[PUBLISH]
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________ ELEVENTH CIRCUIT
OCTOBER 6, 2000
THOMAS K. KAHN
No. 98-5686 CLERK
________________
D.C. Docket No. 98-321-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT BUTER, a.k.a. Robert Le Blanc, etc.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(October 6, 2000)
Before TJOFLAT, HILL and POLITZ*, Circuit Judges.
POLITZ, Circuit Judge:
*
Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by
designation.
Robert Buter appeals his sentence of thirty-one months imprisonment plus a
$1,500 fine for importation of marihuana in violation of 21 U.S.C. § 952(a). For
the reasons assigned, we vacate the sentence in part and remand for appropriate
resentencing.
BACKGROUND
Buter, a.k.a. Robert LeBlanc and Robert Lablanc, asserts on appeal that the
district court erred by assessing a total of six criminal-history points based upon
sentences imposed for two state probation revocations. Because the state imposed
concurrent terms of imprisonment for the state convictions, and ordered the accrual
of those terms concurrent with a federal sentence that Buter had served previously,
he contends that he was not imprisoned for these two convictions within the
meaning of U.S.S.G. § 4A1.2(b), comment (n.2). Further, for the first time on
appeal, Buter claims that the court erred in imposing a $1,500 fine because the
record conclusively established his inability to pay.
ANALYSIS
Whether a particular guideline applies to a given set of facts is a question of
law which we review de novo.1 Claims raised for the first time on appeal generally
1
United States v. Rockman, 993 F.2d 811 (11th Cir. 1993), cert. denied, 510 U.S. 1080
(1994).
2
are reviewed for plain error.2
The essential issue to be decided herein is whether the state court sentences
of twenty-seven months, imposed to run concurrently with the previously
completed federal sentence, constitute “imprisonment” under the guidelines. We
conclude they do not. The language of the sentencing guidelines occasions a cause
for pause in the proper calculation to be made in an instance as is here presented.
Section 4A1.1 provides for the computation of a defendant's criminal history
category. Under this section, the sentencing court is to:
(a) Add 3 points for each prior sentence of imprisonment exceeding
one year and one month.
(b) Add 2 points for each prior sentence of imprisonment 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.
Section 4A1.2(b) defines “sentence of imprisonment” as “a sentence of
incarceration.” Application Note 2 to this section reads:
Sentences of Imprisonment. To qualify as a sentence of
imprisonment, the defendant must have actually served a period of
imprisonment on such sentence. . . . . For the purposes of applying
§ 4A1.1(a), (b), or (c), the length of a sentence of imprisonment is the
stated maximum. That is, criminal history points are based on the
sentence pronounced, not the length of time actually served.
2
United States v. Harness, 180 F.3d 1232 (11th Cir. 1999).
3
Buter underscores the definitional note “to qualify as a sentence of
imprisonment, the defendant must have actually served a period of imprisonment
on such sentence,” maintaining that because he was never actually confined for
these offenses, neither should be deemed a sentence of imprisonment for purposes
of § 4A1.1(a). Rather, he insists they should be addressed under § 4A1.1(c) as
“prior sentence(s) not counted in (a) or (b).”
The matter is res nova for this circuit. We find a measure of guidance from
our sister circuits and their treatment of related questions. Our colleagues in the
Tenth Circuit have declared that the phrase “sentence of incarceration" in §
4A1.2(b) “suggests that physical confinement is a key distinction between
sentences of imprisonment and other types of sentences.”3 Our Fifth Circuit
colleagues have held that, “Clearly, the Sentencing Guidelines require that (1) a
sentence exceed one year and one month, and (2) that some time actually be served
on that sentence before assessing three additional points to a defendant's criminal
history.”4 Buter’s state sentences of twenty-seven months obviously satisfy the
first prong of the analysis. The critical question is whether he actually served time
3
United States v. Vanderlaan, 921 F.2d 257, 259 (10th Cir. 1990). See also United States
v. Brooks, 166 F.3d 723 (5th Cir. 1999) (agreeing with the Tenth Circuit’s analysis that
physical incarceration is the key to distinguishing between a “sentence of imprisonment” and
other “sentences”).
4
United States v. Brown, 54 F.3d 234 (5th Cir. 1995).
4
on those sentences. We must answer this question in the negative. Buter walked
into and out of the state courtroom a free man. He did not spend one moment in
custody or confinement for the sentences imposed by the state court for his
probation violations. Instead, that court chose, as was its prerogative, to allow for
the disposition of the probation violations by giving credit for time served in a
prior, totally unrelated case.
We also find enlightening the Fourth Circuit decision in United States v.
Stewart5 wherein the defendant was held in state custody for 24 days pending a
parole revocation hearing. At the hearing, the state court determined that Stewart
was guilty of violating his parole, but it did not revoke same, and he was not
reincarcerated. Our colleagues held that the term “sentence of imprisonment” did
not include the pre-hearing detention, despite the court’s determination that
Stewart did, in fact, violate his parole. In its holding, the court stated, “section
4A1.1(e) of the United States Sentencing Guidelines does not contemplate the
assessment of criminal history points on the basis of detentions of defendants who
are awaiting parole revocation hearings, when those revocation hearings do not
result in reincarceration or revocation of parole. Indeed, to allow such an
assessment of criminal history points would be to allow Stewart to be penalized for
5
49 F.3d 121 (4th Cir. 1995).
5
something for which the state authorities themselves decided not to punish him.”6
Much like in Stewart, to permit assessment herein of three criminal history
points for the state parole violations would be penalizing Buter for something
which the state authorities determined was not deserving of further incarceration.
In addition, unlike Stewart, Buter was never detained on his parole violation
charges, either prior to or after his convictions thereof.
Our conclusion today is further supported by the manner in which the
guidelines treat suspended sentences. The state court could have imposed a
suspended sentence for Buter’s violations. Had the court done so, the guidelines
would provide for the imposition of only one point for the suspended sentence. It
is patently unreasonable to punish a defendant by adding three points in the
sentencing equation for a sentence which had no detrimental repercussions
whatsoever, either in the past or in the future, but count only one point for a
suspended sentence which, if revoked, could result in the defendant’s
imprisonment.
For these reasons, we conclude that Buter should have received only one
sentencing point for each of these offenses, resulting in a guidelines criminal
history category of III. We must therefore vacate Buter's sentence as it relates to
6
Id. at 125.
6
the period of incarceration. We find no clear error, however, in the fine assessed
and that part of the sentence is affirmed.
The sentence of imprisonment is VACATED and the matter is REMANDED
for resentencing. The fine imposed is AFFIRMED.
7