RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0244p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
Nos. 04-1741; 05-1188
v.
,
>
PATRICK GALVAN (04-1741); CHARLES JOHNSON -
-
Defendants-Appellants. -
(05-1188),
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 03-20017—David M. Lawson, District Judge.
Argued: June 1, 2006
Decided and Filed: July 13, 2006
Before: BATCHELDER, GIBBONS, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Russell J. Perry, Jr., Saginaw, Michigan, Elias J. Escobedo, Jr., Waterford, Michigan,
for Appellants. James C. Mitchell, ASSISTANT UNITED STATES ATTORNEY, Flint, Michigan,
for Appellee. ON BRIEF: Russell J. Perry, Jr., Saginaw, Michigan, Elias J. Escobedo, Jr.,
Waterford, Michigan, for Appellants. James C. Mitchell, ASSISTANT UNITED STATES
ATTORNEY, Flint, Michigan, for Appellee.
_________________
OPINION
_________________
COOK, Circuit Judge. Patrick Galvan1 and Charles Johnson pleaded guilty to conspiring
to distribute cocaine. Both individuals attack the sentences that the district court imposed. Galvan
argues that the district court miscalculated his criminal history and that the court determined his
sentence under mandatory Sentencing Guidelines, and Johnson argues that the district court
improperly enhanced his sentence. We vacate Galvan’s sentence and remand for resentencing in
accordance with Booker, and we affirm Johnson’s sentence.
1
Galvan’s name appears as “Galvin” in certain documents in the record. We use “Galvan” for consistency with
our docket.
1
Nos. 04-1741; 05-1188 United States v. Galvan et al. Page 2
I. Galvan
At sentencing the district court found that Galvan fell into criminal history category III under
the Sentencing Guidelines based on a total of six criminal history points. Galvan argues that his
criminal history category should have been II because the district court erroneously added three
criminal history points. He also raises a Booker challenge. We review “a district court’s legal
conclusions regarding the Sentencing Guidelines de novo” and “a district court’s factual findings
in applying the Sentencing Guidelines for clear error.” United States v. Galloway, 439 F.3d 320,
322 (6th Cir. 2006). We apply de novo review to the district court’s interpretation of the Guidelines.
United States v. DeCarlo, 434 F.3d 447, 452 (6th Cir. 2006).
A. Criminal History Calculation
The Guidelines instruct a sentencing judge, in calculating a defendant’s criminal history, to
award three points for “[a]ny prior sentence of imprisonment exceeding one year and one month that
was imposed within fifteen years of the defendant’s commencement of the instant offense.”
U.S.S.G. § 4A1.2(e)(1); see id. § 4A1.1(a). Just over ten years before Galvan began conspiring to
distribute cocaine, a Michigan state court sentenced him to four years’ probation for felonious
assault. Galvan twice violated his probation, receiving a 65-day sentence for the first violation and
a 365-day sentence for the second.
To calculate criminal history points “[i]n the case of a prior revocation of probation,” a court
must “add the original term of imprisonment to any term of imprisonment imposed upon
revocation.” U.S.S.G. § 4A1.2(k)(1). The district court added Galvan’s two sentences for probation
violations (65 days and 365 days) to his original sentence (no imprisonment) and, because the total
sentence—430 days—exceeded thirteen months, added three points to Galvan’s criminal history
score. In challenging the district court’s calculation, Galvan points out that the Guidelines speak
only of “revocation” of probation, and the state court described his probation as “revoked” only
upon the second violation. Under Galvan’s theory, the 65-day sentence imposed for his first
probation violation should not be counted toward his total sentence, dropping the total sentence
below the thirteen-month minimum for criminal history points and reducing his criminal history
category to II.
But we are concerned only with “revocation” as it is used in the Guidelines, and the state
court’s terminology does not control our interpretation of the federal Sentencing Guidelines. See
United States v. Williams, 176 F.3d 301, 311 (6th Cir. 1999); United States v. Townsend, 408 F.3d
1020, 1025-26 (8th Cir. 2005) (rejecting similar argument because “[t]hat the incarcerations
following Townsend’s probation violations were not each labeled a ‘revocation of probation’ is not
controlling”). “[W]hen a defendant has been . . . placed on probation, and the court has thereafter,
upon finding he violated probation, ordered him to serve a period of incarceration, we think it proper
to view that order as at least a partial revocation of probation that falls within the scope of
Guidelines § 4A1.2(k)(1).” United States v. Glidden, 77 F.3d 38, 40 (2d Cir. 1996); see United
States v. Glover, 154 F.3d 1291, 1294 (11th Cir. 1998) (rejecting similar argument); United States
v. Reed, 94 F.3d 341, 344 (7th Cir. 1996) (“It is true . . . that the PSI does not indicate that Reed’s
probation actually was revoked . . . . Yet we believe that the circumstances here must be considered
as a ‘revocation of probation’ under section 4A1.2(k)(1).”); but see United States v. Ramirez, 347
F.3d 792, 799-806 (9th Cir. 2003) (finding no revocation).
We hold that the state court revoked Galvan’s probation within the meaning of § 4A1.2(k)(1)
when it sentenced him to 65 days’ imprisonment. We find it telling that the state court ordered one
of the conditions of Galvan’s probation—electronic monitoring—to be “reinstated” after his prison
term. That a condition of probation had to be “reinstated” after Galvan’s release implies that “his
probation was at least partially revoked for purposes of section 4A1.2(k)(1).” Reed, 94 F.3d at 346.
Nos. 04-1741; 05-1188 United States v. Galvan et al. Page 3
Additionally, like the Eleventh Circuit, we conclude that Ҥ 4A1.2(k)(1) contemplates that,
in calculating a defendant’s total sentence of imprisonment for a particular offense, the district court
will aggregate any term of imprisonment imposed because of a probation violation with the
defendant’s original sentence of imprisonment, if any.” Glover, 154 F.3d at 1294. The Supreme
Court, discussing pre-Guidelines practice for federal sentencing, held that “‘revocation’ of parole
followed by further imprisonment was not a mere termination of a limited liberty that a defendant
could experience only once per conviction.” Johnson v. United States, 529 U.S. 694, 712 (2000);
see also id. at 707 (holding that “revoke” as used in a former version of 18 U.S.C. § 3583 “allow[ed]
a ‘revoked’ term of supervised release to retain vitality after revocation”). Finally, to the extent that
probation is “an alternative to imprisonment,” id. at 712 n.11 (emphasis added), imposition of
imprisonment necessarily revokes probation. Cf. United States v. St. Clair, 127 F. App’x 777, 778
(6th Cir. 2005) (equating without discussion a sentence for “probation violation” with probation
revocation); United States v. Wright, 19 F. App’x 230, 234 (6th Cir. 2001) (same). Because the state
court’s imposition of a sentence for Galvan’s probation violation was “at least a partial revocation
of probation that falls within the scope of Guidelines § 4A1.2(k)(1),” Glidden, 77 F.3d at 40, the
district court correctly calculated Galvan’s criminal history score.
Galvan also contends that the district court should have reduced his aggregate sentence for
the state court conviction—430 days—by the number of days that the state court credited him for
time served. The state court credited Galvan with 35 days for his 65-day sentence and 22 days for
his 365-day sentence. Eliminating the credited days from his aggregate sentence reduces the
sentence below the one-year-and-one-month threshold.
Galvan points to a Michigan law requiring a sentencing court to credit a defendant’s sentence
for any time served prior to sentencing. See Mich. Comp. Laws § 769.11b. But, for the purposes
of Guidelines criminal history calculation, it matters not whether a defendant’s sentence included
credit for time served presentence. United States v. Cruz-Alcala, 338 F.3d 1194, 1199-1200 (10th
Cir. 2003); United States v. Staples, 202 F.3d 992, 997 (7th Cir. 2000) (“The Guidelines make no
distinction as to how or when the defendant must serve the sentence, such as . . . getting credit for
time spent awaiting trial.” (quotation omitted)). Thus Galvan’s argument fails.
Galvan also argues that the Michigan court credited his 65-day sentence for the first
probation violation toward his later 365-day sentence. Stated differently, Galvan suggests that the
state court intended to sentence him to only 300 days for the second violation, making the total for
both sentences only 365 days (and below the requisite thirteen months). But nothing on the face of
the record indicates any such credit, and the district court was not required to search beyond the
record. See United States v. French, 974 F.2d 687, 701 (6th Cir. 1992) (“The state court conviction
. . . was not unconstitutional on the face of the record utilized to enhance the sentence.”); United
States v. Mateo, 271 F.3d 11, 16 (1st Cir. 2001) (“[T]he sentencing guidelines do not compel district
courts to inquire beyond the face of the state-court record . . . .”).
Galvan protests that, if the Michigan court failed to credit his 65-day sentence toward his
365-day sentence, it violated the Michigan Supreme Court’s decision in People v. Sturdivant, 312
N.W.2d 622 (Mich. 1981). Even if Galvan’s interpretation of Sturdivant is correct, however, the
district court at sentencing need not collaterally review Galvan’s prior sentences. See U.S.S.G.
§ 4A1.2 cmt. n.6 (“With respect to the current sentencing proceeding, this guideline and
commentary do not confer upon the defendant any right to attack collaterally a prior conviction or
sentence beyond any such rights otherwise recognized in law . . . .”); French, 974 F.2d at 701
(rejecting appellant’s contention that “district courts are required to entertain at sentencing a
defendant’s argument and his evidence to the effect that his state court conviction was
unconstitutional, even though that defendant has not ‘shown [the conviction] to have been
previously ruled constitutionally invalid.’” (alteration in original) (quoting U.S.S.G. § 4A1.2 cmt.
n.3 (1990))); Mateo, 271 F.3d at 16 (rejecting appellant’s argument that district court should not
Nos. 04-1741; 05-1188 United States v. Galvan et al. Page 4
have considered allegedly invalid state-issued warrant in Guidelines criminal history calculation
because “the sentencing guidelines do not compel district courts to inquire beyond the face of the
state-court record, let alone to make after-the-fact evaluations of the correctness vel non of the
decisions of state-court officials”). We conclude that the district court properly calculated Galvan’s
criminal history score based upon the record.
B. Mandatory Guidelines Sentence
Galvan complains that the district court considered the Sentencing Guidelines mandatory
when it sentenced him. At oral argument, the government conceded the need to remand for
resentencing in light of United States v. Booker, 543 U.S. 220 (2005), and we agree that remand is
appropriate. Accordingly, we vacate Galvan’s sentence and remand for resentencing under the now-
advisory Guidelines regime.
II. Johnson
Johnson argues that the district court erred in enhancing his sentence for constructively
possessing a dangerous weapon during the offense and for holding a supervisory role in the
conspiracy. Johnson’s arguments miss the mark.
A. Possession of a Firearm
The Guidelines instruct a court to add two points to a defendant’s base offense level “[i]f a
dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). The enhancement
applies whether a defendant actually or constructively possessed the weapon. See United States v.
Hough, 276 F.3d 884, 894 (6th Cir. 2002). A defendant constructively possesses a gun if he has
“‘ownership, or dominion or control over the [firearm] itself, or dominion over the premises where
the [firearm] is located.’” Id. (alterations in original) (quoting United States v. Sanchez, 928 F.2d
1450, 1460 (6th Cir.1991)). The district court, crediting the testimony of Johnson’s co-conspirator,
found that Johnson constructively possessed a handgun during the drug offense.
Johnson’s co-conspirator, Marcus Harrell, testified that Johnson told him to “bring a gun”
to a scheduled drug deal. Harrell, in turn, told another co-conspirator, Gary Brown, to bring the
weapon, and Brown complied. Johnson argues on appeal that, even if he instructed Harrell to bring
the gun, he never knew that Harrell (or Brown) actually brought the gun to the transaction, and he
therefore could not have constructively possessed it.
The district court did not err in finding that Johnson constructively possessed the gun. “If
the offense committed is part of a conspiracy, . . . the government does not have to prove that the
defendant actually possessed the weapon, but instead may establish that a member of the conspiracy
possessed the firearm and that the member’s possession was reasonably foreseeable by other
members in the conspiracy.” United States v. Owusu, 199 F.3d 329, 347 (6th Cir. 2000). The
sentencing court properly imputed constructive possession of the firearm to Johnson because, in
light of his instructions to Harrell, Johnson reasonably could have foreseen that his co-conspirator
would possess a weapon. United States v. Dunlap, 209 F.3d 472, 479 (6th Cir. 2000).
B. Supervisory Role
Johnson also challenges the enhancement of his sentence for his supervisory role in the
conspiracy. See U.S.S.G. § 3B1.1(b). The thrust of Johnson’s argument is that the government
offered no evidence that he exercised a degree of authority or control over others within the
conspiracy. But, as we have already discussed, the court specifically found that Harrell procured
a gun for a drug deal at Johnson’s direction. In describing Johnson’s managerial role, the court
discussed Johnson’s instructing Harrell to bring the gun, as well as two kilograms of cocaine, to the
Nos. 04-1741; 05-1188 United States v. Galvan et al. Page 5
drug deal. Given Harrell’s testimony to this effect, which the district court specifically credited, we
discern no error in the district court’s conclusion that Johnson managed or supervised at least one
other person in a conspiracy involving five or more participants. See U.S.S.G. 3B1.1(b).
C. Pro Se Arguments
Acting pro se, Johnson advances a number of additional arguments for remand. In his plea
agreement, Johnson waived “any right to file a direct appeal from the conviction or sentence,”
except where he lodged “a timely objection” in the district court. The district court explained the
waiver to Johnson at the plea hearing, and Johnson indicated that he understood its ramifications.
Because Johnson failed to lodge objections below for any of the arguments he raises pro se, we
conclude that Johnson waived these challenges. See United States v. McGilvery, 403 F.3d 361, 362
(6th Cir. 2005) (“[A] defendant in a criminal case may waive any right, even a constitutional right,
by means of a plea agreement.” (quotation omitted)).
III. Conclusion
We vacate Galvan’s sentence and remand for resentencing in light of Booker. We affirm
Johnson’s sentence.