United States Court of Appeals
For the First Circuit
No. 07-1828
UNITED STATES OF AMERICA,
Appellee,
v.
FERMIN HERNÁNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella and Selya, Circuit Judges,
and Domínguez,* District Judge.
David Duncan, with whom Zalkind, Rodriguez, Lunt & Duncan LLP
was on brief, for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
August 29, 2008
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*Of the District of Puerto Rico, sitting by designation.
SELYA, Circuit Judge. In this single-issue criminal
appeal, defendant-appellant Fermin Hernández raises a question of
first impression concerning the application of section 4A1.1(d) of
the federal sentencing guidelines. Although an oddly placed
transitional expression in an application note and the ingenuity of
able counsel combine to give us momentary pause, we conclude that
the guideline provision says what it means and means what it says.
Hence, the district court did not commit any interpretive error and
the defendant's sentence must be affirmed.
Because this appeal follows the entry of a guilty plea,
we draw the facts from the change-of-plea colloquy, the uncontested
portions of the presentence investigation report (PSI Report), and
the transcript of the disposition hearing. See United States v.
Dietz, 950 F.2d 50, 51 (1st Cir. 1991). We limit our recital to
those facts that are helpful to an understanding of the issue on
appeal.
In late 2003, the government began a protracted
investigation of a large-scale heroin trafficking ring. The probe
eventually led to an indictment that charged fifteen persons,
including the defendant, with conspiracy to distribute one kilogram
or more of heroin during the period from December of 2003 to
January of 2005. See 21 U.S.C. §§ 841(a)(1), 846. As matters
turned out, the evidence of the defendant's direct involvement in
the conspiracy boiled down to (i) his participation in the delivery
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of about 300 grams of heroin on June 9, 2004 and (ii) testimony
that he had participated in at least two deliveries at unspecified
times during the life of the conspiracy.
The defendant originally maintained his innocence but, on
December 13, 2006, entered a guilty plea to the conspiracy count as
framed. The district court convened the disposition hearing on
April 24, 2007.
The defendant's criminal history revealed one relevant
entry: a New York state conviction for operating a motor vehicle
while under the influence of alcohol (OUI). See N.Y. Veh. & Traf.
Law § 1192. The New York court convicted the defendant of that
offense on July 22, 2004, and sentenced him on the same date to,
among other things, a period of criminal supervision to begin
immediately and to expire on July 21, 2005.
The PSI Report in the federal criminal case recommended
that this conviction yield an aggregate of three criminal history
points: one for the conviction itself, see USSG §4A1.1(c); and two
more because the federal offense was committed while the defendant
was under a criminal justice sentence emanating from the state OUI
offense, see id. §4A1.1(d). The government supported this
recommendation.
The defendant objected to the two-point enhancement under
section 4A1.1(d). He argued that, for sentencing purposes, the
federal offense should be deemed to have occurred on June 9, 2004
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(the date of his proven personal involvement in the conspiracy).
Since that specific conduct transpired prior to the imposition of
the state criminal justice sentence, section 4A1.1(d) should not
apply.
The district court rejected this reasoning and overruled
the defendant's objection. Noting that the July 2004 OUI court
supervision sentence had been imposed within the fourteen-month
span of the conspiracy, the court ruled that section 4A1.1(d)
required the addition of the two disputed criminal history points.
The resultant criminal history score rendered the defendant
ineligible for safety-valve relief. See USSG §5C1.2(a)(1).
Consequently, the court sentenced him to the mandatory minimum term
of imprisonment: sixty months. See 21 U.S.C. § 841(b)(1)(B). This
timely appeal followed.
We review a sentencing court's interpretation and
application of the guidelines de novo. United States v. Goodhue,
486 F.3d 52, 55 (1st Cir. 2007). The guideline provision here at
issue — USSG §4A1.1(d) — requires a sentencing court to add two
points to a defendant's criminal history score "if the defendant
committed the instant offense while under any criminal justice
sentence, including probation." For guideline purposes, "offense"
is defined as "the offense of conviction and all relevant conduct
. . . unless a different meaning is specified or is otherwise clear
from the context." USSG §1B1.1, cmt. (n.1(H)).
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In this case, the offense of conviction is conspiracy.
The indictment makes manifest that the offense spanned a fourteen-
month period from December 2003 to January 2005. The criminal
supervision sentence for the unrelated OUI offense was imposed
about midway through this span. The defendant pleaded guilty to
the conspiracy as charged. At first blush, then, it seems as
though the instant offense (or, at least, some part of it) was
committed while the defendant was under a criminal justice
sentence.
To counter this construction, the defendant points to an
application note to section 4A1.1(d). The note states that "[t]wo
points are added if the defendant committed any part of the instant
offense (i.e., any relevant conduct) while under any criminal
justice sentence." USSG §4A1.1, cmt. (n.4) (emphasis supplied).
The defendant posits that the underscored transitional expression
equates "any part of the instant offense" with "any relevant
conduct" and, thus, that the latter limits the former.
Accordingly, his thesis runs, section 4A1.1(d), read through the
prism of note 4, focuses not on the offense of conviction
simpliciter but, rather, on whatever act(s) the defendant himself
committed within the confines of that offense. He adds that the
qualifier to the guideline definition of "offense" — which reads
"unless a different meaning is specified or is otherwise clear from
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the context," USSG §1B1.1, cmt. (n.1(H)) — opens the door for
reading note 4 to disrupt the plain meaning of section 4A1.1(d).
To be sure, note 4 is not a model of literary elegance.
The transitional expression "i.e." (which literally translates as
"that is") appears imprecise in this context, and its use tends to
obfuscate the note's meaning. But it is a quantum leap to assume,
as the defendant would have it, that this awkward locution should
be regarded as a clear or specific signal from the Sentencing
Commission that it desired to alter the meaning of "instant
offense" in section 4A1.1(d). At most, the defendant has pointed
out a possible inconsistency between the guideline and note 4 — and
any inconsistency between a guideline provision and a piece of
guideline commentary must be resolved in favor of the plain meaning
of the guideline itself. See Stinson v. United States, 508 U.S.
36, 43 (1993); United States v. Fiore, 983 F.2d 1, 2 (1st Cir.
1992).
In all events, we think that the inconsistency envisioned
by the defendant is more imagined than real. The most plausible
reading of note 4 is not as a direction to substitute "relevant
conduct" as a universal proxy for "instant offense" but, instead,
as a means of reminding a sentencing court that the phrase "any
part of the instant offense" includes "any relevant conduct"
(whether or not occurring within the four corners of the offense as
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charged). In that way, note 4 confirms that the potential reach of
section 4A1.1(d) includes relevant conduct.
The reading that we propose is consistent with the
guideline definition of "offense" as "the offense of conviction and
all relevant conduct." USSG §1B1.1, cmt. (n.1(H)) (emphasis
supplied). It also comports with the existing case law; although
there is no reported case directly on point, courts applying
section 4A1.1(d) in analogous circumstances have interpreted the
application note relied on by the defendant as allowing the use of
relevant conduct to broaden the boundaries of the offense of
conviction rather than to shrink those boundaries. See, e.g.,
United States v. Williams, 272 F.3d 845, 853 (7th Cir. 2001);
United States v. Sherwood, 156 F.3d 219, 222 (1st Cir. 1998);
United States v. Harris, 932 F.2d 1529, 1538-39 (5th Cir. 1991).
We add a coda. At bottom, the defendant's argument
smacks of an attempt needlessly to import the complexities of
conspiracy law into a case that calls for nothing more than a
straightforward reading and application of a carefully scripted
guideline provision. While there are situations that require a
sentencing court to make findings as to the specific acts
attributable to a particular coconspirator, see, e.g., United
States v. Pizarro-Berríos, 448 F.3d 1, 7 (1st Cir. 2006)
(attributing amount of loss); United States v. Colón-Solis, 354
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F.3d 101, 103 (1st Cir. 2004) (attributing drug quantity), this is
not one of them.1
We need go no further. Here, the defendant "committed
the instant offense while under a[] criminal justice sentence,"
USSG §4A1.1(d), and the district court appropriately elevated his
criminal history score by two points on that account.
Affirmed.
1
A different analysis might have been necessary had the
defendant presented evidence to the district court of his
abandonment of or withdrawal from the conspiracy prior to the
imposition of sentence in the OUI case. Here, however, the
defendant offered no such evidence; instead, he entered a plea of
guilty to the conspiracy as charged — a conspiracy that he admitted
was ongoing on the date of, and after, the OUI sentence was
imposed. See United States v. Grant, 114 F.3d 323, 329 (1st Cir.
1997) ("When a criminal defendant pleads guilty, he admits not only
that he committed the factual predicate underlying his conviction,
but also that he committed the crime charged against him."
(internal quotation marks omitted)).
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