In United States v. Burke, 863 F.3d 1355 (11th Cir. 2017), the Eleventh Circuit confronted the issue of whether a defendant’s state sentence, imposed after his original federal sentence was imposed but before the sentence was vacated and he was resentenced, qualified as a “prior sentence” for purposes of calculating criminal history points under the Sentencing Guidelines. The court recognized a circuit split on the issue. The Eighth and Ninth Circuits have held that when a defendant’s initial sentence is vacated, a sentencing court may add criminal history points for any unrelated sentences imposed after the initial sentencing but before resentencing. See United States v. Tidwell, 827 F.3d 761, 764 (8th Cir. 2016); United States v. Klump, 57 F.3d 801, 803 (9th Cir. 1995). In contrast, the First Circuit has held a “prior sentence” in this context means a sentence that was imposed prior to the original sentence which was vacated and remanded only for resentencing. See United States v. Ticchiarelli, 171 F.3d 24, 35 (1st Cir. 1999).
Relying upon circuit precedent and its reading of the Sentencing Guidelines, the Eleventh Circuit agreed with the Eighth and Ninth Circuits.