FILED
United States Court of Appeals
Tenth Circuit
February 11, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 08-4086
RAPHAEL DOZIER,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:07-CR-00860-DAK-1)
Submitted on the briefs:
Steven B. Killpack, Federal Public Defender, and Scott Keith Wilson, Assistant
Federal Public Defender, Salt Lake City, Utah, for Defendant-Appellant.
Brett L. Tolman, United States Attorney, District of Utah, and Elizabethanne C.
Stevens, Assistant United States Attorney, for Plaintiff-Appellee.
Before O’BRIEN, McKAY and GORSUCH, Circuit Judges. *
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.
The case is therefore ordered submitted without oral argument. Dozier did not
request oral argument “in order to avoid any delay attributable to scheduling oral
argument.” (Appellant’s Opening Br. at 9.) Dozier is scheduled to be released
from custody in May 2009.
O’BRIEN, Circuit Judge.
Raphael Dozier was sentenced to 18 months imprisonment after pleading
guilty to possession of a firearm by a convicted felon. He contends the district
court erred by including in his criminal history computation the period of
incarceration imposed by a state court upon revocation of a suspended sentence
when the revocation resulted from the same conduct that is the basis of the instant
offense. We affirm.
I. BACKGROUND
On July 23, 2007, the Salt Lake City Police Department sent a confidential
source (CS) to Dozier’s residence for the purpose of purchasing illegal narcotics.
Dozier invited the CS into his home. The CS told Dozier he had $60 to purchase
methamphetamine and gave the money to Dozier. Dozier asked his girlfriend to
“go get me that thing I got today” and she returned with a revolver. (R. Vol. II,
Doc. 24 at 3.) Dozier pointed the weapon at the CS and told him to leave. The
CS grabbed his money from Dozier and left. Upon arriving at Dozier’s residence,
police officers located a loaded revolver in a bedroom. Dozier stated the gun
belonged to his girlfriend but admitted he had handled it and his fingerprints
would be on it. He also admitted he had used methamphetamine earlier in the
day.
-2-
On November 28, 2007, Dozier was indicted with one count of being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The United
States Probation Office prepared a presentence report (PSR) which determined the
total offense level to be 12 after applying a two-level downward adjustment for
acceptance of responsibility. See USSG §§2K2.1(a)(6), 3E1.1. 1 The PSR
concluded Dozier had seven criminal history points: one point for a 1998
conviction for possession of a controlled substance, three points for a 2006
conviction for possession of a controlled substance (the Controlled Substance
Conviction), one point for a 2006 conviction for theft, and two points because he
was on probation for the Controlled Substance Conviction when he committed the
instant offense. See USSG §4A1.1(d). Dozier’s criminal history placed him in
Criminal History Category IV, resulting in an advisory guideline range of 21 to
27 months imprisonment.
In determining three criminal history points were warranted for the
Controlled Substance Conviction, the PSR followed USSG §4A1.2(k)(1) which
instructs: “In the case of a prior revocation of probation . . . add the original term
of imprisonment to any term of imprisonment imposed upon revocation. The
resulting total is used to compute the criminal history points for USSG §4A1.1(a),
(b), or (c), as applicable.” Dozier was originally sentenced to 0 to 5 years for the
1
All references to the United States Sentencing Guidelines are to the 2007
version.
-3-
Controlled Substance Conviction, but the sentence was suspended and Dozier was
placed on probation for 36 months after serving 20 days in jail. On August 24,
2007, the state court revoked Dozier’s probation for the Controlled Substance
Conviction because he failed to comply with the terms of probation and imposed
the original sentence of 0 to 5 years.
USSG §4A1.1 provides in pertinent part:
(a) Add 3 points for each prior sentence of imprisonment
exceeding one year and one month.
(b) Add 2 points for each prior sentence of imprisonment of at
least sixty days not counted in (a).
(c) Add 1 point for each prior sentence not counted in (a) or (b),
up to a total of 4 points for this item.
Consistent with USSG §4A1.2(k)(1), the PSR used 5 years and 20 days as
the total incarceration time for purposes of calculating the criminal history points
to be afforded to the Controlled Substance Conviction. 2 Consequently, it assigned
three criminal history points to the Controlled Substance Conviction under USSG
§4A1.1(a) because the sentence exceeded one year and one month. 3
Dozier objected to the assessment of three criminal history points for the
2
The term “sentence of imprisonment” “refers to the maximum sentence
imposed.” USSG §4A1.2(b)(1). Thus, an indeterminate 0 to 5 year sentence is
considered a 5-year sentence. See id., comment. (n.2); see also United States v.
Chavez-Diaz, 444 F.3d 1223, 1226-27 (10th Cir. 2006).
3
The PSR did not specifically set forth this calculation but we presume
this was the approach it followed.
-4-
Controlled Substance Conviction, arguing he should have received only one
criminal history point. He would have received only one criminal history point if
the original sentence was calculated as either a 20-day sentence of imprisonment,
see USSG §4A1.1(c), 4 or a sentence of 36 months probation, see USSG §4A1.2
comment. (n.2). The two-point difference is significant. Had Dozier received
five instead of seven total criminal history points, he would have been in Criminal
History Category III instead of IV and his advisory guideline range would have
been 15 to 21 months instead of 21 to 27 months.
The court overruled Dozier’s objection and adopted the PSR’s calculation
of Dozier’s criminal history, resulting in a guideline range of 21 to 27 months. It
sentenced Dozier to 18 months. The reduction came from granting a three-month
credit (over the government’s objection) for the five months Dozier served in
state custody for violating his probation. Dozier appeals, asserting the court erred
in overruling his objection. 5
II. DISCUSSION
Dozier contends the district court erred in holding the sentence imposed
following the revocation of his probation on the Controlled Substance Conviction
4
The guidelines instruct that for purposes of calculating criminal history
points under §4A1.1, “[i]f part of a sentence of imprisonment was suspended, [the
term] ‘sentence of imprisonment’ refers only to the portion that was not
suspended.” USSG §4A1.2(b)(2).
5
The government has not appealed from the gratuitous reduction.
-5-
was a “prior sentence” within the meaning of USSG §4A1.1, which is defined as
“any sentence previously imposed upon adjudication of guilt . . . for conduct not
part of the instant offense.” USSG §4A1.2(a)(1). He argues the conduct resulting
in the revocation of his probation is the same conduct that forms the basis of the
instant offense; it is thus “part of the instant offense” and by definition cannot be
a “prior sentence.” 6 This is a question of law, which we review de novo. See
United States v. Munoz-Tello, 531 F.3d 1174, 1181 (10th Cir. 2008) (“When
evaluating the district court’s interpretation and application of the Sentencing
Guidelines, we review legal questions de novo and factual findings for clear error
. . . .”).
“Generally speaking, we interpret the Sentencing Guidelines according to
accepted rules of statutory construction.” United States v. Cornelio-Pena, 435
F.3d 1279, 1282 (10th Cir. 2006) (quotations omitted). “As with all statutory
interpretation, we begin our analysis with the language of [the guideline at issue],
giving the words used their ordinary meaning.” United States v. Plotts, 347 F.3d
873, 876 (10th Cir. 2003) (quotations omitted). This process is straightforward.
6
The government points out that the record does not indicate the specific
conduct that led to the revocation of Dozier’s probation on the Controlled
Substance Conviction. Indeed, the PSR indicates only that Dozier’s probation
was revoked because “he failed to obey all laws and, therefore, failed to comply
with the State Court’s order.” (R. Vol. II, Doc. 24 at Addendum.) The
government appears to be raising a factual issue. Because it did not raise this
issue with the district court, we will not consider it here and will assume Dozier’s
probation was revoked based on the same conduct underlying the instant offense.
-6-
We begin with USSG §4A1.2(k)(1) because this guideline specifically addresses
the calculation of criminal history points for a sentence arising from a revocation
of probation. This guideline plainly and simply instructs the sentencing court to
“add the original term of imprisonment to any term of imprisonment imposed
upon revocation.” USSG §4A1.2(k)(1). This is exactly what the district court
did, resulting in the addition of three criminal history points under USSG
§4A1.1(a).
Dozier’s argument focuses on USSG §4A1.2(a)(1), which he believes
excludes the sentence imposed following the revocation of his probation from the
definition of “prior sentence.” 7 His argument ignores the relation-back aspect of
the law-incarceration resulting from a probation revocation is punishment for the
7
Dozier seems to concede, as we think he must, that the original sentence
he received for the Controlled Substance Conviction-20 days imprisonment and
36 months probation-qualifies as a “prior sentence” within the meaning of the
guidelines, meriting one criminal history point. See USSG §§4A1.1(c), 4A1.2
comment. (n.2). His argument thus treats the original sentence and the post-
revocation 0 to 5 year sentence as disparate sentences. But USSG §4A1.2(k)(1)
expressly provides that a sentence imposed following the revocation of probation
is not to be calculated separately from the original sentence imposed but is to be
combined therewith. See USSG §4A1.2, comment. (n.11) (“Rather than count the
original sentence and the resentence after revocation as separate sentences, the
sentence given upon revocation should be added to the original sentence of
imprisonment, if any, and the total should be counted as if it were one
sentence.”). This more specific guideline controls. See NISH v. Rumsfeld, 348
F.3d 1263, 1272 (10th Cir. 2003) (“It is a general maxim of statutory
interpretation that a statute of specific intention takes precedence over one of
general intention.”).
-7-
original offense. 8 It is imposed as a consequence of the defendant’s breach of
probation terms but is not punishment for the breach. See Alabama v. Shelton,
535 U.S. 654, 662 (2002) (“A suspended sentence is a prison term imposed for
the offense of conviction. Once the prison term is triggered, the defendant is
incarcerated not for the probation violation, but for the underlying offense.”);
Johnson, 529 U.S. at 701 (“We . . . attribute postrevocation penalties to the
original conviction.”). The sentence imposed following the revocation of
Dozier’s probation was for the crime for which he was convicted in 2006,
possession of a controlled substance, which is not part of the instant offense,
possession of a firearm.
This is an issue of first impression in this Circuit, but our holding is
consistent with Wheeler v. United States, 330 F.3d 407 (6th Cir. 2003). 9 In
8
It is not double jeopardy when a defendant is sentenced for a criminal act
and his probation in another case is revoked as a consequence of that same
criminal act. See Johnson v. United States, 529 U.S. 694, 700 (2000).
9
See also United States v. Madrigal-Rodriguez, 60 Fed. Appx. 5, 6 (9th
Cir. 2003) (unpublished) (holding the district court correctly applied §4A1.2(k)(1)
“[e]ven assuming the probation revocation was triggered by the same conduct that
constitutes the current offense” because defendant’s original conviction had
nothing to do with the acts underlying the new charge and “thus has nothing to do
with section 4A1.2(a)(1)’s limitation on counting ‘conduct . . . part of the instant
offense’”); United States v. Barroso, 972 F.2d 1343, No. 91-10553, 1992 WL
185461, at *1 (9th Cir. 1992) (unpublished) (rejecting defendant’s argument that
the district court should not have assessed an additional criminal history point
following the revocation of his probation for the same conduct underlying the
instant offense because the sentence imposed following the revocation “was based
on the prior offense”).
-8-
Wheeler, the Sixth Circuit concluded the district court properly considered the
sentence imposed following the revocation of the defendant’s state court
community corrections sentence despite the fact the revocation resulted from the
same conduct underlying the federal offense. Relying in part on Johnson, the
court explained “the fact that Tennessee authorities revoked Defendant’s
community corrections sentence for the same firearms possession that led to his
[federal] conviction does not, for criminal history purposes, sever the conduct
from the original state sentence attributable to his [earlier state court
conviction].” Id. at 412.
Dozier calls our attention to United States v. Loudon, wherein the Second
Circuit held the district court did not err in departing upward under USSG
§4A1.3(a) 10 after concluding a sentence imposed upon a probation revocation
could not be considered for purposes of calculating defendant’s criminal history
because the sentence was imposed for conduct which formed the basis of the
subsequent federal conviction. 385 F.3d 795, 799 (2d Cir. 2004). While this
presents a possible alternative approach, the Loudon court was not called upon to
consider whether the district court erred in failing to include the sentence imposed
following the revocation of the defendant’s supervised release in calculating his
10
Pursuant to this guideline, a court can depart upward “[i]f reliable
information indicates that the defendant’s criminal history category substantially
under-represents the seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes.” USSG §4A1.3(a)(1).
-9-
criminal history points. The court considered only whether the district court erred
in departing upward. We do not read Loudon to support Dozier’s arguments since
it offers no analysis of the pertinent issue.
Dozier points out, correctly, that the timing of state and federal court
proceedings might lead to anomalous results. Additional criminal history points
will be included when, as here, the state court probation revocation precedes the
federal sentencing, but not when the federal sentencing precedes the state court
revocation. While it may seem somewhat arbitrary, the problem is more
theoretical than real because probation revocation proceedings tend to be handled
more expeditiously than federal criminal proceedings due to, inter alia, the lesser
burden of proof and the absence of a jury in revocation proceedings. In any
event, the possibility of anomalous results is not reason to rewrite the
guidelines. 11
Where probation is revoked based on the same conduct forming the basis of
a federal offense, the imposition of the original sentence is attributable to the
original act of conviction, not the act underlying the revocation. The 0 to 5 year
11
The same timing problem exists in other circumstances and can work in
a defendant’s favor. Where, for example, a federal defendant has been convicted
but not yet sentenced in state court, the state conviction is only assigned one
criminal history point, even though the sentence ultimately imposed may exceed
one year and one month and therefore warrant three criminal history points. See
USSG §§4A1.1(a), 4A1.2(a)(4). On the other hand, if the state sentencing
precedes federal sentencing, the defendant will receive three criminal history
points for a sentence exceeding one year and one month. USSG §4A1.1(a).
-10-
sentence imposed on Dozier following the revocation of his probation was not
part of the “instant offense” and the court properly considered it in determining
Dozier’s criminal history.
AFFIRMED.
-11-