Opinion
No. 03-40035-02-SAC
April 13, 2004
RULING ON OBJECTIONS TO PRESENTENCE REPORT
Miguel Orozco-Hernandez is one of two defendants named in a single count drug trafficking indictment. The defendant pleaded guilty to possession with the intent to distribute 21 kilograms of cocaine in exchange for the government's agreement to, in part, recommend the maximum adjustment for acceptance of responsibility and not request an upward departure from the applicable guideline range. The government also agreed not to file an information under 21 U.S.C. § 851 and to not oppose the safety valve provision, if applicable. The Presentence Report ("PSR")calculates a base offense level of 32 and a three-level reduction for acceptance of responsibility. Using a total offense level of 29 and a criminal history category of 3, the PSR recommends a sentencing guideline range of 120 to 135 months.
DEFENDANT'S OBJECTIONS
The defendant objects to ¶¶ 32 through 36 of the PSR and to the criminal history points scored for a prior drug conviction for which he was sentenced on April 7, 1992, to three years probation on the condition that he serve four months in jail commencing June 1, 1992. According to the PSR, court records reflect that the defendant did not report to jail on June 1, 1992, that he did not appear for his probation revocation hearing, and that an arrest warrant was issued for him on June 30, 1992, and remains outstanding.
The PSR calculates five criminal history points from those facts. There are two points pursuant to U.S.S.G. § 4A1.1(b) for the conviction, two more points pursuant to § 4A1.1(d) because the defendant remained on probation as his failure to report to jail is treated as an escape, and one more point pursuant to § 4A1.1(e) because he was on escape status when he committed the instant offense. The defendant objects that his prior sentence should not be counted as the sentence was imposed more than ten years prior to the defendant's commencement of the instant offense. The defendant next objects to ¶ 32 that his failure to appear for the probation revocation hearing was more than ten years prior to the defendant's current offense conduct. The defendant further objects to ¶ 34 arguing that he could not have committed the instant offense while on probation, because his probation was revoked when the arrest warrant was issued and because his prior sentence is too old to be counted as a criminal justice sentence. The defendant also objects to ¶ 35 denying that he was on escape status when he committed the current offense because the prior conviction was more than ten years old. Finally, the defendant argues the inherent unfairness in having his sentence increased by over four years because of this pending arrest warrant which the State of California has unjustifiably and unreasonably refused to execute. The defendant even attacks the validity of the warrant because of California's undue and unreasonable delay in executing it.
Ruling: After reviewing the sentencing guidelines provisions and considering the relevant case law on those provisions, including that cited in PSR addendum, the court concludes the defendant's objection should be sustained. As the relevant guideline commentary explains, §§ 4A1.1 and 4A1.2 are "read together," because the actual scoring of criminal history points depends on § 4A1.1 but "[t]he definitions and instructions in § 4A1.2 govern the computation." Reading and construing together those guideline sections, the court is convinced that the defendant's criminal history score is zero.
The application note to § 4A1.1(b), the guideline provision used in the PSR to attribute the first two of the defendant's five criminal history points, provides in relevant part:
Two points are added for each prior sentence of imprisonment of at least sixty days not counted in § 4A1.1(a). . . . The term "prior sentence" is defined at § 4A1.2(a). The term "sentence of imprisonment" is defined at § 4A1.2(b). . . .
Certain prior sentences are not counted or are counted only under certain conditions:
A sentence imposed more than ten years prior to the defendant's commencement of the instant offense is not counted. See § 4A1.2(e).
There being no dispute that the defendant's sentence described in ¶ 32 was imposed on April 7, 1992, more than ten years prior to the defendant's commencement of the instant offense, April 5, 2003, the court looks to § 4A1.2(e):
(e) Applicable Time Period
(1) Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the 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 defendant's commencement of the instant offense is counted.
(3) Any prior sentence not within the time periods specified above is not counted.
As reflected at ¶ 32 of the PSR, the sentence imposed on the defendant was for a term less than thirteen months of imprisonment. Consequently, if the prior sentence does not qualify under sub-section (2) then it cannot be counted pursuant to the terms of sub-section (3). See United States v. Coleman, 9 F.3d 1480, 1485 (10th Cir. 1993) ("Section 4A1.2(e) establishes time periods beyond which a defendant's prior conviction will not factor into his criminal history at sentencing"), cert. denied, 510 U.S. 1184 (1994).
A plain reading of the above provisions applied to the undisputed facts of the PSR result in no criminal history points under § 4A1.1(b). Prior sentences of less than thirteen months are counted only if the prior sentence "`was imposed within ten years of the defendant's commencement of the instant offense.'" United States v. Cain, 10 F.3d 261, 262 (5th Cir. 1993) (quoting U.S.S.G. § 4A1.2(e)(2)). A "prior sentence" is a sentence previously imposed upon adjudication of guilt. U.S.S.G. § 4A1.2(a)(1). Thus, a sentence is imposed after the pronouncement of sentence following the pronouncement of the defendant's guilt. United States v. Cain, 10 F.3d at 262; see United States v. Arnold, 213 F.3d 894, 896 (5th Cir. 2000) (under U.S.S.G. § 4A1.2(e)(2) "prior sentences that do not exceed 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"). Because the Santa Clara Superior Court in San Jose, California, pronounced a sentence of four months of incarceration on April 7, 1992, more than ten years before the defendant commenced the instant offense on April 5, 2003, this prior sentence does not come within the terms of § 4A1.2(e)(2) and is not to be counted pursuant to § 4A1.2(e)(3).
Notwithstanding the plain terms of the above provisions, the government argues that the case of United States v. Pearson, 312 F.3d 1287 (9th Cir. 2002) is "persuasive" in holding that a defendant should not profit from his wrong in escaping and that a court should count escape time as part of incarceration time. The government asks the court to apply these principles here and treat the defendant's escape time (failure to report time) as extending the incarceration time until April 5, 2003. The court finds the government's reliance on Pearson and those principles to be misplaced. The Ninth Circuit's decision concerns the interpretation and application of § 4A1.2(e)(1), not (e)(2), and, in particular, the second part of sub-section (e)(1) which "expands the possible universe of `prior sentences' in the first part to include those for which the defendant received a sentence before the applicable fifteen-year window and for which his incarceration continues into the fifteen-year window." 312 F.3d at 1289. There is no such second part to sub-section (e)(2) that would cover circumstances in which a defendant's period of incarceration extends into the ten-year window. United States v. Arnold, 213 F.3d at 895-96. "[S]entence pronouncement is the sole, relevant event for purposes of § 4A1.2(e)(2)." Id. at 896; see United States v. Robbio, 186 F.3d 37, 45 (1st Cir.) (§ 4A1.2(e)(2) period "determined by the date of sentencing, not of conviction"), cert. denied, 528 U.S. 1056 (1999). In addition, the government is simply wrong in suggesting the instant case is one like Pearson in which a defendant attempts to profit from his own wrongdoing. Had Mr. Orozco-Hernandez reported and served his four-month jail term, there would not be any argument that this prior sentence is countable. In other words, the defendant's failure to report has not profited him in anyway. The government's arguments are not persuasive in showing that on the facts of this case the sentencing guidelines provide for anyway to extend the applicable time period in § 4A1.2(e)(2). See United States v. Coleman, 89 Fed. App. 995, 2004 WL 360367, at *2 (6th Cir. Feb. 24, 2004) (the time limitation in § 4A1.2(e)(2) is not extended because probation violation warrants remain active at time of instant offense). The court sustains the defendant's objection to the two criminal history points scored under U.S.S.G. § 4A1.1(b).
Of course, if the defendant's probationary sentence had been revoked and a term of incarceration exceeding thirteen months had been imposed, then the defendant's date of last release from incarceration on this sentence becomes relevant under U.S.S.G. § 4A1.2(e)(1). See United States v. Coleman, 9 F.3d 1480, 1485 (10th Cir. 1993).
The defendant's next objection is to the two points assessed pursuant to § 4A1.1(d) for being on probation when he committed the instant offense. The application note to this provision states in relevant part:
Failure to report for service of a sentence of imprisonment is to be treated as an escape from such sentence. See § 4A1.2(n). For the purposes of this item, a "criminal justice sentence" means a sentence countable under § 4A1.2 (Definitions and Instructions for Computing Criminal History) having a custodial or supervisory component, although active supervision is not required for this item to apply. . . . A defendant who commits the instant offense while a violation warrant from a prior sentence is outstanding (e.g. a probation, parole, or supervised release violation warrant) shall be deemed to be under a criminal justice sentence for the purposes of this provision if that sentence is otherwise countable, even if that sentence would have expired absent such warrant. See § 4A1.2(m).
U.S.S.G. § 4A1.1, comment. (n. 4). The defendant correctly argues that the two points assessed under this provision requires that the sentence is otherwise countable under § 4A1.2. As the court has already found above, § 4A1.2(e)(3) applies here and, therefore, "the prior sentence . . . is not counted." Because the defendant's prior sentence is not countable, criminal history points under § 4A1.1(d) are not to be assessed. The court sustains the defendant's objection to these two criminal history points.
Finally, the provision of § 4A1.1(e) assesses additional criminal history points only if the "sentence counted under (a) or (b) or while in imprisonment or escape status on such a sentence." Because the defendant's prior sentence is not countable under (a) or (b) for the reasons stated above, the court sustains the defendant's objection to this criminal history point.
By reason of these rulings, the defendant's criminal history category is one without any criminal history points. The addendum to the PSR explains that this ruling makes the defendant eligible for a safety valve reduction should the court find that U.S.S.G. § 5C1.2 applies. The government agreed in the plea agreement not to oppose the safety valve if it was applicable. The facts appearing in the PSR would support applying the safety valve provision which would reduce the defendant's total offense level to 27 and result in a sentencing guideline range of 70 to 87 months.
IT IS THEREFORE ORDERED that the defendant's objections to the PSR are sustained on the grounds stated above.