United States of America v. Rodney Pray

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
____________
No. 01-2473
____________
UNITED STATES OF AMERICA
v.
RODNEY PRAY,
Appellant
____________________
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
District Court Judge: Honorable J. Curtis
Joyner
(D.C. No. 01-cr-313-11)
____________________
Argued: March 29, 2004
Before: ALITO, FISHER, and
ALDISERT, Circuit Judges
(Opinion Filed: July 2, 2004)
ROBERT EPSTEIN (Argued)
Defender Association of Philadelphia
Federal Court Division
Curtis Center, Independence Square West
Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
KATHY A. STARK (Argued)
Suite 1250
Office of the United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee
____________________
OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
This is a direct appeal in a criminal
case. Rodney Pray (“Pray”) pled guilty to
conspiring to distribute more than 50
grams of cocaine base, in violation of 21
U.S.C. §§ 846 and 841(a)(1), and was
sentenced to 240 months in prison. We
vacate the sentence and remand for further
proceedings.
I.
During the summer of 1998, Pray
joined a narcotics distribution ring, and on
September 24, 1998, he was arrested by
Philadelphia police officers. He later pled
guilty to state charges of conspiracy and
possession with intent to distribute 22
grams of crack cocaine and was sentenced
to one to two years of imprisonment on the
possession count and a suspended sentence
on the conspiracy count. On January 20,
2000, after completing several months of

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his sentence, the Commonwealth paroled
Pray. His parole term expired on
December 30, 2000.
On May 31, 2000, while Pray was
on parole from his state conviction, a
grand jury in the Eastern District of
Pennsylvania indicted Pray on one count
of conspiring to distribute more than 50
grams of cocaine base, in violation of 21
U.S.C. §§846 and 841(a)(1). These
charges related to his participation in the
drug ring. On January 8, 2001, without
entering into an agreement with the
government, Pray pled guilty to the charge.
Prior to Pray’s sentencing, the
Probation Department issued its Pre-
Sentence Investigation Report. In
response, Pray filed a sentencing
mem orandum. Part III o f the
memora n du m , labeled “Downward
Departure,” argued, among other things,
that the District Court should “adjust”
Pray’s sentence under U.S.S.G. §5 G1.3
(2001) and its Application Note 2 to reflect
the time that he had already spent in
custody on the state charges. App. 105a-
106a. Pray argued that he was serving “an
undischarged term of imprisonment” on
the state charges because a state detainer
had been lodged against him for alleged
violations of parole. Id. at 106a. The
government opposed Pray’s request,
arguing that § 5G1.3 applies only when a
defendant is actually serving a state
sentence at the time of sentencing on the
federal charges.
In June 2001, the District Court
held a sentencing hearing and sentenced
Pray to 240 months of imprisonment. In
doing so, the Court rejected Pray’s request
to credit his time served on the state
charges against his federal sentence. Pray
then took this appeal.1
II.
A.
Pray argues that he was entitled
under U.S.S.G. § 5G1.3 (2001) and its
Application Note 2 to have the time that he
spent in prison on the state charges
credited against his federal sentence. We
undertake de novo review of the District
Court’s interpretation of the Guidelines.
See United States v. Dorsey, 166 F.3d 558,
560 (3d Cir. 1999).
When interpreting a Sentencing
Guideline, we begin with the text. See,
e.g., United States v. Milan, 304 F.3d 273,
293 (3d Cir. 2002). At the time of
sentencing in this case, U.S.S.G. §
5G1.3(b)(2001) provided as follows2:
1In his brief, Pray first argued that 21
U.S.C. §§ 841(b)(1)(A) and (B) are
facially unconstitutional under Apprendi v.
New Jersey, 530 U.S. 466 (2000). Pray
later conceded that our decision in United
States v. Kelly, 272 F.3d 622 (3d Cir.
2001), forecloses this argument in this
circuit.
2Subsequent to the sentencing in this
case, U.S.S.G. §5G1.3 was amended and
currently provides:
(b) If subsection (a) does
not apply, and a term of
imprisonment resulted from

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(b) If subsection (a) does not
apply, and the undischarged
term of imprisonment
resulted from offense(s) that
have been fully taken into
account in the determination
of the offense level for the
instant offense, the sentence
for the instant offense shall
b e i m p o s e d t o r u n
c o n c u r r e n t l y t o t h e
u ndischarged te rm o f
imprisonment.
Application Note 2 provided in pertinent
part:
When a sentence is imposed
pursuant to subsection (b),
the court should adjust the
sentence for any period of
i m p r i s o n m e n t a l r e a dy
served as a result of the
conduct taken into account
in determining the guideline
range for the instant offense
if the court determines that
period of imprisonment will
not be credited to the federal
sentence by the Bureau of
Prisons.
In order for a defendant to qualify
for treatment under these provisions, three
conditions had to be met. It was necessary
(1) that the case did not fall within
subsection (a); (2) that the defendant was
serving “an undischarged term of
imprisonment”; and (3) that “the
undischarged term of imprisonment
resulted from offense(s) that ha[d] been
fully taken into accou nt in the
determination of the offense level for the
another offense that is
relevant conduct to the
instant offense of conviction
under the provisions of
subsections (a)(1), (a)(2), or
(a)(3) of § 1B1.3 (Relevant
Conduct) and that was the
basis for an increase in the
offense level for the instant
offense under Chapter Two
(Offense Condu ct) or
C h a p t e r T h r e e
(Adjustments), the sentence
for the instant offense shall
be imposed as follows:
(1) The court shall adjust the
sentence for any period of
i m p r i so n m e n t a l r e ad y
served on the undischarged
term of imprisonment if the
court determines that such
period of imprisonment will
not be credited to the federal
sentence by the Bureau of
Prisons; and
(2) The sentence for the
instant offense shall be
imposed to run concurrently
to the remainder of the
u n d ischarged term o f
imprisonment.
This amendment incorporates into new
subsection (b)(1) the substance of prior
Application Note 2.

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instant offense.”
Here, the government does not
contend that Pray failed to satisfy the first
and third conditions. The government
does not dispute the fact that Pray fell
outside the scope of subsection (a), which
applied “[i]f the instant offense was
committed while the defendant was
serving a term of imprisonment (including
work release, furlough, or escape status) or
after sen tenc ing for , but before
commencing service of, such term of
imprisonment.” Nor does the government
dispute the fact that Pray’s state offenses
were “fully taken into account in the
determination of the offense level” for the
federal charges. Rather, the government
rests on the argument that Pray failed to
meet the second condition because he was
not serving “an undischarged term of
imprisonment” at the time of sentencing in
federal court.
Pray contends that he was serving
“an undischarged term of imprisonment”
because he was still “in the legal custody
of the state”( Appellant’s Br. at 38) due to
the lodging of a state parole detainer had
been lodged against him. App. 106a. The
government has not argued that Pray’s
status at the time of sentencing on the
federal charges was materially different
from that of a person who is on parole.
Rather, the government takes the view that
U.S.S.G. § 5G1.3 does not apply to “a
person on parole, such as Pray.”
Appellee’s Br. at 48. We therefore
proceed to decide the appeal on the
assumption that Pray was “on parole.”
B.
W e hold that t he term
“imprisonment” in U.S.S.G. § 5G1.3
(2001) and Application Note 2 does not
include parole. In ordinary usage,
“imprisonment” generally means physical
confinem ent. See BLACK’S LAW
DICTIONARY 760 (7th ed. 1999) (defining
“imprisonment” as “[t]he act of confining
a person, esp. in a prison.”)3; WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY
583 (10th ed. 1993)(primary definition of
“imprison” is “to put in prison: confine in
a jail”). See also United States v.
Schnupp, Nos. 03-1964/3384 (3d Civ.,
May 18, 2004), slip op. 9.
A person who is on parole, although
subject to some restraints on liberty, is not
“imprisoned” in the sense in which the
term is usually used. For example, if a
parolee were informed at the end of a
parole revocation hearing that the outcome
was “imprisonment,” the parolee would
not think that this meant that he was going
to be returned to parole.
If the Sentencing Commission had
intended for the term “imprisonment” in
U.S.S.G. § 5G1.3 to carry an unusually
broad meaning that encompasses parole,
we believe that the Commission would
have said so expressly. In subsection (a),
the Commission took pains to specify that
it intended the term “imprisonment,” as
3See also BLACK’S LAW DICTIONARY
7 6 4 ( 7 t h e d . 1 9 9 9 ) ( d e f in i n g
“incarceration” as “the act or process of
confining someone.”)

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used in that provision, to include “work
release, furlough, or escape status.” In
subsection (b), the Commission could have
specified that an “undischarged term of
imprisonment” includes parole, supervised
release, and probation, but it did not do so.
It is noteworthy that other
provisions of the Guidelines use the term
“imprisonment” to mean incarceration.
For example, U.S.S.G. § 4A1.2(b), which
d e f i n e s t h e t er m “ s e n t e n ce o f
imprisonment” for the purpose of
computing criminal history, provides that
the term “means a sentence of
incarceration” and excludes any portion of
the sentence that is suspended. Chapter
Five of the Guidelines, “Determining the
S e n t e n c e , ” t r e a t s s e n t e n c e s o f
imprisonment, probation, and supervised
release as different types of sentences,
placing each in a separate Part. The
Guidelines provide that “a term of
supervised release” “shall . . . follow
i m p r i s o n m e n t . ” U . S . S . G . §
5D1.1(emphasis added). U.S.S.G. §
5C1.1(a) refers to the guidelines ranges,
which do not include months spent on
probation or supervised release, as
“guidelines for imprisonment.” Based on
the ordinary meaning of the term and its
specific usage in the Guidelines, we hold
that the term “imprisonment” in U.S.S.G.
§ 5G1.3(b) means actual incarceration, not
parole.
Our holding is consistent with the
weight of authority. With one exception,
every other court that has considered the
question has held that parole, supervised
release, and probation do not qualify as
“imprisonment” under U.S.S.G. § 5G1.3.
See United States v. Tisdale, 248 F.3d 964,
976 (10th Cir. 2001) cert. denied, 534 U.S.
1153 (2002)(probation); United States v.
Cofske, 157 F.3d 1, 1-2 (1st Cir. 1998),
c e r t . d e n i e d , 5 2 6 U . S . 1 0 5 9
(1999)(probation); Prewitt v. United
States, 83 F.3d 812, 817-18 (7th Cir.
1996)(probation); United States v.
Bernard, 48 F.3d 427, 431 (9th Cir.
1995)(supervised release); United States v.
Rosado, 254 F.Supp.2d 316, 319
(S.D.N.Y. 2003)(parole). See also United
States v. Phipps, 68 F.3d 159, 161, 163
(7th Cir. 1995)(home detention not
imprisonment); United States v. Stewart,
49 F.3d 121, 123 (4th Cir. 1995)(parole
n ot “imp risonm ent” u nder oth e r
guideline).
Only the Eighth Circuit, in United
States v. French, 46 F.3d 710, 717 (8th
Cir.1995), has held otherwise. Noting that
a state statute provided that a parolee was
deemed to be “confined, in the legal
custody of the department of corrections,”
the Court held that the state’s “retention of
custody” over the parolee meant that he
was “subject to an ‘undischarged term of
imprisonment’ within the meaning of
U.S.S.G. § 5G1.3(b).” Id. (citation
omitted). We must respectfully disagree
with this analysis.
The meaning of the term
“imprisonment” in U.S.S.G. § 5G1.3(b) is
a question of federal, not state, law.
United States v. Phipps, 68 F.3d at 161.
“[I]n the absence of a plain indication to
the contrary, . . . it is to be assumed when
Congress enacts a statute that it does not

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intend to make its application dependent
on state law. This is because the
application of federal legislation is
nationwide and at times the federal
program would be impaired if state law
were to control.” Dickerson v. New
Banner Institute, Inc., 460 U.S. 103,
119-120 (1983) (citations omitted). Here,
we see no indication that the Sentencing
Commission meant for the meaning of
“imprisonment” to depend on a state’s
treatment of the abstract question whether
a term of parole should or should not be
deemed to be a form of confinement. We
thus hold that Pray is not entitled under
U.S.S.G. § 5G1.3(b)(2001) and its
Application Note 2 to credit for the time
that he spent in state custody.
III.
Pray next argues that, even if he is
n o t e n t i tl e d u n der U.S .S.G . §
5G1.3(b)(2001) and its Application Note 2
to have his period of state incarceration
credited against his federal sentence, the
District Court was permitted to achieve the
same result by granting him a downward
departure. The government takes the
position that the District Court possessed
the authority to grant such a departure
(Appellee’s Br. at 50 (citing United States
v. Brannan, 74 F.3d 448, 455 (3d Cir.
1996))4, but the government argues that
Pray’s sentencing memorandum simply
sought credit for the state time under
U.S.S.G. § 5G1.3(b)(2001) and its
Application Note 2 and did not clearly
request the District Court to grant a
downward departure shortening his
sentence by the same amount. The
government also contends that the District
Court understood that it had the authority
to grant such a departure but declined to
do so as a matter of discretion.
Although Pray’s sentencing
memorandum could have been clearer on
this point, we believe that it adequately
sought a downward departure. As noted,
the request to be given credit for the state
time appeared under the heading
“Downward Departure.” Moreover, the
District Court’s explanation of its reasons
for refusing to grant credit for the state
time do not make it clear that the Court’s
decision was discretionary. Therefore,
under United States v. Mummert, 34 F.3d
201, 205 (3d Cir. 1994), we will vacate
Pray’s sentence and remand for
clarification by the District Court.
IV.
For the reasons set out above, we
affirm Pray’s conviction, but we vacate his
sentence and remand for further
proceedings.
4After Pray’s sentencing, a new
Application Note was added explicitly
recognizing the authority of a District
Court to depart on this ground. See
U.S.S.G. § 5G1.3 (2003), Application Note 4 (effective Nov. 1, 2002).

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