REVISED NOVEMBER 10, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 08-10453 November 9, 2009
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MAXIMILIANO JASSO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before KING, DAVIS, and BENAVIDES, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
The defendant-appellant appeals his sentence, arguing that the district
court erred in assigning him two additional criminal history points, pursuant to
§ 4A1.2(e) and (k) of the United States Sentencing Guidelines (U.S.S.G.), based
on his 1995 assault conviction in Texas state court and the subsequent sentence
the Texas state court issued when he violated his term of probation.
Although we acknowledge that the district court’s reading of the
ambiguous language in § 4A1.2(k) was not unreasonable, our review of § 4A1.2,
No. 08-10453
in its entirety, leads us to conclude that it was error to count the defendant-
appellant’s entire sentence issued upon his violation of probation, rather that
considering only the portion of the sentence he actually served. This error
resulted in the district court’s assessment of the two additional criminal history
points. The comprehensive analysis required to resolve the issue raised on
appeal, however, precludes the conclusion that the district court’s sentencing
error was either clear or obvious.
Further, we conclude that the addition of these two points did not affect
the defendant’s substantial rights. As a result, we write principally to clarify
this error–an error that prior to our defining it as such, constituted nothing more
than an inconsistent ambiguity buried within one section of the Sentencing
Guidelines.
I.
Maximiliano Jasso was charged in a single-count indictment with
illegal reentry following removal, in violation of 18 U.S.C. § 1326(a) and
(b)(2). He pled guilty to the offense without the benefit of a written plea
agreement.
The Presentence Report (PSR) assigned Jasso a base offense level of
eight. See U.S.S.G. § 2L1.2(a). The probation officer recommended the
imposition of a sixteen-level enhancement on the ground that Jasso
previously was deported following the commission of a crime of violence. See
U.S.S.G. § 2L1.2(b)(1)(A)(ii). Following the application of a three-level
adjustment for acceptance of responsibility, Jasso was assigned a total offense
level of twenty-one. See U.S.S.G. § 3E1.1.
The district court assigned two criminal history points based upon
Jasso’s 1995 guilty-plea conviction in Texas state court for an aggravated
assault causing serious bodily injury. The probation officer’s narrative for the
conviction stated that Jasso was sentenced to a ten-year term of felony
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No. 08-10453
probation in October1995, but that he violated his probation in August 1999.
Jasso’s probation was consequently revoked in November 2005, and he was
sentenced to ten years of imprisonment. After serving nearly six months of
this prison term, Jasso returned to Texas state court in May 2006, at which
time he was released from prison and sentenced to serve a six-year “shock
probation” term.1 As a result, he never served more than six months in
prison for his probation violation.
Additionally, in calculating his criminal history points, the probation
officer also applied (a) two criminal history points on the ground that Jasso
committed the instant reentry offense while he was under a criminal justice
sentence of probation for the aggravated assault conviction, and (b) one
criminal history point because Jasso committed the instant offense less than
two years after his release from imprisonment on a sentence that was counted
pursuant to U.S.S.G. § 4A1.1(b). See U.S.S.G. § 4A1.1(e). Jasso was assigned
a total criminal history score of five, which resulted in a criminal history
category of III. This criminal history category, combined with a total offense
level of twenty-one, yielded a guideline range of imprisonment of forty-six to
fifty-seven months.
1
The statute defining “shock probation,” TEX. CODE CRIM. PRO. ART. 42.12, § 6,
provides, in part:
[T]he jurisdiction of a court in which a sentence requiring imprisonment . . . is
imposed by the judge of the court shall continue for 180 days from the date the
execution of the sentence actually begins. Before the expiration of 180 days
from the date the execution of the sentence actually begins, the judge of the
court that imposed such sentence may . . . suspend further execution of the
sentence and place the defendant on community supervision under the terms
and conditions of this article[.]
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No. 08-10453
Jasso filed no objections to the PSR.2 At sentencing, the defendant-
appellant reiterated that he had no objections to the PSR. He did make a
request for a downward departure/variance based on the PSR’s over-
representation of his criminal history and the presence of mitigating
circumstances. The district court denied Jasso’s request. The court then
sentenced Jasso to forty-six months of imprisonment and a two-year term of
supervised release.
Jasso filed a timely notice of appeal.
II.
This case requires this Court to decide whether the district court erred
in assigning the defendant-appellant two additional criminal history points,
pursuant to U.S.S.G. § 4A1.2(e) and (k), for his prior assault conviction in
Texas state court, for which he received an additional term of imprisonment
as a result of his violation of the original term of probation.3 “[W]e review the
2
Prior to sentencing, Jasso filed a sentencing memorandum in which he argued that
he was entitled to a downward variance/departure based upon the PSR’s over-representation
of his criminal history. Jasso asserted that the probation officer erred in assessing five
criminal history points based upon a single prior conviction; Jasso argued that “[t]he
over-representation stems from the additional three points assessed . . . for committing the
instant offense while under a criminal justice sentence and for committing the instant offense
within two years of his release from imprisonment.” Jasso also contended that he was entitled
to leniency in light of the following mitigating factors: the instant offense was his first
appearance in federal court, he did not comprehend the consequences of a reentry offense, the
sixteen-level enhancement was based upon a remote conviction, and his reentry was motivated
by his desire to work and to remain in contact with his children. Although Jasso argued in the
sentencing memorandum that his criminal history score was erroneously calculated, he did not
raise the specific issue that he now asserts on appeal. Thus, as discussed in greater detail
below, we review his claim on appeal under our plain error standard of review. Indeed, Jasso
concedes that his claim presented now on appeal is properly reviewed under plain error.
3
Jasso also argues on appeal that the district court erred in ordering his federal
sentence to run consecutively to any sentence that the Texas state court may impose with
respect to a pending assault charge. He acknowledges that there is a circuit split on this issue.
Cf. United States v. Quintero, 157 F.3d 1038, 1039-40 (6th Cir. 1998); with United States v.
Clayton, 927 F.2d 491, 492-93 (9th Cir. 1991)). However, Jasso also concedes that his
argument is foreclosed by this Court’s precedent in United States v. Brown, 920 F.2d 1212,
1216-17 (5th Cir. 1991), abrogated on other grounds, United States v. Candia, 454 F.3d 468,
4
No. 08-10453
district court’s application of the sentencing guidelines de novo.” United
States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006).
In the present case, however, the defendant-appellant failed to make
any objection to the district court’s addition of these two criminal history
points at the time the court actually sentenced him. Consequently, this
argument has not been raised “to such a degree that the district court ha[d]
an opportunity to rule on it.” Keelan v. Majesco Software, Inc., 407 F. 3d 332,
340 (5th Cir. 2005) (quotations and citation omitted). To preserve an
argument for appeal, the party must “must press and not merely intimate the
argument during the proceedings before the district court.” Id. (quotations
and citation omitted).
Because Jasso failed to preserve this assertion of error in the district
court below, “this court’s review is for plain error” only. United States v.
Villegas, 404 F.3d 355, 258 (5th Cir. 2005). “This court finds plain error
when: (1) there was an error; (2) the error was clear and obvious; and (3) the
error affected the defendant’s substantial rights.” Id. at 358-359 (citing
United States v. Olano, 507 U.S. 725, 732-737 (1993)); see also United States
v. Gonzales, 484 F.3d 712, 715 (5th Cir. 2007) (“Under plain-error review, we
first inquire whether the district court’s imposition of the enhancement was
erroneous and, if so, whether the error was plain (i.e., clear or obvious).”).4
472-73 (5th Cir. 2006) (holding that a federal court may impose a federal sentence to run
consecutively to a state sentence not yet imposed). Jasso notes that he “accepts this holding
as the law of the Circuit,” but asserts that he seeks to preserve the matter for further review.
One panel of this Court may not overrule the decision of a prior panel in the absence of en
banc consideration or a superseding Supreme Court decision. United States v. Lipscomb, 299
F.3d 303, 313 n.34 (5th Cir. 2002). Accordingly, the appellant’s argument is foreclosed by this
Court’s holding in Brown, and this memo will not address the appellant’s argument in this
regard any further.
4
We do not address the fourth prong of the plain error review here since all three of the
first prongs are not met in this instance. See United States v. Ellis, 564 F.3d 370, 377 (5th Cir.
2009) (“If all three conditions are met an appellate court may then exercise its discretion to
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No. 08-10453
Our decision to affirm the defendant-appellant’s sentence hinges on our
analysis under the second prong of the plain error analysis.5 That is, we
conclude that the two contested criminal history points were assigned in
error. This error, however, was neither clear nor obvious, and, as we will also
discuss below, it did not affect the defendant-appellant’s substantial rights.
Accordingly, we respectfully observe that because “[t]he doctrine of plain
error serves powerful institutional interests, including securing the role of the
United States District Court as the court of first instance, as opposed to a
body charged to make recommendations to appellate courts” United States v.
Ellis, 564 F.3d 370, 378 (5th Cir. 2009), we must affirm the district court in
instances such as those presented in this case, where there is no clear error.
A. The Error in the Criminal History Category Assessment
This case requires us to address the question of whether “term of
imprisonment,” as it appears in § 4A1.2(k), refers only to the portion of the
term of imprisonment that was not suspended–or, whether it refers to the
entirety of the term of imprisonment issued upon revocation, regardless of
any subsequent suspension of that term. We conclude that “term of
imprisonment,” as it appears in § 4A1.2 as a whole, is synonymous with
“sentence of imprisonment” and therefore “refers only to the portion that was
notice a forfeited error but only if (4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”).
5
For a more thorough discussion highlighting the significance of the second prong of the
plain error analysis, see Ellis, 564 F.3d at 378 (“This emphasis on the second prong of plain
error analysis is particularly important given the development of this court’s case law on the
third and fourth prongs of the plain error test in the sentencing context, where the court has
been generous with remand, often finding that errors leading to substantial increases in
sentences, even those errors not raised until appeal and thus subject to plain error review,
merited remand, although we are not convinced that the case law on this point is settled or as
categorical as language in some cases might make it seem. To our eyes, the lack of any clear
error here means that [the defendant-appellant’s] sentence should stand.”).
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No. 08-10453
not suspended.” § 4A1.2(b)(2).6 We recognize that the Commission’s
supplanting of § 4A1.2(e)’s “sentence of imprisonment” with a different, un-
defined term (“term of imprisonment”) in § 4A1.2(k) could reasonably lead to
the conclusion that the two terms share different meanings. Our review of §
4A1.2, however, leads us to conclude that attaching disparate meanings to
these two terms results in irreconcilable inconsistencies in § 4A1.2 as a whole.
As a result, we write to clarify this error.
Section 4A1.2(e) governs whether Jasso’s prior conviction in Texas state
court counts for current criminal history purposes. Under § 4A1.2(e)(1), “[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 is counted.” Under § 4A1.2(e)(2), “[a]ny other prior sentence that was
imposed within ten years of the defendant’s commencement of the instant
offense is counted.” Under § 4A1.2(e)(3), however, “[a]ny prior sentence not
within the time periods specified above is not counted.” Thus, for a district
court to properly assess criminal history points for a prior conviction
pursuant to § 4A1.1, the prior conviction must fit into either of § 4A1.2(e)’s
first two categories. United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir.
2006) (holding that where a defendant’s “conviction does not fall within the
time periods specified in § 4A1.2(e)(1) or (2), it should not [b]e counted.”).
Jasso’s 1995 state court sentence to felony probation, alone, cannot contribute
any criminal history points since it was well-over the ten year limitation
6
In pertinent part, § 4A1.2(b)(2) states as follows: “If a part of a sentence of
imprisonment was suspended, ‘sentence of imprisonment’ refers only t the portion that was not
suspended.” Consequently, our conclusion that “term of imprisonment” and “sentence of
imprisonment” share the same meaning requires us to also conclude that “term of
imprisonment” “refers only to the portion that was not suspended.”
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No. 08-10453
found in (e)(2) and because as a term of probation, it fails to meet the thirteen
month minimum established in (e)(1).7
Thus, the only possible way his 1995 conviction could count for criminal
history purposes would be if the “term of imprisonment” issued upon his
revocation of probation affected the quantification of his “original term of
imprisonment” in § 4A1.2(e), pursuant to § 4A1.2(k). Section 4A1.2(k)
governs the implications of a probation violation— as it relates to the
calculation of criminal history points. Arviso-Mata, 442 F.3d 382, 385 (5th
Cir. 2006) (“Section 4A1.2(k)(2)(B) explains how the new term of
imprisonment affects the counting of criminal history points under §
4A1.2(e).”); accord United States v. Arnold, 213 F.3d 894, 896 (5th Cir. 2000)
(“That provision explicitly addresses the problem of revocation of parole.”).
Specifically, § 4A1.2(k) states that: “[i]n the case of a prior revocation of
probation, parole, or mandatory release, add the original term of
imprisonment to any term of imprisonment imposed upon revocation. The
resulting total is used to compute the criminal history points for § 4A1.1(a),
(b), or (c), as applicable.” (emphasis added). This seemingly simplistic
phraseology instructs district courts to add the term issued upon revocation
to the original term of imprisonment. The government’s position is that the
original term (zero years) should be added to the term imposed upon
revocation (ten years) for a resulting total of ten–placing Jasso’s 1995
conviction well-within § 4A1.2(e)(1)’s thirteen month minimum. Such an
interpretation of “term of imprisonment” as it appears in § 4A1.2(k) ,
however, offers only a cramped reading that does not comport with the term’s
appearance in § 4A1.2 as a whole.
7
As noted above, for his assault conviction in Texas state court, Jasso was sentenced
to a term of ten years of probation, which for criminal history purposes, amounts to a sentence
of imprisonment of “zero” years. See, e.g., United States v. Arviso-Mata, 442 F.3d 382, 385 (5th
Cir. 2006) (calculating a term of probation as “zero” years under § 4A1.2(e)).
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No. 08-10453
The error in the district court’s addition of the two contested criminal
history points in the present case, however, is made evident when two terms,
“sentence of imprisonment” and “term of imprisonment,” found in sections (b),
(e), (k) and the notes accompanying § 4A1.2, are read in accordance with the
canon of statutory construction noscitur a sociis. “Under the familiar canon of
statutory construction noscitur a sociis, ‘a word is known by the company it
keeps.’” In re Hickman, 260 F.3d 400, 403 (5th Cir. 2001). Our review of §
4A1.2 contained herein reveals that “sentence of imprisonment” and “term of
imprisonment” keep quite close company. Given their undeniable close
quarters, coupled with their interchangeable use, we conclude that “sentence
of imprisonment” and “term of imprisonment” should be read synonymously.
It then follows that the district court’s assessment of the two additional
criminal history points was in error, albeit it far from obvious.
A review of the Application Notes in the Sentencing Guidelines
provides ample support for our interpretation. In Application Note No. 11,
the Commission evinced its intent that pursuant to § 4A1.2(k), “[r]ather than
count the original sentence and the resentence after revocation as separate
sentences, the sentence given upon revocation should be added to the original
sentence of imprisonment, if any, and the total should be counted as if it were
one sentence.” (emphasis added). Thus, the Commission refers to the original
sentence as “the original term of imprisonment” in § 4A1.2(k)(1), yet in
Application Note No. 11 exchanges “original term of imprisonment” for
“original sentence of imprisonment.” Given that Application Note No. 11 is
the note designed to provide district courts with better insight to the true
meaning of § 4A1.2(k), the note’s replacement of “term of imprisonment” with
9
No. 08-10453
“sentence of imprisonment” leads us to conclude the two terms cannot have
disparate meanings.8
Application Note No. 11 also explains that § 4A1.2(k) is designed to
benefit the defendant by limiting the number of criminal history points that
may be assigned to a single conviction (three), even if the defendant served
multiple prison sentences on that conviction due to violations of his probation.
That is, it does not seem that a disproportionately harsher punishment for
having violated probation was the true intent of the Commission, for in
Comment No. 11 following § 4A1.2(k), the Commission states that the
purpose of § 4A1.2(k) is to ensure that “no more than three points will be
assessed for a single conviction, even if probation or conditional release was
subsequently revoked.” If this Court were to conclude that § 4A1.2(k)(1)’s
“original term of imprisonment” does not refer to the calculated “sentence of
imprisonment” as found in § 4A1.2(e) and defined in § 4A1.2(b)— this Court
would be interpreting § 4A1.2(k)(1) as requiring the sentencing court to add
the original term of a sentence (without the benefit of subtracting any
suspended portion of the original sentence pursuant to in § 4A1.2(b)(2)), to
the new sentence issued upon revocation. That is, under such an
interpretation, anytime a defendant violated probation on a prior conviction,
the sentencing court would be required to consider portions of the defendant’s
original sentence that the sentencing court would not have otherwise
considered. Such a conclusion would violate the Supreme Court’s “rule of
8
Application Note No. 11 is not the only comment that substantiates our reading of the
two terms as synonymous. In Application Note No. 2 following § 4A1.1, the Commission again
uses the two terms interchangeably, stating that “[w]here a prior sentence of imprisonment
resulted from a revocation of probation, parole, or a similar form of release, see § 4A1.2(k).”
(emphasis added). Because § 4A1.2(k) itself refers only to “term of imprisonment” and does not
contain the words “sentence of imprisonment,” as referenced in the aforementioned Application
Note to § 4A1.1, this interchangeable use presents strong evidence that the Commission
considers the two terms to be synonymous.
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No. 08-10453
lenity,” a policy the Supreme Court has adopted in statutory construction.
Bifulco v. United States, 447 U.S. 381, 387 (1980) (“This policy of lenity means
that the Court will not interpret a federal criminal statute so as to increase
the penalty that it places on an individual when such an interpretation can be
based on no more than a guess as to what Congress intended.”).9
For the aforementioned reasons, we hold that for purposes of
calculating criminal history points under U.S.S.G. § 4A1.2, “term of
imprisonment” shares the same meaning as “sentence of imprisonment.”
Because until now the error in assigning any other meaning to “term of
imprisonment” has been anything but obvious, and because we review the
district court’s error under the plain error standard of review, we affirm the
district court’s sentencing of the defendant-appellant. Sentencing courts are
now instructed that in calculating the term issued upon revocation pursuant
to § 4A1.2(k), they are to include in their calculations “only . . . the portion [of
any sentence issued upon revocation] that was not suspended.” § 4A1.2(b)(2).
B. The Defendant-Appellant’s Substantial Rights
We also note that even if were to conclude that this error had been clear
and obvious prior to our declaring it so, we would still refrain from reversing
the district court’s sentencing of Jasso since the error, in its specific
application to Jasso’s case, did not substantially affect his substantial rights.
In inquiring whether the defendant-appellant’s substantial rights have been
9
A review of the law in other Circuits also supports this conclusion. The Second Circuit
has stated that it interprets “§ 4A1.2(k)(1) and Application Note 11 to § 4A1.2(k) as requiring
the district court to aggregate the period(s) that the defendant served in prison upon any
partial revocation(s) of his probation with the period served upon any final revocation.” United
States v. Glidden, 77 F.3d 38, 40 (2nd Cir. 1996) (emphasis added). The Second Circuit’s
reference to “period served” (as opposed to “sentence given”) indicates that the Second Circuit
shares Jasso’s interpretation that in calculating the total sentence pursuant to § 4A1.2(k), the
sentencing court considers § 4A1.2(b)(2)’s definition as synonymous with the definition of “term
of imprisonment,” since the Court would only add the portion of the sentence “served in prison,”
and not the total sentence given upon revocation. See id.
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No. 08-10453
affected, the “proper question here is whether the defendant can show a
reasonable probability that, but for the district court’s misapplication of the
Guidelines, he would have received a lesser sentence.” United States v.
Villegas, 404 F.3d 355, 364 (5th Cir. 2005).
Jasso cannot satisfy this burden. Including the incorrectly assigned
two criminal history points for his 1995 prior conviction, the district court
assigned him five criminal history points in total. With an offense level of
twenty-one, the district court found that the applicable advisory guidelines
range was forty-six to fifty-seven months in prison. The district court then
sentenced him to forty-six months. If this Court were to subtract the two
criminal history points that the district assigned in error, that would put
Jasso at a criminal history category II, with a corresponding advisory range of
forty-one to fifty-one months in prison. His current sentence of forty-six
months, therefore, falls squarely in the middle of his corrected sentence. 10
10
In cases where this Court has found plain error, the gap between the correct and
erroneous sentences has been sufficient enough such that there was an apparent, reasonable
probability that the defendant would have received a lesser sentence but for the district court’s
error. See, e.g., United States v. Munoz-Ortenza, 563 F.3d 112, 116 (5th Cir. 2009) (“There is
little doubt also that the error affects [the defendant’s] substantial rights: the range of
imprisonment is forty-one to fifty-one months as determined with the enhancement and six to
twelve months without it.”); United States v. Gonzalez-Terrazas, 529 F.3d 293, 298-299 (5th
Cir. 2008) (“With the erroneous enhancement, [the defendant] faced a guideline range of 57
to 71 months imprisonment. Without the enhancement, [the defendant] faced a guideline range
of 24 to 30 months. This significant disparity in guideline ranges based on the erroneous
enhancement is sufficient to establish that [the defendant’s] substantial rights were affected.”);
United States v. Sanchez, 527 F.3d 463, 466 (5th Cir. 2008) (finding plain error where the
erroneous sentence the defendant “received is more than twice that provided for in the
guidelines range.”); United States v. Dentler, 492 F.3d 306, 314 (5th Cir. 2007) (finding plain
error where the district court’s error “resulted in a sentencing range where the lowest possible
sentence is 65 months higher than the top of the range [the defendant] should have received.”);
United States v. Brazell, 489 F.3d 666, 669 (5th Cir. 2007) (finding plain error where the
erroneous calculation “resulted in a guidelines sentence of 21 months, but the relevant
guideline range without the § 4A1.1 enhancement would have been 12-18 months.”); United
States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005) (finding plain error where the
“sentencing range would have been at most thirty-three to forty-one months, far less than the
seventy-seven month sentence [the defendant] received.”).
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No. 08-10453
Given this set of circumstances, we conclude that Jasso cannot
demonstrate a “reasonable probability, but for the district court’s
misapplication of the Guidelines, he would have received a lesser sentence.”11
Id.
For the aforementioned reasons, the judgment of the district court is
AFFIRMED.
11
Jasso asserts that he has demonstrated a “reasonable probability” because at the
time of sentencing, the district court stated on record that “the defendant should be placed at
the bottom of the advisory Guideline Range.” Given that his current sentence sits squarely in
the middle of the correct range, we cannot conclude–based on this statement alone–that the
district court would likely sentence him to a lower sentence if it had correctly computed the
criminal history points. The above quoted statement only demonstrates that the district court,
when faced with a Guideline Range of forty-six to fifty-seven months, concluded it would be
reasonable to place the defendant at the bottom of that range. Without any additional
evidence, we cannot ascertain the likelihood that the district court would consider the lowest
end of any range to be appropriate. As a result, Jasso has not demonstrated a “reasonable
probability.”
13