FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 09-50304
v.
D.C. No.
ROBERT GARCIA-JIMENEZ, AKA 2:09-cr-00449-
Roberto Carlos Garcia, AKA RGK-1
Player, AKA Boxer, AKA
OPINION
Eduardo Garcia,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted
May 3, 2010—Pasadena, California
Filed October 6, 2010
Before: John T. Noonan, Richard R. Clifton and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
16817
16820 UNITED STATES v. GARCIA-JIMENEZ
COUNSEL
Amanda M. Bettinelli, Assistant U.S. Attorney, Los Angeles,
California, for the plaintiff-appellee.
Kathryn A. Young, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.
OPINION
BYBEE, Circuit Judge:
Defendant-Appellant Robert Garcia-Jimenez (“Garcia”), a
native and citizen of Mexico, appeals the thirty-seven-month
UNITED STATES v. GARCIA-JIMENEZ 16821
sentence imposed by the district court following his guilty
plea to one count of being an illegal alien found in the United
States after deportation, in violation of 8 U.S.C. § 1326(a) and
(b)(2). Garcia argues that the district court committed two
errors when it calculated his criminal history category under
the United States Sentencing Guidelines (“U.S.S.G.”): (1)
adding two criminal history points under U.S.S.G. § 4A1.1(d),
which requires additional points “if the defendant committed
the instant offense while under any criminal justice sentence,
including . . . parole”; and (2) adding one criminal history
point under U.S.S.G. § 4A1.1(e), which requires additional
points “if the defendant committed the instant offense less
than two years after release from imprisonment on a sentence
counted under [U.S.S.G. § 4A1.1](a).” We hold that the dis-
trict court correctly added two points under § 4A1.1(d) and
one point under § 4A1.1(e) and therefore affirm Garcia’s sen-
tence.
I
The dates and order of the events leading up to Garcia’s
instant offense are important to both issues on appeal, and
they are undisputed. On December 11, 2001, Garcia was con-
victed in Los Angeles County Superior Court of second-
degree robbery, in violation of California Penal Code § 211.
He was sentenced to three years’ imprisonment.
Garcia was first admitted into the California Department of
Corrections (“CDC”) on January 23, 2002. He was paroled on
June 29, 2004. That same day, Garcia was deported for the
first time. On December 23, 2005 (having returned to the
United States at some point), he was sent back to the CDC
again for violation of his parole. He was then paroled a sec-
ond time on June 20, 2006, and then deported a second time
that same day. He again returned to the United States at some
point. On December 3, 2006, Garcia was arrested by the Los
Angeles Police Department (“LAPD”) for first-degree resi-
dential burglary, in violation of California Penal Code § 459,
16822 UNITED STATES v. GARCIA-JIMENEZ
and a case was filed against him in Los Angeles County Supe-
rior Court. On April 20, 2007, he was again returned to the
CDC for violation of his parole, and was then paroled a third
time on August 4, 2007. On August 14, 2007, Garcia was
arraigned on the residential burglary charge and remanded to
custody. On August 28, 2007, the residential burglary charge
against Garcia was dismissed because the prosecution was
unable to proceed.
On November 5, 2007, Garcia began working at a commu-
nity service program called “Homeboy Industries.”1 On Janu-
ary 15, 2008, Garcia was arrested by the LAPD for first-
degree residential burglary under California Penal Code
§ 459, for which no court filing has been completed. On Janu-
ary 18, 2008, Garcia’s first term of employment at Homeboy
Industries ended. On June 19, 2008, Garcia was returned to
the CDC for a third violation of his parole relating to the orig-
inal robbery charge, and then discharged a fourth time on
June 28, 2008, because the statutory maximum on that charge
had been reached. Garcia was employed by Homeboy Indus-
tries a second time from June 30, 2008, until September 20,
2008. This brings us to the instant offense. On April 2, 2009,
Garcia was in the custody of the LAPD,2 which then notified
the Immigration and Customs Enforcement (“ICE”) of Gar-
cia’s arrest. On April 6, 2009, Garcia was transferred to ICE
custody. On May 8, 2009, the government filed an informa-
tion charging Garcia with having been an illegal alien found
in the United States following deportation, in violation of 8
U.S.C. § 1326(a) and (b)(2). The indictment also alleged that
at least one of Garcia’s deportations occurred subsequent to
1
Homeboy Industries is a program intended to assist at-risk youths and
gang members through a variety of services, including counseling, tutor-
ing, employment, and free tattoo removal. Wikipedia, Homeboy Indus-
tries, available at http://en.wikipedia.org/wiki/Homeboy_Industries (last
visited June 10, 2010).
2
The Presentence Investigation Report (“PSR”) does not indicate pre-
cisely why Garcia was in the LAPD’s custody.
UNITED STATES v. GARCIA-JIMENEZ 16823
Garcia’s conviction for an “aggravated felony,” namely the
second-degree robbery conviction in 2001.
Garcia pleaded guilty to the charge in the information pur-
suant to a binding plea agreement with the government. This
agreement contained a stipulation by the parties that the dis-
trict court should impose a sentence equal to the low end of
the applicable Sentencing Guidelines range determined by a
total offense level of seventeen (agreed to by the parties) and
“the criminal history category calculated by the court in
accordance with Chapter 4 of the Sentencing Guidelines.”
Pursuant to this agreement, the United States Probation
Office (“USPO”) submitted a Presentence Investigation
Report (“PSR”) addressing only Garcia’s criminal history.
The original PSR determined that Garcia fell within criminal
history category III based on five criminal history points.3
However, in response to the government’s position paper
regarding sentencing, the USPO submitted a Modified Presen-
tence Investigation Report (“MPSR”) and Addendum deter-
mining that Garcia fell within criminal history category IV
based on seven criminal history points.
For the purposes of this appeal, the main difference
between the two reports is that the USPO accepted the gov-
ernment’s position that Garcia “committed the instant [illegal
reentry] offense[—on April 2, 2009—]less than two years
after release from imprisonment[—on June 28, 2008—]on a
sentence counted under [U.S.S.G. § 4A1.1(a), his sentence for
the robbery conviction],” U.S.S.G. § 4A1.1(e), and thus the
MPSR added two criminal history points under § 4A1.1(e).
However, the USPO declined to add two additional criminal
history points under U.S.S.G. § 4A1.1(d), which applies “if
the defendant committed the instant offense while under any
criminal justice sentence, including . . . parole.” Contrary to
the government’s position, the USPO “used April 2, 2009,”
3
The basis for these five points is not relevant to this appeal.
16824 UNITED STATES v. GARCIA-JIMENEZ
the date Garcia had been last arrested by the LAPD (and a day
on which he was not on parole), “as the date on which Jime-
nez first committed this continuing[4] [illegal reentry]
offense.” The USPO found that the government had not
proven by a preponderance of the evidence that Garcia first
committed the continuing illegal reentry offense on April 20,
2007, a day on which he was on parole, because although
Garcia was not deported after that date, Garcia could have
returned to Mexico and later reentered the United States dur-
ing one of the periods in which he was not incarcerated.
Both the government and Garcia objected to the MPSR in
memoranda filed with the district court. The government
argued that the evidence supported a finding that Garcia had
been in the United States unlawfully since at least April 20,
2007, and that therefore an addition of two points under
U.S.S.G. § 4A1.1(d) was appropriate. Garcia did not dispute
the facts in the MPSR, but argued that the MPSR incorrectly
added two points under U.S.S.G. § 4A1.1(e) because Garcia’s
imprisonments following his parole violations should not be
used to determine when Garcia was “release[d] from impris-
onment on a sentence counted under [U.S.S.G. § 4A1.1(a)].”
At Garcia’s sentencing hearing on June 15, 2009, the dis-
trict court stated:
In this matter the Court makes some findings: First
of all, as to [U.S.S.G. § 4A1.1(d),5] Counsel, you’re
right, it is by a preponderance of the evidence, and
4
The offense of being “found in the United States” after deportation, 8
U.S.C. § 1326(a), “is a continuing offense which continues so long as the
alien remains in the country. That is, the offense commences with the ille-
gal entry, but is not completed until discovery.” United States v. Reyes-
Pacheco, 248 F.3d 942, 946 (9th Cir. 2001) (quotation marks and citation
omitted).
5
The district court mistakenly referred to § 4A1.1(e) during its discus-
sion of § 4A1.1(d), and mistakenly referred to § 4A1.1(d) during its dis-
cussion of § 4A1.1(e).
UNITED STATES v. GARCIA-JIMENEZ 16825
the only evidence we have is, there’s nothing to
show that he left during that period of time; and if
we’re going by a standard other than the preponder-
ance of the evidence, I think defense counsel would
have a much stronger argument; but if I had to weigh
whether or not he did or did not go back outside of
the country for any period of time, based on every-
thing I’ve had here, I would say that it would be
towards ‘he didn’t.’
Accordingly, the district court added two criminal history
points under U.S.S.G. § 4A1.1(d) on the ground that Garcia
first committed the instant offense while on parole. The court
also held that U.S.S.G. § 4A1.1(e) applied because the two
years between Garcia’s release from imprisonment and the
time he committed the instant offense “r[a]n from the point
when [his] sentence [wa]s completed, and that is after the vio-
lation of the [parole].” Accordingly, the court added an addi-
tional criminal history point under U.S.S.G. § 4A1.1(e),6 for
a total of eight criminal history points, placing Garcia within
criminal history category IV. Based on that criminal history
category and the parties’ stipulated offense level of seventeen,
the district court sentenced Garcia to thirty-seven months’
imprisonment (the low end of the Guidelines range) followed
by three years’ supervised release. Garcia timely appealed
both the § 4A1.1(d) and the § 4A1.1(e) determinations to this
court.
II
We review the district court’s interpretation of the Sentenc-
ing Guidelines de novo, see United States v. Reyes-Pacheco,
248 F.3d 942, 945 (9th Cir. 2001), and its findings of fact for
clear error, see United States v. Howard, 894 F.2d 1085, 1087
6
The Guidelines provide that if two points are added under U.S.S.G.
§ 4A1.1(d), only one point (rather than two) is added under U.S.S.G.
§ 4A1.1(e). See U.S.S.G. § 4A1.1(e).
16826 UNITED STATES v. GARCIA-JIMENEZ
(9th Cir. 1990). Garcia argues that the district court erred in
adding two criminal history points under U.S.S.G. § 4A1.1(d)
and in adding one criminal history point under U.S.S.G.
§ 4A1.1(e). We address each of these arguments in turn.
A
[1] U.S.S.G. § 4A1.1(d) provides: “Add 2 points if the
defendant committed the instant offense while under any crim-
inal justice sentence, including probation, parole, supervised
release, imprisonment, work release, or escape status.”
(Emphases added.) There is no question that Garcia was
“under [a] criminal justice sentence” (parole) on April 20,
2007, the day on which he violated his parole a second time
and was returned to the CDC for the third time. And there is
no question that Garcia was not on parole (and therefore not
“under [a] criminal justice sentence”) on April 2, 2009, the
day of his most recent arrest by the LAPD. Thus, our task is
to determine on which of these two dates Garcia “committed
the instant offense”—if April 20, 2007, then U.S.S.G.
§ 4A1.1(d) applies; if April 2, 2009, it does not apply. This
inquiry implicates the unique nature of Garcia’s “instant
offense.”
[2] The “instant offense” is Garcia’s conviction under a
federal statute punishing a previously deported alien who “is
at any time found in[ ] the United States” without the permis-
sion of the Attorney General. 8 U.S.C. § 1326(a)(2). “We
repeatedly have held that the crime of being found in the
United States after deportation is a continuing offense which
continues so long as the alien remains in the country. That is,
the offense commences with the illegal entry, but is not com-
pleted until discovery.” Reyes-Pacheco, 248 F.3d at 946
(emphasis added) (quotation marks and citation omitted).
Thus, if Garcia has been continuously in the country since
April 20, 2007, then he “committed the instant offense” on
that date, and thus committed this offense “while under any
UNITED STATES v. GARCIA-JIMENEZ 16827
criminal justice sentence, including . . . parole.” U.S.S.G.
§ 4A1.1(d).
In the district court, the government bore the burden of
proving Garcia’s continuous presence in the United States
since April 20, 2007, by a preponderance of the evidence. See
Howard, 894 F.2d at 1090. The district court found that Gar-
cia had been continuously present in the country since that
date. In reviewing this finding, we must first determine the
appropriate standard of review. A district court’s findings will
be affirmed absent clear error when the inquiry is “essentially
factual.” See United States v. Hinkson, 585 F.3d 1247, 1259
(9th Cir. 2009) (en banc). By contrast, if resolution of an issue
requires us to “exercise judgment about the values that ani-
mate legal principles,” the question is one of law and should
be reviewed de novo. Id. Accordingly, if Garcia were chal-
lenging the district court’s continuous presence finding on the
grounds that it applied a legally incorrect definition of “con-
tinuous,” we would review the issue de novo. Here, however,
the district court’s determination rested entirely on the factual
question of whether Garcia ever physically left the United
States to return to Mexico. Accordingly, we review this deter-
mination under the clear error standard. See Howard, 894
F.2d at 1087.
We hold that the district court did not clearly err in finding
that the government had proven Garcia’s continuous presence
by a preponderance of the evidence. First, the government
submitted evidence accounting for Garcia’s presence in the
United States for a large portion of time between his return to
the CDC on April 20, 2007, and his most recent arrest by the
LAPD on April 2, 2009. Garcia was in the CDC, and there-
fore certainly in the country, between April 20, 2007, and
August 4, 2007, the date on which Garcia was paroled for a
third time. Only ten days later, on August, 14, 2007, he was
arraigned on his first residential burglary charge and
remanded to custody. Soon after that (and thus soon after his
release from custody), on November 5, 2007, Garcia began
16828 UNITED STATES v. GARCIA-JIMENEZ
working at Homeboy Industries, where he remained until at
least January 18, 2008, when he finished his first term of
employment. Meanwhile, on January 15, 2008, he was
arrested by the LAPD for burglary for the second time. He
was recommitted to the CDC on June 19, 2008, for violation
of his parole and, two days after his discharge on June 28,
2008, was again employed by Homeboy Industries until Sep-
tember 20, 2008. He was then arrested by the LAPD on April
2, 2009.
The government also submitted evidence to the district
court that Garcia had no reason to leave the United States.
Garcia had lived in the United States since he was five years
old, had children who were United States citizens, had a
fiancé who lived in the United States, and had come back to
the United States both times after he was deported. Moreover,
because traveling to Mexico and returning would have sub-
jected Garcia to the risk of being detected, the government
argued that “it [wa]s illogical to assume that defendant would
voluntarily leave the county while residing here illegally.” Id.
Garcia responds that the government’s evidence failed to
prove that Garcia did not leave the country on the dates
between his contacts with law enforcement, and that the gov-
ernment cannot meet its “burden by showing that Mr. Garcia-
Jimenez was in the United States on specific dates” after April
20, 2007. He argues that such a line of reasoning amounts to
“mere speculation and conjecture.” He also notes “the fre-
quency with which individuals cross the border to Mexico and
back undetected.”
[3] It is true that the government’s evidence does not
account for Garcia’s presence in the United States at every
moment since April 20, 2007, and it is indeed conceivable
that Garcia could have returned to Mexico at some point in
between the dates of his contacts with law enforcement. How-
ever, the government did not need to prove with absolute cer-
tainty that Garcia had been in the country continuously since
UNITED STATES v. GARCIA-JIMENEZ 16829
April 20, 2007; the government’s burden was only to demon-
strate continuous presence by a preponderance of the evi-
dence. By accounting for Garcia’s presence in the country for
a major portion of the time since his return to the CDC on
April 20, 2007, by demonstrating that Garcia had no reason
to leave the United States during that time, and by showing
that it would have been illogical for Garcia to leave the
United States, the government satisfied its burden, particu-
larly since Garcia offered no evidence at all to counter the
government’s evidence other than general findings regarding
Mexican aliens frequently crossing the border. At the very
least, the district court’s finding was not clearly erroneous.
[4] In sum, the district court did not clearly err in finding
that Garcia had been continuously in the United States from
April 20, 2007, until his most recent arrest on April 2, 2009.
And because the offense of being found in the United States
after deportation “continues so long as the alien remains in the
country,” Reyes-Pacheco, 248 F.3d at 946, Garcia “commit-
ted the instant offense” on April 20, 2007, a date on which he
was “under any criminal justice sentence, including . . .
parole,” U.S.S.G. § 4A1.1(d). Thus, the district court correctly
added two criminal history points under U.S.S.G. § 4A1.1(d).
B
U.S.S.G. § 4A1.1(e) provides:
Add 2 points if the defendant committed the instant
offense less than two years after release from
imprisonment on a sentence counted under [U.S.S.G.
§ 4A1.1](a) or (b) or while in imprisonment or
escape status on such sentence. If 2 points are added
for [U.S.S.G. § 4A1.1](d), add only 1 point for this
item.
(Emphasis added.) Section 4A1.1(a), in turn, provides: “Add
3 points for each prior sentence of imprisonment exceeding
one year and one month.”
16830 UNITED STATES v. GARCIA-JIMENEZ
[5] In 2001, Garcia was convicted of second-degree rob-
bery and sentenced to three years’ imprisonment. This is
indisputably “a sentence counted under [U.S.S.G.
§ 4A1.1](a).” U.S.S.G. § 4A1.1(e). And, as discussed above,
Garcia “committed the instant offense” on April 20, 2007. Id.
Thus, our task is to determine whether April 20, 2007, is “less
than two years after [Garcia’s] release from imprisonment on
[his robbery] sentence,” which requires us to determine when
exactly Garcia was “release[d] from imprisonment on [this]
sentence” for the purposes of U.S.S.G. § 4A1.1(e).
As discussed above, Garcia was first admitted into the CDC
for his robbery sentence on January 23, 2002, and first
paroled on June 29, 2004. Garcia was returned to the CDC for
violation of his parole on December 23, 2005, released on
parole again on June 20, 2006, returned to the CDC again for
violation of parole on April 20, 2007, released on parole a
third time on August 4, 2007, returned to the CDC for viola-
tion of parole on June 19, 2008, and then discharged a final
time on June 28, 2008, because the statutory maximum had
been reached.
Garcia argues that his imprisonments following his parole
violations should not be used to determine when Garcia was
“release[d] from imprisonment on [his robbery] sentence,”
and that therefore Garcia was “release[d] from imprisonment
on [this] sentence” on June 29, 2004, the date of his first
parole release. This date is more than two years before Garcia
“committed the instant offense” on April 20, 2007, and thus
acceptance of Garcia’s argument would mean that the district
court erred in adding a criminal history point under U.S.S.G.
§ 4A1.1(e). The government argues, and the district court
held, that Garcia’s imprisonments following his parole viola-
tions count for the purposes of determining when Garcia was
“release[d] from imprisonment on [his robbery] sentence.”
Accepting this argument would mean that Garcia “committed
the instant offense less than two years after release from
imprisonment on [this] sentence,” because April 20, 2007, is
UNITED STATES v. GARCIA-JIMENEZ 16831
less than two years after June 20, 2006, the date of Garcia’s
second release on parole.7 We review this legal issue de novo,
see Reyes-Pacheco, 248 F.3d at 945, and, for the reasons that
follow, we hold that imprisonment following parole violations
counts for the purposes of determining the date of a defen-
dant’s “release from imprisonment” under U.S.S.G.
§ 4A1.1(e).
[6] Section 4A1.1(e) itself does not make clear how the
timing of a defendant’s “release from imprisonment” is deter-
mined. However, a neighboring provision, U.S.S.G. § 4A1.2
(k)(2)(A), answers this question. Section 4A1.2(k)(2)(A) pro-
vides: “Revocation of probation, parole, supervised release,
special parole, or mandatory release may affect the points for
§ 4A1.1(e) in respect to the recency of last release from con-
finement.” (Emphases added.) Section 4A1.2(k)(2)(A) is
hardly a model of clarity, but we see no possible way that
revocation of parole could “affect the points for § 4A1.1(e)”
other than by changing the date of the defendant’s “release
from imprisonment” under that provision. Thus, this provision
demonstrates that, if a defendant is imprisoned for violating
his parole relating to a prior sentence counted under U.S.S.G.
§ 4A1.1(a), he is “release[d] from imprisonment on [that] sen-
tence” on the date that he is “last release[d] from confine-
ment” for the parole violation.
Garcia has three responses. First, he points out that
U.S.S.G. § 4A1.1(e) applies if the instant offense was com-
mitted “less than two years after release from imprisonment
7
Because of the continuing nature of Garcia’s instant offense, Garcia
also “committed the instant offense” on April 2, 2009, the date of his most
recent arrest by the LAPD. This date is less than two years after June 28,
2008, the date of Garcia’s final discharge from prison on the robbery con-
viction. Thus, regardless of whether we consider Garcia to have “commit-
ted the instant offense” on April 2, 2009, or on April 20, 2007, accepting
the government’s interpretation of U.S.S.G. § 4A1.1(e) would mean that
Garcia “committed the instant offense less than two years after release
from imprisonment on [his robbery] sentence.”
16832 UNITED STATES v. GARCIA-JIMENEZ
on a sentence counted under (a).” (Emphasis added.) A sen-
tence “count[s] under (a)” if it “exceed[s] one year and one
month.” U.S.S.G. § 4A1.1(a). Since Garcia’s second-degree
robbery conviction resulted in a three-year sentence, his sub-
sequent parole violations did not affect whether his sentence
counted under U.S.S.G. § 4A1.1(a). Thus, he argues, his
imprisonments resulting from his parole violations were not
“imprisonment[s] on a sentence counted under (a),” and there-
fore his releases from these imprisonments were not “re-
lease[s] from imprisonment[s] on a sentence counted under
(a).”
Garcia’s argument misses the point. The question is not
whether Garcia’s imprisonments for his parole violations in
themselves counted under U.S.S.G. § 4A1.1(a). The question
is whether, for the purposes of U.S.S.G. § 4A1.1(e), these
imprisonments are part of the original “sentence counted
under (a)”—his sentence for second-degree robbery—such
that his releases from these imprisonments are “release[s]
from imprisonment on a sentence counted under (a).”
U.S.S.G. § 4A1.1(e) (emphasis added). And on this point,
once again, U.S.S.G. § 4A1.2(k)(2)(A) states that
“[r]evocation of . . . parole . . . may affect the points for
§ 4A1.1(e) in respect to the recency of last release from con-
finement.” This provision demonstrates that Garcia’s parole
violation imprisonments qualify as “imprisonment[s] on a
sentence counted under (a)” because the Guidelines consider
these imprisonments part of the original sentence for purposes
of U.S.S.G. § 4A1.1(e).8
8
This conclusion is bolstered by U.S.S.G. § 4A1.2(k)(1), which pro-
vides: “In the case of a prior revocation of . . . parole, . . . add the original
term of imprisonment to any term of imprisonment imposed upon revoca-
tion. The resulting total is used to compute the criminal history points for
§ 4A1.1(a), (b), or (c), as applicable.” Although this provision affects only
the length of a prior sentence under U.S.S.G. § 4A1.1(a), (b), and (c),
rather than the recency of the defendant’s release from imprisonment
under U.S.S.G. § 4A1.1(e), it provides further support for our conclusion
that parole violation imprisonments are considered part of the original sen-
tence for the purposes of U.S.S.G. § 4A1.1.
UNITED STATES v. GARCIA-JIMENEZ 16833
Second, Garcia relies on U.S.S.G. § 4A1.2(a)(1), which
states: “The term ‘prior sentence’ means any sentence previ-
ously imposed upon adjudication of guilt, whether by guilty
plea, trial, or plea of nolo contendere, for conduct not part of
the instant offense.” (Emphasis added.) Garcia correctly
points out that a California parole violation sentence is not
imposed “upon adjudication of guilt.” See In re Eddie M., 73
P.3d 1115, 1129-30 (Cal. 2003) (“[R]evocation proceedings,
in and of themselves, do not concern guilt of any criminal
charges . . . . [Parole violation proceedings] are not part of any
criminal prosecution. In other words, revocation involves no
criminal guilt . . . .” (quotation marks and citation omitted)).
Thus, he argues that parole violation sentences are not part of
the original sentence under U.S.S.G. § 4A1.1(e).
Garcia’s second response suffers from a similar flaw to his
first. The question is not whether Garcia’s imprisonments for
violation of parole are in themselves “prior sentence[s]” under
U.S.S.G. § 4A1.2(a)(1)—it is clear that they are not. See id.
But it is also clear that his original three-year sentence is a
“prior sentence,” and that this original sentence is “a sentence
counted under (a)” for the purposes of U.S.S.G. § 4A1.1(e).
The relevant question is the date of Garcia’s “release from
imprisonment on” that original “sentence counted under (a).”
And once again, the only provision addressing how that date
of release is to be determined is U.S.S.G. § 4A1.2(k)(2)(A),
which suggests that a sentence following revocation of parole
is part of the original sentence for the purposes of determining
the defendant’s release date under U.S.S.G. § 4A1.1(e).
Finally, Garcia argues that U.S.S.G. § 4A1.1(e) is at least
ambiguous enough that we should invoke the rule of lenity in
his favor. See United States v. Fuentes-Barahona, 111 F.3d
651, 653 (9th Cir. 1997) (“Doubts about the correct interpre-
tation of [the Sentencing Guidelines] should be resolved
according to the rule of lenity.”); United States v. Martinez,
946 F.2d 100, 102 (9th Cir. 1991) (noting that “the rule of
16834 UNITED STATES v. GARCIA-JIMENEZ
lenity requires that we infer the rationale most favorable to the
[defendant] and construe the guidelines accordingly”).
However, the Supreme Court has held that “[t]he simple
existence of some . . . ambiguity . . . is not sufficient to war-
rant application of [the rule of lenity].” Muscarello v. United
States, 524 U.S. 125, 138 (1998). Rather, “[t]o invoke the
rule, we must conclude that there is a grievous ambiguity or
uncertainty in the [Guidelines],” to the point that, “after seiz-
ing everything from which aid can be derived, . . . we can
make no more than a guess as to what [the Sentencing Com-
mission] intended.” Id. at 138-39 (emphases added) (quota-
tion marks omitted) (omission in original). We believe that
the Guidelines speak in clear enough terms that Garcia’s case
is not a situation of “grievous” ambiguity. See U.S.S.G.
§ 4A1.2(k)(2)(A) (“Revocation of . . . parole . . . may affect
the points for § 4A1.1(e) in respect to the recency of last
release from confinement.”).
[7] In sum, Garcia’s imprisonments for his parole viola-
tions count for the purposes of determining when he was “re-
lease[d] from imprisonment on [his robbery] sentence.” Thus,
Garcia was “release[d] from imprisonment on [that] sentence”
on June 20, 2006, less than two years before April 20, 2007,
the date he “committed the instant offense.” Accordingly, we
conclude that Garcia “committed the instant offense less than
two years after release from imprisonment on a sentence
counted under [U.S.S.G. § 4A1.1](a),” and hold that the dis-
trict court correctly added one criminal history point under
U.S.S.G. § 4A1.1(e).
III
Because the district court correctly added two criminal his-
tory points under U.S.S.G. § 4A1.1(d) and one criminal his-
tory point under U.S.S.G. § 4A1.1(e), we affirm Garcia’s
sentence.
AFFIRMED.