows that the court did not take the prior sentence into account for its base offense level calculation but instead used it for criminal history purposes, a second step of analysis is necessary. We also must review the court’s underlying finding that the prior sentence was not part of the instant offense, i.e., that it was not relevant conduct.
See Walling,
To determine whether a prior offense is conduct related to the instant offense, courts generally examine several factors, including the similarity, temporal proximity, and regularity of the instant offense and the prior sentence.
See, e.g., Walling,
In this case, the record does not answer whether Mr. Torres’ two prior marijuana convictions were conduct relevant to the instant conspiracy offense. The government offered no evidence on this question. At the sentencing hearing, the government asserted that “this is not a situation where those [prior] drug offenses
charged
[Mr. Torres] with being involved in a conspiracy with one or more of the key conspirators of this case during the time period we have charged him with.” Appellant’s App. at 15 (emphasis added). However, the mere claim that Mr. Torres’ two prior offenses did not involve
charges
of a
conspiracy
with the key conspirators of this case does not shed any light on whether the
underlying “acts and omissions ...
committed by the defendant” were relevant to the instant
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charged conspiracy. U.S.S.G. § lB1.3(a)(l)(A). In fact, several courts, including this one, have found relevant conduct under § lB1.3(a)(l) in situations where the prior offense did not involve any conspirator other than the defendant.
See, e.g., United States v. Ruiz-Castro,
For its part, the district court found that “there is no evidence from which the court could find by a preponderance of the evidence at least that these [prior] convictions arose out of th[e] conspiracy,” id. at 19, and reasoned that “[b]oth convictions predated the date of the first overt act charged in this case,” and that “[n]one of the drugs involved in these two [prior] cases was considered as relevant conduct in computing the defendant’s base offense level.” R., Supp. Vol. I at ¶ 156. However, we do not believe that the district court’s reasoning was probative of whether Mr. Torres’ two prior sentences were conduct relevant to the instant conspiracy. Although the prior offenses, both of which occurred in 1994, predate the first overt act charged in the instant conspiracy by two years, the prior offenses nonetheless occurred within the time period of the charged conspiracy, which was charged to have run from 1994 to 1997. The bare fact that the probation officer who prepared the presentence report chose not to treat the prior offenses as relevant conduct for calculating the criminal offense level provides no evidentiary support for the court’s conclusion that those offenses were not relevant to the instant conspiracy. In fact, the only evidence which bears on the issue of relevant conduct, i.e., the temporal proximity, geographic scope, and similar conduct of the prior offenses and the instant conspiracy offense, points in the direction that it was relevant conduct.
However, because we do not think that the record answers whether Mr. Torres’ two prior sentences were conduct relevant to the instant conspiracy, we are faced with a question that has not before been explicitly answered by this court, namely, who bears the burden of proving whether the conduct underlying Mr. Torres’ two prior convictions was relevant to the in *1162 stant conspiracy offense. For purposes of assessing criminal history, does the government have to prove that the prior offenses were not relevant to the instant conspiracy (thereby including them in criminal history)? Or must the defendant prove that the prior offenses were relevant to the instant conspiracy (thereby excluding them from criminal history)? If the government has the burden of proof, then the defendant wins. If the defendant has the burden, then the government wins.
Facially, it is at least feasible to assume that the earlier marijuana possession offenses were relevant to the instant offense of conspiracy to distribute marijuana and cocaine because they (1) were within the time frame charged for the instant conspiracy; (2) were within the geographic scope of the instant conspiracy; and (3) involved the same product and activity as the instant conspiracy.
1
However, such an overlap by itself does not establish as a
matter of law
that the prior offenses and instant conspiracy were related.
Compare United States v. McClelland,
Nevertheless, three compelling reasons persuade us that the burden of proof is on the government. First, it is generally “the government which [has] the burden of showing whatever facts are needed to justify adding additional criminal history points.”
United States v. Nicholas,
Second, prior convictions count as criminal history only if their underlying conduct was not relevant to the instant offense under U.S.S.G. § 1B1.3.
See
U.S.S.G. § 4A1.2, comment, (n.l). The government has always shouldered the burden of proving relevant conduct asserted to increase a defendant’s
base offense level. See United States v. Richards,
Third, as a matter of policy, it seems that the government is at least as well-positioned to' come forward with the required proof as the defendant. After all, the government chooses the scope of the conspiracy with which to charge the defendant, and it should be prepared to prove what conduct is relevant to its charged conspiracy. The government can always narrow the charge of conspiracy to reduce its burden.
We recognize that there are also persuasive reasons for putting the burden of proof on the defendant. For one, the defendant is in the best position to know the scope of the actual conspiracy. For another, this court usually only requires the government to prove the
existence
of a prior conviction by a preponderance of the evidence in order for it to be considered a prior conviction for purposes of calculating criminal history.
See United States v. Simpson,
Ultimately, however, the reasons for putting the burden on the defendant are not compelling. First, although the defendant would have better knowledge of the scope of the actual conspiracy, the government has control over the scope of the charged conspiracy and should know what it encompasses. Second, the situation where the defendant has to prove the constitutional infirmity of his prior conviction to avoid having it counted as criminal history is dissimilar to the instant case. There, the defendant is in the better position of proof because he was present during the prior conviction and should know what constitutional infirmities to assert. Placing the burden on the government in that context would saddle it with an open-ended obligation with no clear target. Here, in contrast, the government can determine from the prior court records exactly what conduct was involved in those earlier convictions, and the government has complete power to define the scope of the conspiracy with which to charge the defendant. It therefore is reasonable to impose upon the government the burden of proving that the conspiracy it chooses to charge does not relate to conduct underlying prior convictions which the government seeks to include in the defendant’s criminal history.
*1164 In summary, at least where the scope of the charged conspiracy covers (1) a time frame, (2) a geographic area, and (3) a subject matter or purpose broad enough to include prior convictions, we hold that the government bears the burden of proving by a preponderance of the evidence that the prior convictions were not relevant conduct and hence not part of the charged conspiracy. Only then can the government utilize those prior convictions to increase the defendant’s criminal history score.
Because the government has failed to meet that burden here, the district court erroneously found that Mr. Torres’ two prior convictions were not part of the instant offense. We accordingly reverse and remand for resentencing with instructions to* the district court to reduce Mr. Torres’ criminal history points to six, which places him in criminal history category III. We point out that this result does not mean that the prior sentences are a fortiori relevant conduct; we conclude simply that the government failed in its burden of proof. However, our reversal and remand for resentencing does not invite an open season for the government to make the record that it failed to make in the first instance.
In his second issue raised on appeal, Mr. Torres challenges the court’s one-point assessment for his thirty-day sentence in 1992. In support of his argument, Mr. Torres urges us to read §§ 4A1.1, 4A1.2(d) and 4A1.2(k)(2)(B) in concert and imply from their terms an interrelationship between § 4A1.2(k)(2)(B) subsections (ii) and (iii) and the referenced sections of § 4A1.2(d). Mr. Torres argues that § 4A1.2(k)(2)(B)(ii)—the guideline relied upon by the court—does not apply to his thirty-day sentence from 1992 because it specifically references § 4A1.2(d)(2)(A), which limits the assessment of criminal history points to an “adult or juvenile sentence to confinement of at least sixty days.” U.S.S.G. § 4A1.2(d)(2)(A). Mr. Torres reasons that because § 4A1.2 (k) (2) (B) (ii) is so related to § 4A1.2(d)(2)(A), it must not apply to Ms thirty-day sentence, and the court should have used the date of his original juvenile sentence in 1985 as instructed in § 4Al-2(k) (2)(B)(iii) for the purpose of deciding whether to assess criminal history points for the juvenile offense. Applying this interpretation, Mr. Torres contends that his original 1985 conviction does not fall within five years of the “commencement of the instant offense,” id. § 4A1.2(d)(2)(A), and consequently the district court inappropriately counted the conviction as part of his criminal history score. See id. § 4A1.2(e)(3) (“Any prior sentence not within the time periods specified ... is not counted.”).
Mr. Torres’ argument raises valid Guideline application questions. Nevertheless, because we have concluded that the court incorrectly included three criminal history points for Mr. Torres’ prior sentences for marijuana possession and because we remand for resentencing applying criminal history category III, we find it unnecessary to address this claim. Assuming that Mr. Torres prevailed on this second issue, the resulting one-point deduction from his criminal history would do nothing to change his criminal history category III status. See id. at Ch. 5. Pt. A. Because a decision on this issue would have absolutely no impact on Mr. Torres’ sentence, we leave the resolution of the question for another day. 2
REVERSED and REMANDED.
Notes
. Indeed, this was the position Mr. Torres took at sentencing.
. Apparently, this court has never addressed this second issue raised by Mr. Torres. Even so, the lack of Tenth Circuit authority on the subject is no reason to abandon principles of judicial restraint and render an opinion that is unnecessary and meaningless as applied to the defendant in this case. Consequently, we reserve judgment on the matter until such time as a decision will actually affect a defendant's sentence. Perhaps in the meantime, the Sentencing Commission will see fit to *1165 further clarify the Guidelines as they pertain to this issue.