[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 23, 2005
No. 03-15111
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 01-00125-CR-J-25-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD THOMAS ADAMS,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 23, 2005)
Before MARCUS, FAY and SILER*, Circuit Judges.
MARCUS, Circuit Judge:
*
Honorable Eugene E. Siler, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
Richard Thomas Adams appeals his 60-month sentence imposed for
conspiracy to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B) and 846. On appeal, Adams argues that the district
court erred by assessing him one criminal history point for a 1991 conviction
because the offense occurred outside the ten-year window provided for in U.S.S.G.
§ 4A1.2(e)(2). We review the district court’s interpretation of the Sentencing
Guidelines de novo. See United States v. Rubio, 317 F.3d 1240, 1242 (11th Cir.
2003). After a thorough review of the record and careful consideration of the
parties’ briefs and oral arguments, we affirm.
On May 10, 2001, a federal grand jury in the United States District Court
for the Middle District of Florida charged Adams with conspiring (between March
and May 2, 2001) to distribute 500 grams or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B) and 846, and with three counts of distributing
cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2.
Without a written plea agreement, Adams entered a guilty plea as to the conspiracy
count and the government agreed to drop the remaining charges.
At the subsequent plea colloquy hearing, the government proffered the
following factual basis for Adams’s guilty plea. On March 2, 2001, a confidential
informant (“CI”) advised law enforcement that Adams was involved in the
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operation of a cocaine trafficking organization. Over the course of the next two
months, the CI and Adams had several telephone conversations in which Adams
indicated his willingness to sell distribution quantities of cocaine. These
conversations were monitored and tape-recorded by law enforcement. Also during
this two-month period, Adams made hand-to-hand sales of cocaine to the CI in a
restaurant parking lot in Jacksonville, Florida, on the following dates and in
approximately the following amounts: (1) an April 4, 2001 sale in the amount of
252.2 grams; (2) an April 25, 2001 sale in the amount of 145 grams; and (3) a May
2, 2001 sale in the amount of 273 grams. Thus, Adams provided the CI with a
total of 670.2 grams of cocaine.
Adams was arrested as he completed the May 2, 2001 sale. When he was
arrested, Adams had $8,100 in marked U.S. currency that he had received from the
CI moments earlier. Adams’s codefendant and Adams had come to a mutual
understanding to distribute cocaine to the CI, and this understanding was in effect
from April 4, 2001, to May 2, 2001. Upon questioning at the plea hearing, Adams
stated that he had no disagreement with the government’s proffer and
acknowledged that he had come to a mutual understanding with others to provide
cocaine unlawfully to the CI on at least three occasions.
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At sentencing, the PSI assigned Adams a base offense level of 26, pursuant
to U.S.S.G. § 2D1.1(c)(7), and recommended a 2-level reduction for Adams’s
minor role in the offense, pursuant to U.S.S.G. § 3B1.2(b), and a 3-level reduction
for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b). Thus,
Adams’s adjusted offense level was 21. As for his criminal history, the PSI
recommended assessing one criminal history point based on an August 22, 1991
conviction for which Adams had received 12 months’ probation for violating
Georgia’s controlled substance act, driving under the influence, speeding, and
carrying a concealed weapon. Adams also received one criminal history point for
a 1997 conviction for aggravated fleeing and attempting to elude police,
possession of marijuana, driving under the influence, reckless driving, and driving
the wrong way on a one-way road. These two criminal history points established a
criminal history category of II.1
The PSI further noted that there was a 5-year statutory minimum and a 40-
year statutory maximum for Adams’s offense. The Guidelines sentencing range
was 41-51 months’ imprisonment, but because of the mandatory minimum, 21
1
We note that the assessment of an additional criminal history point, based on the 1991
conviction, rendered Adams ineligible for a safety-valve reduction to his offense level, see U.S.S.G.
§ 2D1.1(b)(6); U.S.S.G. § 5C1.2(a)(1) (enumerating as one of the five requirements for safety-valve
eligibility, that “the defendant does not have more than 1 criminal history point”), and, thus,
ineligible to receive a sentence below the 60-month mandatory minimum he faced under 21 U.S.C.
§ 841(b)(1)(B).
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U.S.C. § 841(b)(1)(B), the recommended Guidelines sentence was 60 months’
imprisonment. At the sentencing hearing, the government argued against
giving Adams a minor-role adjustment because it was he who met with the
purchaser, discussed the negotiated price, had multiple telephone conversations
with the purchaser, and did the hand-to-hand delivery of drugs. The district court
agreed, finding that Adams’s behavior in the case was more than that of a simple
drug courier. Accordingly, the court denied the minor-role adjustment. Taking
into consideration the 60-month statutory minimum, Adams’s adjusted offense
level of 23 and criminal history category II resulted in a sentencing range of 60 to
63 months’ imprisonment.
Adams argued against imposition of a criminal history point for his August
1991 conviction because the offense occurred much earlier (on January 28, 1991)
than the actual imposition of his prior sentence. Adams contended that the only
reason he was not sentenced until August 1991 was because of a busy state-court
docket. According to Adams, there was no other explanation for the seven-month
delay because he pled guilty and, thus, there was no defense to prepare. The
district court overruled Adams’s objection, finding that because the 1991
imposition of sentence occurred within ten years of the beginning of the instant
offense, it could be considered under the Guidelines. The district court then
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sentenced Adams to a 60-month term of imprisonment, followed by a 5-year term
of supervised release.2
Section § 4A1.2(e) of the Sentencing Guidelines provides, in relevant part,
that in calculating a criminal history score for offenses in which a term of
imprisonment of less than one year and one month was imposed, a sentencing
court should score a “prior sentence that was imposed within ten years of the
defendant’s commencement of the instant offense . . . .” U.S.S.G. § 4A1.2(e)(2)
(2001). A “prior sentence” for purposes of this Guideline “means any sentence
previously imposed upon adjudication of guilt.” U.S.S.G. § 4A1.2(a)(1).
According to Adams, the instant offense occurred on April 4, 2001, the date of the
earliest substantive offense. We have given him the benefit of that date for
purposes of our analysis.3
2
The district court later granted Adams’s motion to vacate his sentence, filed pursuant to 28
U.S.C. § 2255, based on Adams’s claim that counsel was ineffective for failing to file a direct
appeal. Thereafter, the district court re-entered the original judgment in September 2003. Adams
then appealed his sentence to this Court. Ronald W. Maxwell, appointed counsel for Adams, moved
to withdraw on appeal pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967), because, in his opinion, there were no issues of arguable merit on which to base a direct
criminal appeal. We denied that motion and directed counsel to brief the issue of whether Adams’s
1991 conviction should have been included in his criminal history computation at sentencing.
3
Cf. United States v. Cornog, 945 F.2d 1504, 1509 (11th Cir. 1991) (where the
commencement of the conspiracy offense opened the 15-year window of § 4A1.2(e)(1) later than did
the substantive offenses, this Court used the earliest substantive offense date to outline the dates of
the offense conduct, specifically limiting that method and stating “for purposes of this opinion, we
will count back only from the last day alleged as part of the conspiracy” (emphasis added)).
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Adams asserts that the Guidelines do not define the term “imposed” as used
in the context of § 4A1.2(e)(2), and that an interpretation of the term that
encompasses solely the date the sentence was imposed for a prior offense
impermissibly overlooks the procedural history of the prior conviction. Adams
urges the 1991 offense should not be considered in calculating his criminal history
score because the offense occurred on January 28, 1991, but he was not sentenced,
through no fault of his own, until August 22, 1991, the first scheduled court date
after his initial appearance. We are unpersuaded.
Because Adams’s prior sentence was imposed on August 22, 1991, and he
commenced the instant offense no later than March 2, 2001 (well within 10 years
of the prior conviction), the district court correctly assessed a criminal-history
point for the prior conviction. We decline Adams’s invitation to recognize an
exception to the 10-year rule where, due to an alleged backlog in the state-court
system in which he was convicted, imposition of the sentence for his prior
conviction was delayed. Such an exception would be contrary to the plain
language of the § 4A1.1(c) and its accompanying commentary, including the
definitions of its terms.
The calculation of a defendant’s criminal history category expressly focuses
on “prior sentence[s],” not on prior offenses or prior convictions. It is well-
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established that “language in the Sentencing Guidelines is to be given its plain and
ordinary meaning.” United States v. Pompey, 17 F.3d 351, 354 (11th Cir. 1994)
(citing United States v. Strachan, 968 F.2d 1161, 1163 (11th Cir. 1992) (referring
to the “wealth of precedent in this circuit that seeks to remain faithful to the plain
language of the sentencing guidelines”); United States v. Wilson, 993 F.2d 214,
217 (11th Cir. 1993) (stating that Sentencing Guidelines commentary to be given
its plain and ordinary meaning)). Simply put, the language of § 4A1.1(c) is
unambiguous and, accordingly, we must give the language its plain and ordinary
meaning.
Moreover, our decision in this case is consistent with our sister Circuits’
uniform treatment of such claims. See, e.g., United States v. Arnold, 213 F.3d
894, 896 (5th Cir. 2000) (observing that “sentence pronouncement is the sole,
relevant event for purposes of § 4A1.2(e)(2)”); United State v. Robbio, 186 F.3d
37, 45 (1st Cir. 1999) (rejecting defendant’s argument that prior offenses taking
place outside of the 10-year period should not count under § 4A1.2(e)(2) and
observing, “[f]or purposes of determining a criminal history category under §
4A1.2(e)(2), the ten-year period is determined by the date of sentencing, not of
conviction”); United States v. Napoli, 179 F.3d 1, 17-18 (2d Cir. 1999) (affirming
imposition of criminal history points even where prior sentences were imposed
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within 10-year period only after sentencings were delayed while defendant was
cooperating with the government).
In sum, the district court did not err by assessing Adams one criminal
history point for the 1991 sentence and we, accordingly, affirm.
AFFIRMED.
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