United States v. Ley

• Decision Date: 22 November 2017
• Docket Number: No. 16-3793,16-3793
• Citation: 876 F.3d 103
• Parties: UNITED STATES of America v. John Francis LEY, Appellant
• Court: U.S. Court of Appeals — Third Circuit

876 F.3d 103

UNITED STATES of America

v.John Francis LEY, Appellant

No. 16-3793

United States Court of Appeals, Third Circuit.

Argued: May 23, 2017

Filed: November 22, 2017

Lisa B. Freeland, Esq., W. Penn Hackney, Esq., Samantha L. Stern, Esq. [ARGUED], Office of Federal Public Defender, 1001 Liberty Avenue, Suite 1500, Pittsburgh, PA 15222, Counsel for Appellant

Soo C. Song, Esq., Rebecca R. Haywood, Esq., Laura S. Irwin, Esq. [ARGUED], Office of United States Attorney, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for Appellee

Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

This case concerns the criminal history provisions of the Sentencing Guidelines. A defendant's criminal history is calculated by assigning points for prior sentences. The Guidelines instruct that prior sentences "always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest." United States Sentencing Commission, Guidelines Manual § 4A1.2(a)(2) (USSG). The question presented here is whether a traffic stop, followed by the issuance of a summons, constitutes an intervening arrest in the context of the criminal history Guidelines.

I

John Francis Ley pleaded guilty in the United States District Court for the Western District of Pennsylvania to a single count of being a convicted felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). According to the presentence investigation report prepared by the United States Probation Office, Ley sustained a 2006 conviction for felony aggravated assault in Pennsylvania. The report classified this conviction as a "crime of violence" under the career-offender Guideline, USSG § 4B1.2(a)(1), and recommended a base offense level of 20. See Id. § 2K2.1(a)(4)(A). Various adjustments produced a total offense level of 19.

The criminal history Guidelines require the cumulative counting of sentences for offenses that are separated by an intervening arrest. Id. § 4A1.2(a)(2). If there is no intervening arrest, however, prior sentences are counted as a single sentence if those sentences were imposed on the same day. Id. Ley's long criminal record earned him seven criminal history points with a criminal history category of IV. Two of those seven points were based on prior convictions for possession of drug paraphernalia. The first offense stemmed from a traffic stop on September 28, 2015; the second from a traffic stop the following day. After each, the police released Ley from the scene and advised him that the case would proceed via summons. Ley pleaded guilty and was sentenced for both offenses on the same day in May 2016. His total offense level and criminal history category together produced a Guidelines sentencing range of 46 to 57 months of imprisonment.

Ley objected to the presentence report, arguing that his two prior drug paraphernalia sentences should be treated as a single sentence because they were imposed on the same day and were separated not by an intervening arrest, but by a traffic stop, followed by the issuance of a summons to appear. Had the sentences been treated as a single sentence, Ley argued, he would have only been assessed six criminal history points, resulting in a criminal history category of III, rather than IV, and a sentencing range of 36 to 47 months.

The District Court tentatively overruled Ley's objection. Two days later, the Probation Office filed a supplemental addendum standing by its position in the presentence report. Ley was eventually sentenced to 46 months' imprisonment, the lowest end of the applicable Guidelines range. This appeal followed.

II

The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We exercise plenary review over the District Court's interpretation of the Sentencing Guidelines, and review its factual findings for clear error. United States v. Georgiou , 777 F.3d 125, 146 (3d Cir. 2015).

III

The central issue to be discussed requires the Court to determine whether the word "arrest," as it appears in USSG § 4A1.2(a)(2), includes a traffic stop, followed by a summons to appear. If it does not, the District Court miscalculated Ley's criminal history and, by extension, his sentencing range. Before considering that question, we first address the Government's contention that the record establishes that Ley was subject to an intervening arrest.

A

The Government asserts that the supplemental addendum to the presentence report shows that, as a factual matter, Ley was arrested on September 28, 2015. Responding to Ley's objection to the presentence report's treatment of his drug paraphernalia convictions as separate sentences, the supplemental addendum states: "In this case, the defendant was arrested for the first offense ... on September 28, 2015. [This] not only is supported by the narrative in [the presentence report], but also [by] the Magisterial District Court Docket Sheet, the defendant's sentencing order, and the defendant's rap sheet, all of which list the defendant's arrest date as ‘September 28, 2015.’ " But the supplemental addendum also forthrightly adds that "[d]efense counsel is correct that the defendant was released from the scene on September 28, 2015, and [advised] that the case would proceed via summons ." Id. (emphasis added).

Nothing in the documents cited in the supplemental addendum indicates in any way that Ley was arrested on September 28, 2015. The narrative for that offense in the presentence report says not one word about an arrest. Nor can we say the listing of Ley's "arrest date" in the state court records—which were never produced in the District Court—demonstrates that Ley was in fact arrested. For all we know, those records treat the date of the issuance of a summons as an "arrest date." Of course, we can only speculate—and speculation is all the Government has to work with here.

In our view, the supplemental addendum merely restates the legal dispute between the Government and Ley; it does not create a new factual one. As the District Court described the supplemental addendum at sentencing, the document serves as "the Probation Office's retort to [Ley's] position that the two arrests or two experiences with law enforcement in September [2015] that followed one day after another were not being treated as one offense," thus demonstrating the Probation Office's "agree[ment] with the [District] Court's finding that a [traffic stop, followed by a] summons counts as an arrest." App. 36. We agree with the District Court, and find it difficult to accept that the supplemental addendum stands for the factual proposition the Government ascribes to it.

The Government nonetheless insists that we should not entertain any of Ley's arguments concerning the supplemental addendum. Since Ley never raised an objection to the supplemental addendum either at sentencing or in his opening brief in this Court, the Government asserts that Ley waived any challenge to the facts set forth in that document. See United States v. Joseph , 730 F.3d 336, 342 (3d Cir. 2013) ("[T]o preserve an argument and avoid waiver, the argument presented in the Court of Appeals must depend on both the same legal rule and the same facts as the argument presented in the District Court."); United States v. Pelullo , 399 F.3d 197, 222 (3d Cir. 2005) ("It is well settled that an appellant's failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal."). At the same time, the Government concedes that Ley has clearly preserved the legal issue of whether a traffic stop, followed by a summons, is an intervening arrest. The Government's claim of waiver therefore rises or falls on the import of the supplemental addendum.

Our precedent on waiver draws a distinction between "issues" and "arguments"—"an issue can be broader in scope than an argument in that an issue may be addressed by multiple arguments, which are the most basic building blocks of legal reasoning." Joseph , 730 F.3d at 337. To preserve an argument for appeal, a party "must have raised the same argument in the District Court—merely raising an issue that encompasses the appellate argument is not enough." Id. (emphasis in original). As we have explained, the supplemental addendum adds no factual controversy to the pure legal dispute over the interpretation of the word "arrest." It follows that the Government's attempt to manufacture waiver must be rejected.

B

The Court now turns to the parties' dispute over the District Court's interpretation of the Sentencing Guidelines. Chapter 4 of the Guidelines contains provisions detailing the manner in which district courts are to compute a defendant's criminal history. Section 4A1.1 assigns various point values to prior sentences. The term "prior sentence" is defined 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." USSG § 4A1.2(a)(1). Section 4A1.2(a)(2) sets forth what is known as the "single sentence" rule. In relevant part, it provides:

If the defendant has multiple prior sentences, determine whether those sentences are counted separately or treated as a single sentence. Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Treat any prior sentence covered by (A) or (B) as a single sentence.

USSG § 4A1.2(a)(2) (emphasis added). The Sentencing Commission first added the "intervening arrest" language in 1991 as an application note to ...