092212P.pdf   02/23/2010  Johnnie King  v.  United States
   U.S. Court of Appeals Case No:  09-2212
   U.S. District Court for the Eastern District of Missouri - St. Louis   
   [PUBLISHED] [Murphy, Author, with Bye, Circuit Judge, and Strom,
   District Judge]
   Prisoner case - habeas. Because a conviction is not a prior felony within
   the meaning of Guidelines Sec. 4B1.1 unless it received criminal history
   points under subsections (a), (b), or (c) of Guidelines Sec. 4A1.1, and
   because it is uncertain whether King's convictions for resisting arrest
   received points under one of the subsections, the court applies the rule of
   lenity and gives him the benefit of the reading of the sections which
   results in a shorter sentence; as a result, the district court erred in
   sentencing King under Sec. 4B1.1, and his appellate attorney's
   performance (failing to recognize that the waiver of appeal rights was
   unenforceable and did not preclude consideration of the issue) cost him
   the ability to present the argument on direct appeal; case remanded for
   resentencing.