United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 11, 2003
Charles R. Fulbruge III
Clerk
No. 03-60085
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN CHRISTOPHER GORDON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
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Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:
John Christopher Gordon appeals his conviction and
sentence for being a felon in possession of a firearm. His appeal
raises issues of ineffective assistance of counsel and whether the
district court’s application of U.S.S.G. § 4A1.1(b) was plain
error. Because the record before us is insufficient, we decline to
consider Gordon’s ineffective-assistance claims. Because we find
that the district court plainly erred in adding two points to
Gordon’s criminal history score under § 4A1.1(b), we vacate and
remand the matter for further proceedings.
Gordon’s presentence report calculated a criminal history
score of ten. Two of the criminal history points were awarded
under § 4A1.1(b) based on a six-month house arrest sentence.1
Gordon’s criminal history score of ten, which placed him in
criminal history category V, combined with his total offense level
of 22 yielded a guideline imprisonment range of 77 to 96 months.
The district court sentenced Gordon to 90 months in prison and
three years’ supervised release.
Gordon argues that his trial counsel was ineffective
because he failed to object to FED. R. EVID. 404(b) evidence and
failed to request a jury instruction limiting the jury’s use of
bad-act evidence. Gordon also argues that his trial counsel was
ineffective for failing to subpoena David Wilson, a key witness, to
testify in his defense. The Government argues that whether trial
counsel was ineffective for failing to object to Rule 404(b)
evidence may be decided by this court because trial counsel was
effective and the statements complained of are not Rule 404(b)
evidence or the court can dismiss the claim without prejudice to
Gordon raising that claim in a 28 U.S.C. § 2255 motion. With
regard to the claim that trial counsel was ineffective for not
subpoenaing Wilson, the Government argues that the evidence is
inadequate to establish whether Gordon told counsel about Wilson
but also argues that trial counsel was not ineffective for not
calling Wilson.
1
Gordon’s sentence resulting in his house arrest actually was
five years’ imprisonment, but that punishment was suspended for six
months of “Intensive Supervision/House Arrest Program” and four and
one-half years of probation.
2
As a general rule, we decline to review claims of
ineffective assistance of counsel on direct appeal. United States
v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). The Supreme Court
recently has emphasized that a § 2255 motion is the preferred
method for raising a claim of ineffective assistance of counsel.
Massaro v. United States, 123 S. Ct. 1690, 1692-94 (2003). The
Court noted that “[w]hen an ineffective-assistance claim is brought
on direct appeal, appellate counsel and the court must proceed on
a trial record not developed precisely for the object of litigating
or preserving the claim and thus often incomplete or inadequate for
this purpose.” Id. at 1694.
In accordance with this principle, we have undertaken to
resolve a claim of inadequate representation on direct appeal only
in a case where the record is adequate to allow the court to
consider the claim’s merits. United States v. Higdon, 832 F.2d
312, 314 (5th Cir. 1987); see also Massaro, 123 S. Ct. at 1696.
This is not the rare case in which a claim of ineffective
representation can be resolved on direct appeal. The record has
not been developed with regard to counsel’s motivation for his
trial tactics. Additionally, the record is not sufficient to
determine why Wilson could not be located before trial. We thus
adhere to our general rule and decline to consider these claims on
direct appeal.
Gordon also argues that the district court erred in
assessing two criminal history points for his house arrest. He
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argues that house arrest is not a “sentence of imprisonment” for
purposes of § 4A1.1(b). He contends that without the erroneous
two-point addition his criminal history score would have been nine
points, making the guideline range 63 to 792 months rather than 77
to 96 months.
Although Gordon states that he objected to the assessment
of the two criminal history points, in fact, no objection was made
to the application of § 4A1.1(b). We therefore review for plain
error only. See United States v. Olano, 507 U.S. 725, 731-32
(1993). To demonstrate plain error, an appellant must show clear
or obvious error that affects his substantial rights; if he does,
this court has discretion to correct a forfeited error that
seriously affects the fairness, integrity, or public reputation of
judicial proceedings, but we are not required to do so. United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en
banc)(citing Olano, 507 U.S. at 730-35).
Under § 4A1.1(b), two criminal history points are added
“for each prior sentence of imprisonment of at least sixty days,”
but not exceeding 13 months. § 4A1.1(b); see also § 4A1.1(a).
Under § 4A1.1(c), one criminal history point is assigned for
sentences not counted in § 4A1.1(a) or (b). “The term ‘sentence of
imprisonment’ means a sentence of incarceration and refers to the
maximum sentence imposed.” § 4A1.2(b); see also § 4A1.1, comment.
2
Actually, the guidelines provisions would have been 63 to 78
months. U.S.S.G. Chap. 5, Part A.
4
n.2 (noting that term “sentence of imprisonment” used in § 4A1.1(b)
was defined in § 4A1.2(b)). “If part of a sentence of imprisonment
was suspended, ‘sentence of imprisonment’ refers only to the
portion that was not suspended.” § 4A1.2(b)(2).
Chapter 4, part A of the Guidelines does not mention home
detention. The Guidelines do address home detention elsewhere.
Section 5C1.1 allows the sentencing judge to substitute home
detention for imprisonment for less serious crimes. § 5C1.1(c)(2)
and (3). Additionally, under § 7B1.3(d), a sentencing court may
require a recidivist to serve a period of “home detention . . . in
addition to” the term of imprisonment. These provisions
demonstrate that the Guidelines do not consider home detention and
imprisonment to be the same.
Gordon cites decisions from the Sixth, Seventh, and Ninth
Circuits in support of his proposition that home detention differs
from “imprisonment” under § 4A1.1. The Sixth Circuit has held
that, because home detention is a substitute for imprisonment, time
spent in home detention is not a “sentence of imprisonment” for
purposes of § 4A1.1(a). United States v. Jones, 107 F.3d 1147,
1165 (6th Cir. 1997). The Seventh Circuit has held that electronic
home detention is not a form of “imprisonment” for purposes of §
5G1.3. United States v. Phipps, 68 F.3d 159, 162 (7th Cir. 1995);
see also United States v. Compton, 82 F.3d 179, 184 (7th Cir.
1996). In United States v. Smith, 41 Fed. Appx. 134 (9th Cir.
2002)(unpublished), 2002 WL 1491880, at *2, the Ninth Circuit held
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that house arrest was not equivalent to imprisonment for purposes
of § 4A1.1(e), which provides for the addition of two points to the
criminal history score for an offense committed less than two years
after release from imprisonment counted under § 4A1.1(a) or (b).3
This Court has not addressed whether home detention is a
“sentence of imprisonment” for purposes of § 4A1.1. In United
States v. Brooks, 166 F.3d 723, 726 (5th Cir. 1999), we held that
a “boot camp term was properly a sentence of imprisonment for
purposes of § 4A1.1.” The Government cites this case in support of
its argument that the district court did not plainly err in
awarding two points for Gordon’s six-month term of house arrest.
However, in Brooks, we quoted with approval reasoning from the
Tenth Circuit discussing § 4A1.2(b)’s definition of a sentence of
imprisonment as a sentence of incarceration and suggesting that
“‘physical confinement is a key distinction between sentences of
imprisonment and other types of sentences.’” Id. at 726-27
(quoting United States v. Vanderlaan, 921 F.2d 257, 259 (10th Cir.
1990)).
The Government also cites United States v. Ruffin, 40
F.3d 1296, 1299 (D.C. Cir. 1994), in which the District of Columbia
Circuit held that, for purposes of § 4A1.1(b), a defendant who was
3
The Fourth Circuit, in an unpublished opinion, has cited
Phipps with approval in a case that did not involve § 4A1.1(b) for
the proposition that “imprisonment” in the Guidelines is used “to
denote time in a penal institution.” United States v. Simmons, 165
F.3d 22 (4th Cir. 1998) (unpublished), 1998 WL 738542, at *1
(internal quotation marks and citation omitted).
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committed to the Attorney General’s custody for one year with work
release ordered for 12 hours per weekday was imprisoned. However,
this case is distinguishable from one in which only home detention
has been ordered since, although Ruffin was released from
confinement for 12 hours per weekday, he was confined to prison 12
hours per weekday and on the weekends. Ruffin, 40 F.3d at 1299.
The Government also cites United States v. Schomburg, 929
F.2d 505, 507 (9th Cir. 1991), which involved a defendant who had
been sentenced to 60 days in jail with the recommendation that the
sentence be served in a weekend work project during which he was
required to work seven hours each Saturday and Sunday under the
supervision of the sheriff’s office but was not held in custody.
The Ninth Circuit held that, because the defendant’s eligibility to
participate in the weekend work project was determined by the
sheriff, “the sentence, as pronounced by the court at the outset,
was a sentence of imprisonment subject to alteration at the
Sheriff’s discretion.” Schomburg, 929 F.2d at 507. Therefore,
this decision also is distinguishable from the instant case in that
there is no indication in the record that Gordon’s sentence of
house arrest involved any discretion by law enforcement.
The Government also cites three Texas deferred-
adjudication cases: United States v. Valdez-Valdez, 143 F.3d 196,
202 (5th Cir. 1998), United States v. Hatchett, 923 F.2d 369, 376-
77 (5th Cir. 1991), and United States v. Giraldo-Lara, 919 F.2d 19,
23 (5th Cir. 1990). Those cases are inapposite because a
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particular guideline provision provides that a deferred
adjudication is counted as a sentence under § 4A1.1(c). See §
4A1.1(f).
In sum, the Guidelines define a “sentence of
imprisonment” as a “sentence of incarceration” and distinguish
between “imprisonment” and “home detention.” §§ 4A1.2(b),
5C1.1(c), 7B1.3(d). As Gordon points out, three circuits have held
that home detention does not equal imprisonment for § 4A1.1
purposes, and none of the cases that the Government has cited
indicates that we should hold otherwise. Moreover, in a U.S.S.G.
§ 2L1.2 case, we have cited with approval to Phipps, which held
that home detention is not “imprisonment.” United States v.
Landeros-Arreola, 260 F.3d 407, 414 (5th Cir. 2001) (citing Phipps,
68 F.3d at 161, for the proposition that “imprisonment ‘denote[s]
time spent in a penal institution,’ and Guidelines reference to
imprisonment separate from home detention indicates that the
‘Guidelines distinguish [between] the two’”). Thus, the district
court’s error in assessing two points under § 4A1.1(b) for Gordon’s
house-arrest sentence is plain error.
Gordon’s substantial rights have been affected by his
90-month sentence. Absent the error, the guideline range would
have been 63 to 78 months, instead of 77 to 96 months.
Consequently, the district court committed plain error in assessing
two points under § 4A1.1(b). We, therefore, VACATE and REMAND the
matter for further proceedings.
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