F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 16 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 99-3379
BRYAN E. TISDALE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. CR-99-10016-01-WEB)
Submitted on the briefs:
Michael G. Katz, Federal Public Defender, and Vicki Mandell-King, Assistant Federal
Public Defender, Denver, Colorado, for Defendant - Appellant.
Jackie N. Williams, United States Attorney, and Nancy Landis Caplinger, Assistant
United States Attorney, Topeka, Kansas, for Plaintiff - Appellee.
Before SEYMOUR, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and MILLS,
District Judge.*
*
The Honorable Richard Mills, United States District Judge for the Central District
of Illinois, sitting by designation.
MILLS, District Judge.
Plea of guilty to possession of cocaine with intent to distribute.
Sentence: 365 months, consecutive to state sentences.
Issues: denial of motion to suppress and sentence.
I. BACKGROUND
At approximately 2:11 a.m., on July 25, 1998, Wichita police officers were
dispatched to the scene of an attempted burglary/robbery at 1645 North Hydraulic,
Wichita, Kansas. Upon arrival, Wichita police officer Donna-Jean Buckman observed
Bryan E. Tisdale lying on the ground between the two residences located at 1645 North
Hydraulic and 1651 North Hydraulic.1 Tisdale’s white 1992 Nissan Maxima was parked
in the driveway between the two houses.
Tisdale had been shot in his back and in his leg. Officer Buckman asked Tisdale
what had happened, and Tisdale responded that he had heard a noise outside of his house,
and when he went to investigate, he was shot. When asked who had shot him, Tisdale
pointed to Donnell Mike Harrell who was lying dead next to the Maxima.2 Due to the
number of shell casings scattered around the area, Officer Buckman asked Tisdale where
1
Officer Buckman recognized Tisdale from prior police contacts.
2
Harrell died from a gun shot wound to the head which had been inflicted by
Tisdale. Tisdale was not criminally charged for shooting Harrell because the police
determined that the shooting was in self-defense.
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the other gun was. Because he was on probation for some state court convictions, Tisdale
initially told her that he did not have a gun, but later, he informed Officer Buckman that
he gave the gun which he had used to kill Harrell to his neighbor David Howard who
resides at 1651 Hydraulic.3
Accordingly, Wichita police officer Paul Kimble questioned Howard about the gun
which Tisdale had used to kill Harrell. Howard informed Officer Kimble that he had
found Tisdale injured and lying in the yard and that a bag of cocaine and a gun were
located approximately four feet from Tisdale. Howard stated that Tisdale asked him to
hide the gun and the cocaine, and he obliged.
After the police had recovered the gun from inside Howard’s house and due to the
bullet holes in Tisdale’s house, the officers made a protective sweep of Tisdale’s
residence in order to determine whether any other victims or persons were in the house.
The police did not find anyone in Tisdale’s house, nor did they find any contraband or any
other evidence of a crime.4
Meanwhile, Officer Sarah Hamilton, who was also at the scene, interviewed
Tisdale’s live-in girlfriend, Laketha Lee. Lee told Officer Hamilton that she had been
about two blocks away at a friend’s house when the shooting occurred but that she had
spoken with Tisdale on the telephone shortly before the shooting. Lee stated that Tisdale
Tisdale also said that the gun belonged to his girlfriend, Laketha Lee.
3
The officers did not search any drawers or other items in Tisdale’s house and
4
were only in the house for approximately 90 seconds.
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told her that he had heard a noise outside and that, when he went to investigate, he had
found the trunk of his car open.5 Later, Detective Christopher Moore interviewed Lee at
the police station. Lee also advised Detective Moore that Tisdale had told her that he had
found the trunk of his car open. However, Lee never specifically stated to which of
Tisdale’s cars he was referring; Detective Moore merely assumed that Tisdale was
referring to his Maxima.6
A few hours later that same day, the police sought and obtained a search warrant
for Tisdale’s residence and for his Nissan Maxima.7 When the warrant was executed, the
police recovered a large quantity of crack cocaine packaged in two-ounce, one-ounce, and
quarter-ounce packages located in the trunk of Tisdale’s Maxima. In addition, the police
5
Lee could not definitively remember whether she told Officer Hamilton to which
vehicle Tisdale had been referring when he said that the trunk of his car was open. In
addition to his Maxima, Tisdale owned at least two other vehicles, one of which was a
Buick Regal. These other two vehicles were on the south side of Tisdale’s house and
were covered with a tarp or some kind of cloth car cover. Lee also speculated to Officer
Hamilton that someone may have wanted to burglarize Tisdale because he had some nice
things, including some large speakers in his Maxima.
6
However, Officer Bradley Harris interviewed Yvonne Smith at the scene of the
shooting, and Smith told him that, prior to the shooting, she had overheard Tisdale telling
his [Tisdale’s] father that someone had been in the trunk of his Buick Regal, i.e., one of
the cars covered by the tarp.
7
The Wichita police obtained the search warrant from Judge Clark Owens of the
District Court of Sedgwick County, Kansas. Sergeant Jeff Allen prepared the application
and affidavit in support of the search warrant, with the assistance of Assistant District
Attorney Randall Hiebert, after conferring with the various police officers who were at
the scene of the shooting. Sergeant Allen’s application included an assertion that, upon
returning home, Tisdale “had found the trunk of his 1992 Nissan Maxima open.”
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discovered a quantity of crack cocaine in a box and in a whiskey container in Tisdale’s
bedroom. In all, the police found a total of 936.79 grams of crack cocaine, the majority
of which was located in Tisdale’s Maxima.
On March 3, 1999, a federal grand jury indicted Tisdale. Count I charged him
with knowingly and intentionally possessing with the intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1); Count II charged him with unlawfully carrying or
using a firearm during and in relation to a drug offense in violation of 18 U.S.C. §
924(c)(1); and Count III charged him with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Tisdale filed two motions to suppress with the district
court which were each denied on September 7, 1999, after the district court conducted an
evidentiary hearing.8
On September 10, 1999, Tisdale entered into a plea agreement whereby he pleaded
guilty to Count I of the indictment, reserving the right to appeal the district court’s denial
of his motions to suppress. In exchange for his plea, the Government agreed to move to
dismiss Counts II and III of the indictment and to withdraw its 21 U.S.C. § 851(a) notice
of Tisdale’s three prior felonies. On November 18, 1999, the district court sentenced
8
Tisdale’s first motion sought to suppress certain statements which he argued
should have been excluded because the police did not advise him of his Miranda rights
prior to his making the statements. Tisdale has not challenged the district court’s denial
of this motion to suppress. Rather, he challenges the district court’s denial of his second
motion, arguing that Sergeant Allen’s application failed to establish probable cause to
justify the issuance of the search warrant.
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Tisdale to 365 months of imprisonment. Tisdale has now filed the instant appeal
challenging the district court’s denial of his suppression motion and the district court’s
calculation of his sentence under the United States Sentencing Guidelines.
II. ANALYSIS
A. MOTION TO SUPPRESS
Tisdale argues that Sergeant Allen’s application and affidavit, which he submitted
to Judge Owens in support of his request for a search warrant for Tisdale’s Maxima and
residence, failed to demonstrate probable cause for the issuance of the warrant because
there was no basis to assume that he possessed other guns or drugs or that any other such
items would be found in his house or car. Specifically, Tisdale asserts that there was no
basis for the search warrant because he had told the police that nothing was missing from
his vehicle, because the fact that he had possessed and used his girlfriend’s gun does not
lead to the logical conclusion that he kept other guns in his home, and that the discovery
of a minuscule amount of cocaine (i.e., an amount appropriate for personal consumption)
does not logically lead to the conclusion that he maintained other quantities (i.e., an
amount appropriate for distribution) of cocaine in his car or house. Moreover, Tisdale
claims that Judge Owens’ determination of probable cause is undermined by the fact that
the police officers conducted a protective search of his house but uncovered no drugs or
firearms.
Furthermore, Tisdale argues that the district court erred in concluding that the
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good faith exception applied to the Fourth Amendment’s exclusionary rule. Tisdale
contends that the good faith exception does not apply: (1) because the warrant is based
upon an affidavit which is facially lacking any indicia of probable cause, (2) because
Sergeant Allen recklessly included false information regarding which car was the object
of Harrell’s attempted theft (the application for the search warrant identified the Maxima,
but Tisdale claims that the evidence establishes that Harrell was after his Buick Regal),
and (3) because Sergeant Allen omitted the significant fact that the officers had
previously performed a protective sweep of his house without discovering any drugs,
weapons, or contraband. Tisdale also contends that the good faith exception should not
apply because Officer Harris recklessly failed to communicate the information which he
had received from Smith that Tisdale was referring to his Buick Regal’s trunk as being
opened, not his Maxima. In short, Tisdale argues that, when the application for the search
warrant is stripped of all irrelevant information, the affidavit is merely “a bare bones”
application which was insufficient to establish probable cause for issuing the search
warrant. Accordingly, Tisdale asserts that the district court erred in denying his motion to
suppress.
The Government argues that the search warrant was supported by probable cause.
The Government asserts that the affidavit recited many of the factual events which
occurred on the night of the shooting, including the fact that Harrell lay dead immediately
next to the trunk of Tisdale’s Maxima, the fact that shell casings were found near
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Tisdale’s house and Maxima, the fact that bullet holes were found in the exterior of
Tisdale’s house, the fact that Tisdale had exited his house with a gun in his hand, and the
fact that Tisdale gave the gun and a bag of crack cocaine to his neighbor to hide. Based
upon this and the other facts contained within Sergeant Allen’s application, the
Government claims that Judge Owens had a substantial basis for concluding that the
application and affidavit established probable cause, i.e., a basis to believe that there was
a fair probability that contraband or evidence of a crime would be found in Tisdale’s
house and/or Maxima, thereby justifying the issuance of the search warrant for both.
Therefore, the Government claims that the district court did not err in denying Tisdale’s
motion to suppress.
Alternatively, the Government contends that the law enforcement officers’ reliance
upon Judge Owen’s probable cause determination was objectively reasonable, and thus,
the good faith exception applies. Moreover, the Government claims that, as discussed
supra, Sergeant Allen’s affidavit is not a “bare bones” application. Finally, the
Government argues that it is clear that the Maxima was the subject of the robbery and that
any failure by Officer Harris to communicate any information to the other officers was
merely inadvertent. In short, the Government asserts that the application for the search
warrant contained no intentional or reckless misstatements, nor did it contain any material
omissions, and therefore, the district court did not err in denying Tisdale’s motion to
suppress.
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1. Probable Cause9
This Court reviews the sufficiency of the affidavit upon which a warrant is issued
by looking at the totality of the circumstances and simply ensuring “that the magistrate
had a substantial basis for concluding that probable cause existed.” Illinois v. Gates, 462
U.S. 213, 238-39 (1983)(quotation omitted). Probable cause means that “there is a fair
probability that contraband or evidence of a crime will be found in a particular place.” Id.
at 238; United States v. McCarty, 82 F.3d 943, 947 (10th Cir. 1996). “[T]he defendant
bears the burden of ‘proving a factual nexus’ between the Fourth Amendment violation
and the seizure of the evidence sought to be suppressed.” United States v. King, 222 F.3d
1280, 1285-86 (10th Cir. 2000), quoting United States v. Nava-Ramirez, 210 F.3d 1128,
1131 (10th Cir. 2000). “We review de novo the district court’s probable cause
determination.” United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir. 1999).
9
“This court has recognized that a reviewing court may, in appropriate cases, turn
directly to the good-faith issue without first considering the validity of the warrant under
the Fourth Amendment. When there are important Fourth Amendment questions at issue,
however, and resolution of such questions is necessary to guide future action by law
enforcement officers and magistrates, it is appropriate to first address the Fourth
Amendment issues before turning to the good-faith issue. In addition, resolution of the
Fourth Amendment issue is often necessary, as in this case, to determine whether the
officers’ reliance on the warrant was reasonable for purposes of the good-faith analysis.”
United States v. Rowland, 145 F.3d 1194, 1206 n. 8 (10th Cir. 1998)(internal citations
and quotations omitted). Based on these considerations, we believe it to be appropriate
for us to first address the underlying validity of the warrant before considering the
good-faith exception.
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This Court’s review of the issuance of the search warrant, however, is more
deferential. Id. As we have previously explained:
When reviewing a district court’s denial of a motion to suppress, we
consider the totality of the circumstances and view the evidence in a light
most favorable to the government. We accept the district court’s factual
findings unless those findings are clearly erroneous. The credibility of
witnesses, the weight to be given evidence, and the reasonable inferences
drawn from the evidence fall within the province of the district court.
Keeping in mind that the burden is on the defendant to prove that the
challenged seizure was illegal under the Fourth Amendment, the ultimate
determination of reasonableness under the Fourth Amendment is a question
of law reviewable de novo.
United States v. Long, 176 F.3d 1304, 1307 (10th Cir. 1999).
We believe that Judge Owens “had a substantial basis for finding that probable
cause existed”, United States v. Simpson, 152 F.3d 1241, 1246 (10th Cir. 1998), and that
the district court did not err in denying Tisdale’s motion to suppress. Sergeant Allen’s
application for a search warrant detailed all of the relevant information known to the
Wichita police officers regarding the shooting which had occurred at 1645 Hydraulic on
July 25, 1998. Specifically, the application and affidavit informed Judge Owens that an
attempted robbery/burglary had occurred in the vicinity of 1645 and 1651 Hydraulic and
that, as a result, one man was dead and another was wounded. In addition, Judge Owens
knew from the affidavit that, upon hearing a noise outside, Tisdale exited his residence
with a gun in his pocket, that numerous shell casings were scattered near Tisdale’s
Maxima and house, that Tisdale had asked his neighbor to hide the gun and a bag of crack
cocaine for him, that Harrell lay dead in Tisdale’s front yard and next to Tisdale’s
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Maxima, that Tisdale’s house had bullet holes in its exterior, and that, earlier in the
evening, Tisdale had found the trunk of his Nissan Maxima open.
Based upon this information, as well as the other facts contained within the
affidavit, we find that a fair probability existed that the Nissan Maxima and/or his house
was the subject of the robbery/burglary and that either or both may have contained
evidence of a crime or criminal activity. Gates, 462 U.S. at 238-39. In making his
probable cause determination, Judge Owens was permitted to “‘draw reasonable
inferences from the material provided in the warrant application.’” Nolan, 199 F.3d at
1183, quoting United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998); see
United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986)(holding that the magistrate is
“not required to rule out every other possible alternative.”). Because the affidavit
indicated that Tisdale had found the trunk of his Maxima opened before the shooting and
because Harrell lay dead adjacent to the trunk of the Maxima, it was reasonable for Judge
Owens to believe that a fair probability existed that Tisdale’s Nissan Maxima may contain
evidence of a crime,10 and a nexus existed between the place to be searched and the items
to be seized. See United States v. Gant, 759 F.2d 484, 488 (5th Cir. 1985)(holding that
10
As the Government notes, Tisdale did not tell the police officers after the
shooting that nothing was missing from his Maxima; rather, Lee told the police officers
that Tisdale had told her that nothing was missing from his trunk when he discovered it
opened. In any event, Tisdale’s statements did not relieve the police officers of their duty
to investigate the homicide and the burglary/robbery, especially in light of the fact that
Tisdale initially lied to Officer Buckman regarding his possession of a firearm.
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“the nexus between the place to be searched and the evidence sought may be established
through normal inferences about the location of evidence.”); see also United States v.
Thomas, 757 F.2d 1359, 1367 (2d Cir. 1985), quoting Brinegar v. United States, 338 U.S.
160, 176 (1949)(holding that “[p]robable cause to believe certain items will be found in a
specific location is a ‘practical, nontechnical conception,’ [citations omitted] that need not
be based on direct, first-hand, or ‘hard’ evidence.”). Likewise, because Tisdale had
exited his house with a gun (and presumably a bag containing crack cocaine) and because
the exterior of his house contained bullet holes, it was reasonable for Judge Owens to
believe that a fair probability existed that Tisdale’s residence may also contain evidence
of a crime. See Shomo, 786 F.2d at 984 (holding that police officers had probable cause
to search a residence for a gun when the resident was seen leaving the house with a gun).
As this Court has previously opined, in reviewing whether probable cause existed
for issuing a search warrant, “[t]he test is whether the facts presented in the affidavit
would ‘warrant a man of reasonable caution’ to believe that evidence of a crime will be
found at the place to be searched.” Nolan, 199 F.3d at 1186, quoting Texas v. Brown, 460
U.S. 730, 742 (1983) (plurality). The Court believes that this test has been satisfied in
this case. Therefore, Judge Owens’ finding that, based upon Sergeant Allen’s application
and affidavit, probable cause existed to issue the search warrant and the district court’s
denial of Tisdale’s motion to suppress are affirmed.
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2. Good Faith Exception
Even assuming, arguendo, that Sergeant Allen’s application was insufficient to
establish probable cause to issue the search warrant, we agree with the district court that
the evidence obtained pursuant to the warrant should not be suppressed because the
Wichita police officers who executed the warrant acted in good faith and reasonably
relied upon the warrant issued by Judge Owens. In United States v. Leon, 468 U.S. 897
(1984), the United States Supreme Court held that the Fourth Amendment’s exclusionary
rule should not bar the use of evidence obtained by police officers acting in good faith
and with reasonable reliance on a facially valid search warrant. Id. at 919-20. “[W]hen
reviewing an officer’s reliance upon a warrant, we must determine whether the underlying
documents are ‘devoid of factual support, not merely whether the facts they contain are
legally sufficient.’” United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993),
quoting United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985). “Our good-faith
inquiry is confined to the objectively ascertainable question whether a reasonably well
trained officer would have known that the search was illegal despite the magistrate’s
authorization.” Leon, 468 U.S. at 922 n. 23. “In making this determination, we consider
‘all of the circumstances,’and assume the executing officers have ‘a reasonable
knowledge of what the law prohibits.’” Rowland, 145 F.3d at 1207, quoting Leon, 468
U.S. at 919 n. 20. As we have recently explained:
The Supreme Court recognizes four situations in which an officer would not
have reasonable grounds for believing a warrant was properly issued. See
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Leon, 468 U.S. at 922-23, 104 S. Ct. 3405. In these situations, the
good-faith exception to the exclusionary rule would not apply. See id. First,
evidence should be suppressed if the issuing magistrate was misled by an
affidavit containing false information or information that the affiant would
have known was false if not for his “reckless disregard of the truth.” Id. at
923, 104 S. Ct. 3405. Second, the exception does not apply when the
“issuing magistrate wholly abandon[s her] judicial role.” Id. Third, the
good-faith exception does not apply when the affidavit in support of the
warrant is “so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable.” Id. (quotation omitted).
Fourth, the exception does not apply when a warrant is so facially deficient
that the executing officer could not reasonably believe it was valid. See id.
United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir. 2000). “The applicability of
the Leon good-faith exception is a question of law which this court reviews de novo.”
Rowland, 145 F.3d at 1206.
Tisdale does not assert that Judge Owens abandoned his judicial role in issuing the
search warrant, nor does he contend that the search warrant is so facially deficient that the
police officers could not reasonably believe it to be valid. Although Tisdale does assert
that Sergeant Allen’s affidavit in support of the warrant is such a bare bones affidavit that
no reasonable judicial officer would have found probable cause to issue the warrant, we
have rejected that argument supra. See Rowland, 145 F.3d at 1206 n. 8 (noting that the
“resolution of the Fourth Amendment issue is often necessary, as in this case, to
determine whether the officers’ reliance on the warrant was reasonable for purposes of
the good-faith analysis.”); see also United States v. Bishop, 890 F.2d 212, 216 (10th Cir.
1989)(holding that a “resolution of whether there was probable cause supporting the
warrant is not necessary to our decision . . . because . . . the agents’ conduct clearly falls
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within the ‘good faith exception’ to the exclusionary rule.”); see also United States v.
Cook, 854 F.2d 371, 372 (10th Cir. 1988)(“Assuming but not holding that the affidavit
fails to establish probable cause, we believe the district court erred in refusing to apply
the good faith exception to the exclusionary rule as set forth in Leon.”).
Thus, the only claim which needs our attention is Tisdale’s argument that Sergeant
Allen’s affidavit contained a material omission which misled Judge Owens. Specifically,
Tisdale contends that the statement attributed to Lee–that he “had found the trunk of his
1992 Nissan Maxima open”–was incorrect because it was his Buick Regal’s trunk which
he had found opened upon returning home, not his Maxima. Moreover, Tisdale asserts
that Sergeant Allen recklessly included this statement in his affidavit based upon
Detective Moore’s assumption regarding to which car Lee had been referring during her
interviews; Lee never specified whether it was his Maxima’s or his Regal’s trunk which
Tisdale said he had found open. Finally, Tisdale argues that Sergeant Allen recklessly
omitted Smith’s statement to Officer Harris that, prior to the shooting, she had overheard
Tisdale telling his [Tisdale’s] father that someone had been in the trunk of his Regal and
recklessly omitted the fact that the officers conducted a protective sweep of his house on
the night of the shooting but discovered no contraband or evidence of a crime.
Tisdale is correct that it is a violation of the Fourth Amendment to “knowingly and
intentionally, or with reckless disregard for the truth,” include false statements in an
affidavit filed in support of a search warrant. Franks v. Delaware, 438 U.S. 154, 155
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(1978). Moreover, “[t]he standards of deliberate falsehood and reckless disregard set
forth in Franks apply to material omissions, as well as affirmative falsehoods.” United
States v. McKissick, 204 F.3d 1282, 1297 (10th Cir. 2000). The false statement or
omission must, however, be “necessary to the finding of probable cause” in order for the
fruits of the search to be suppressed. Franks, 438 U.S. at 155; see Stewart v. Donges, 915
F.2d 572, 583 n. 13 (10th Cir. 1990)(opining that “not every omission of relevant
information will be regarded as ‘material.’ The omitted information must be so probative
as to negate probable cause.”). Thus, “a court may look behind a search warrant when the
affiant intentionally or recklessly misleads the magistrate judge by making an
affirmatively false statement or omits material information that would alter the magistrate
judge’s probable cause determination.” United States v. Kennedy, 131 F.3d 1371, 1377
(10th Cir. 1997). The defendant bears the burden to demonstrate the affidavit’s falsity or
reckless disregard for the truth by a preponderance of the evidence. Id.; United States v.
Knapp, 1 F.3d 1026, 1028 (10th Cir. 1993); United States v. Sullivan, 919 F.2d 1403,
1424 (10th Cir. 1990).
In the instant case, we agree with the district court that Tisdale has failed to
demonstrate that there was any deliberate falsity or reckless disregard for the truth as to
any assertion in or omission from Sergeant Allen’s affidavit in support of the application
for the search warrant. Given his interview with Lee, the fact that Harrell was found dead
near the trunk of Tisdale’s Nissan Maxima, and the fact that Tisdale’s Buick Regal was
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covered with a tarp at the time of the shooting, it was reasonable for Detective Moore to
assume that the Maxima was a target of the robbery and that Tisdale was referring to the
Maxima when he informed Lee that he had found the trunk of his car opened. Therefore,
it was reasonable for Detective Moore to relay this information to Sergeant Allen for
inclusion in Sergeant Allen’s affidavit in support of the search warrant, and the district
court did not err in finding that the good faith exception to the exclusionary doctrine
applied.
As for Tisdale’s arguments based upon the omissions of certain facts from
Sergeant Allen’s affidavits (i.e., Smith’s statements to Officer Harris and the fact the
police officers had previously conducted a protective sweep of his home without
discovering any evidence of a crime), Tisdale has failed to demonstrate that these
“omissions” were anything more than inadvertent. Accordingly, we affirm the district
court’s finding that Tisdale’s motion to suppress should be denied because Leon’s good
faith exception applies.
B. SENTENCE
In addition to challenging his conviction, Tisdale also challenges the sentence
imposed by the district court. Specifically, Tisdale argues that the district court erred in
imposing his federal sentence to run consecutive to his state sentence and argues that the
district court erred in calculating his criminal history score and category.
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1. Concurrent vs. Consecutive Sentence
As a result of the shooting incident on July 25, 1998, Tisdale’s probation was
revoked in three separate state court cases. Based upon these revocations, Tisdale was
sentenced to 72 months of imprisonment. Tisdale was serving this 72 month sentence at
the time of his federal sentencing hearing. Based upon his conditional plea of guilty in
the instant case, the district court sentenced Tisdale to 365 months of imprisonment to be
served consecutive to his 72 month state court sentence.
Tisdale argues that the district court erred as a matter of law in failing to impose
his sentence in the instant case to run concurrently with his state court sentence. Tisdale
asserts that U.S.S.G. § 5G1.3(b) applies in this case because, not only did the district
court increase his criminal history score based upon the state probation revocation
sentence, it also adjusted his offense level by adding two points based upon his
possession of a firearm in relation to the offense conduct. U.S.S.G. § 5G1.3(b) requires
district courts to impose concurrent sentences in cases in which U.S.S.G. § 5G1.3(a) does
not apply, and therefore, Tisdale claims that the district court erred as a matter of law in
imposing his federal sentence to run consecutive to his state sentence.
Alternatively, Tisdale contends that the district court abused its discretion in
failing to order that his sentence in the instant case be served concurrent with his state
court sentence based upon U.S.S.G. § 5G1.3(c). Tisdale argues that, when a defendant
has had his probation, parole, or supervised release revoked (as he did) as the result of
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committing the offense for which he is being sentenced, application note 6 to U.S.S.G. §
5G1.3 confers upon district courts the authority to order that the defendant’s sentence on
the offense of conviction be served concurrent with the sentence imposed for the violation
of his probation, parole, or supervised release. Tisdale asserts that the district court erred
in his case in believing that it lacked the discretion to impose a concurrent sentence as is
evidenced by the district court’s comments at his sentencing hearing. Accordingly,
Tisdale asks the Court to remand this case to the district court with instructions to order
that his 365 month sentence be served concurrent with his 72 month state court sentence
pursuant to U.S.S.G. § 5G1.3(b) or with instructions for the district court to exercise its
discretion to impose a concurrent sentence pursuant to U.S.S.G. § 5G1.3(c).
The Government argues that U.S.S.G. § 5G1.3(b) is inapplicable because that
section requires the imposition of a concurrent sentence only if the offense level
calculated in the case takes into account the offense underlying the undischarged offense.
The Government asserts that Tisdale received a two point enhancement based upon his
possession of a firearm in this case, not in his prior state cases. Thus, the Government
claims that U.S.S.G. § 5G1.3(b) does not apply because Tisdale’s state court offenses
were not fully taken into account in the determination of his offense level for the instant
federal offense.
Furthermore, the Government argues that, even if this Court were to follow the
other circuit courts which have held that application note 6’s language “should be
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imposed” is permissive rather than mandatory, the district court’s statements, when
viewed in context and in its entirety, establish that the district court believed that it had
the discretion to order that Tisdale’s federal sentence be served concurrent with his state
court sentence, but it chose not to do so. In any event, the Government contends that the
imposition of a consecutive sentence in this case does not constitute plain error.
Accordingly, the Government asks the Court to affirm the district court’s imposing
Tisdale’s sentence in this case to run consecutive to his state court sentence.
Before turning to the merits of Tisdale’s argument, we must first decide the
applicable standard of review. Generally, this Court reviews de novo the district court’s
interpretation and application of the sentencing guidelines. United States v. Contreras,
210 F.3d 1151, 1152 (10th Cir. 2000); United States v. Chavez-Valenzuela, 170 F.3d
1038, 1039 (10th Cir. 1999). However, if a party fails to lodge a specific objection with
the district court to its interpretation or application of the sentencing guidelines, such a
failure precludes appellate review. United States v. Gilkey, 118 F.3d 702, 704 (10th Cir.
1997).
Nevertheless, “‘we recognize a narrow exception and review a legal question
involving application of the sentencing guidelines for plain error.’” Id., quoting United
States v. Ciapponi, 77 F.3d 1247, 1252 (10th Cir. 1996). “In order to evoke this
exception, ‘the error must be particularly egregious, as well as obvious and substantial,’
and we will apply it ‘solely in those circumstances in which a miscarriage of justice
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would otherwise result.’” United States v. Ivy, 83 F.3d 1266, 1295 (10th Cir. 1996),
quoting United States v. Saucedo, 950 F.2d 1508, 1511 (10th Cir. 1991), overruled on
other grounds by Stinson v. United States, 508 U.S. 36 (1993); Johnson v. United States,
520 U.S. 461, 465-67 (1997); United States v. Olano, 507 U.S. 725, 732 (1993).
Although Tisdale’s objection to the district court’s imposition of a sentence
consecutive to that imposed by the state court is not the model of specificity, we find that
his counsel sufficiently raised the issue of the imposition of a consecutive versus a
concurrent sentence with the district court, and therefore, his claim is preserved for
appeal. At the sentencing hearing, the district court set forth what Tisdale’s sentence was
going to be and then asked whether there were any objections to the proposed sentence.
Tisdale’s counsel responded: “The only request, Your Honor, would be that the Court
consider the lower end of the guidelines. And also, he is serving a State sentence, but that
the Court make the sentence here concurrent with the State sentence.” The district court
heard brief arguments from both parties on this issue and then ordered Tisdale’s sentence
to be served consecutive to his state court sentence.
While it would have been preferable for Tisdale to have referenced U.S.S.G. §
5G1.3 in making his request to the district court that it order his sentence to be served
concurrent with his state court sentence, he did alert the district court to the issue at hand.
See United States v. Reyes-Lugo, 238 F.3d 305, 307-08 (5th Cir. 2001)(reviewing the
defendant’s claim de novo where, although he did not object to the imposition of a
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consecutive sentence, he did ask the district court to impose a concurrent sentence);
see also United States v. Hernandez, 64 F.3d 179, 181 (5th Cir. 1995)(opining that,
although the defendant failed to cite U.S.S.G. § 5G1.3(c), his request for a concurrent
sentence alerted the district court to the issue before it). Accordingly, we will review the
district court’s imposition of a consecutive sentence de novo.
As we have recently explained:
In general, a district court has broad discretion to sentence a defendant to a
consecutive or concurrent sentence. This discretion is limited, however, by
U.S.S.G. § 5G1.3 when the district court seeks to impose a consecutive or
concurrent sentence upon a defendant subject to an undischarged term of
imprisonment. Section 5G1.3(a) requires a consecutive sentence when the
defendant committed the instant offense while serving a term of
imprisonment, or before the defendant began serving a term. Section
5G1.3(b) applies when subsection (a) does not, and requires a concurrent
sentence if the “undischarged term of imprisonment resulted from
offense(s) that have been fully taken into account” in the determination of
the instant offense level. Section 5G1.3(c) applies in any other case and
authorizes the district court to impose a sentence to run concurrently,
partially concurrently, or consecutively to the undischarged sentence “to
achieve a reasonable punishment.”
Contreras, 210 F.3d at 1152 (internal citations and footnote omitted). Subsection (a) does
not apply in this case because an undischarged term of probation is not an “undischarged
term of imprisonment” as that phrase is used in U.S.S.G. § 5G1.3. United States v.
Cofske, 157 F.3d 1, 1-2 (1998); Prewitt v. United States,83 F.3d 812, 817-18 (7th Cir.
1996). Moreover, subsection (b) does not apply because the district court did not fully
take into account Tisdale’s prior state court offenses. Contreras, 210 F.3d at 1153; United
States v. McCarty, 82 F.3d 943, 951 (10th Cir. 1996); United States v. Johnson, 40 F.3d
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1079, 1082 (10th Cir. 1994). As the Government notes, the district court increased
Tisdale’s base offense level by two levels because he possessed a firearm in the instant
offense (i.e., his federal drug conviction), not because he possessed a gun in any of his
prior state court cases. Therefore, U.S.S.G. § 5G1.3(c), which grants the district court the
discretion to impose a concurrent sentence, a consecutive sentence, or a combination
thereof, applies.
Application note 6 to U.S.S.G. § 5G1.3 provides in relevant part:
If the defendant was on federal or state probation, parole, or supervised
release at the time of the instant offense, and has had such probation,
parole, or supervised release revoked, the sentence for the instant offense
should be imposed to run consecutively to the term imposed for the
violation of probation, parole, or supervised release in order to provide an
incremental penalty for the violation of probation, parole, or supervised
release.
Id. Although we have previously noted the current split among the circuit courts
regarding whether note 6’s language is mandatory or permissive, e.g., United States v.
Carver, 160 F.3d 1266, 1268 n. 1 (10th Cir. 1998), we have not yet weighed in on the
issue. Compare United States v. Alexander, 100 F.3d 24, 26-27 (5th Cir. 1996)(holding
that note 6’s language is mandatory), and United States v. McCarthy, 77 F.3d 522, 539-
40 (1st Cir. 1996)(same), and United States v. Bernard, 48 F.3d 427, 430-32 (9th Cir.
1995)(same), and United States v. Goldman, 228 F.3d 942, 944 (8th Cir. 2000)(same),
with United States v. Maria, 186 F.3d 65, 70-73 (2d Cir. 1999)(holding that note 6 is not
mandatory based upon use of the word “should” rather than the word “shall”), and United
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States v. Walker, 98 F.3d 944, 945 (7th Cir. 1996)(indicating, in dicta, that note 6 creates
a “strong presumption in favor of consecutive sentencing.”). The issue is now squarely
before us because the state court revoked Tisdale’s sentences of probation and sentenced
him on those revocations prior to the district court sentencing him.
We side with the minority of the circuit courts which have held that note 6’s
language is permissive. Paramount to this conclusion is the Supreme Court’s directive
that courts are to give words their ordinary meaning when they do not have a specific
definition or an established common-law meaning. Chapman v. United States, 500 U.S.
453, 461-62 (1991); United States v. Floyd, 81 F.3d 1517, 1523 (10th Cir. 1996).
“Should” is “used in auxiliary function to express duty, obligation, necessity, propriety, or
expediency.” WEBSTER’S THIRD NEW INT’L DICTIONARY 2104 (1st ed. 1993); see
BLACK’S LAW DICTIONARY 1379 (6th ed. 1990)(defining “should” as “ordinarily
implying duty or obligation; although usually no more than an obligation of propriety or
expediency . . . .”). The phrase “should be” is defined as something “that ought to be.”
WEBSTER’S THIRD NEW INT’L DICTIONARY 2104 (1st ed. 1993). Conversely, “shall” is
“used to express a command or exhortation,” and is “used in laws, regulations, or
directives to express what is mandatory.” WEBSTER’S THIRD NEW INT’L DICTIONARY
2085 (1st ed. 1993); see BLACK’S LAW DICTIONARY 1379 (7th ed. 1999)(defining “shall”
as “[h]as a duty to ; more broadly is required to.”). Thus, when used within the context of
a Sentencing Guideline provision, “should” does not mean “shall.” Maria, 186 F.3d at 70;
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see United States v. Checora, 175 F.3d 782, 790 (10th Cir. 1999)(noting that “[i]f a word
in the Sentencing Guidelines is not specifically defined and does not have an established
common-law meaning, the word must be given its ordinary meaning.”).
Furthermore, as the background commentary to U.S.S.G. § 5G1.3 points out, when
a defendant is subject to an undischarged sentence of imprisonment, the sentencing court
generally has the authority under 18 U.S.C. § 3584(a) to impose a sentence to run either
concurrently with or consecutive to the prior undischarged term, predicated on the
sentencing court’s consideration of the factors listed in 18 U.S.C. § 3553(a). U.S.S.G. §
5G1.3, comment. (backg’d). The governing statutes thus vest discretion in the sentencing
court and provide criteria for the exercise of that discretion.
Section 5G1.3 itself is divided into three sections, one of which establishes
circumstances in which a court “shall” impose a consecutive sentence (U.S.S.G. §
5G1.3(a)), and one of which sets out circumstances in which a court “shall” impose a
concurrent sentence. U.S.S.G. § 5G1.3(b). Section 5G1.3(c), the section with which we
are concerned, differs from the first two sections in two significant respects. First, it is a
policy statement and not a guideline provision. Moreover, it is not even a policy
statement which interprets a guideline provision, and therefore, it is advisory rather than
mandatory in nature. United States v. Hurst, 78 F.3d 482, 483-84 (10th Cir. 1996).
Second, § 5G1.3(c) imposes no duty on the sentencing court but merely provides that, in
any case not covered by the other two sections, the sentence “may be imposed to run
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concurrently, partially concurrently, or consecutively to the prior undischarged term of
imprisonment to achieve a reasonable punishment for the instant offense.” Id. The use of
the permissive word “may” and the reference to the need to achieve a reasonable
punishment clearly contemplate an individualized examination of particular factors and
an exercise of sentencing discretion by the sentencing court in assessing those factors.
In addition, application note 6 provides that, under the circumstances present here,
the sentences “should be imposed to run consecutively . . . in order to provide an
incremental penalty for the violation of probation, parole, or supervised release.”
U.S.S.G. § 5G1.3, comment. (n. 6)(emphasis added). The note then refers to U.S.S.G. §
7B1.3 and describes that section as “setting forth a policy that any imprisonment penalty
imposed for violating probation or supervised release should be consecutive to any
sentence of imprisonment being served or subsequently imposed.” Id. (emphasis added).
Section 7B1.3 is also a policy statement and not a guideline provision and is, therefore,
only advisory. In apparent recognition of that fact, note 4 to § 7B1.3 provides that “it is
the Commission’s recommendation that any sentence of imprisonment for a criminal
offense that is imposed after revocation of probation or supervised release be run
consecutively to any term of imprisonment imposed upon revocation.” U.S.S.G. § 7B1.3,
comment. (n.4)(emphasis added).
We are particularly persuaded by the Second Circuit’s opinion in United States v.
Maria, 186 F.3d 65 (2d Cir. 1999). In our opinion, the Second Circuit in Maria
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persuasively refuted the majority of the circuit courts’ position that § 5G1.3 and
application note 6 mandate the imposition of consecutive sentences.
In concluding that application note 6’s language is mandatory, the majority of the
circuit courts have based their holding upon the fact that neither U.S.S.G. § 5G1.3 nor
application note 6 provide any qualifications or reservations. However, as Maria notes,
“the Sentencing Commission’s use of ‘should’ instead of ‘shall’ strongly suggests the
existence of the very qualification that the First and Fifth Circuits found not to exist. The
Commission knows how to draft a mandatory provision when it intends to.” Maria, 186
F.3d at 73. Moreover the majority of the circuit courts find significant the fact that the
situations covered by note 6 are analytically similar to those governed by § 5G1.3(a)
which mandates consecutive sentences. The Commission, nonetheless, did not include
the note 6 situations in the ambit of § 5G1.3(a), and the factual distinctions between that
section and note 6 indicate that the Commission did not include them for a reason. Id. No
court which has adopted the majority position has explained “why, if the Sentencing
Commission had indeed intended to require a consecutive sentence in situations
envisioned by Note 6, it did not either amend subsection (a) to include federal offenses in
violation of parole, probation or work release, or reword Note 6 to require unambiguously
a consecutive sentence.” Id. Finally, as for the other circuit courts’ reliance upon
U.S.S.G. § 7B1.3(f), as discussed supra, note 4 to that section states only that the
Commission recommends running the sentence consecutively in apparent recognition that
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the Commission has chosen to couch that entire section as an advisory policy statement
rather than as a mandatory guideline.
Thus, based upon the plain language of U.S.S.G. § 5G1.3(c) and application note 6
and because nothing in the language of the applicable statutes, the guideline provisions,
the application notes, or the provisions to which the notes refer indicate that the
sentencing court is without discretion to determine whether a sentence under the
circumstances before us in this case should run concurrently or partially concurrently with
a prior undischarged term of imprisonment, we conclude that sentencing courts possess
the discretion to determine, under U.S.S.G. § 5G1.3(c) and application note 6, whether to
impose a sentence concurrent with, partially concurrent with, or consecutive to a prior
undischarged term of imprisonment.
Based upon this conclusion, we must remand for re-sentencing in this case.
Contrary to the Government’s argument, we do not believe that the district court believed
that it could impose Tisdale’s federal sentence to run concurrent with or partially
concurrent with his state sentence but that the district court simply exercised its discretion
not to do so. The district court’s comments during Tisdale’s sentencing hearing leaves
little doubt that the district court believed that it was required to impose Tisdale’s federal
sentence to run consecutive to his state sentence:
Mr. Tousley: The only request, Your Honor, would be that the Court
consider the lower end of the guidelines. And also, he is
serving a State sentence, but that the Court make the sentence
here concurrent with the State sentence.
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The Court: What does the Government have to say about it?
***
Ms. Furst: And Judge Bribiesca in State Court imposed, I think,
consecutive State sentences if they hadn’t already been, but
the total was 72 months, if I recall correctly. I oppose this one
running concurrent. I think they need to be consecutive to his
State Court convictions.
Mr. Tousley: Just for the Court’s information, the probation in the other
cases was revoked as a result of this same indictment.
The Court: He’s known that under the plea agreement, he’s known that
the Government was going to oppose anything but the
maximum. I don’t know how to do it, we’ll let the State take
care of it. We’ll – this – this sentence cannot be served with
the State sentence. We’ll let the State decide what they want
to do about that. This sentence will be consecutive to the
State sentence, whatever that is.
Although it is true that during Tisdale’s change of plea hearing, the district court
advised Tisdale that his sentence “could” be imposed consecutive to his state sentence,
we do not believe that this comment by the district court reveals an understanding on its
part that it could impose a sentence concurrent with Tisdale’s state sentence–especially
given the district court’s unequivocal comment during Tisdale’s sentencing hearing that
“this sentence cannot be served with the State sentence.” Accordingly, we must vacate
this portion of Tisdale’s sentence and remand this matter to the district court for re-
sentencing. On remand, the district court must decide whether Tisdale’s sentence in this
case should run consecutive to, concurrent with, or partially concurrent with his State
sentence.
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2. Criminal History Points
Finally, Tisdale argues that the district court incorrectly calculated his criminal
history score and, in turn, his criminal history category.11 First, Tisdale asserts that the
district court committed plain error in adding additional criminal history points to each of
his three prior state court convictions in which his probation was revoked as a result of
the instant offense. Tisdale contends that, pursuant to U.S.S.G. § 4A1.1, § 4A1.2, and
application note 11 to § 4A1.2, the revocation of his sentences of probation in his three
state court cases should count as a single probation violation. Specifically, Tisdale claims
that instead of receiving three criminal history points for his 2/21/96 conviction, two
points for his 4/18/96 conviction, and three points for his 11/19/96 conviction, he should
only receive one point per conviction with two additional points being added for the
sentence imposed for the revocations of his sentences of probation.
Second, Tisdale argues that the district court engaged in impermissible double
counting in that the district court assessed criminal points to him pursuant to both
U.S.S.G. § 4A1.1(a) and (d). Tisdale contends that, because he received criminal history
points under both subsections (a) and (d), he is being punished twice for the fact that, in
committing the instant federal drug offense, he violated the terms of his state court
sentences of probation which were revoked and for which he has received a term of
The district court assessed Tisdale 14 criminal history points, placing him in a
11
criminal history category VI.
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imprisonment. In other words, Tisdale asserts that he is being doubly punished for the
same conduct, i.e., he received three criminal history points pursuant to U.S.S.G. §
4A1.1(a) for his three prior state court convictions and two points under subsection (d) for
his prior state court convictions based upon the same conduct. Because subsections (a)
and (d) to U.S.S.G. § 4A1.1 are indistinct and serve identical purposes, Tisdale claims
that he should not have received two additional criminal history points under subsection
(d). As a result of his two objections, Tisdale argues that he should only be assessed a
total of nine criminal history points, placing him in a criminal history category IV rather
than a category VI as found by the district court.
The Government argues that the district court did not commit plain error in
calculating Tisdale’s criminal history score and category. The Government asserts that,
contrary to Tisdale’s allegations, application note 11 to U.S.S.G. § 4A1.2 does not apply
in this case because, when his sentences of probation were revoked by the state court, his
original sentences were merely re-instated; he was not re-sentenced nor were any new
sentences imposed. Accordingly, the Government claims that the revocations of Tisdale’s
unrelated three sentences of probation should count separately for purposes of calculating
his criminal history score.
Furthermore, the Government argues that the addition of two points to Tisdale’s
criminal history score pursuant to U.S.S.G. § 4A1.1(d) does not constitute impermissible
double counting because his federal offense conduct and his conduct which resulted in the
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state court revoking his sentences of probation are not the same. Moreover, the
Government asserts that the imposition of criminal history points under both subsection
(a) and subsection (d) does not constitute impermissible double counting because those
subsections involve two distinct considerations and serve different purposes.
Accordingly, the Government contends that the district court did not commit plain error in
calculating Tisdale’s criminal history score or category.
As both parties recognize, because Tisdale did not object to the district court’s
calculation of his criminal history score, we review this issue for “plain error.” Fed. R.
Crim. Pro. 52(b); United States v. Malone, 222 F.3d 1286, 1296 (10th Cir. 2000). As this
Court has previously explained:
To establish plain error [Tisdale] must show: (1) an error, (2) that is plain,
which means clear or obvious under current law, and (3) that affect[s]
substantial rights. If these three elements are satisfied, then we may
exercise discretion to correct the error if it seriously affect [s] the fairness,
integrity, or public reputation of judicial proceedings.
United States v. Whitney, 229 F.3d1296, 1308 (10th Cir. 2000)(internal citations and
quotations omitted).
In the instant case, we cannot say that the district court committed plain error in
calculating Tisdale’s criminal history score or category. Tisdale’s position does find
some support in the example provided in application note 11 to U.S.S.G. § 4A1.2. The
example provided by the Sentencing Commission in note 11 provides:
A defendant was serving two probationary sentences, each counted
separately under § 4A1.2(a)(2); probation was revoked on both sentences as
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a result of the same violation conduct; and the defendant was sentenced to a
total of 45 days of imprisonment. If one sentence had been a “straight”
probationary sentence and the other had been a probationary sentence that
had required service of 15 days of imprisonment, the revocation term of
imprisonment (45 days) would be added to the probationary sentence that
had the 15-day term of imprisonment. This would result in a total of 2
criminal history points under § 4A1.1(b) (for the combined 60-day term of
imprisonment) and 1 criminal history point under § 4A1.1(c) (for the other
probationary sentence).
U.S.S.G. § 4A1.2, cmt., n. 11.
Here, Tisdale was serving three separate sentences of probation imposed by a
Kansas state court. Because of his federal drug conviction, the state court revoked his
three sentences of probation and sentenced him to 72 months of imprisonment. Thus, the
above example appears to substantiate Tisdale’s claim that, while he should have received
three criminal history points for one of his convictions for which his sentence of
probation was revoked, he should only have received one criminal history point per
conviction for his other two convictions for which he had his sentence of probation
revoked, not two and three points respectively as imposed by the district court. Other
circuit courts have agreed with Tisdale’s interpretation of note 11. See United States v.
Flores, 93 F.3d 587, 591-92 (9th Cir. 1996)(holding that, under note 11, a revocation of
probation for multiple sentences would increase the criminal history score for only one
conviction, and the other convictions would be assigned only one criminal history point
per conviction); see also United States v. Streat, 22 F.3d 109, 111 (6th Cir. 1994)(holding
that, when a sentence of imprisonment has been imposed as the result of a revocation of
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three separate sentences of probation, additional criminal history points should be
assessed to only one of the convictions for which the sentence of probation has been
revoked, not to all three); see also United States v. Dixon, 230 F.3d 109, 110 (4th Cir.
2000)(holding that “[a]n initial sentence imposing probation and a sentence upon
revocation of that probation are treated as one sentence under the Guidelines.”).
Despite the similarities, however, between Tisdale’s situation and the example
contained within application note 11 to U.S.S.G. § 4A1.2, we cannot say that the district
court committed plain error in assessing Tisdale three, two, and three criminal history
points respectively for the three convictions for which Tisdale’s sentences of probation
were revoked by the state court. By its terms, the example contained within note 11
applies only “[w]here a revocation applies to multiple sentences . . . .” U.S.S.G. § 4A1.2,
cmt., n. 11 (emphasis added). Here, it is unclear whether the state court intended that the
revocation order revoking Tisdale’s sentences of probation applied to all of his sentences
or whether the state court treated the revocations and sentences as separate and
independent matters.
Three points are worth noting in this regard. First, we believe that the state court’s
intentions and treatment of Tisdale’s revocations and sentencing thereafter are factual
matters, and factual disputes cannot constitute plain error. See United States v. Svacina,
137 F.3d 1179, 1187 (10th Cir. 1998)(citing cases and holding that “[t]his court has held
repeatedly that factual disputes not brought to the attention of the court do not rise to the
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level of plain error.”). Second, the fact that the state court imposed separate sentences as
to each count and as to each conviction lends support for the Government’s position that
the state court treated the revocations separately and did not intend to have one revocation
apply to multiple sentences. The fact that the state court imposed the sentences to run
concurrently does not detract from this position. See United States v. Jones, 87 F.3d 247,
248 (8th Cir. 1996)(“agree[ing] with the district court that Jones’s two unrelated
convictions did not become related by virtue of the probation revocation and concurrent
sentencing, and thus we conclude the district court properly assessed three points for each
conviction.”); see also United States v. Harris, 191 F.3d 457, 1999 WL 638514, * 1 (7th
Cir. Aug. 18, 1999)(noting that “it matters not that his post-revocation sentence ran
concurrent to the sentence for his second conviction - the two sentences are regarded as
separate, even though they were imposed on the same day.”). Third, this Court has
previously held that just because a court conducts a single hearing in revoking multiple
sentences of probation does not mean that the cases should be treated as related cases.
United States v. Jones, 898 F.2d 1461, 1464 (10th Cir. 1990); United States v. Villarreal,
960 F.2d 117,119-20 (10th Cir. 1992).
Although considered in an unpublished opinion which is not binding,12 this Court
has previously reached such a result. In United States v. Flores-Martinez, 7 F.3d 1045,
1993 WL 408016 (10th Cir. Oct. 14, 1993), the defendant had two prior convictions for
See 10th Cir. R. 36.3.
12
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which his sentences of probation were revoked as a result of his conviction in the case
under consideration. Id. at * 1. The district court assigned three criminal points for each
conviction which had been revoked, treating the convictions as separate. Id. In affirming
the district court’s criminal history score calculation, this Court distinguished the example
contained in note 11:
The facts in the case before us are somewhat different because the
sentencing court imposed separate sentences upon revocation of
defendant’s probation for both conviction nos. 1 and 2. The sentencing
court treated the convictions as separate and unrelated but evidently handled
these matters in a single resentencing hearing for reasons of judicial
efficiency. We have previously held that “requiring separate proceedings to
revoke probation and resentence the defendant for each offense is not
necessary to preserve the status of his prior convictions as ‘unrelated
cases.’” United States v. Jones, 898 F.2d 1461, 1464 (10th Cir.), cert.
denied, 498 U.S. 838 (1990).)) We do not understand the guidelines to
contemplate that the impact of multiple unrelated prior convictions be
reduced because the district court conducts resentencing in a single hearing.
Here defendant’s two probationary sentences were individually revoked and
he was resentenced separately as to both. In that circumstance each
conviction should be counted to enhance defendant’s criminal history
category pursuant to 4A1.1(A).
Id. at * 2. Based upon the record before us, it is unclear whether the state court
considered Tisdale’s revocations as separate or whether it intended for the single
revocation of Tisdale’s sentences of probation to apply to the multiple sentences which it
imposed. As such, we cannot say that the district court committed plain error in
calculating Tisdale’s criminal history score based upon the revocation of his sentences of
probation.
Nor can we say that the district court committed plain error in assessing Tisdale
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criminal history points under both U.S.S.G. § 4A1.1(a) and § 4A1.1(d). The assigning of
points for prior convictions and for violating the terms of one’s probation involve two
distinct considerations and, therefore, does not result in impermissible double counting.
See United States v. Martinez, 931 F.2d 851, 852 (11th Cir. 1991)(holding that “[t]he
district court’s assignment of points under both section 4A1.1(a) and section 4A1.1(d)
does not punish Martinez more than once for the same offense, but rather only determines
the severity of his single sentence.”); see also United States v. Burnett, 952 F.2d 187, 189
(8th Cir. 1991)(rejecting the defendant’s argument that the assignment of criminal history
points under both § 4A1.1(a) and § 4A1.1(d) constitutes impermissible double-counting);
see also United States v. Franklin, 148 F.3d 451, 461 (5th Cir. 1998)(same); see also
United States v. Salyers, 160 F.3d 1152, 1163-64 (7th Cir. 1998)(affirming the district
court’s assignment of criminal history points pursuant to both U.S.S.G. § 4A1.1(c) and §
4A1.1(d)). Accordingly, the district court did not commit plain error in assigning
criminal history points to Tisdale pursuant to both U.S.S.G. § 4A1.1(a) and § 4A1.1(d).
III. CONCLUSION
For the reasons stated above, we AFFIRM Tisdale’s conviction and the district
court’s calculation of Tisdale’s criminal history score and category. However, Tisdale’s
sentence is VACATED, and this matter is REMANDED for re-sentencing in order for the
district court to decide whether Tisdale’s sentence in this case should run consecutive to,
concurrent with, or partially concurrent with his State sentence.
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