United States v. Schnupp

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

5-18-2004

USA v. Schnupp
Precedential or Non-Precedential: Precedential

Docket No. 03-1964

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 PRECEDENTIAL Before: SCIRICA, Chief Judge,
ROTH and McKEE, Circuit Judges
UNITED STATES
COURT OF APPEALS (Filed May 18, 2004)
FOR THE THIRD CIRCUIT
Karen S. Gerlach, Esquire (Argued)
Office of Federal Public Defender
Nos. 03-1964 & 03-3384 1450 Liberty Center
1001 Liberty Avenue
Pittsburgh, Pennsylvania 15222
UNITED STATES OF AMERICA Attorney for Appellants
v.
ANDREA SCHNUPP, Christine A. Sanner, Esquire (Argued)
a/k/a ANDREA LYLE Bonnie R. Schlueter, Esquire
Office of United States Attorney
Andrea Schnupp, 700 Grant Street, Suite 400
Appellant at No. 03-1964 Pittsburgh, Pennsylvania 15219
Attorneys for Appellee

UNITED STATES OF AMERICA
v.
ERIC LAMAR WORMSLEY, OPINION OF THE COURT
a/k/a M ichael Wormsley,
a/k/a Michael Wallace
SCIRICA, Chief Judge.
Eric Lamar Wormsley,
Appellant at No. 03-3384 At issue is whether a criminal
sentence served in an alternative housing
facility such as a halfway house can
On Appeal from the quali fy as “a prior sentence of
United States District Court for the imprisonment” under § 4A1.1 of the U.S.
Western District of Pennsylvania Sentencing Guidelines for the purpose of
D.C. Criminal No. 02-cr-00279 calculating the criminal history score. In
(Honorable Donetta W. Ambrose) two separate cases before us, United States
D.C. Criminal No. 02-cr-00203 v. Schnupp, No. 03-1964, and United
(Honorable Maurice B. Cohill, Jr.) States v. Wormsley, No. 03-3384,
defendants contend their prior sentences
served in halfway houses should be
Argued February 9, 2004 classified under § 4A1.1 as “prior
sentences,” not “prior sentences of
imprisonment.” Defendants seek to vacate
and remand for resentencing. We will But the judge also permitted alternative
affirm. housing. The state court’s judgment3
reads:
I.
And now [count two] Jan 08 1998,
A.
in open court, defendant appearing
Andrea Schnupp pled guilty to with counsel, sentenced to pay a
fraudulently receiving Social Security fine of 6¼¢ to the Commonwealth.
benefit payments in violation of 42 U.S.C. Pay costs of prosecution and
§ 408(a)(5). 1 The presentence report undergo an imprisonment of 6 mos
(PSR) designated an adjusted offense level in the Allegheny County Jail and
of 8 and a criminal history score of 7 – stand committed. Eff 3-9-98.
three points under U.S.S.G. § 4A1.1(a) for
And now [count three] Jan 08
a 1998 narcotics conviction; one point
1998, in open court, defendant
under § 4A1.1(c) for a conviction for
appearing with counsel, sentenced
resisting arrest and disorderly conduct; two
to pay a fine of 6¼¢ to the
points under § 4A1.1(d) for committing
Commonwealth. Pay costs of
the instant offense while on parole; and
prosecution and undergo an
one point under § 4A1.1(e) for committing
imprisonment of 6 mos in the
the instant offense within two years of
Allegheny County Jail and stand
being released from a sentence of
committed. Consec. [consecutive]
imprisonment. Schnupp’s sentencing
Ct 2 with work release[.]
guideline range was 10-16 months.
Schnupp contests the assignment of
criminal history points on her 1998 state partial confinement for:
narcotics conviction. In 1998, a state ...
judge sentenced Schnupp to three (3) maximum terms of less than
c o n s e c u t iv e six - m o n t h t e r m s o f two years shall be committed to a
imprisonment in the Allegheny County coun ty prison with in the
jail. See 42 Pa. Cons. Stat. § 9762(3). 2 jurisdiction of the court except that
as facilities become available on
dates and in areas designated by the
1
From December 1997 to May 2001, G o v e r n o r i n p r o c la m a t i o ns
Schnupp had withdrawn approximately declaring the availability of State
$26,942.80 in Social Security funds from correctional facilities, such persons
her son’s direct deposit account after her may be committed to the Bureau of
son had become self-sustaining and Correction for confinement.
employed.
3
The portions appearing in italics were
2
42 Pa. Cons. Stat. § 9762 specifies: either handwritten or added with a date
All persons sentenced to total or stamp to the pre-printed form.

2
 And now [count four] Jan 08 1998, IV. With an offense level of 8, her
in open court, defendant appearing guideline sentencing range would have
with counsel, sentenced to pay a been 6-12 months instead of 10-16
fine of 6¼¢ to the Commonwealth. months, and she would have been eligible
Pay costs of prosecution and for probation together with home
undergo an imprisonment of 6 mos detention, intermittent confinement, or
in the Allegheny County Jail and community confinement.
stand committed. Consec. Ct 3[.]
The District Court rejected
Alt hsng [alternative housing] as
Schnupp’s argument and assigned her a
arranged with work release[.]
split sentence of five months imprisonment
Schnupp served her sentence by spending followed by five months of home
15 months at the Alcohol Rehabilitation detention, three years of supervised
House (“ARC House”), a halfway house release, and restitution of $25,900.
that permits work release and judicially Schnupp appealed, seeking to vacate and
authorized holiday passes. remand.
Schnupp contends the plain B.
meaning of “sentence of imprisonment” in
Eric Lamar Wormsley pled guilty to
U.S.S.G. § 4A1.1(a) requires actual
possession of a firearm in violation of 18
imprisonment in a prison or jail. Because
U.S.C. § 922(g) and possession with intent
she served her sentence in a halfway
to distribute heroin in violation of 21
house, not a jail, she argues, her prior
U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
sentence does not qualify as a “sentence of
Wormsley’s PSR calculated his base
imprisonment” under § 4A1.1(a), and her
offense level at 21 and his criminal history
1998 conviction should be classified
score at 10. W ormsley was assigned two
instead as a “prior conviction” under §
criminal history points each under §
4A1.1(c). With this reclassification,
4A1.1(b) for his prior convictions in 1996,
Schnupp would have received only four
1997 and 1998; one point each under §
criminal history points,4 placing her in
4A1.1(c) for prior convictions in 1997 and
criminal history category III rather than
1999; and two points under § 4A1.1(e) for
committing the instant offense while on
probation, for a total of ten criminal
4
Schnupp contends she should have history points. This placed Wormsley in
received one point each under § 4A1.1(c) criminal history category V, and combined
for the prior 1998 narcotics conviction and with the offense level of 21, resulted in a
the 1993 resisting arrest and disorderly guideline range of 70-87 months of
conduct conviction, and two points under imprisonment.
§ 4A1.1(d) because the offense was
Wo rmsley objec ted to th e
committed while on probation, for a total
assignment of two criminal history points
of four criminal history points.

3
to his 1998 conviction. The state court We exercise plenary review of the
judge sentenced Wormsley5 as follows: interpretation of the sentencing guidelines.
United States v. Figueroa, 105 F.3d 874,
And now 8-3-99, Defendant
875-76 (3d Cir. 1997). We review
sentenced to pay a fine of 6¼¢ to
deferentially the District Co urt’s
the Commonwealth. Pay costs of
application of the guidelines to the facts,
prosecution, and undergo an
applying the clear error standard. Buford
imprisonment of not less than 3 or
v. United States, 532 U.S. 59, 64 (2001);
more than 6 months in the
United States v. Zats, 298 F.3d 182, 185
Allegheny County Jail and stand
(3d Cir. 2002).
committed. [E] ffective 9-14-99.
Defendant is permitted Alternative III.
Housing at ARC-Goodwill-ACTA.
A.
Defendant to pay costs.
U.S.S.G. § 4A1.1 provides the
Wormsley raised the same
following instructions to calculate criminal
argument as did Schnupp. Because he
history scores for sentencing purposes:
served his sentence in ARC House,
Wormsley contended the 1998 prior The total points from items (a)
sentence should not be categorized as a through (f) determine the criminal
“sentence of incarceration of at least sixty history category in the Sentencing
days” as specified by § 4A1.1(b), but Table in Chapter Five, Part A.
rather as a “prior sentence” under §
(a) Add 3 points for each prior
4A1.1(c). Under this calculation, his
sentence of imprisonment
criminal history score would have been 9,
exceeding one year and one month.
his adjusted offense level 21, and his
sentencing guideline range 57-71 months (b) Add 2 points for each prior
instead of 70-87 months. The District sentence of imprisonment of at
Court rejected this argument and sentenced least sixty days not counted in (a).
Wormsley to 80 months in prison.
(c) Add 1 point for each prior
Wormsley timely appealed.
sentence not counted in (a) or (b),
II. up to a total of 4 points for this
item.
We have jurisdiction under 18
U.S.C. § 1291. In addition, 18 U.S.C. §§ (d) Add 2 points if the defendant
3742(a)(1) and (a)(2) confer appellate committed the instant offense while
jurisdiction to review criminal sentences. under any criminal justice sentence,
including probation, p arole ,
supervised release, imprisonment,
5 work release, or escape status.
Portions in italics were handwritten on
the preprinted form.

4
 (e) Add 2 points if the defendant states, “[t]he term ‘sentence of
committed the instant offense less imprisonment’ means a sentence of
than two years after release from incarceration and refers to the maximum
imprisonment on a sentence sentence imposed.” U.S.S.G. § 4A1.2(b)
counted under (a) or (b) or while in (2003). The guidelines provide no further
imprisonment or escape status on guidance on whether a “sentence of
such a sentence. If 2 points are incarceration” for these purposes requires
added for item (d), add only 1 point confinement in a prison or jail. Black’s
for this item. Law Dictionary defines “imprisonment” as
“[t]he act of confining a person, esp. in a
U.S.S.G. § 4A1.1 (2003). The sentencing
prison; the state of being confined.”
guidelines define the term “prior sentence”
Black’s Law Dictionary 760 (7th ed.
as “any sentence previously imposed upon
1999). “Incarceration” is similarly defined
adjudication of guilt.” Id. § 4A1.2(a)(1).
as “[t]he act or process of confining
At issue is how to define the term someone.” Id. at 764. A person may be
“sentence of imprisonment” found in §§ confined if he is “[held] within bounds [or]
4A1.1(a) and (b) for criminal history restrain[ed] from exceeding boundaries.”
scoring purposes. Defendants claim that a Id. at 476. Nevertheless, neither the
“sentence of imprisonment” must be spent guidelines, its commentary, nor common
in a prison, jail or jail-type institution in usage reflect whether the term “sentence
order to assign criminal history points of imprisonment” or “sentence of
under §§ 4A1.1(a) or (b). They argue that incarceration” refers to the initial
time served at an alternative housing pronouncement of sentence, the type or
facility, such as a halfway house, should location of confinement, or the conditions
not qualify as “imprisonment,” even if the of confinement.
pronounced sentence initially assigned
The Commission has offered some
them to a prison or jail. They maintain
guidance, although not in its official
they did not serve a “sentence of
c o m m e n ta r y. In Supplemental
imprisonment” at ARC House because
Illustrations on Criminal History Scores,
they were never confined in a jail-type
the Commission stated that the sentencing
institution.
court’s pronouncement of sentence
Although § 4A1.2 does not define controls when calculating criminal history,
the term “sentence of imprisonment,” the not the manner in which or location where
commentary for § 4A1.1 provides, “[t]he
definitions and instructions in § 4A1.2
govern the computation of the criminal
history points. Therefore, §§ 4A1.1 and
4A1.2 must be read together.” U.S.S.G. §
4A1.1, cmt. (2003). Section 4A1.2(b)

5
the sentence is served. 6 Example D.5 of this would be treated as a sentence
the Supplementary Illustrations states: of imprisonment. If the sentence
did not involve a term of
Residence in a halfway house
imprisonment (e.g., a sentence of
[when assigned as a condition of
probation with a cond ition
probation] is treated as a non-
requiring residency in a halfway
i mp riso n m e n t s e n t e n c e f o r
house), the sentence would not be
purposes of criminal history. Had
considered imprisonment and
the defendant been sentenced to
would fall under § 4A1.1(c). A
imprisonment with a
sentence of residency in a halfway
recommendation for halfway house
house is not c onsidered
placement, the sentence would be
imprisonment (see Background
tre a t e d a s a se n t e n c e of
Commentary to § 4A1.1 (second
imprisonment.
paragraph)).
United States Sentencing Commission,
United States Sentencing Commission,
Supplementary Illustrations on Criminal
Questions Most Frequently Asked About
History 17 (Dec. 1987). According to the
the Sentencing Guidelines, Vol. VII,
illustration, an additional condition or
question 76 (June 1, 1994). According to
recommendation specified by the judge
the Questions, therefore, a sentence of
should not alter the status of the sentence
probation or sentence to a halfway house is
as one of “imprisonment.” The decisive
not considered imprisonment, while a
factor apparently is whether the initial
sentence of imprisonment which stipulates
sentence was one of imprisonment or
or permits alternative treatment is treated
probation.
as a sentence of imprisonment for criminal
In its publication, Questions Most history calculation.
Frequently Asked About the Sentencing
As noted, neither the Supplemental
Guidelines, the Commission addressed
Illustrations nor the Most Frequently
whether alternative sentences counted as
Asked Questions are binding. Still, one
imprisonment for sentencing purposes.
othe r section of the guide lin es
If the offender was demonstrates a preference for reliance on
sentenced to imprisonment and as the sentencing judge’s pronouncement of
part of the term of imprisonment sentence for calculation purposes, rather
was placed on work release status, than on the location or manner of service
by the defendant. Application Note 2 to §
4A1.2 instructs the court to determine the
6 length of the sentence by looking at the
The Commission issued, but did not
stated maximum of the pronounced
officially adopt as commentary, the
Supplementary Illustrations to accompany
the 1987 Guidelines.

6
sentence, not at the length of the sentence defendant’s eligibility for alternate
actually served by the defendant. 7 housing may be guided by several factors
including assessment of the defendant,
Reliance on the pronouncement of
availability of space, and levels of
sentence rather than on the manner or
restriction. See United States v. Urbizu, 4
location of service is likely to yield more
F.3d 636, 639 (8th Cir. 1993); United
consistent application of the guidelines.
States v. Schomburg, 929 F.2d 505, 507
As noted, the judges here sentenced
(9th Cir. 1991). If the manner or location
defendants to terms of imprisonment but
of service should define “sentence of
granted permission to serve the sentences
imprisonment,” then a “prior sentence of
in an alternative housing facility. Under
imprisonment” could be determined by
Pennsylvania law, the Allegheny County
variables like availability of space. On the
jail had discretion to designate alternate
other hand, reliance on the pronouncement
housing. See Commonwealth v. Koskey,
of sentence will promote consistency in
812 A.2d 509, 512 n.3 (Pa. 2002) (“In
application of the guidelines.
Allegheny County, alternative housing is
governed by the County Jail Oversight B.
Board pursuant to 16 P.S. § 6004-A.”). 8
Defendants rely on Application
This discretion in determining a
Note 2 to § 4A1.2 to support their
assertion that time must be served in a
7
prison or jail to be classified as a “sentence
Application Note 2 reads: of imprisonment.” Application Note 2
For the purposes of applying § reads:
4A1.1(a), (b), or (c), the length of a
sentence of imprisonment is the To qualify as a sentence of
stated maximum . . . That is, imprisonment, the defendant must
criminal history points are based on have actually served a period of
the sentence pronounced, not the imprisonment on such sentence (or,
length of time actually served. See if the defendant escaped, would
§ 4A1.2(b)(1) and (2). have served time). See §
U.S.S.G. § 4A1.2, appl. n.2 (2003). 4A1.2(a)(3) and (b)(2).

8 U.S.S.G. § 4A1.2, appl. n.2 (2003).
See also Testimony of John Ross,
Defendants contend the directive that “the
ARC House Director of Admissions
defendant must have actually served a
(“[T]he judge sentences everybody to the
period of imprisonment” addresses the
Allegheny County Jail for a term of
situs and manner of the sentence and
imprisonment and recommends alternative
requires service in a jail-type institution,
housing. It’s up to the jail to determine
not an alternative housing facility like a
whether or not they would be eligible for
halfway house. But this argument does not
alternative housing and Ms. Schnupp
address the meaning of “imprisonment” or
was.”).

7
the type, nature or level of confinement. A and sentences served in an alternate
straightforward reading of Application housing facility. Therefore Application
Note 2 is that it refers to a temporal Note 2 cannot support the proposition that
concept — the period of time the § 4A1.1 requires a sentence to be served in
defendant served or would have served in a jail-type institution. See Urbizu, 4 F.3d
the event of an escape. at 638 (rejecting a similar argument
regarding Application Note 2 and holding
The citation at the end of
that a sentence of imprisonment served on
Application Note 2 refers to §§
work release was a “sentence of
4A1.2(a)(3) and (b)(2). Sectio n
imprisonment”).
4A1.2(a)(3) provides that, for criminal
history computation purposes, sentences Defendants also claim that
that have been suspended should be Application Note 6 to § 4A1.1 dictates that
classified as “prior sentences,” not “prior a sentence of imprisonment under §§
sentences of imprisonment.” 9 Section 4A1.1(a) and (b) must be served in a
4A1.2(b)(2) specifies that, where part of a prison or jail, not a halfway house.
sentence is suspended, that portion is Application Note 6 instructs:
properly excluded in calculating the
Subdivisions (a), (b), and (c) of §
sentence’s length. As a result, suspended
4A1.1 distinguish confinement
incarceration time that was not served in
sentences longer than one year and
any facility is not counted as prison time.
one month, shorter confinement
United States v. Jones, 107 F.3d 1147,
sentences of at least sixty days, and
1167 (6th Cir. 1997) (Krupansky, J.,
all other sentences, such as
dissenting) (“[S]uspended incarceration
confinement sentences of less than
time will not be served anywhere, and
sixty days, probation, fines, and
hence is not counted as prison sentence
residency in a halfway house.
time.”). Sections 4A1.2(a)(3) and (b)(2)
do not distinguish between sentences U.S.S.G. § 4A1.1, appl. n.6 (2003). But
“actually served” in a jail-type institution Application Note 6 does not specify that it
is the manner in which a sentence is served
that dictates whether a sentence is a
9
Section 4A1.2(a)(3) states: “A “sentence of imprisonment.” Furthermore,
conviction for which the imposition or the Note contains no definition of
execution of a sentence was totally confinement. Application Note 6 does not
suspended or stayed shall be counted as a advance defendants’ argument.
prior sentence under § 4A1.1(c).” Section
IV.
4A1.2(b)(2), in turn, specifies: “If part of
a sentence of imprisonment was The pr ono u n c e d s e n t en c e ,
suspended, ‘Sentence of imprisonment’ therefore, determines the criminal history
refers only to the portion that was not score. A sentence to prison or jail is
suspended.”

8
“sentence of imprisonment” under § received prior sentences of imprisonment
4A1.1(a) and (b) and results in the under § 4A1.1(a) and (b), respectively,
assignment of additional points, whether plus additional points under § 4A1.1(e).
or not permission is given for work The District Court properly held that
release, furlough or placement in a less d e f e n d a n ts ’ p r i o r s e n t e n c e s o f
restrictive alternative facility. imprisonment increased their criminal
history calculations.
The sentencing judges here
imposed upon each defendant a sentence
of imprisonment in the Allegheny County
jail.10 Both Wormsley and Schnupp
Q: What would have happened if
Ms. Schnupp would have left
10 without that permission?
ARC House Director of Admissions
John Ross described the procedure by
A: We would have went back to the
which Ms. Schnupp was sentenced by the
judge and reported her as an
judge and housed at ARC House:
escaped prisoner. A warrant would
Q: Based on your review and your
have been issued. We would also
knowledge of ARC House and the
have notified the Allegheny County
Allegheny County prison system,
Jail and the county police.
was Ms. Schnupp sentenced to a
term of imprisonment?
Q: Was Ms. Schnupp, while at your
facility, considered an inmate of the
A: Yes. The way that works is the
Allegheny County Jail?
judge sentences everybody to the
Allegheny County Jail for a term of
A: Yes, she is an open file and a
imprisonment and recommends
record is kept on her. When I get
alternative housing. It’s up to the
her out of jail, she is released to my
jail to determine whether or not
custody. I have to sign for her
they would be eligible for
release.
alternative housing and Ms.
...
Schnupp was.
Q: To your knowledge, did Judge
McGregor have the option to
Q: Was Ms. Schnupp free to come
sentence Ms. Schnupp to
and go at her own choosing from
intermediate punishment in this
ARC House when she was there?
case?
A: No, she is not. She has to have A: Yes, sir.
permission to do so both by the
Q: Did he do so?
Court and by the staff at ARC
House. A: No, sir.

9
 V. In United States v. Ruffin, the Court
of Appeals for the District of Columbia
Other courts of appeals have relied
considered the prior sentence of the
on the pronouncement of sentence, not the
defendant “for imprisonment for a period
location or manner of service, in
of (1) one year. Work release ordered.
calculating the criminal history score. In
Hours: 6:00 AM thru 6:00 PM Monday
United States v. Schomburg, the Court of
thru Friday.” 40 F.3d 1296, 1299 (D.C.
Appeals for the Ninth Circuit held that a
Cir. 1994). The court concluded the
defendant’s prior sentence to a county jail
defendant “actually served a period of
was properly classified as a “sentence of
imprisonm ent” for criminal history
imprisonment” under § 4A1.1(b) even
calculation purposes, even though he was
though the defendant served his sentence
allowed to leave the facility on a weekday
by participating in a weekend work project
work release pass. Id.
administered by the sheriff. 929 F.2d 505,
507 (9th Cir. 1991). The court held that, The Courts of Appeals for the Fifth
while the sheriff had the discretion to and Sixth Circuits have stated in dicta that
modify the defendant’s sentence, it was the original pronounced sentence, not the
“the sentence, as pronounced by the court judge’s recommendation or the actual
at the outset” that determined its location or manner of serving the sentence,
classification under the guidelines. Id. at should be relied upon for sentencing
507; see also United States v. Latimer, 991 guideline calculations. See United States
F.2d 1509, 1515 (9th Cir. 1993). v. Valdez-Valdez, 143 F.3d 196, 202 n.41
(5th Cir. 1998) (“We note in passing that
Similarly, in United States v.
Valdez did not argue that his work release
Urbizu, the defendant was sentenced to a
was not a ‘sentence of imprisonment’
six-month term of imprisonment in a “jail
under the Guidelines. Such an argument
type institution” but instead served five
would likely fail as well.”); United States
months in a halfway house. 4 F.3d at 638.
v. Rasco, 963 F.2d 132, 136 n.4 (6th Cir.
The Court of Appeals for the Eighth
1992) (“Had the defendant been sentenced
Circuit found that Application Note 2 to §
to imprisonment with a recommendation
4A1.2 could not be used by the defendant
for halfway house placement, the sentence
“to characterize his five-month stint in a
would be treated as a sentence of
halfway house as something other than
imprisonment.”).
imprisonment.” Id. In affirming the
district court’s reliance on the sentencing Defendants cite to United States v.
court’s written judgment in awarding two Pielago, 135 F.3d 703 (11th Cir. 1998), for
criminal history points under § 4A1.1(b), the proposition that a sentence to a
the court held that the nature of a halfway house is not a “sentence of
defendant’s prior confinement should be imprisonment.” In Pielago, the Court of
determined by the prior sentencing court’s Appeals for the Eleventh Circuit held that
pronouncement of sentence. Id. a prior term of confinement in a

10
community treatment center cannot be and was not an additional term of
treated as a “sentence of imprisonment” imprisonment. Id. at 1021. In contrast,
under § 4A1.1. Id. at 705. But the court defendants here were sentenced directly to
based its decision on the assumption that jail and permitted to serve that
the sentencing judge sentenced the imprisonment term in an alternative
defendant directly to the community housing facility.
treatment center. Id. at 712-13 (“Pielago’s
VI.
stay in a community treatment center was
not the consequence of a parole violation. The sentencing judges correctly
He was sentenced directly to that applied the sentencing guidelines in
confinement.”). This distinction is calculating the defendants’ criminal
essential. Here, Schnupp and Wormsley history scores. We will affirm the
were sentenced directly to imprisonment in judgments of conviction and sentences in
the Allegheny County jail with permission both United States v. Schnupp and United
for work release and alternative housing. States v. Wormsley.
One court of appeals has interpreted
“imprisonment” to denote time actually
UNITED STATES OF AMERICA v.
spent in a prison. See United States v.
ANDREA SCHNUPP, a/k/a ANDREA
Elkins, 176 F.3d 1016 (7th Cir. 1999). But
LYLE
the facts in Elkins differ substantially from
those here. In Elkins, the defendant was Andrea Schnupp, Appellant at No.
sentenced to tw enty-four mo nth s 03-1964
imprisonment, plus five years of
UNITED STATES OF AMERICA v.
supervised confinement upon his release
ERIC LAMAR WORMSLEY, a/k/a
from confinement, with the first 120 days
Michael Wormsley, a/k/a Michael Wallace
of supervised release to be served in a
community correctional center. Id. at Eric Lamar Wormsley, Appellant at No.
1019. The defendant argued that 03-3384
community confinement was a form of
McKee, Circuit Judge, concurring.
imprisonment, so the two components of
his sentence were redundant. The court I join in the analysis of my
rejected this argument, drawing a colleagues because I agree that the
distinction between the sentence of principles of statutory construction their
imprisonment and subsequent sentence to analysis relies upon dictate the result in
community confinement up on th e these cases. We therefore must hold that
defendant’s release. Id. at 1020. The the “pronounced sentence. . . determines
court found that community center the criminal history score” for purposes of
confinement resulted from an order of determining whether a prior sentence is a
supervision related to supervised release “sentence of im prisonment” under

11
U.S.S.G. § 4A1.1. However, I write principles of statutory construction require
separately to call attention to the fact that a different conclusion.
this result leads to unintended and unjust
Had this precise question been
disparities in awarding criminal history
considered when the guidelines were
points. These disparities arise because the
drafted, I believe subsection (c) would
manner of pronouncing sentences of
have been worded differently. At the very
imprisonment will often be governed by
least, language would have been added to
factors that have nothing to do with
address alternative sentences by either
assessments that the guidelines attempt to
distinguishing them from “prior
incorporate into a defendant’s criminal
sentence(s ) of imprisonment,” or
history category. As I shall explain,
specifically directing how such alternative
serendipity can often play as significant a
confinement should be treated under §
role in the way a sentence is pronounced as
4A1.1. Instead, the guidelines contain the
the prior judge’s assessment of the need to
“catch all” reference to “sentence[s] not
incarcerate.
counted in [§ 4A1.1] (a) or (b).”
Given the wording of § 4A1.1 and
We rely upon the pronounced
the structure of the sentencing guidelines,
sentence because we assume that
I doubt that Congress or the Sentencing
pronouncement is the best way to
Commission actually considered whether
determine the sentencing court’s intent.
confinement in “alternative housing” is
We further assume that the sentencing
t a n t a m o u n t t o a “ s e n te n c e o f
judge’s intent regarding where a defendant
imprisonment” for purposes of calculating
is to be confined is more germane to a
a criminal history category when the
subsequent criminal history category than
guidelines were initially drafted. As my
whether the defendant was actually
colleagues note, U.S.S.G. §§ 4A1.1(a) and
confined in a prison or jail-type facility as
(b) both refer to a “sentence of
opposed to alternative housing. However,
imprisonment . . . . ” Yet, subsection (c)
that pronouncement is not necessarily
of that guideline refers only to “each prior
more relevant to a subsequent § 4A1.1
sentence not counted in (a) or (b) . . . .”
calculation than any accompanying
This certainly suggests that the “prior
sentencing recommendation. In fact,
sentence” referenced in subsection (c) is to
consideration of the actual place of
be distinguished from a “sentence of
confinement will often tell a subsequent
imprisonment.” The latter obviously refers
court far more about a defendant’s
to incarceration in a prison or jail-type
background than the precise language used
facility. The guideline therefore appears to
in imposing a prior sentence.
distinguish between such incarceration and
other sentences. However, as my In the cases before us, the
colleagues explain, the applicable sentencing judge did articulate that the
defendants were to “undergo an

12
imprisonment [for] . . .” a given period. Therefore, a sentencing judge lost
See Maj. Op. at 2-4. In Schnupp’s case, authority to confine a defendant in
the court added “[alternative housing] as alternative housing if the defendant
arranged with work release.” In received a “state sentence.” However, a
Wormsley’s case, the court stipulated that judge could sentence such a defendant to
Wormsley was “permitted Alternative alternative housing by imposing a
Housing at ARC . . . .” Id. Both probationary sentence and ordering a
defe ndan ts ultimately served their certain period of residency at an
sentences in the alternative housing rather appropriate alternative facility (including
than the county jail, just as the judge
recommended. A brief discussion of the
manner in which judges pronounce
s e n t e n c es i n P e n n sy lv a n i a w i l l
demonstrate why that is more significant to
a subsequent calculation under § 4A1.1 than two years but less than five years
than the manner in which the sentences could be committed to the state prison
were pronounced. under the Bureau of Corrections or to a
county prison within the jurisdiction of the
Prior to 1990, a state trial judge in
court, at the discretion of the sentencing
Pennsylvania had two options if he/she
judge. 42 Pa. C.S.A. § 9762(2). Thus,
wanted to impose a sentence of
when imposing such a sentence, a court
confinement. The judge could either
also had authority to commit defendants to
impose a state sentence or a county
the Bureau of Corrections for confinement
sentence. 42 Pa. C.S.A. § 9762. If the
when “facilities become available . . .[as]
sentence that was imposed had a maximum
de signa te d by the G o vernor i n
period of incarceration of five or more
proclamations declaring the availability of
years, it was deemed a state sentence and
State correctional facilities. . . .” 42 Pa.
the defendant had to be incarcerated in a
C.S.A. § 9762(3).
state prison. Such defendants were in the
custody and control of the Pennsylvania Therefore, considerations of space
Bureau of Corrections, and the Bureau could affect how a sentence was
therefore determined where the defendant pronounced despite my colleagues’ belief
would be incarcerated. If the sentence had that relying upon the pronouncement
a maximum term of less than two years, rather than the place of confinement will
the defendant was to be “committed to a negate such extraneous factors as
county prison within the jurisdiction of the availability of space. See Maj. Op. at 7
court.” 42 Pa. C.S.A. § 9762(3). 11 (“This discretion in determining a
defendant’s eligibility for alternate
housing may be guided by several factors
11
Defendants who were sentenced to a including assessment of the defendant,
maximum period of incarceration of more availability of space . . . ”).

13
successful completion of inpatient including an inpatient treatment program.
treatment) as a condition of probation.12 However, the judge could also impose a
sentence of less than two years in jail and
However, in 1990, the Pennsylvania
recommend that the defendant be
legislature enacted 42 Pa. C.S.A. § 9763,
transferred to alternative housing, or
which specifically permits a court to
directly pr onounc e a pe r iod of
sentence a defendant receiving a county
confinement in alternative housing (with
sentence to intermediate punishment or
or without the component of inpatient
“partial confinement” in alternative
treatment). For purposes of a subsequent
housing such as a halfway house or
inquiry under § 4A1.1, the only distinction
inpatient program.13 Accordingly, after
between those sentences may well have
1990, a state judge in Pennsylvania who
been nothing more than the habits of
wanted a defendant to be confined in
different judges.
alternative housing rather than a jail or
prison had several options. The judge As noted above, the sentences here
could still give a probationary sentence were pronounced as sentences of
and impose the condition of a given period imprisonment with a recommendation that
of confinement in alternative housing they be served in alternative housing, ARC
House. However, even assuming that we
can therefore conclude that the sentencing
12
I will elaborate upon the significance judges pronounced a “sentence of
of this in greater detail below. For now, it imprisonment,” we still learn little about
suffices to note that, given sentencing the particular offender. This is true
regimes like the one in Pennsylvania prior because sentences may be pronounced in a
to 1990, the distinction drawn by the particular manner simply to allow the
S e n t e n c in g C o m m i s s i o n i n i t s alternative housing facility to be
Supplemental Illustrations on Criminal reimbursed under its contract with a given
History Scores between imposing a stay at county. See Commonwealth v. Garbisch,
a halfway house as a condition of No. CC 20010301 (Pa. Ct. of Common
probation and pronouncing a jail sentence Pleas, Allegheny Cty., filed Feb. 6,
with a recommendation that the 2003). 14
confinement be in a halfway house was In Garbisch, the sentencing judge
often an illusory distinction at best, see entered into a discussion with the director
Maj. Op. at 5-6, because it often said more
about the authority of the sentencing judge
than the culpability of the defendant.
14
Garbisch is an unreported opinion
13
This change in the sentencing scheme that may be found on the website kept by
is discussed in Comm onwealth v. the Allegheny County Bar Association at
Conahan, 589 A.2d 1107, 1110 n.1 (Pa. http://www.acba.org/scripts/cr2br.pl?/opi
1991). nion/03053004.opn.

14
of the Program for Female Offenders, a housing of inmates there.
program maintained to provide alternative The County paid for the
housing and rehabilitation options for construction of the facility
female defendants “sentenced to serve out of which the Program
periods of incarceration in the Allegheny operates. For all practical
County Jail.” The program director purposes, the Program
explained that under the terms of his operates as an adjunct to the
contract with Allegheny County, the County Jail. The contract
warden of the county jail referred suitable makes it clear that as such
inmates to the program for housing, and an adjunct, its operation is
the program was then reimbursed by the to be supervised by the
county. 15 A judge who wanted to confine Warden. . . . It is the Court
a defendant at the Program for Female that directs the Warden
Offenders was therefore compelled to whether a particu lar
pronounce a sentence of imprisonment in defendant may be . . .
the county jail with a recommendation that released to serve th e
she be transferred to alternative housing.16 sentence at an alternative
That appears to be what happened in housing facility. . . .
Garbisch, and it may explain why
Garbisch, at *3-4 (citing to 42 Pa. C.S.A.
Schnupp’s and Wormsley’s sentences were
§ 9751 et seq.).
pronounced as they were. In Garbisch, the
court explained: The arrangement in Garbisch was
dictated to a large extent by the
The program is completely
jurisdiction of the Allegheny County
funded by the County
Board of Prisons, which had ultimate
through its payments for the
jurisdiction over the jails in Allegheny
County. The Board had, in turn, delegated
15
some of that authority to the warden of the
Counties are more than willing to county jail. However, the legislation
enter into such contracts with appropriate establishing that Board applies only to
facilities because defendants can usually Pennsylvania cities of the second class,
be housed for less money in the less secure and therefore excludes most of the
facilities than in the county jail. jurisdictions in Pennsylvania including the
16 Commonwealth’s largest jurisdiction,
Given the dialogue between the
Philadelphia. It would therefore have been
director of the program and the sentencing
very misleading to afford sentencing
court, it appears that the Program could
pronouncements in Allegheny County the
not accept inmates directly from court
same significance as pronouncements in
under the terms of its contract or under the
Philadelphia County irrespective of any
administrative structure in Allegheny
County at the time.

15
accompanying recommendation by the upon residence in alternative housing or
sentencing judge. successful completion of an inpatient
program.
By way of further illustration, I note
that my colleagues cite part of the Although one could argue that it is
discussion that occurred between the appropriate to distinguish the former from
sentencing judge in Schnupp’s case and the latter because one situation involves a
John Ross, ARC’s director of admissions. pronounced sentence of jail and the other
Ross explained the relationship between a sentence of probation, that argument
his program and the courts in Allegheny loses much of its force when we consider
County. He explained that judges the situation after 1990. After 1990, the
“sentence[] everybody to the Allegheny sentencing court could simply sentence a
County Jail for a term of imprisonment defendant to a period of intermediate
and recommend[] alternative housing. It’s punishment in alternative housing or an
up to the jail to determine whether or not inpatient drug program. See 42 Pa. C.S.A.
they would be eligible for alternative § 9763(c). Pennsylvania courts have
housing and Ms. Schnupp was.” Maj. Op. concluded that the Pennsylvania legislature
at 7 n.8. That arrangement arises from the “intended imprisonment and intermediate
particular relationsh ip of c oun ty, punishment to be mutually exclusive, to be
sentencing judge, and program as well as treated differently.” Commonwealth v.
the jurisdiction of the Allegheny County Koskey, 812 A.2d 509, 513-14 (Pa. 2002).
Board of Prisons. Accordingly, relying upon the definition of
“imprisonment” under the sentencing law
I delve into this level of detail
of Pennsylvania, a subsequent § 4A1.1
because it demonstrates the problems that
analysis would define the pre-1990 jail
are endemic in attaching too much
sentence with a recommendation for
significance to the manner of pronouncing
alternative housing as a prior “sentence of
an earlier sentence and ignoring an
imprisonment.” Yet, a subsequent
accompanying recommendation when
sentence of confinement in alternative
subsequently attempting to calculate a
housing would not be a “prior sentence of
sentence under § 4A1.1. If a defendant
imprisonment” under § 4A1.1. The
had been sentenced in Pennsylvania when
difference stems from no offender
a judge who wanted to impose a custodial
characteristic and it tells us nothing about
sentence in alternative housing had to
a prior judge’s assessment of a defendant
sentence a defendant to the county jail, “a
or the defendant’s level of culpability.
sentence of imprisonment” may well have
Rather, the distinction in the sentences
been pronounced with an appropriate
pronounced arises entirely from the
“recommendation” for alternative housing.
intervening change in the law or, as
On the other hand, the defendant may have
illustrated by Garbisch, from the
received an identical sentence pronounced
contractual relationship of the entities
as a sentence of probation conditioned

16
involved in carrying out a “sentence” of defendant on probation, but
alternative housing. Therefore, I can not requires that confinement in
a g r e e t h a t “ [ r ] e li a n c e o n t h e the county corrections
pronouncement of sentence rather than on residential center be made a
the manner or location of service is likely condition of probation. If a
to yield more consistent application of the defendant is committed
guidelines.” Maj. Op. at 7. under a sentence, the
commitment must be made
Moreover, this problem is not
to the custody of the
unique to Pennsylvania. Rather, the
Secretary of Corrections,
disparity is relevant when comparing
who may the n utilize
various sentences from different states. A
c ommuni ty c o r r e c tions
cursory comparison of various states’ laws
facilities by contract in
illustrates this.
carrying out programs to
In Kansas, a judge could not rehabilitate a convicted
sentence a felony offender to alternative felon.
housing under state law at the time the
Id. at 1276.
defendant was sentenced in State v.
Fowler, 710 P.2d 1268 (Kan. 1985). Similarly, in the District of
However, as in Pennsylvania before 1990, Columbia, prisoners are sentenced to the
a judge could accomplish the same result custody of the Attorney General for a
by imposing a period of probation and period of time and thereupon placed in the
conditioning the probation upon successful custody of the Corrections Department of
confinement in a residential center. The the District of Columbia pursuant to a
court in Fowler explained: “[i]f the trial delegation of authority from the Attorney
court actually imposes a sentence of General to the Commissioner of the
commitment and desires to place the District. The Commissioner has statutory
defendant in a community corrections authority to transfer prisoners “to any
residential center, it may do so only by available suitable or appropriate institution
placing the defendant on probation and or facility (including a residential
making confinement in the community community treatment center). . .”.17
corrections residential center a condition Sentences pronounced under such
of his probation.” Id. at 1274 (emphasis sentencing schemes will later be “a prior
added). The court also stated: sentence of imprisonment” under U.S.S.G.
the legislative scheme . . .
permits a sentencing court
17
to utilize a community This authority is pursuant to a
corrections center through Department of Justice order. See United
the process of placing the States v. Venable, 316 A.2d 857, 858 n.3
(App. D.C. 1974).

17
§ 4A1.1 because the prior sentencing judge A.2d 836, 838 (Del. 1999). Similarly, in
lacked authority to sentence directly to a certain instances, Ohio requires that a
community sanctions facility, not because judge specifically state whether he or she
the judge intended to incarcerate a is sentencing a defendant to a community-
defendant in a jail-type facility. The actual based facility such as a halfway house. In
intent to avoid “incarceration” is only State v. Salter, 2000 WL 1038178 (Ohio
revealed through the sentencing court’s App. Jul. 27, 2000), the court was
recommendation. reviewing a sentence imposed under Ohio
Revised Cod e § 451 1.99(A )(4)(a)
However, in Colorado (as in
pertaining to sentencing for drunk driving.
Pennsylvania after 1990), a sentencing
The court stated: “When sentencing an
judge can simply impose “[a] direct
offender to a mandatory term of local
sentence to community corrections . . .”.
incarceration, the court shall specify
Beecroft v. Colorado, 874 P.2d 1041, 1045
whether the term is to be served in a jail, a
(Colo. 1994). 18 Delaware also gives
community-based correctional facility, a
sentencing courts the authority to sentence
halfway house, or an alternative residential
directly to confinement in a halfway house
facility.” 2000 WL 1038178 at *1 (internal
or similar facility.19 See Walt v. State, 727
citation and quotation marks omitted).
Similarly, under Ohio Revised Code §
18
2929.16, Ohio courts are specifically
Any subsequent consideration of such authorized to sentence first degree felons
a sentence under § 4A1.1 is further to “non-prison alternatives.” See State v.
complicated by the fact that Colorado Winstead, 2004 WL 720331 (Ohio App.
distinguishes non-residential status at a Apr. 5, 2004). 20 That statute expressly
community correction facility from authorizes the trial court to sentence
residential status at a community certain felony offenders to a period of
correction facility. See generally People v.
Hoecher, 822 P.2d 8 (Colo. 1991).
Colorado cour ts view com mu nity sentence. For a comprehensive discussion
corrections programs as providing trial of the four general approaches to awarding
courts “with a sentencing medium that is jail time credit for confinement in
more severe than probation, but not as alternative housing see Arizona v.
harsh as incarceration.” Beecroft, 874 P.2d Reynolds, 823 P.2d 681, 681-85 (Ariz.
at 1045. 1992).
19 20
However, Delaware also takes the Salter and Winstead are unreported.
view that such a sentence constitutes However, I do not cite them for any
“imprisonment” as that word is used in precedential value. Rather, I refer to them
Article IV, Section 11(1)(b) of the merely because they show the manner in
Delaware Constitution, id., for purposes of which some sentences have to be
awarding “jail time” credit against a later pronounced in Ohio.

18
confinement in alternative housing. Id. at unambiguous situation. For example, in
*3. People v. Sturdivant, 312 N.W.2d 622, 623
(Mich. 1981), defendants were sentenced
Finally, the majority notes that the
to terms of probation with a condition that
United States Sentencing Commission has
six months of the probationary period be
addressed the issue of alternative sentences
served in the county jail.21 When
in the publication Questions Most
sentenced, the applicable statute stated,
Frequently Asked About Sentencing
“[a]s a condition of probation, the court
Guidelines. As my colleagues note, that
may require the probationer to be
publication states:
imprisoned in the county jail or the house
If the offender was of correction . . . .” Id. at 623 n.1
sentenced to imprisonment (emphasis added). It is difficult for me to
and as part of the term of conclude that such defendants were not
imprisonment was placed on sentenced to six months in jail even though
work release status, this a sentence of probation was “pronounced.”
would be treated as a
Yet, the rule we announce under
sentence of imprisonment.
U.S.S.G. § 4A1.1 relies on the kind of
If the sentence did not
sentence that is pronounced. This defines
i n v o lve a term o f
the sentence in Sturdivant as a sentence of
im prisonment (e.g ., a
probation even though the sentencing court
sentence of probation with a
clearly intended to sentence the defendants
c o n d i t io n r e q u i r i n g
to six months in jail. The intent of the
residency in a halfway
sentencing court is thus lost to the manner
house), the sentence would
of articulation because § 4A1.1 ignores the
not be considered
reality that the precise pronouncement of a
imprisonment and would
sentence is governed by many factors that
fall under § 4A1.1(c). A
are irrelevant to an ap prop riate
sentence of residency in a
determination of a criminal history
halfway house is not
category. Those factors can dictate the
considered imprisonment . .
manner of pronouncing sentence even as
..
they obfuscate the sentencing court’s
Maj. Op. at 6. actual intent.
As I have discussed, this refers to the
seemingly straightforward situation of a
judge pronouncing a probationary sentence 21
It is not clear from the opinion why
and simply imposing residency in
the judge pronounced the sentence in this
alternative housing as a condition of that
manner rather than simply sentencing the
probation. However, problems can arise
defendants to a period of incarceration in
under § 4A1.1 even in this deceptively
the county jail.

19
 The place of confinement is usually codifies unintended disparities by treating
more significant than the manner in which very different sentences alike and very
a sentence is pronounced because the place similar sentences differently under §
of confinement is more indicative of 4A1.1. It erroneously assumes that
pertinent offender characteristics for sentences are pronounced uniformly in all
purposes of calculating a subsequent jurisdictions, and that such
sentence under § 4A1.1. Furthermore, I pronouncements best allow a subsequent
submit that relying upon the place of court to determine if an earlier sentence
confinement rather than the manner of was intended to be served in a jail or in
pronouncement is of greater, not less, alternative housing. In doing so, the rule
significance if a judge recommends totally ignores the fact that many factors
placement while leaving the ultimate unrelated to offender characteristics can
decision to an administrator of a influence how sentences are pronounced in
com mu nity corrections facility or various jurisdictions.
alternative housing. Such administrators
In United States v. Nelson, 918 F.2d
a r e a l m os t al w ays e x p e r i en c e d
1268, 1272 (6th Cir. 1990), the Court of
p ro f e s s i o n a l s w i t h e x p e r ti s e in
Appeals for the Sixth Circuit noted that
rehabilitation and/or treatment programs,
Congress was attempting to eliminate
and sentencing judges usually lack such
“illogica l, unjust and unw arrante d
expertise. The administrator’s decision to
disparity” in enacting the guidelines.22 I
admit a defendant to his/her program says
can only hope that Congress and the
something about the level of threat the
Sentencing Commission will act to
defendant poses to the community, the
eliminate the illogical, unjust and
defendant’s potential for successful
unwarranted disparity that will inevitably
rehabilitation and his/her ability to
accompany widespread use of the
cooperate in a therapeutic setting. That
pronouncement rule rather than allowing
assessment is certainly no less important
that rule to hold sway. In the meantime, it
than a court’s pronouncement, and it may
may be that such problems can only be
be a great deal more important. It can be
factored into a § 4A1.1 analysis simply by
allowing the recommendation and the
place of confinement to be considered
when determining “a prior sentence of 22
This court was not persuaded by
imprisonment.”
Nelson’s justification of using such
To sum up, I am skeptical that the departures to eliminate disparities between
Sentencing Commission or Congress co-defendants in the same case. See United
intended the result we reach today because States v. Seligsohn, 981 F.2d 1418, 1428
the rule we apply is inconsistent with the (3d Cir. 1992). We have, however, relied
objectives of the sentencing guidelines. It upon the reasoning to support other
propositions. Id.

20
minimized by judicious use of guideline
departures as suggested in Nelson.23

23
It may also be that the kind of
discrepancies I am concerned about are the
inevitable result of an attempt to
systematically quantify every conceivable
offender characteristic rather than
individualizing sentencing by allowing
experienced judges to consider everything
he/she deems relevant in a particular case
and impose a sentence that the judge
believes is fair, consistent with the
objectives of criminal sanctions, and in the
best interest of the community.
Although the pre-guidelines
approach certainly allowed disparity and
bias to creep into sentencing, it also
allowed judges to distinguish prior
sentences of imprisonment from treatment
in a custodial facility where appropriate.
Amending § 4A1.1 to allow consideration
of a prior sentencing recommendation will
certainly not transform the guidelines.
However, it will at least address one of the
disparities that now exist and it can do so
without opening the door to the bias that
many thought existed before the guidelines
were enacted.

21