U.S. v. Dozier, No. 08-4086.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtO'Brien
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Raphael DOZIER, Defendant-Appellant.
Decision Date11 February 2009
Docket NumberNo. 08-4086.
555 F.3d 1136
UNITED STATES of America, Plaintiff-Appellee,
v.
Raphael DOZIER, Defendant-Appellant.
No. 08-4086.
United States Court of Appeals, Tenth Circuit.
February 11, 2009.

[555 F.3d 1137]

Steven B. Killpack, Federal Public Defender, and Scott Keith Wilson, Assistant Federal Public Defender, Salt Lake City, UT, for Defendant-Appellant.

Brett L. Tolman, United States Attorney, District of Utah, and Elizabethanne C. Stevens, Assistant United States Attorney, for Plaintiff-Appellee.

Before O'BRIEN, McKAY and GORSUCH, Circuit Judges.*

O'BRIEN, Circuit Judge.


Raphael Dozier was sentenced to 18 months imprisonment after pleading guilty to possession of a firearm by a convicted felon. He contends the district court erred by including in his criminal history computation the period of incarceration imposed by a state court upon revocation of a suspended sentence when the revocation resulted from the same conduct that is the basis of the instant offense. We affirm.

I. BACKGROUND

On July 23, 2007, the Salt Lake City Police Department sent a confidential source (CS) to Dozier's residence for the purpose of purchasing illegal narcotics. Dozier invited the CS into his home. The CS told Dozier he had $60 to purchase methamphetamine and gave the money to Dozier. Dozier asked his girlfriend to "go get me that thing I got today" and she returned with a revolver. (R. Vol. II, Doc. 24 at 3.) Dozier pointed the weapon at the CS and told him to leave. The CS grabbed his money from Dozier and left. Upon arriving at Dozier's residence, police officers located a loaded revolver in a bedroom. Dozier stated the gun belonged to his girlfriend but admitted he had handled it and his fingerprints would be on it. He also admitted he had used methamphetamine earlier in the day.

On November 28, 2007, Dozier was indicted with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The United States Probation Office prepared a presentence report (PSR) which determined the total offense level to be 12 after applying a two-level downward adjustment for acceptance of responsibility. See USSG §§ 2K2.1(a)(6), 3E1.1.1 The PSR concluded Dozier had seven criminal history points: one point for a 1998 conviction for possession of a controlled substance, three points

555 F.3d 1138

for a 2006 conviction for possession of a controlled substance (the Controlled Substance Conviction), one point for a 2006 conviction for theft, and two points because he was on probation for the Controlled Substance Conviction when he committed the instant offense. See USSG § 4A1.1(d). Dozier's criminal history placed him in Criminal History Category IV, resulting in an advisory guideline range of 21 to 27 months imprisonment.

In determining three criminal history points were warranted for the Controlled Substance Conviction, the PSR followed USSG § 4A1.2(k)(1) which instructs: "In the case of a prior revocation of probation ... add the original term of imprisonment to any term of imprisonment imposed upon revocation. The resulting total is used to compute the criminal history points for USSG § 4A1.1(a), (b), or (c), as applicable." Dozier was originally sentenced to 0 to 5 years for the Controlled Substance Conviction, but the sentence was suspended and Dozier was placed on probation for 36 months after serving 20 days in jail. On August 24, 2007, the state court revoked Dozier's probation for the Controlled Substance Conviction because he failed to comply with the terms of probation and imposed the original sentence of 0 to 5 years.

USSG § 4A1.1 provides in pertinent part:

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

(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).

(c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this item.

Consistent with USSG § 4A1.2(k)(1), the PSR used 5 years and 20 days as the total incarceration time for purposes of calculating the criminal history points to be afforded to the Controlled Substance Conviction.2 Consequently, it assigned three criminal history points to the Controlled Substance Conviction under USSG § 4A1.1(a) because the sentence exceeded one year and one month.3

Dozier objected to the assessment of three criminal history points for the Controlled Substance Conviction, arguing he should have received only one criminal history point. He would have received only one criminal history point if the original sentence was calculated as either a 20-day sentence of imprisonment, see USSG § 4A1.1(c),4 or a sentence of 36 months probation, see USSG § 4A1.2 comment. (n.2). The two-point difference is significant. Had Dozier received five instead of seven total criminal history points, he would have been in Criminal History Category III instead of IV and his advisory guideline range would have been 15 to 21 months instead of 21 to 27 months.

The court overruled Dozier's objection and adopted the PSR's calculation of Dozier's

555 F.3d 1139

criminal history, resulting in a guideline range of 21 to 27 months. It sentenced Dozier to 18 months. The reduction came from granting a three-month credit (over the government's objection) for the five months Dozier served in state custody for violating his probation. Dozier appeals, asserting the court erred in overruling his objection.5

II. DISCUSSION

Dozier contends the district court erred in holding the sentence imposed following the revocation of his probation on the Controlled Substance Conviction was a "prior sentence" within the meaning of USSG § 4A1.1, which is defined as "any sentence previously imposed upon adjudication of guilt ... for conduct not part of the instant offense." USSG § 4A1.2(a)(1). He argues the conduct resulting in the revocation of his probation is the same conduct that forms the basis of the instant offense; it is thus "part of the instant offense" and by definition cannot be a "prior sentence."6 This is a question of law, which we review de novo. See United States v. Munoz-Tello, 531 F.3d 1174, 1181 (10th Cir.2008) ("When evaluating the district court's interpretation and application of the Sentencing Guidelines, we review legal questions de novo and factual findings for clear error....").

"Generally speaking, we interpret the Sentencing Guidelines according to accepted rules of statutory construction." United States v. Cornelio-Pena, 435 F.3d 1279, 1282 (10th Cir.2006) (quotations omitted). "As with all statutory interpretation, we begin our...

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14 practice notes
  • United States v. Rosales-Garcia, No. 10–4224.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 7 Febrero 2012
    ...of anomaly is not motivating us to “rewrite the Guidelines,” a practice against which we admonished in United States v. Dozier, 555 F.3d 1136, 1141 (10th Cir.2009). Instead, we simply bolster our conclusion, which is grounded in the Guidelines text, by acknowledging that it avoids needless ......
  • U.S. v. Manatau, No. 10–4101.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 1 Agosto 2011
    ...or this court” on point, the district court had not plainly erred when it employed a mens rea standard lower than intent or purpose. 555 F.3d at 1136; see also Int'l Brotherhood of Elec. Workers, 481 U.S. at 591 n. 15, 107 S.Ct. 2002. Equally important, the dicta in Baum is itself of questi......
  • United States v. Rivera-Berríos, No. 17-1212
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 24 Agosto 2018
    ...But that is not what happened here. The salient distinction arises out of "the relation-back aspect of the law." United States v. Dozier, 555 F.3d 1136, 1140 (10th Cir. 2009). As we explained in an analogous context, a post-revocation sanction "is treated as part of the penalty for the init......
  • USA v. Heath, No. 10-1333.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 16 Noviembre 2010
    ...of probation and imposition of a term of imprisonment based on the instant offense conduct is permissible. See United States v. Dozier, 555 F.3d 1136, 1141 (10th Cir.2009); United States v. Wheeler, 330 F.3d 407, 412-13 (6th Cir.2003); 624 F.3d 888 United States v. Franklin, 148 F.3d 451, 4......
  • Request a trial to view additional results
12 cases
  • United States v. Rosales-Garcia, No. 10–4224.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 7 Febrero 2012
    ...of anomaly is not motivating us to “rewrite the Guidelines,” a practice against which we admonished in United States v. Dozier, 555 F.3d 1136, 1141 (10th Cir.2009). Instead, we simply bolster our conclusion, which is grounded in the Guidelines text, by acknowledging that it avoids needless ......
  • U.S. v. Manatau, No. 10–4101.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 1 Agosto 2011
    ...or this court” on point, the district court had not plainly erred when it employed a mens rea standard lower than intent or purpose. 555 F.3d at 1136; see also Int'l Brotherhood of Elec. Workers, 481 U.S. at 591 n. 15, 107 S.Ct. 2002. Equally important, the dicta in Baum is itself of questi......
  • United States v. Rivera-Berríos, No. 17-1212
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 24 Agosto 2018
    ...not what happened here. The salient distinction arises out of "the relation-back aspect of the law." United States v. Dozier, 555 F.3d 1136, 1140 (10th Cir. 2009). As we explained in an analogous context, a post-revocation sanction "is treated as part of the penalty for the i......
  • USA v. Heath, No. 10-1333.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 16 Noviembre 2010
    ...of probation and imposition of a term of imprisonment based on the instant offense conduct is permissible. See United States v. Dozier, 555 F.3d 1136, 1141 (10th Cir.2009); United States v. Wheeler, 330 F.3d 407, 412-13 (6th Cir.2003); 624 F.3d 888 United States v. Franklin, 148 F.3d 451, 4......
  • Request a trial to view additional results

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