United States v. Arnold

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.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
June 6, 2000
Before POLITZ, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
This appeal requires us to interpret
U.S.S.G. § 4A1.2(e)(2) to answer the
following question: For purposes of
determining a defendant’s history of previous
criminal conduct during the ten-year period
before the commencement of the offense of
conviction, do we look (1) to the date on
which the previous court pronounced sentence
on the prior offense or (2) to the date on
which the defendant began serving his
sentenceSSat least in cases in which a
suspended sentence was subsequently
revoked? We adopt the former position and
therefore vacate and remand for resentencing.
I.
Steven Arnold pleaded guilty to a federal
offense committed in February 1999. He had
been convicted in a city court of driving while

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intoxicated (“DWI”) in October 1988, beyond
the ten-year period before commission of the
instant offense. In November 1988, the city
court gave him a suspended sentence of ninety
days and placed him on active probation for
two years. Probation was subsequently
revoked, however, and Arnold began serving
his suspended sentence i n September
1989SSwithin ten years of the instant, federal
offense.
The probation office issued a presentence
report that included the city court conviction
in its calculation of Arnold’s criminal history
score for purposes of the sentencing
guidelines. Arnold objected on the ground
that his city court conviction and sentence
pronouncement had occurred more than ten
years before the federal offense and that,
therefore, the conviction was excluded under
U.S.S.G. § 4A1.2(e)(3).1
The district court overruled the objection
and sentenced Arnold to the maximum
guideline sentence of 27 months’
imprisonment. The effect of including the
DWI conviction was to upgrade Arnold’s
classification from Criminal History Category
V (triggering a sentencing range of 18 to 24
months) to Category VI (a range of 21 to 27
months), thereby increasing his imprisonment
by at least three months.
II.
Under the sentencing guidelines, federal
courts consider a defendant’s criminal history
as part of their determination of the applicable
sentencing range:
(e) Applicable Time Period
(1) Any prior sentence of imprisonment
exceeding one year and one month
that was imposed within fifteen
years of t he defendant’s
commencement of the instant
offense is counted. Also count any
prior sentence of imprisonment
exceeding one year and one month,
whenever imposed, that resulted in
the defendant being incarcerated
during any part of such fifteen-year
period.
(2) Any other prior sentence that was
imposed within ten years of the de-
fendant’s commencement of the in-
stant offense is counted.
(3) Any prior sentence not within the
time periods specified above is not
counted.
U.S.S.G. § 4A1.2(e) (emphasis added).
For his 1988 DWI conviction, Arnold re-
ceived a suspended sentence of ninety days, a
term of imprisonment he subsequently served
when the court revoked his probation.
Because that sentence did not exceed thirteen
months, see § 4A1.2(e)(1), the governing rule
is § 4A1.2(e)(2). The text of § 4A1.2(e)(1) is
nevertheless before us, for § 4A1.2(e)(1)
and (2) ought to be read in pari materia. We
therefore construe both provisions together to
determine what it means for a “prior sentence”
to be “imposed.”
The text of subsections (1) and (2) of
§ 4A1.2(e) track one another closely. Under
subsection (1), “[a]ny prior sentence of
imprisonment exceeding one year and one
1 See § 4A1.2(e)(3) (“Any prior sentence not
within the time periods specified above is not
counted.”).

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month that was imposed within fifteen years of
the defendant’s commencement of the instant
offense is counted.” § 4A1.2(e)(1). Similarly,
subsection (2) provides that “[a]ny other prior
sentence that was imposed within ten years of
the defendant’s commencement of the instant
offense is counted.” § 4A1.2(e)(2).
Although the guidelines do not define when
a sentence is “imposed” for purposes of
§ 4A1.2(e), they do define “prior sentence” as
“any sentence previously imposed upon
adjudication of guilt, whether by guilty plea,
trial, or plea of nolo contendere, for conduct
not part of the instant offense.” § 4A1.2(a)(1)
(emphasis added). “Adjudication of guilt can
only occur when the court pronounces the de-
fendant’s guilt.” United States v. Cain,
10 F.3d 261, 262 (5th Cir. 1993). This
definition thus tends to support Arnold’s view
that a sentence is “imposed” when it is first
pronounced by the court, and not when the
term of imprisonment begins, as urged by the
government. This definition is applicable to
§ 4A1.2(e)(1) and (2) alike.
Moreover, unlike subsection (2), subsec-
tion (1) additionally states: “Also count any
prior sentence of imprisonment exceeding one
year and one month, whenever imposed, that
resulted in the defendant being incarcerated
during any part of such fifteen-year period.”
§ 4A1.2(e)(1) (emphasis added). This second
prong of § 4A1.2(e)(1), applicable only to
prior sentences exceeding thirteen months’
imprisonment, does not rely on when the sen-
tence is “imposed.” So long as the defendant
was incarcerated within the statutory time
period, the prior sentence will be counted in
the criminal history scoreSSregardless of when
the sentence was “imposed.”
This second prong of § 4A1.2(e)(1) would
cover situations such as Arnold’s (that is, had
his city court DWI sentence included more
than thirteen months’ incarceration), situations
in which a suspended sentence is pronounced
prior to the statutory period, but where
probation is revoked and incarceration begins
within the relevant time period. In other
words, had Arnold’s prior sentence exceeded
thirteen months, he would have no argument
for attacking the sentence.2 Expressio unius
est exclusio alterius; the fact that
§ 4A1.2(e)(1) explicitly covers these
circumstances is strong indication that
§ 4A1.2(e)(2) does not.
The government fails to persuade us why
expressio uniusSSa linguistic canon of
statutory constructionSSought not apply here.
Moreover, unambiguous language in § 4A1.2-
(k)(2)(B) supports our approach to § 4A1.2-
(e)(1) and (2). That provision explicitly
addresses the problem of revocation of parole:
Revocation of probation, parole,
supervised release, special parole, or
mandatory release may affect the time
period under which certain sentences are
counted as provided in § 4A1.2(d)(2)
and (e). For the purposes of determining
the applicable time period, use the
following: (i) in the case of an adult
term of imprisonment totaling more
than one year and one month, the date
of last release from incarceration on
such sentence (see § 4A1.2(e)(1)); (ii) in
the case of any other confinement
sentence for an offense committed prior
to the defendant’s eighteenth birthday,
2 Of course, had the city court sentence
exceeded 13 months, a 15-year period would have
applied, thereby providing a far simpler grounds
for affirming. See § 4A1.2(e)(1).

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the date of the defendant’s last release
from confinement on such sentence (see
§ 4A1.2(d)(2)(A)); and (iii) in any other
case, the date of the original sentence
(see § 4A1.2(d)(2)(B) and (e)(2)).
§ 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
§ 4A1.2(e)(2), prior sentences that do not ex-
ceed thirteen months are counted for purposes
of determining a criminal history score, but
only if the sentencing court pronounced the
term of incarceration within ten years of the
commencement of the instant offense.
Therefore, we VACATE and REMAND for
resentencing.3
3 We reject the government’s invitation to spec-
ulate that, without the city court conviction, the
district court simply would have utilized an upward
departure to achieve the same sentence.

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