FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 04-30007
Plaintiff-Appellee,
v. D.C. No.
CR-03-02059-EFS
LUIS EMILIO GONZALES,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted
March 20, 2007—San Francisco, California
Filed November 5, 2007
Before: Mary M. Schroeder, Chief Circuit Judge,
Harry Pregerson, Michael Daly Hawkins, Sidney R. Thomas,
M. Margaret McKeown, Kim McLane Wardlaw,
William A. Fletcher, Ronald M. Gould, Richard A. Paez,
Marsha S. Berzon, Johnnie B. Rawlinson, Jay S. Bybee,
Carlos T. Bea, Milan D. Smith, Jr., and Sandra S. Ikuta,
Circuit Judges.
Opinion by Judge Wardlaw;
Partial Concurrence and Partial Dissent by Judge Ikuta.
14589
UNITED STATES v. GONZALES 14591
COUNSEL
Elizabeth A. Olsen, Attorney, United States Department of
Justice, Washington, D.C., for the plaintiff-appellee.
14592 UNITED STATES v. GONZALES
Tracey Staab and Rebecca L. Pennell, Federal Defenders of
Eastern Washington and Idaho, Spokane, Washington, for the
defendant-appellant.
OPINION
WARDLAW, Circuit Judge, with whom Chief Judge
SCHROEDER, Judges PREGERSON, HAWKINS,
THOMAS, McKEOWN, W. FLETCHER, GOULD, PAEZ,
BERZON, RAWLINSON, and M. SMITH join, and with
whom Judges BYBEE, BEA, and IKUTA join as to Part V:
The three-judge panel that originally heard this appeal on
July 24, 2006, issued a sua sponte call for hearing this appeal
en banc to reconcile two of our decisions construing United
States Sentencing Guideline (“U.S.S.G.”) § 4A1.2(c). A
majority of the active judges of our court voted to hear the
appeal en banc to address the question whether a suspended
sentence of thirty days or more constitutes a “term of impris-
onment of at least thirty days” under § 4A1.2(c)(1), and thus
should be counted in the defendant’s criminal history score.
In United States v. Williams, 291 F.3d 1180, 1195 (9th Cir.
2002), we held that a totally suspended six-month sentence
for criminal mischief counted as a “prior sentence,” mandat-
ing an additional point on the defendant’s criminal history
score; however, in United States v. Hernandez-Hernandez,
431 F.3d 1212, 1220 (9th Cir. 2005), we also held that a par-
tially suspended three-month misdemeanor sentence resulting
in three days of imprisonment did not count as a “prior sen-
tence,” and thus did not increase the defendant’s criminal his-
tory score. We agree with both the government and Gonzales
that our analysis in Williams was flawed by its failure to read
the relevant Guidelines sections as a whole. We hold that the
language “term of imprisonment” in § 4A1.2(c)(1) refers only
to certain non-felony sentences for which the defendant actu-
ally served a period of imprisonment. Therefore, we overrule
UNITED STATES v. GONZALES 14593
Williams, clarify Hernandez-Hernandez, vacate Gonzales’s
sentence and remand for resentencing.
I.
On March 21, 2003, Yakima Police Department officers
stopped a vehicle driven by Luis Emilio Gonzales. When the
officers approached the vehicle, they observed a knife under
the driver’s seat and a marijuana bud in plain view. Gonzales
was arrested. During a search incident to arrest, the officers
also found a gym bag on the passenger-side floor containing
methamphetamine and a loaded gun. When questioned, Gon-
zales admitted that he was a convicted felon. Before the car
was impounded, officers discovered two additional guns in
the trunk, one of which had been reported stolen. At the
police station, Gonzales admitted ownership of the drugs and
that he was a drug dealer. Gonzales also admitted that all of
the guns in the car were his and that he knew that one of the
guns was stolen.
Gonzales had been previously convicted in Washington
state court for possession of a stolen firearm, in August 1996
and again in November 2001. In December 2002, Gonzales
was also convicted of third-degree driving with a suspended
license and sentenced to thirty days in jail. The entire sen-
tence, however, was suspended.
On October 1, 2003, Gonzales pled guilty pursuant to a
written plea agreement to possession of a firearm by a felon
in violation of 18 U.S.C. § 922(g)(1), and possession of a
stolen firearm in violation of 18 U.S.C. § 922(j).
At sentencing, Gonzales objected to a four-level enhance-
ment for possession of a firearm in connection with another
felony offense under U.S.S.G. § 2K2.1(b)(5) and to the inclu-
sion of one criminal history point for his conviction of third-
degree driving with a suspended license. The district court
found that although Gonzales’s sentence had been totally sus-
14594 UNITED STATES v. GONZALES
pended, the court was required to count the sentence under
our precedent in Williams. The district court also found that
Gonzales possessed a firearm within the meaning of
§ 2K2.1(b)(5). The district court therefore overruled both of
Gonzales’s objections and sentenced Gonzales to fifty-seven
months imprisonment.
II.
We have jurisdiction under 28 U.S.C. § 1291. We review
a district court’s interpretation of the Sentencing Guidelines
de novo, its application of the Sentencing Guidelines to the
facts for abuse of discretion, and its factual findings for clear
error. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th
Cir. 2005).
III.
Gonzales argues that because his thirty-day sentence for
driving with a suspended license was entirely suspended, it
should have been excluded under U.S.S.G. § 4A1.2(c)(1)
(2003). We agree. Section 4A1.1 instructs that the following
points be added to a defendant’s criminal history score for
prior criminal sentences:
(a) Add 3 points for each prior sentence of imprison-
ment exceeding one year and one month.
(b) Add 2 points for each prior sentence of imprison-
ment of at least sixty days not counted in (a).
(c) Add 1 point for each prior sentence not counted
in (a) or (b), up to a total of 4 points for this item.
....
§ 4A1.1. The Application Notes to § 4A1.1(c) direct us to the
definition of “prior sentence” in § 4A1.2(a).
UNITED STATES v. GONZALES 14595
[1] Section 4A1.2(a)(1) defines “prior sentence” as “any
sentence previously imposed upon adjudication of guilt . . .
for conduct not part of the instant offense.” Section
4A1.2(a)(3) further provides that a totally suspended sentence
“shall be counted as a prior sentence under § 4A1.1(c).”
§ 4A1.2(a)(3). This is the provision upon which the Williams
opinion rested. As the government notes, however, the Wil-
liams analysis failed to account for § 4A1.2(b)-(c) and the
related Commentary.
Section 4A1.2(b)(1) states that “[t]he term ‘sentence of
imprisonment’ means a sentence of incarceration and refers to
the maximum sentence imposed.” The corresponding Appli-
cation Notes state that “[t]o qualify as a sentence of imprison-
ment, the defendant must have actually served a period of
imprisonment on such sentence.” § 4A1.2, cmt. n.2. In other
words, a “sentence of imprisonment” requires a period of con-
finement. Section 4A1.2(b)(2) further provides that if a sen-
tence is partially suspended, the “sentence of imprisonment”
refers only to the non-suspended portion. Therefore, while a
totally suspended sentence could never result in additional
criminal history points under § 4A1.1(a) or (b), it could result
in one additional point under § 4A1.1(c), depending on the
nature of the prior offense and whether or not the prior
offense is deemed “countable” under that section.
[2] The Application Note for § 4A1.1(c) makes clear that
“[s]entences for certain specified non-felony offenses are
counted only if they meet certain requirements” as outlined by
§ 4A1.2(c)(1). § 4A1.1, cmt. n.3. In § 4A1.2(c)(1), the Sen-
tencing Commission has specified which sentences should or
should not be counted, presumably based upon the degree of
seriousness of the underlying offense. While, under
§ 4A1.2(c), sentences for all felony offenses must be counted,
the Guidelines exempt from the criminal history calculation
sentences for certain misdemeanors and petty offenses:
Sentences for the following prior offenses and
offenses similar to them, by whatever name they are
14596 UNITED STATES v. GONZALES
known, are counted only if (A) the sentence was a
term of probation of at least one year or a term of
imprisonment of at least thirty days, or (B) the prior
offense was similar to an instant offense . . . .
§ 4A1.2(c)(1) (emphasis added). The Guidelines next identify
the misdemeanor and petty offenses, including driving with a
suspended license, that should be counted only if the sentence
imposed was a term of probation of at least one year or a term
of imprisonment of at least thirty days, or if the prior offense
was similar to the instant offense.1
The issue before us is whether a totally suspended thirty-
day sentence constitutes a “term of imprisonment” of at least
thirty days. While “term of imprisonment” is not specifically
defined,2 “sentence of imprisonment” is clearly defined by
§ 4A1.2(b)(1) and the corresponding Application Notes. See
§ 4A1.2, cmt. n.2. A plain reading of § 4A1.2(c)(1) suggests
that, in this context, the phrases are interchangeable. The
grammatical structure of the provision dictates the way in
which we must construe it:
Sentences for misdemeanor and petty offenses are
counted, except as follows: (1) Sentences for the
1
Section 4A1.2(c)(2) goes on to list certain offenses for which sentences
are “never counted.”
2
The dissent, taking language out of context from a few of our cases,
asserts, without any legal support, that the “plain meaning” of the phrase
“term of imprisonment” is the sentence imposed, not the period of con-
finement. See Dissent, infra at 14603-04. The dissent is incorrect. Black’s
Law Dictionary defines “term” as “[a] fixed period of time” and “impris-
onment” as “[t]he act of confining a person, esp. in a prison” or “[t]he
state of being confined; a period of confinement.” Black’s Law Dictionary
1510, 773 (8th ed. 2004). Combining the two definitions, the plain mean-
ing of the phrase “term of imprisonment” is “period of confinement.”
Thus, the plain meaning of the phrase supports our view that, at least for
the purposes of construing Chapter Four of the Sentencing Guidelines,
“term of imprisonment” means a term of actual confinement.
UNITED STATES v. GONZALES 14597
[listed] prior offenses and offenses similar to them,
by whatever name they are known, are counted only
if (A) the sentence was a term of probation of at least
one year or a term of imprisonment of at least thirty
days . . . .
§ 4A1.2(c)(1).
[3] We agree with the government that at least as used in
this provision in Chapter Four of the Guidelines Manual, there
is no meaningful distinction discernable between the phrase
“the sentence was . . . a term of imprisonment” and the phrase
“sentence of imprisonment,” which is fully defined in
§ 4A1.2(b), the preceding subsection.3 Because the only logi-
cal conclusion is that the requirement of actual incarceration
also applies to “term of imprisonment,” a totally suspended
sentence for a qualifying misdemeanor, regardless of its
length, cannot be counted as a prior sentence. In other words,
while a totally suspended sentence is a “prior sentence” under
§ 4A1.2(a)(3), it is not necessarily “counted” in the calcula-
3
In United States v. Echavarria-Escobar, we addressed an entirely dif-
ferent issue: whether a suspended sentence constitutes an aggravated fel-
ony for purposes of enhancing a present sentence under 8 U.S.C.
§ 1326(b)(2). 270 F.3d 1265, 1270-71 (9th Cir. 2001). One of the defen-
dant’s arguments in that case as to why certain suspended sentences
should not be considered part of the required term of imprisonment under
U.S.S.G. § 2L1.2 was that the Application Notes to § 4A1.2 define “sen-
tence of imprisonment” as requiring actual time served. Id. We rejected
this argument stating that § 4A1.2(b) defines “sentence of imprisonment,”
not “term of imprisonment.” Id. at 1271. We further explained that “[8]
U.S.C. § 1101(a)(48)(B), not U.S.S.G. § 4A1.2(b) applies for the purposes
of defining ‘term of imprisonment’ in U.S.S.G. § 2L1.2.” Id. (internal quo-
tations omitted). The superficial reference to the definitions of the terms
used in § 4A1.2 did not affect our holding in Echavarria-Escobar, nor
does it provide us with any useful guidance in the present case. However,
to the extent that our statement in Echavarria-Escobar could be read as
holding that “sentence of imprisonment” and “term of imprisonment” in
Chapter Four of the Sentencing Guidelines are not interchangeable for any
purpose, as an en banc court, we overrule it.
14598 UNITED STATES v. GONZALES
tion of a defendant’s criminal history score. Moreover, a par-
tially suspended sentence for a misdemeanor listed in
§ 4A1.2(c)(1) counts only if the non-suspended portion of the
sentence is at least thirty days. Because Gonzales’s sentence
was for a misdemeanor listed in § 4A1.2(c)(1), and his sen-
tence was not a term of imprisonment of at least thirty days,
it must be excluded from his criminal history calculation. We
therefore vacate his sentence and remand for resentencing.
IV.
We next address our prior holdings in Williams and
Hernandez-Hernandez. Williams argued that his totally sus-
pended six-month sentence for a criminal mischief conviction
was excludable under § 4A1.2(c)(1) because the offense was
similar to disorderly conduct, one of the misdemeanors listed
in § 4A1.2(c)(1). Williams, 291 F.3d at 1195. The Williams
panel erroneously concluded that the defendant’s suspended
six-month sentence was not excludable under § 4A1.2(c)(1)
because, according to § 4A1.2(a)(3), the definition of “prior
sentence” includes totally suspended sentences. Id. As dis-
cussed above, however, “[t]he real issue is not whether [the
suspended] sentence is a ‘prior sentence,’ but rather whether
or not it is a ‘countable’ sentence under the Guidelines,” as
our sister circuits have recognized. United States v. Johnson,
43 F.3d 1211, 1214 (8th Cir. 1995); see also United States v.
Harris, 325 F.3d 865, 872 (7th Cir. 2003) (“[Section] 4A1.2
limits the applicability of § 4A1.1 through its definition of
‘prior sentence.’ Notably, subsection 4A1.2(c)(1) excludes
certain enumerated prior offenses . . . .” ); United States v.
Morales, 239 F.3d 113, 115 (2d Cir. 2000) (“Each [prior] sen-
tence of less than 60 days counts for one point, except that
sentences for certain misdemeanors and petty offenses are not
counted at all.”) (internal citations omitted). Certain sus-
pended sentences, such as sentences for felonies and non-
qualifying misdemeanors, are countable “prior sentences,”
resulting in one additional criminal history point under
UNITED STATES v. GONZALES 14599
§ 4A1.1(c). However, totally suspended sentences for qualify-
ing misdemeanors listed in § 4A1.2(c)(1) are not.
[4] Therefore, if the Williams panel had found that criminal
mischief was a qualifying misdemeanor under § 4A1.2(c)(1),
then the defendant’s suspended sentence should have been
excluded. But if criminal mischief was not considered a quali-
fying misdemeanor, then the defendant’s suspended sentence
would have counted as a prior sentence, and properly resulted
in one additional point. To the extent the Williams opinion
failed to properly determine whether the defendant’s sus-
pended sentence was excludable under § 4A1.2(c)(1), and
therefore reached an incorrect result, we now overrule it.
We were confronted with a similar situation in Hernandez-
Hernandez, where the defendant argued that his ninety-day
sentence for a conviction for threats to do harm, of which
eighty-seven days were suspended, was excludable under
§ 4A1.2(c)(1). 431 F.3d at 1220. The panel did not expressly
hold that “term of imprisonment” requires actual time served,
but that interpretation is implicit in its holding. The
Hernandez-Hernandez panel correctly analyzed whether the
defendant’s partially suspended sentence constituted a term of
imprisonment of at least thirty days under § 4A1.2(c)(1). Id.
The panel relied on § 4A1.2(b)(2), which states that “[i]f part
of a sentence of imprisonment was suspended, ‘sentence of
imprisonment’ refers only to the portion that was not suspend-
ed.” § 4A1.2(b)(2). Therefore, the panel found that because
the term of imprisonment was only three days, under
§ 4A1.2(c)(1)(A), it did not count as a term of imprisonment
of at least thirty days. Id.
[5] While the Hernandez-Hernandez panel recognized that
its holding “may appear to be at odds with [Williams],” it
inadequately distinguished Williams. Hernandez-Hernandez,
431 F.3d at 1220. The panel reasoned that because Williams’
sentence was totally suspended, and not partially suspended
as in Hernandez-Hernandez, § 4A1.2(b)(2) did not apply. Id.
14600 UNITED STATES v. GONZALES
It is correct that § 4A1.2(b)(2) is inapplicable to the totally
suspended sentence in Williams. However, the shortcoming in
Williams was that it failed to go beyond the definition of
“prior sentence” and recognize that for certain non-felony
“prior sentences” the actual time served is determinative as to
whether the sentence counts for purposes of adding a criminal
history point. Although both decisions relied upon different
subsections of the Guidelines and therefore may not be in
direct conflict, when taken together, the holdings in Williams
and Hernandez-Hernandez lead to illogical and unjust results.
Under Williams, a defendant convicted of a qualifying misde-
meanor who received a wholly suspended thirty-day sentence
would receive one criminal history point. However, under
Hernandez-Hernandez, a defendant convicted of the same
offense who received a thirty-day sentence with one day sus-
pended — thus actually serving twenty-nine days in jail —
would not receive a criminal history point. See Thomas W.
Hutchison et al., Federal Sentencing Law and Practice
§ 4A1.1 cmt. 5(f)(ii)(B)(5) (2007) (“It would be anomalous to
count a 30-day sentence of imprisonment that totally was sus-
pended when a 30-day sentence of imprisonment that had
only one day suspended (resulting in a 29-day term of impris-
onment) would not be counted.”). Therefore, we clarify our
holding in Hernandez-Hernandez. Under § 4A1.2(c)(1), both
a totally suspended sentence for a misdemeanor and a par-
tially suspended sentence for a misdemeanor, where the actual
time served was under thirty days, do not count; however, a
totally suspended sentence for a felony or non-qualifying mis-
demeanor would result in one additional criminal history
point under the Guidelines.
V.
[6] Gonzales also argues that the district court erred in con-
cluding that he possessed a firearm in connection with another
felony offense under U.S.S.G. § 2K2.1(b)(5) (2003).4 We
4
In the current 2006 edition of the Guidelines, possession of a firearm
in connection with another felony offense falls under § 2K2.1(b)(6).
UNITED STATES v. GONZALES 14601
reject that claim. Section 2K2.1(b)(5) instructs the district
court to increase the base level for weapons offenses by four
points if the defendant “used or possessed any firearm or
ammunition in connection with another felony offense.”
§ 2K2.1(b)(5). According to the Application Notes, a “felony
offense” is defined as “any offense (federal, state, or local)
punishable by imprisonment for a term exceeding one year,
whether or not a criminal charge was brought, or conviction
obtained.” § 2K2.1(b)(5), cmt. n.7. We have found that mere
possession is insufficient to support a § 2K2.1(b)(5) upward
adjustment. United States v. Routon, 25 F.3d 815, 819 (9th
Cir. 1994). “[T]o the extent that the government relies upon
physical possession, it must show that the firearm was pos-
sessed in a manner that permits an inference that it facilitated
or potentially facilitated — i.e., had some potential embolden-
ing role in — a defendant’s felonious conduct.” Id. Here, the
police officers found a firearm in the same gym bag as the
methamphetamine in Gonzales’s car. Gonzales admitted that
both the drugs and the guns in the car were his. He also admit-
ted to selling drugs. Therefore, the district court did not abuse
its discretion in finding, based on these facts, that the govern-
ment proved by a preponderence of the evidence that Gon-
zales possessed the firearm in connection with either felony
distribution of methamphetamine or felony possession of
methamphetamine.5 See United States v. Polanco, 93 F.3d
555, 567 (9th Cir. 1996) (finding that the government proved
by a preponderance of the evidence that the defendant “pos-
sessed” the gun in a manner that facilitated the defendant’s
felonious conduct because the presence of the gun in the
defendant’s car “potentially emboldened him” to sell drugs).
Thus, we affirm the district court’s application of a four-level
enhancement under § 2K2.1(b)(5).
5
It is unclear from the sentencing transcript whether the district court
based the § 2K2.1(b)(5) enhancement on felony distribution of metham-
phetamine or felony possession of methamphetamine. However, the record
supports an enhancement based on either felony offense.
14602 UNITED STATES v. GONZALES
VI.
For the foregoing reasons, we vacate Gonzales’s sentence
and remand to the district court for resentencing.
VACATED and REMANDED.
IKUTA, Circuit Judge, with whom Bybee and Bea, Circuit
Judges, join, concurring in part and dissenting in part:
In parts II and III of the majority’s opinion, the majority
equates the undefined phrase “term of imprisonment” and the
defined term “sentence of imprisonment.” Because this is
contrary to the plain language of the Guidelines, I dissent.
I
In 2002, Emilio Gonzales was sentenced to thirty days in
jail—which jail time was completely suspended—on a con-
viction for driving with a suspended license. At sentencing on
the instant offense, the district court added a criminal-history
point for this 2002 conviction, pursuant to § 4A1.1(c) of the
Guidelines.
Section 4A1.1(c) instructs courts to “[a]dd 1 point for each
prior sentence . . . . .” U.S.S.G. § 4A1.1(c) (2002). Commen-
tary to § 4A1.1(c) tells us that § 4A1.2(a) provides a defini-
tion of “prior sentence.” U.S.S.G. § 4A1.1(c), cmt. n.3.1
In defining “prior sentence,” § 4A1.2(a) states, “[t]he term
1
“Commentary in the Guidelines Manual that interprets or explains a
guideline is authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.” United States v. Thornton, 444 F.3d 1163, 1165 n.3 (9th Cir.
2006) (quotations omitted).
UNITED STATES v. GONZALES 14603
‘prior sentence’ means any sentence previously imposed . . .
for conduct not part of the instant offense.” U.S.S.G.
§ 4A1.2(a)(1). Section 4A1.2(a)(3) states that even totally
suspended sentences fall under this definition of “prior sen-
tence” for purposes of § 4A1.1(c) and thus require the addi-
tion of one criminal point. U.S.S.G. § 4A1.2(a)(3) (“A
conviction for which the imposition or execution of sentence
was totally suspended or stayed shall be counted as a prior
sentence under §4A1.1(c).”).
There are, however, exceptions to this framework. Specifi-
cally, the commentary to § 4A1.1(c) notes an exception to the
application of the one additional criminal-history point for
certain non-felony offenses. U.S.S.G. § 4A1.1(c), cmt. n.3.
This commentary instructs the court to turn to § 4A1.2(c)(1)
for more information. Id. Section 4A1.2(c)(1) tells the court
that for purposes of computing criminal history “[s]entences
for the following prior offenses and offenses similar to them,
by whatever name they are known, are counted only if . . . the
sentence was a term of probation of at least one year or a term
of imprisonment of at least thirty days . . . .” U.S.S.G.
§ 4A1.2(c)(1) (emphasis added). “Driving . . . with a sus-
pended license” is on the list that follows. Id.
Applying this exception to the case at hand, we are asked
to determine whether Gonzales’s 2002 thirty-day suspended
sentence for driving with a suspended license was “a term of
imprisonment of at least thirty days.” U.S.S.G. § 4A1.2(c)(1).
If yes, the sentence is counted toward his criminal history; if
no, it is excluded.
II
“[T]erm of imprisonment” is not defined in the Guidelines.
“In the absence of controlling authority, we turn to the plain
language of the guidelines.” United States v. Brownstein, 79
F.3d 121, 123 (9th Cir. 1996); see also United States v.
Gonzalez-Mendez, 150 F.3d 1058, 1060 (9th Cir. 1998). We
14604 UNITED STATES v. GONZALES
have customarily used “term of imprisonment” to mean the
time period or length of the imprisonment imposed by the
court when sentencing the defendant, even where the sentence
imposed is suspended in whole or part. See, e.g., Hovey v.
Ayers, 458 F.3d 892, 915 (9th Cir. 2006) (“After Hughes testi-
fied against Hovey, Meloling communicated with the San
Francisco D.A.’s office, which then revised its offer to
Hughes. He received a suspended sentence, but the term of
imprisonment offered as part of the deal was actually
increased from three years to four years and eight months.”);
United States v. Carter, 827 F.2d 546, 546 (9th Cir. 1987)
(“On January 19, 1981, the court sentenced Carter to a three-
year term of imprisonment, all but twenty days of which was
suspended.”); United States v. Berry, 814 F.2d 1406, 1410
(9th Cir. 1987) (“Berry was originally sentenced to five years’
imprisonment and a three-year special parole term; the district
court suspended the execution of all but six months of the
term of imprisonment.”).
Thus, under the plain meaning of the Guidelines, when a
court sentences a defendant to 30-days jail time, it is a “term
of imprisonment” that must be factored into a defendant’s
criminal-history score, even if it was for a non-felony offense
listed in § 4A1.1(c). In this context, it is irrelevant whether a
term of imprisonment imposed by the court was totally sus-
pended, because § 4A1.2(a)(3) states that “[a] conviction for
which the imposition or execution of sentence was totally sus-
pended or stayed shall be counted as a prior sentence under
§ 4A1.1(c).”
In this case, the term of imprisonment imposed by the court
for Gonzales’s 2002 conviction for driving with a suspended
license was 30 days. Accordingly, this non-felony conviction
is not excepted by § 4A1.2(c)(1), and the district court was
correct in assigning a criminal-history point for this prior sen-
tence.
This plain language reading makes it clear that the phrase
“term of imprisonment” as used in § 4A1.2(c)(1) is not
UNITED STATES v. GONZALES 14605
ambiguous. Nor does the majority claim that it is. Accord-
ingly,
[o]nce it recognized that the statute is unambiguous,
the panel should have stopped, for it is a paramount
principle of statutory construction that [w]here [a
statute’s] language is plain and admits of no more
than one meaning the duty of interpretation does not
arise, and the rules which are to aid doubtful mean-
ings need no discussion.
Amalgamated Transit Union Local 1309 v. Laidlaw Transit
Servs., Inc., 448 F.3d 1092, 1096 (9th Cir. 2006) (Bybee, J.,
dissenting from denial of rehearing en banc) (quotation marks
omitted); see also Carson Harbor Vill., Ltd. v. Unocal Corp.,
270 F.3d 863, 878 (9th Cir. 2001) (en banc).
III
Instead of applying the plain language of the Guidelines as
written, the majority concludes that context, grammatical
structure, and a well-placed ellipsis require reading the phrase
“term of imprisonment” as having the same meaning as the
phrase “sentence of imprisonment.” See Maj. Op. at 14597
(“[T]here is no meaningful distinction discernable between
the phrase ‘the sentence was . . . a term of imprisonment’ and
the phrase ‘sentence of imprisonment . . . .’ ”).
The majority is mistaken. According to “a well-established
canon of statutory interpretation . . . the use of different words
or terms within a statute demonstrates that Congress intended
to convey a different meaning for those words.”2 SEC v.
McCarthy, 322 F.3d 650, 656 (9th Cir. 2003) (collecting
cases); see also Legacy Emanuel Hosp. & Health Ctr. v. Sha-
2
We use traditional canons of statutory construction to interpret the sen-
tencing guidelines. United States v. Soberanes, 318 F.3d 959, 963 n.4 (9th
Cir. 2003).
14606 UNITED STATES v. GONZALES
lala, 97 F.3d 1261, 1265 (9th Cir. 1996) (“Indeed, the use of
different language by Congress creates a presumption that it
intended the terms to have different meanings.”). A “decision
to use one word over another . . . is material,” and “is a deci-
sion that is imbued with legal significance and should not be
presumed to be random or devoid of meaning.” McCarthy,
322 F.3d at 656. Because the Sentencing Commission decided
to use the undefined phrase “term of imprisonment” in
§ 4A1.2(c)(1), and a different, defined phrase, “sentence of
imprisonment,” in § 4A1.2(b), we must presume that the Sen-
tencing Commission intentionally used different phrases and
gave them different meanings.
The fact that the Sentencing Commission created a separate
definition for the phrase “sentence of imprisonment” supports
this presumption. Courts typically use the phrase “term of
imprisonment” and “sentence of imprisonment” interchange-
ably to refer to the period of confinement ordered by the
court. See, e.g., United States v. Augustin, 376 F.3d 135, 137
(3d Cir. 2004) (“A sentence of imprisonment of 135 months
was imposed on the convictions for carjacking and possession
of a firearm by a drug user, to be followed by a mandatory
240 month term of imprisonment for use of a firearm during
a crime of violence.”); United States v. Perez-Macias, 335
F.3d 421, 427-28 (5th Cir. 2003) (“The key to the Supreme
Court’s jurisprudence addressing the right to counsel in mis-
demeanor cases is whether the defendant receives a sentence
of imprisonment. . . . A defendant who receives a suspended
sentence is given a term of imprisonment, while a defendant
who receives a stand-alone sentence of probation is not.”);
Taylor v. Sawyer, 284 F.3d 1143, 1148 (9th Cir. 2002) (“The
statute that governs the manner in which multiple sentences
of imprisonment may be imposed is 18 U.S.C. § 3584, which
states in subsection (a): . . . [‘]If multiple terms of imprison-
ment are imposed on a defendant at the same time . . . .[’]”).
In order to instruct courts to deviate from the common
usage of “sentence of imprisonment,” the Guidelines give this
UNITED STATES v. GONZALES 14607
phrase a distinct meaning under the “Definitions and Instruc-
tions for Computing Criminal History.” U.S.S.G. § 4A1.2. As
used in computing criminal history, “ ‘sentence of imprison-
ment’ means a sentence of incarceration and . . . refers only
to the portion that was not suspended.” U.S.S.G.
§ 4A1.2(b)(1)-(2). In other words, a “sentence of imprison-
ment” for criminal-history purposes, is not the length of
imprisonment imposed, but the length of the imprisonment
imposed less any suspended portion.
There is nothing in the Guidelines that permits the usurpa-
tion of this definition for use in § 4A1.2(c)(1). If the Sentenc-
ing Commission had wanted to use the phrase “sentence of
imprisonment” with its associated, non-obvious definition in
§ 4A1.2(c)(1), it could have done so. It did not, compelling
the conclusion that the Sentencing Commission did not intend
“term of imprisonment” to have the same meaning as “sen-
tence of imprisonment.” Thus, the majority’s conclusion that
“there is no meaningful distinction” between the phrases “the
sentence was . . . a term of imprisonment” and “sentence of
imprisonment,” Maj. Op. at 14597, requires a strained inter-
pretation of these phrases.
The majority does not suggest the Sentencing Commis-
sion’s use of the undefined phrase “term of imprisonment” in
§ 4A1.2(c)(1) is unreasonable. Nor could it. The “purpose of
§ 4A1.2(c)(1) . . . is to assign criminal-history points to defen-
dants who have received substantial sentences for the other-
wise minor offense listed in the provision.” United States v.
Ramirez, 421 F.3d 159, 166 (9th Cir. 2005). The Sentencing
Commission could reasonably conclude that a crime is suffi-
ciently serious to receive a criminal-history point when a
court sentences a defendant to 30 days, even if that sentence
is suspended. Indeed, the Supreme Court has indicated that
suspended sentences should not be trivialized. Because a sus-
pended sentence may “end[ ] up in the actual deprivation of
a person’s liberty,” such a sentence is essentially equivalent
to actual imprisonment for purposes of a defendant’s Sixth
14608 UNITED STATES v. GONZALES
Amendment rights. Alabama v. Shelton, 535 U.S. 654, 662
(2002) (quotation marks omitted). This precedent suggests
that an offense can also be serious enough to count for crimi-
nal history purposes even when the defendant received a sus-
pended sentence.
Moreover, although the majority notes that its interpretation
of “term of imprisonment” is based in part on its context, see
Maj. Op. at 14597-98, a plain reading of § 4A1.2(c)(1) in con-
text actually supports the conclusion that “term of imprison-
ment” refers to the term imposed. As noted above,
§ 4A1.2(c)(1) instructs courts to count certain offenses only if
“the sentence was a term of probation of at least one year or
a term of imprisonment of at least thirty days.” The parallel
structure of this provision raises the inference that the Sen-
tencing Commission intended to give the same meaning to the
word “term” in “term of probation” and the word “term” in
“term of imprisonment.” As recognized by two of our sister
circuits, the plain meaning of the phrase “term of probation”
means the time period or length of the probation imposed by
the court when sentencing the defendant. See United States v.
Boyd, 146 F.3d 499, 500-02 (7th Cir. 1998) (holding that one
year of court supervision and a fine amounts to a term of pro-
bation of at least one year for purposes of § 4A1.2 even where
the supervision was vacated after six months and only a fine
imposed); United States v. Baker, 116 F.3d 870, 873-74 (11th
Cir. 1997) (holding that a defendant who had been sentenced
to “one year or until the assessed fines and restitution were
paid” had received a “term of probation of at least one year”
for purposes of § 4A1.2 (italics in original)). Unless we strain
the language of the Guidelines still further to hold that the
definition for “sentence of imprisonment” also applies to
“term of probation,” and thus split from the Seventh and Elev-
enth Circuits, we will be left to read the word “term” in
§ 4A1.2(c)(1) as having different meanings when applied to
prison terms as opposed to probation terms.
Finally, I give little weight to the fact that the government
(and not just Gonzales) recently supported the majority’s
UNITED STATES v. GONZALES 14609
interpretation. The government conceded at oral argument
that it took the opposite position just a few years ago in
United States v. Williams, 291 F.3d 1180, 1195 (9th Cir.
2002). To the extent the government’s new position reflects
different policy goals, we should not be persuaded to sidestep
the plain language of the Guidelines to effectuate these goals.
We must interpret the plain language of the Guidelines, and
if the government thinks different language would make for
better policy, it should take its case to the United States Sen-
tencing Commission, not to this court. After all, “the courts’
role is to give effect to the statutes as . . . enact[ed] . . . ; it
is not the courts’ role to assess whether a statute is wise or
logical.” Amalgamated Transit Union Local 1309, 448 F.3d at
1096 (Bybee, J., dissenting from denial of rehearing en banc).
IV
For the foregoing reasons, I dissent from the majority’s
decision on the treatment of Gonzales’s 2002 conviction
under U.S.S.G. § 4A1.2(c)(1). I concur, however, in the
majority’s holding on Gonzales’s § 2K2.1(b)(5) argument.