FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50036
Plaintiff-Appellee,
v. D.C. No.
08-CR-0093 GW
ABDUL WAHID,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted
February 10, 2010—Pasadena, California
Filed August 10, 2010
Before: Barry G. Silverman and Sidney R. Thomas,
Circuit Judges, and Jeremy Fogel, District Judge*
Opinion by Judge Fogel
*The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.
11375
11378 UNITED STATES v. WAHID
COUNSEL
Benjamin L. Coleman and Ethan A. Balogh, Coleman &
Balogh LLP, San Diego, California, for the defendant-
appellant.
George S. Cardona, Acting United States Attorney; Christine
C. Ewell, Assistant United States Attorney, Criminal Divi-
sion; and Janet C. Hudson, Assistant United States Attorney,
Los Angeles, California, for the plaintiff-appellee.
OPINION
FOGEL, District Judge:
On March 24, 2008, Appellant Abdul Wahid pled guilty to
three counts of mail fraud (18 U.S.C. § 1341), one count of
theft of government property (18 U.S.C. § 641), one count of
UNITED STATES v. WAHID 11379
aggravated identity theft (18 U.S.C. § 1028A), and five counts
of tax evasion (26 U.S.C. § 7201). He now appeals his sen-
tence, presenting two separate issues. First, he argues that the
district court failed to recognize that it had discretion to
reduce the sentence it imposed for mail fraud in light of the
two-year mandatory sentence for aggravated identity theft
under 18 U.S.C. § 1028A. Second, he claims that the district
court erred in assessing criminal history points under U.S.S.G.
§ 4A1.2 for his prior misdemeanor convictions. Although we
vacate the judgment and remand to permit the district court to
correct a clerical error, we affirm the sentence.
I. BACKGROUND
A. Criminal Conduct Charged in the Information
From 2000 to 2007, Wahid owned and operated a tax prep-
aration business called Global Accounting and Tax Services,
Inc. Although he is not a certified public accountant (“CPA”),
he held himself out as such.
1. Mail Fraud
Counts One through Three of the information alleged mail
fraud. Wahid operated several other companies in addition to
Global Accounting and Tax Services, Inc., including one cal-
led Internal Recovery Systems (doing business as “IRS”) and
others doing business as “EED,” “BOE,” and “FTB” (all of
which are acronyms for tax collecting agencies in California).
Wahid defrauded his clients by preparing two sets of tax
returns for each client. One set of returns, which Wahid
showed to his clients, indicated that taxes were owed. Wahid
directed his clients to make out checks to “IRS” or another
applicable acronym, which he then deposited into one of his
business accounts. The second set of returns indicated that the
clients had no tax liability or were owed a refund. Wahid
forged his clients’ signatures and provided these returns to the
appropriate tax collection agencies. In a variation on this
11380 UNITED STATES v. WAHID
scheme, Wahid falsely told clients that he had paid their tax
liability directly and requested reimbursement. The govern-
ment identified more than 150 victims of these schemes.
2. Theft of Government Property
Count Four alleged theft of government property. From
2001 to 2006, Wahid filed false tax returns using Social
Security Numbers assigned to other people. These returns
indicated that the individuals were owed tax refunds and
requested that the refunds be sent to Wahid’s address. Wahid
deposited the refunds into his personal accounts. For example,
Wahid received a refund of $14,429 using the Social Security
Number of an individual with the initials “S.K.M.” The real
S.K.M. was a friend of Wahid who was not currently living
in the United States.
3. Aggravated Identity Theft
Count Five alleged aggravated identity theft. Aggravated
identity theft involves knowingly transferring, possessing, or
using the identification of another person in connection with
the commission of certain enumerated felonies. 18 U.S.C.
§ 1028A. Theft of government property is such a felony. 18
U.S.C. § 1028A(c)(1). As described above, Wahid knowingly
used S.K.M.’s Social Security Number in the commission of
Count Four.
4. Tax Evasion
Counts Six through Ten alleged tax evasion. Wahid did not
file tax returns for his own income from 2002 to 2006. The
Internal Revenue Service determined that Wahid’s taxable
income during this period was $2,921,010.
B. Continuing Criminal Activity While Released on
Bond
Following his arrest, Wahid was released on a $5,000 unse-
cured appearance bond. While on pretrial release, Wahid mis-
UNITED STATES v. WAHID 11381
appropriated three additional checks using the same scheme
described in connection with the mail fraud allegations.
Wahid also filed false tax returns for his wife for 2004 and
2005 and used a Taxpayer Identification Number that
belonged to another person.
C. Sentencing
The district court sentenced Wahid to 132 months in prison.
It also ordered Wahid to pay restitution in the amount of
$1,280,617.33 and imposed a special assessment of $1,000.
1. Offense Level Calculation
The district court grouped Counts One through Five (mail
fraud, theft of government property, and aggravated identity
theft) and Counts Six through Ten (tax evasion), finding that
the counts involved a common scheme or plan under U.S.S.G.
§§ 1.B1.3(a)(2), 3D1.2(c), and 3D1.2(d). It selected a base
offense level of seven pursuant to U.S.S.G. § 2B1.1(a)(1)(B)
based upon Wahid’s conviction under 28 U.S.C. § 1341. Six-
teen levels were added because the total loss was between
$1,000,000 and $2,500,000. U.S.S.G. § 2B1.1(b)(1). Another
four levels were added because there were between fifty and
250 victims. U.S.S.G. § 1B1.1(b)(2)(B). Finally, two more
levels were added because Wahid abused a position of trust
as a tax preparer and abused a special skill in holding himself
out as a CPA. U.S.S.G. § 3B1.3. The government initially rec-
ommended a three-point deduction for acceptance of respon-
sibility, U.S.S.G. § 3E1.1, but it withdrew that
recommendation in light of Wahid’s continuing criminal con-
duct while on pretrial release. Accordingly, Wahid’s total
offense level was 29.
2. Criminal History Category
The presentence report (“PSR”) placed Wahid in criminal
history category III. One point reflected Wahid’s conviction
11382 UNITED STATES v. WAHID
under Cal. Veh. Code § 14601.1(a) for driving on a suspended
license on March 23, 1999. According to court documents,
Wahid waived his right to counsel, pled nolo contendere, and
was sentenced to three years of probation and fifteen days in
jail. A second point reflected Wahid’s conviction under Cal.
Veh. Code. §§ 14610(a)(1) and 12500(a) for displaying a
fraudulent license and driving without a license, respectively,
on March 14, 2006. Wahid was represented by counsel in
connection with that case, for which he was sentenced to two
years probation and one day in jail. Two additional points
were added because Wahid committed the instant offenses
while on probation. U.S.S.G. § 4A1.1(d).
3. Recommended Sentence
With an offense level of 29 and a criminal history category
of III, Wahid’s guideline sentence was 108 to 135 months.
However, a conviction for aggravated identity theft requires
the imposition of a two-year consecutive sentence. See 18
U.S.C. §§ 1028A(a)(1), (b)(2), and (b)(3). Accordingly, the
final recommended sentence was 132 to 159 months.
4. Sentencing Hearing
At his sentencing hearing, Wahid argued that his criminal
history category over-represented the seriousness of his crimi-
nal record. The district court rejected Wahid’s argument,
pointing out that Wahid’s criminal history involved a failure
to tell the truth to authorities, a fact that was relevant to the
instant offenses. Wahid also argued that his overall offense
level should be reduced because his plea agreement saved the
time and expense of a trial. The government asserted that
Wahid would have been charged with additional offenses had
he not agreed to plead guilty. The district court rejected
Wahid’s argument and sentenced Wahid at the low end of the
guideline range.
UNITED STATES v. WAHID 11383
II. UNITED STATES V. VIDAL-REYES
Wahid first contends that the district court failed to recog-
nize that it had discretion to reduce his sentences for “non-
predicate” felonies in light of the mandatory two-year sen-
tence imposed by Section 1028A. He bases his argument on
United States v. Vidal-Reyes, 562 F.3d 43 (1st Cir. 2009), a
First Circuit decision published while the instant appeal was
pending.1
A. Standards of Review
Examining this issue requires two separate inquiries. The
first involves the statutory interpretation of 18 U.S.C.
§ 1028A (“Section 1028A”). In order to determine whether
the district court erred by not considering the extent of its dis-
cretion to reduce Wahid’s overall sentence under Section
1028A, we first must determine whether the statute permits
the court to exercise such discretion at all. Issues of statutory
interpretation are reviewed de novo. United States v.
Burkholder, 590 F.3d 1071, 1074 (9th Cir. 2010).
The second inquiry involves review of the district court’s
guideline calculation. Wahid argues that he is entitled to de
novo review because he sought and was denied a downward
departure by the district court. However, where a defendant
did not request a particular downward departure at the time
of sentencing, the district court’s failure to grant that particu-
lar departure is reviewed for plain error. United States v.
Castillo-Casiano, 198 F.3d 787, 789 (9th Cir. 1999) (citing
United States v. Johnson, 520 U.S. 461 (1997) and United
States v. Keys, 133 F.3d 1282 (9th Cir. 1998) (en banc)) (find-
ing that the plain error rule applies if the defendant did not at
the time of sentencing request the downward departure in
1
Criminal defendants may take advantage of new rules announced while
their appeals are pending. United States v. Castillo-Casiano, 198 F.3d 787,
789-90 (9th Cir. 1999).
11384 UNITED STATES v. WAHID
question, even if the law foreclosed the departure in question
at the time of the sentencing). Although he did seek a down-
ward departure in the district court, Wahid did not make the
argument he makes here. Accordingly, we review the guide-
line calculation for plain error.
B. Statutory Interpretation
[1] Wahid asks us to adopt the holding of the First Circuit
in Vidal-Reyes, 562 F.3d. at 50-51, which distinguished
between “predicate” and “non-predicate” offenses for pur-
poses of applying the mandatory consecutive sentence provi-
sion of Section 1028A. Vidal-Reyes holds that Section 1028A
requires a district court to impose a two-year sentence consec-
utive to any other term of imprisonment and may not reduce
the sentence for a “predicate” felony to offset the consecutive
sentence, but it also holds that a district court does have dis-
cretion to reduce the sentence for a “non-predicate” felony for
that purpose. Id. We agree.
[2] Although the Sentencing Guidelines no longer are
mandatory following the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005), Booker does not per-
mit district courts to impose a lower sentence in place of a
sentence that is required by statute. See United States v. Dare,
425 F.3d 634, 643 (9th Cir. 2005); accord United States v.
Rodriguez, 527 F.3d 221, 230 (1st Cir. 2008) (holding that a
district court’s discretion may be limited by “an unambiguous
congressional directive”). Section 1028A contains such a
directive (emphasis added):
(a)(1) . . . Whoever, during and in relation to any fel-
ony violation enumerated in subsection (c), know-
ingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person
shall, in addition to the punishment provided for
such felony, be sentenced to a term of imprisonment
of 2 years.
UNITED STATES v. WAHID 11385
(b)(2) . . . [N]o term of imprisonment imposed on a
person under this section shall run concurrently with
any other term of imprisonment imposed on the per-
son under any other provision of law, including any
term of imprisonment imposed for the felony during
which the means of identification was transferred,
possessed, or used.
In addition, Section 1028A requires that (emphasis added):
(b)(3) . . . [I]n determining any term of imprisonment
to be imposed for the felony during which the means
of identification was transferred, possessed, or used,
a court shall not in any way reduce the term to be
imposed for such crime so as to compensate for, or
otherwise take into account, any separate term of
imprisonment imposed or to be imposed for a viola-
tion of this section.
[3] The phrase “the felony during which the means of
identification was transferred, possessed, or used,” which
appears in both 18 U.S.C. § 1028A(b)(2) and § 1028(b)(3),
refers to the “felony violation enumerated in subsection (c)”
of the statute, as referenced in 18 U.S.C. § 1028A(a)(1).
These enumerated felony violations are “predicate” felonies
for purposes of Section 1028A. Section 641, theft of govern-
ment property, is one of the enumerated predicate felonies. 18
U.S.C.§ 1028A(c)(1). The statute draws a clear distinction
between predicate and non-predicate felonies for some — but
not all — purposes.
The mandatory two-year term must be consecutive to a sen-
tence imposed “under any other provision of law, including
any term of imprisonment imposed for the [predicate felo-
ny.]” 18 U.S.C. § 1028A(b)(2). When the drafters intended to
refer to sentences for both predicate and non-predicate felo-
nies, they referred to sentences under “any other provision of
law” and were careful to specify that this included sentences
11386 UNITED STATES v. WAHID
for the predicate felony. However, when limiting a district
court’s discretion to reduce other sentences to compensate for
the mandatory two-year term, the drafters referred only to the
sentences for predicate felonies rather than for sentences
under “any other provision of law.” See 18 U.S.C.
§ 1028A(b)(3).
[4] The statutory language is clear. While a district court
may not reduce the sentence of a predicate felony to compen-
sate for the mandatory two-year consecutive term, it may
exercise its discretion to reduce a sentence for a non-predicate
felony. “This plain meaning is conclusive, unless ‘the literal
application of a statute . . . produces a result demonstrably at
odds with the intentions of its drafters.’ ” United States v.
Flores-Garcia, 198 F.3d 1119, 1123 (9th Cir. 2000) (quoting
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571
(1982)). Because the government has not provided any evi-
dence of legislative intent to the contrary, “we abide by the
principle that where Congress includes particular language in
one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts inten-
tionally and purposely in the disparate inclusion or exclu-
sion.” APL Co. Pte., Ltd. v. UK Aerosols Ltd., 582 F.3d 947,
952 (9th Cir. 2009) (citing Russello v. United States, 464 U.S.
16, 23 (1983) (internal marks omitted).
C. Plain Error Review of the District Court’s Guideline
Calculation
“Plain error occurs where there is (1) error, (2) that is plain,
and (3) the plain error affects substantial rights.” Castillo-
Casiano, 198 F.3d at 790 (citing United States v. Olano, 507
U.S. 725, 732 (1993)). “Where these three conditions are met,
we have discretion to correct the error, but only in cases
where the error ‘seriously affects the fairness, integrity, or
public reputation of judicial proceedings.’ ” Id. (quoting John-
son v. United States, 520 U.S. 461, 469-70 (1997)).
UNITED STATES v. WAHID 11387
1. Error
Error is “[d]eviation from a legal rule . . . unless the rule
has been waived.” Olano, 507 U.S. at 733-735. Wahid con-
tends that the district court erred because it did not understand
that it had discretion to reduce the sentences related to Counts
One through Three because these counts, which charged him
with wire fraud, are non-predicate felonies for purposes of
Section 1028A. He points out that the district court grouped
Counts One through Five. Wahid does not argue that the
grouping was error in and of itself under U.S.S.G.
§§ 3D1.2(c) (requiring grouping of counts if they embody
conduct that was treated as a specific offense characteristic in,
or other adjustment to, the guideline applicable to another of
the counts) or 3D1.2(d) (requiring grouping of counts if they
involve substantially the same harm). Rather, he contends that
the grouping is evidence that the court did not understand the
distinction between predicate and non-predicate felonies.
2. Error That is Plain
[5] “Plain error, as we understand that term, is error that is
so clear-cut, so obvious, a competent district judge should be
able to avoid it without benefit of objection.” United States v.
Turman, 122 F.3d 1167, 1170 (9th Cir. 1997); see also United
States v. Frady, 456 U.S. 152, 163 (1982) (noting that error
is plain only if the trial judge is “derelict in countenancing
it”). Our analysis for plain error differs depending on whether
the state of the law was unclear at the time of the trial or was
settled at the time of trial and clearly contrary to the law at the
time of the appeal. Turman, 122 F.3d at 1170. “When the
state of the law is unclear at trial and only becomes clear as
a result of later authority”, plain error “means error plain at
the time the district court made the alleged mistake.” Id. How-
ever, “[w]here the law at the time of trial was settled and
clearly contrary to the law at the time of appeal[,] it is enough
that the error be ‘plain’ at the time of appellate consider-
ation.” Id. (citing Johnson, 520 U.S. at 468).
11388 UNITED STATES v. WAHID
Wahid does not attempt to show that the law at the time of
his sentencing was settled and clearly contrary to our interpre-
tation of Section 1028A. Accordingly, we examine the district
court’s sentencing decision as of the time the decision was
made. Wahid claims that the district court’s comments at the
sentencing hearing show plainly that the district court
believed that it did not have discretion to reduce his sentence
for the non-predicate counts. He points to the district judge’s
comment that “even if I were to take the minimum under the
guidelines, it’s 108 months, plus 24 months, which is 132
months. So how am I suppose to get around that?” However,
immediately following that statement, the district judge said,
“Even though I understand I have discretion to sentence out-
side the guidelines range, I have to have a basis for doing that.
. . . If I were trying to justify it, I can’t see how I can justify
going below the term.” The court continued, “I have discre-
tion, but obviously to exercise discretion I have to have a
basis.” Finally, the district court observed:
“I’m not in this particular situation going to be per-
suaded that he somehow should not be sentenced
under the guidelines in this particular situation. The
crimes that he has committed are so numerous to so
many victims that even though he’s only charged
with the number that’s contained in the indictment,
it cannot be argued that there are not many more.”
In Vidal-Reyes, the district court stated explicitly that it
wanted to reduce the sentence for the defendant’s non-
predicate felonies but believed that it could not under the
mandatory provision of Section 1028A. 562 F.3d at 47-48.
Similarly, in United States v. Mendoza, 121 F.3d 510 (9th Cir.
1997), cited in Castillo-Casiano as an example of plain error,
the district court stated specifically (and incorrectly) that it
believed it did not have discretion with respect to a particular
issue. Mendoza, 121 F.3d at 512.
UNITED STATES v. WAHID 11389
[6] Even with the benefit of hindsight, we cannot say that
the district court plainly erred in considering its discretion to
reduce the sentences for the non-predicate felonies. The dis-
trict court made several statements indicating that it under-
stood it had discretion to impose a sentence outside of the
guidelines. Because the district court recognized that it had
discretion but chose not to exercise it, there was no plain
error. As the court noted in Vidal-Reyes, “a new proceeding
is needed where the district court wrongly thought it lacked
legal power to depart from sentencing guidelines, but not
where it simply chose not to exercise this authority.” 562 F.3d
at 56 (internal citations and marks omitted).2
III. CALCULATION OF THE CRIMINAL HISTORY
CATEGORY
Wahid argues that his previous convictions should not have
resulted in criminal history points and that he should have
been placed in criminal history category I. Specifically,
Wahid contends that his conviction for driving on a sus-
pended license should not have counted because it was an
uncounseled conviction for which he was sentenced to time in
jail. He also contends that two other convictions for which he
was sentenced simultaneously — driving without a license
and displaying a fraudulent license — should not have
counted because they involved minor traffic offenses.
A. Standard of Review
The district court’s calculation of Wahid’s criminal history
category is reviewed de novo. Although his argument at sen-
tencing was based on U.S.S.G. § 4A1.3(b)(1) and his current
argument is based on U.S.S.G. § 4A1.2, Wahid’s basic claim
remains the same: his prior convictions are not serious enough
2
Because we conclude that there was no plain error, we do not reach the
question of whether the disputed error affected Wahid’s substantial rights.
Cf. Olano, 507 U.S. at 734.
11390 UNITED STATES v. WAHID
to warrant his placement in criminal history category III. See
United States v. Guzman-Padilla, 573 F.3d 865, 877 n.1 (9th
Cir. 2009) (holding that claims, not arguments are preserved
on appeal).
B. The Uncounseled Conviction
Wahid argues that his 1999 conviction under Cal. Veh.
Code § 14601.1(a) should not have counted because he was
uncounseled and sentenced to serve jail time. The PSR
reflects that “[a]ccording to court documentation, the defen-
dant waived his right to counsel and pleaded nolo con-
tendere.” Wahid argues that counting this conviction was
unconstitutional and contrary to U.S.S.G. § 4A1.2.
1. The Constitutional Issue
[7] Wahid contends that the conviction should not count in
light of the Sixth Amendment’s guarantee of the right to
counsel in criminal cases in which jail time may be imposed.
See Scott v. Illinois, 440 U.S. 367, 373 (U.S. 1979) (holding
that precedent “warrants adoption of actual imprisonment as
the line defining the constitutional right to appointment of
counsel.”) However, once the government establishes the fact
of a conviction, the burden rests on the defendant to show that
the conviction was unconstitutional. United States v. Newman,
912 F.2d 1119, 1121 (9th Cir. 1990).3 Wahid has not pres-
ented any evidence that he did not make a knowing and inten-
tional waiver of his right to counsel or that his conviction
otherwise was unconstitutional.
3
Our decision in Newman was based on commentary to Note 6 to
U.S.S.G. § 4A1.2. That comment was amended in 1993. In United States
v. Kaneakua, 105 F.3d 463, 467 (9th Cir. 1997), we held that the amend-
ment to Note 6 was intended not to reallocate the burden of proof related
to a conviction but to prevent a collateral attack on a prior sentence at a
subsequent sentencing hearing. Id.
UNITED STATES v. WAHID 11391
2. U.S.S.G. § 4A1.2
[8] Wahid contends that the Commentary to U.S.S.G.
§ 4A1.2 precludes the district court from including in its crim-
inal history calculation any uncounseled misdemeanor sen-
tence for which imprisonment was imposed. The relevant
language reads:
“Prior sentences, not otherwise excluded, are to be
counted in the criminal history score, including
uncounseled misdemeanor sentences where impris-
onment was not imposed.”
U.S.S.G. § 4A1.2 cmt. background. The Commentary is spe-
cific in saying that the criminal history calculation should
include uncounseled misdemeanor convictions where impris-
onment was not imposed. Wahid argues that under the doc-
trine of expressio unius est exclusio alterius (“expressio
unius”), the commentators must have intended to exclude
uncounseled misdemeanor convictions for which imprison-
ment was imposed.
[9] Wahid points out that the Commentary has been
amended to exclude certain convictions even if such convic-
tions were not obtained in violation of the Constitution.
Before November 1, 1990, the Commentary provided that “if
to count an uncounseled misdemeanor conviction would
result in the imposition of a sentence under circumstances that
would violate the United States Constitution, then such con-
viction shall not be counted in the criminal history score.” See
United States v. Niven, 952 F.2d 289, 292 (9th Cir. 1991).
Wahid is correct that the amendment to the Commentary does
appear to broaden the category of convictions that should not
be counted in determining a criminal history score. However,
taken to its logical extreme, Wahid’s interpretation of the
Commentary also would exclude counseled misdemeanor sen-
tences for which imprisonment was not imposed. We decline
Wahid’s invitation to reach such a result.
11392 UNITED STATES v. WAHID
C. Minor Traffic Violations
Wahid also argues that he should not have been assessed a
criminal history point for his 2006 convictions under Cal.
Veh. Code §§ 12500(a) and 14610(a)(1), because the convic-
tions are for minor traffic offenses as defined by U.S.S.G.
§ 4A1.2(c)(2). Wahid was sentenced simultaneously for vio-
lating these two statutes and was ordered to serve two years
of probation and one day in jail.
U.S.S.G. § 4A1.2(c)(1) lists misdemeanor offenses that are
to be counted in the criminal history score if either (A) the
sentence included more than one year of probation or impris-
onment for at least thirty days or (B) the prior offense was
similar to the instant offense. An offense that is not listed may
be counted if it is similar to an offense that is listed. U.S.S.G.
§ 4A1.2(c)(2) lists offenses that never are to be counted in the
calculation of the criminal history score, including minor traf-
fic infractions. Offenses not listed also may be excluded if
they are similar to an offense that is listed.
Cal. Veh. Code § 12500(a) provides that “[a] person may
not drive a motor vehicle upon a highway, unless the person
then holds a valid driver’s license issued under this code,
except those persons who are expressly exempted under this
code.” The PSR notes that Wahid was convicted of “driving
w/o license” and sentenced to two years of probation and one
day in jail. U.S.S.G. § 4A1.2(c)(1) specifically lists “[d]riving
without a license or with a revoked or suspended license” as
a conviction that should be counted if the sentence imposed
was more than one year of probation. Given the explicit lan-
guage of U.S.S.G. § 4A1.2(c)(1) and the sentence of two
years of probation, Wahid properly was assessed a criminal
history point for this prior sentence.
Nonetheless, Wahid argues that Section 14610(a)(1) —
entitled “unlawful use of license” — is a “minor traffic infrac-
tion” under U.S.S.G. § 4A1.2(c)(2). Based on that argument,
UNITED STATES v. WAHID 11393
he contends that no criminal history points should be assessed
with respect to either Cal. Veh. Code § 12500(a) or
§ 14610(a)(1) because he claims that it is possible that he was
sentenced to two years of probation only for his violation of
Cal. Veh. Code § 14610(a)(1) and that the court cannot deter-
mine which offense resulted in which aspect of his sentence.
Even accepting Wahid’s argument that the violation of Cal.
Veh. Code § 14610(a)(1) is similar to a minor traffic infrac-
tion for purposes of U.S.S.G. § 4A1.2(c)(2), it is clear from
the record that he was sentenced simultaneously for the two
offenses.
[10] Pursuant to U.S.S.G. § 4A1.2(a)(2), “[i]f there is no
intervening arrest, prior sentences are counted separately
unless (A) the sentences resulted from offenses contained in
the same charging instrument; or (B) the sentences were
imposed on the same day.” The PSR indicates that the arrests
for Cal. Veh. Code §§ 12500(a) and 14610(a)(1) occurred on
the same day (March 14, 2006), so an intervening arrest was
unlikely. The PSR also indicates that the sentences were
imposed on the same day, July 6, 2006. In light of this uncon-
troverted evidence, Wahid’s convictions under §§ 12500(a)
and 14610(a)(1) do not count separately and should be con-
sidered a single sentence.
[11] Given the express language of U.S.S.G.
§ 4A1.2(c)(1), Wahid’s conviction under Cal. Veh. Code
§ 12500(a) for driving without a license properly was counted
toward his criminal history score if the sentence included
more than one year of probation. Because the sentence for
convictions under Cal. Veh. Code §§ 12500(a) and
14610(a)(1) is considered a single sentence, it is immaterial
whether two years of probation was imposed with respect to
both or only one of the convictions.
IV. CONCLUSION
[12] We conclude that the district court did not commit
plain error because it recognized that it had discretion to
11394 UNITED STATES v. WAHID
reduce Wahid’s sentence and chose not to exercise that dis-
cretion. We also conclude that the district court did not err
when it included Wahid’s previous convictions in calculating
Wahid’s criminal history category. However, because the
judgment erroneously reflects that Wahid was convicted of
three counts of wire fraud pursuant to 18 U.S.C. § 1343 rather
than three counts of mail fraud pursuant to 18 U.S.C. § 1341
as charged in the information and as reflected in the plea and
PSR, we vacate the judgment and remand for the limited pur-
pose of permitting the district court to correct the judgment.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.