U.S. v. Gonzales

Decision Date05 November 2007
Docket NumberNo. 04-30007.,04-30007.
Citation506 F.3d 940
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Luis Emilio GONZALES, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Elizabeth A. Olsen, Attorney, United States Department of Justice, Washington, DC, for the plaintiff-appellee.

Tracy Staab and Rebecca L. Pennell, Federal Defenders of Eastern Washington and Idaho, Spokane, WA, for the defendant-appellant.

Appeal from the United States District Court for the Eastern District of Washington; Edward F. Shea, District Judge, Presiding. D.C. No. CR-03-02059-EFS.

Before: MARY M. SCHROEDER, Chief Circuit Judge, HARRY PREGERSON, HAWKINS, SIDNEY R. THOMAS, M. MARGARET McKEOWN, KIM McLANE WARDLAW, W. FLETCHER, RONALD M. GOULD, RICHARD A. PAEZ, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, JAY S. BYBEE, CARLOS T. BEA, MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges.

Opiniopn by Judge WARDLAW; Partial Concurrence and Partial Dissent by Judge IKUTA.

WARDLAW, Circuit Judge, with whom Chief Judge SCHROEDER, Judges PREGERSON, HAWKINS, THOMAS, McKEOWN, W. FLETCHER, GOULD, PAEZ, BERZON, RAWLINSON, and MILAN D. SMITH, JR., join, and with whom Judges BYBEE, BEA, and IKUTA join as to Part V:

The three-judge panel that originally heard this appeal on July 24, 2006, issued a sua sponte call for hearing this appeal en banc to reconcile two of our decisions construing United States Sentencing Guideline ("U.S.S.G.") § 4A1.2(c). A majority of the active judges of our court voted to hear the appeal en banc to address the question whether a suspended sentence of thirty days or more constitutes a "term of imprisof at least thirty days" under § 4A1.2(c)(1), and thus should be counted in the defendant's criminal history score. In United States v. Williams, 291 F.3d 1180, 1195 (9th Cir.2002), we held that a totally suspended six-month sentence for criminal mischief counted as a "prior sentence," mandating an additional point on the defendant's criminal history score; however, in United States v. Hernandez-Hernandez, 431 F.3d 1212, 1220 (9th Cir. 2005), we also held that a partially suspended three-month misdemeanor sentence resulting in three days of imprisonment did not count as a "prior sentence," and thus did not increase the defendant's criminal history score. We agree with both the government and Gonzales that our analysis in Williams was flawed by its failure to read the relevant Guidelines sections as a whole. We hold that the language "term of imprisonment" in § 4A1.2(c)(1) refers only to certain non-felony sentences for which the defendant actually served a period of imprisonment. Therefore, we overrule Williams, clarify Hernandez-Hernandez, vacate Gonzales's sentence and remand for resentencing.

I.

On March 21, 2003, Yakima Police Department officers stopped a vehicle driven by Luis Emilio Gonzales. When the officers approached the vehicle, they observed a knife under the driver's seat and a marijuana bud in plain view. Gonzales was arrested. During a search incident to arrest, the officers also found a gym bag on the passenger-side floor containing methamphetamine and a loaded gun. When questioned, Gonzales admitted that he was a convicted felon. Before the car was impounded, officers discovered two additional guns in the trunk, one of which had been reported stolen. At the police station, Gonzales admitted ownership of the drugs and that he was a drug dealer. Gonzales also admitted that all of the guns in the car were his and that he knew that one of the guns was stolen.

Gonzales had been previously convicted in Washington state court for possession of a stolen firearm, in August 1996 and again in November 2001. In December 2002, Gonzales was also convicted of third-degree driving with a suspended license and sentenced to thirty days in jail. The entire sentence, however, was suspended.

On October 1, 2003, Gonzales pled guilty pursuant to a written plea agreement to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1), and possession of a stolen firearm in violation of 18 U.S.C. § 922(j).

At sentencing, Gonzales objected to a four-level enhancement for possession of a firearm in connection with another felony offense under U.S.S.G. § 2K2.1(b)(5) and to the inclusion of one criminal history point for his conviction of third-degree driving with a suspended license. The district court found that although Gonzales's sentence had been totally suspended, the court was required to count the sentence under our precedent in Williams. The district court also found that Gonzales possessed a firearm within the meaning of § 2K2.1(b)(5). The district court therefore overruled both of Gonzales's objections and sentenced Gonzales to fifty-seven months imprisonment.

II.

We have jurisdiction under 28 U.S.C. § 1291. We review a district court's interpretation of the Sentencing Guidelines de novo, its application of the Sentencing Guidelines to the facts for abuse of discretion, and its factual findings for clear error. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005).

III.

Gonzales argues that because his thirty-day sentence for driving with a suspended license was entirely suspended, it should have been excluded under U.S.S.G. § 4A1.2(c)(1) (2003). We agree. Section 4A1.1 instructs that the following points be added to a defendant's criminal history score for prior criminal sentences:

(a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month.

(b) Add points for each prior sentence of imprisonment of at least sixty days not counted in (a).

(c) Add point for each prior sentence not counted in (a) or (b), up to a total of points for this item.

. . . .

§ 4A1.1. The Application Notes to § 4A1.1(c) direct us to the definition of "prior sentence" in § 4A1.2(a).

Section 4A1.2(a)(1) defines "prior sentence" as "any sentence previously imposed upon adjudication of guilt . . . for conduct not part of the instant offense." Section 4A1.2(a)(3) further provides that a totally suspended sentence "shall be counted as a prior sentence under § 4A1.1(c)." § 4A1.2(a)(3). This is the provision upon which the Williams opinion rested. As the government notes, however, the Williams analysis failed to account for § 4A1.2(b)-(c) and the related Commentary.

Section 4A1.2(b)(1) states that "[t]he term `sentence of imprisonment' means a sentence of incarceration and refers to the maximum sentence imposed." The corresponding Application Notes state that "[t]o qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence." § 4A1.2, cmt. n. 2. In other words, a "sentence of imprisonment" requires a period of confinement. Section 4A1.2(b)(2) further provides that if a sentence is partially suspended, the "sentence of imprisonment" refers only to the non-suspended portion. Therefore, while a totally suspended sentence could never result in additional criminal history points under § 4A1.1(a) or (b), it could result in one additional point under § 4A1.1(c), depending on the nature of the prior offense and whether or not the prior offense is deemed "countable" under that section.

The Application Note for § 4A1.1(c) makes clear that "[s]entences for certain specified non-felony offenses are counted only if they meet certain requirements" as outlined by § 4A1.2(c)(1). § 4A1.1, cmt. n. 3. In § 4A1.2(c)(1), the Sentencing Commission has specified which sentences should or should not be counted, presumably based upon the degree of seriousness of the underlying offense. While, under § 4A1.2(c), sentences for all felony offenses must be counted, the Guidelines exempt from the criminal history calculation sentences for certain misdemeanors and petty offenses:

Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense. . . .

§ 4A1.2(c)(1) (emphasis added). The Guidelines next identify the misdemeanor and petty offenses, including driving with a suspended license, that should be counted only if the sentence imposed was a term of probation of at least one year or a term of imprisonment of at least thirty days, or if the prior offense was similar to the instant offense.1

The issue before us is whether a totally suspended thirty-day sentence constitutes a "term of imprisonment" of at least thirty days. While "term of imprisonment" is not specifically defined,2 "sentence of imprisonment" is clearly defined by § 4A1.2(b)(1) and the corresponding Application Notes. See § 4A1.2, cmt. n. 2. A plain reading of § 4A1.2(c)(1) suggests that, in this context, the phrases are interchangeable. The grammatical structure of the provision dictates the way in which we must construe it:

Sentences for misdemeanor and petty offenses are counted, except as follows: (1) Sentences for the [listed] prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days. . . .

§ 4A1.2(c)(1).

We agree with the government that at least as used in this provision in Chapter Four of the Guidelines Manual, there is no meaningful distinction discernable between the phrase "the sentence was . . . a term of imprisonment" and the phrase "sentence of imprisonment," which is fully defined in § 4A1.2(b), the preceding subsection.3 Because the only logical conclusion is that the requirement of actual incarceration also applies to "term of imprisonment," a totally suspended sentence for a qualifying misdemeanor, regardless of its length, cannot be counted as a prior sentence. In other words, while a totally suspended sentence is a "prior sentence" ...

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