IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 99-30916
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STEVEN W. ARNOLD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
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June 6, 2000
Before POLITZ, SMITH, and DENNIS, which the previous court pronounced sentence
Circuit Judges. on the prior offense or (2) to the date on
which the defendant began serving his
JERRY E. SMITH, Circuit Judge: sentenceSSat least in cases in which a
suspended sentence was subsequently
This appeal requires us to interpret revoked? We adopt the former position and
U.S.S.G. § 4A1.2(e)(2) to answer the therefore vacate and remand for resentencing.
following question: For purposes of
determining a defendant’s history of previous I.
criminal conduct during the ten-year period Steven Arnold pleaded guilty to a federal
before the commencement of the offense of offense committed in February 1999. He had
conviction, do we look (1) to the date on been convicted in a city court of driving while
intoxicated (“DWI”) in October 1988, beyond (e) Applicable Time Period
the ten-year period before commission of the
instant offense. In No vember 1988, the city (1) Any prior sentence of imprisonment
court gave him a suspended sentence of ninety exceeding one year and one month
days and placed him on active probation for that was imposed within fifteen
two years. Probation was subsequently years of t he defendant’s
revoked, however, and Arnold began serving commencement of the instant
his suspended sentence i n September offense is counted. Also count any
1989SSwithin ten years of the instant, federal prior sentence of imprisonment
offense. exceeding one year and one month,
whenever imposed, that resulted in
The probation office issued a presentence the defendant being incarcerated
report that included the city court conviction during any part of such fifteen-year
in its calculation of Arnold’s criminal history period.
score for purposes of the sentencing
guidelines. Arnold objected on the ground (2) Any other prior sentence that was
that his city court conviction and sentence imposed within ten years of the de-
pronouncement had occurred more than ten fendant’s commencement of the in-
years before the federal offense and that, stant offense is counted.
therefore, the conviction was excluded under
U.S.S.G. § 4A1.2(e)(3).1 (3) Any prior sentence not within the
time periods specified above is not
The district court overruled the objection counted.
and sentenced Arnold to the maximum
guideline sentence of 27 months’ U.S.S.G. § 4A1.2(e) (emphasis added).
imprisonment. The effect of including the
DWI conviction was to upgrade Arnold’s For his 1988 DWI conviction, Arnold re-
classification from Criminal History Category ceived a suspended sentence of ninety days, a
V (triggering a sentencing range of 18 to 24 term of imprisonment he subsequently served
months) to Category VI (a range of 21 to 27 when the court revoked his probation.
months), thereby increasing his imprisonment Because that sentence did not exceed thirteen
by at least three months. months, see § 4A1.2(e)(1), the governing rule
is § 4A1.2(e)(2). The text of § 4A1.2(e)(1) is
II. nevertheless before us, for § 4A1.2(e)(1)
Under the sentencing guidelines, federal and (2) ought to be read in pari materia. We
courts consider a defendant’s criminal history therefore construe both provisions together to
as part of their determination of the applicable determine what it means for a “prior sentence”
sentencing range: to be “imposed.”
The text of subsections (1) and (2) of
§ 4A1.2(e) track one another closely. Under
1
See § 4A1.2(e)(3) (“Any prior sentence not subsection (1), “[a]ny prior sentence of
within the time periods specified above is not imprisonment exceeding one year and one
counted.”).
2
month that was imposed within fifteen years of cover situations such as Arnold’s (that is, had
the defendant’s commencement of the instant his city court DWI sentence included more
offense is counted.” § 4A1.2(e)(1). Similarly, than thirteen months’ incarceration), situations
subsection (2) provides that “[a]ny other prior in which a suspended sentence is pronounced
sentence that was imposed within ten years of prior to the statutory period, but where
the defendant’s commencement of the instant probation is revoked and incarceration begins
offense is counted.” § 4A1.2(e)(2). within the relevant time period. In other
words, had Arnold’s prior sentence exceeded
Although the guidelines do not define when thirteen months, he would have no argument
a sentence is “imposed” for purposes of for attacking the sentence.2 Expressio unius
§ 4A1.2(e), they do define “prior sentence” as est exclusio alterius; the fact that
“any sentence previously imposed upon § 4A1.2(e)(1) explicitly covers these
adjudication of guilt, whether by guilty plea, circumstances is strong indication that
trial, or plea of nolo contendere, for conduct § 4A1.2(e)(2) does not.
not part of the instant offense.” § 4A1.2(a)(1)
(emphasis added). “Adjudication of guilt can The government fails to persuade us why
only occur when the court pronounces the de- expressio uniusSSa linguistic canon of
fendant’s guilt.” United States v. Cain, statutory constructionSSought not apply here.
10 F.3d 261, 262 (5th Cir. 1993). This Moreover, unambiguous language in § 4A1.2-
definition thus tends to support Arnold’s view (k)(2)(B) supports our approach to § 4A1.2-
that a sentence is “imposed” when it is first (e)(1) and (2). That provision explicitly
pronounced by the court, and not when the addresses the problem of revocation of parole:
term of imprisonment begins, as urged by the
government. This definition is applicable to Revocation of probation, parole,
§ 4A1.2(e)(1) and (2) alike. supervised release, special parole, or
mandatory release may affect the time
Moreover, unlike subsection (2), subsec- period under which certain sentences are
tion (1) additionally states: “Also count any counted as provided in § 4A1.2(d)(2)
prior sentence of imprisonment exceeding one and (e). For the purposes of determining
year and one month, whenever imposed, that the applicable time period, use the
resulted in the defendant being incarcerated following: (i) in the case of an adult
during any part of such fifteen-year period.” term of imprisonment totaling more
§ 4A1.2(e)(1) (emphasis added). This second than one year and one month, the date
prong of § 4A1.2(e)(1), applicable only to of last release from incarceration on
prior sentences exceeding thirteen months’ such sentence (see § 4A1.2(e)(1)); (ii) in
imprisonment, does not rely on when the sen- the case of any other confinement
tence is “imposed.” So long as the defendant sentence for an offense committed prior
was incarcerated within the statutory time to the defendant’s eighteenth birthday,
period, the prior sentence will be counted in
the criminal history scoreSSregardless of when
the sentence was “imposed.” 2
Of course, had the city court sentence
exceeded 13 months, a 15-year period would have
This second prong of § 4A1.2(e)(1) would applied, thereby providing a far simpler grounds
for affirming. See § 4A1.2(e)(1).
3
the date of the defendant’s last release of determining a criminal history score, but
from confinement on such sentence (see only if the sentencing court pronounced the
§ 4A1.2(d)(2)(A)); and (iii) in any other term of incarceration within ten years of the
case, the date of the original sentence commencement of the instant offense.
(see § 4A1.2(d)(2)(B) and (e)(2)). Therefore, we VACATE and REMAND for
resentencing.3
§ 4A1.2(k)(2)(B) (emphasis added). Under
the approach we now adopt, prongs (i) and
(iii) of § 4A1.2(k)(2)(B) fit onto § 4A1.2(e)(1)
and (2) perfectly.
This reasoning is consistent with Cain.
There, the defendant had been convicted and
sentenced on a previous offense within the ten-
year period before the offense of conviction.
He served no prison time on that sentence,
however, because he enjoyed credit for time
served before the ten-year period leading up to
the offense of conviction. The district court
counted that prior conviction in the criminal
history score, and we affirmed, stating that a
sentence is imposed for purposes of § 4A1.2-
(e) “when the court pronounces the
defendant’s guilt,” Cain, 10 F.3d at 262, re-
gardless of any accumulation of credit for pre-
vious time served.
This case is the mirror image of Cain,
which involved a period of incarceration
outside the statutory period and a
pronouncement of sentence within. By
contrast, the instant case involves incarceration
within the period but a sentence prior to it.
Because sentence pronouncement is the sole,
relevant event for purposes of § 4A1.2(e)(2),
we count Cain’s prior sentence but not
Arnold’s.
III.
In summary, reading the sentencing guide-
lines in pari materia, we conclude that, under 3
We reject the government’s invitation to spec-
§ 4A1.2(e)(2), prior sentences that do not ex- ulate that, without the city court conviction, the
ceed thirteen months are counted for purposes district court simply would have utilized an upward
departure to achieve the same sentence.
4