U.S. v. Glover

• Decision Date: 17 September 1998
• Docket Number: No. 97-4456,97-4456
• Citation: 154 F.3d 1291
• Parties: 12 Fla. L. Weekly Fed. C 95 UNITED STATES of America, Plaintiff-Appellee, v. Robert J. GLOVER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1291

154 F.3d 1291

12 Fla. L. Weekly Fed. C 95

UNITED STATES of America, Plaintiff-Appellee, v. Robert J. GLOVER, Defendant-Appellant.

No. 97-4456.

United States Court of Appeals Eleventh Circuit.

Sept. 17, 1998.

Lori Barrist, Asst. Fed. Pub. Defender, West Palm Beach, FL, for Defendant-Appellant.

Dawn Bowen, Asst. U.S. Atty., Miami, FL, Janice LeClainche and Carol Herman, Asst. U.S. Attys., West Palm Beach, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON and BARKETT, Circuit Judges, and ALARCN ^*, Senior Circuit Judge.

BARKETT, Circuit Judge:

Robert Glover appeals his seventy-seven-month sentence for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). In calculating Glover's sentence under the federal Sentencing Guidelines, ¹ the district court agreed with the probation department that Glover's criminal record included "at least two prior felony convictions of either a crime of violence or a controlled substance offense," which resulted in a base offense level of twenty-four under U.S.S.G. § 2K2.1(a)(2). The two prior convictions on which the probation department relied were Glover's 1986 conviction for possession of cocaine with intent to distribute and his 1982 conviction for burglary. It is the counting of the 1982 burglary conviction as a "prior felony conviction of ... a crime of violence" that Glover challenges in this appeal. ²

Because Glover was under the age of eighteen when he committed the burglary offense, it can only be counted as a prior felony conviction under § 2K2.1(a)(2) if Glover "was convicted as an adult and received a sentence of imprisonment exceeding one year and one month." U.S.S.G. §§ 4A1.2(d)(1). ³ It is undisputed that Glover was treated as an adult in the Florida state court. Thus, the question presented here is whether the sentence of imprisonment imposed exceeded the one year and one month threshold.

Glover pled guilty in state court to the burglary offense in December 1982 and was sentenced to three years of probation. Although Glover's original sentence included no jail time, he was twice sentenced to a term of imprisonment for violating his probation. The first violation resulted in an "Order of Modification of Probation," extending his probation by one year, and requiring, as a condition of probation, that Glover serve ninety days in the county jail, with credit for the thirty-six days he had been incarcerated following his arrest on the violation warrant. After a subsequent violation hearing on Glover's additional probation violations, the state court revoked Glover's probation and sentenced him to a 364-day jail term, with credit for the 121 days he had already served. This 121-day period reflected the ninety days Glover had spent in jail pursuant to the trial court's modification order as well as the time he had spent in jail while awaiting the second probation violation hearing.

The district court calculated Glover's total sentence of incarceration for the burglary offense pursuant to § 4A1.2(k)(1) ⁴ by adding the ninety days required by the modification of probation order to the 364-day jail term imposed in the subsequent revocation order, for a total of 454 days, thus qualifying the offense as a "prior felony conviction of ... a crime of violence" under § 2K2.1.

DISCUSSION

I.

Glover first contends that because his probation was only actually revoked once--when the state trial court issued its revocation order following the second probation violation hearing--only the 364-day jail term imposed pursuant to that order should be counted under § 4A1.2(k)(1). In support of his "plain meaning" reading of § 4A1.2(k)(1), Glover asserts that treating the state trial court's modification order as a partial revocation of probation effectively ignores the distinction the Sentencing Guidelines elsewhere draw between the revocation of probation and the extension of a term of probation. See U.S.S.G. § 7B1.3(a)(2) (giving the sentencing court discretion to either "revoke probation ... or extend the term of probation" upon finding a particular type of violation). Glover also maintains that if the Sentencing Commission had intended for § 4A1.2(k)(1) to include modifications of probation, that section would refer to violations, not revocations, of probation. Finally, Glover argues that, at a minimum, the Guidelines are ambiguous, and that, in light of this ambiguity, the district court should have followed the rule of lenity in sentencing Glover, thus excluding the modification order from the calculation of Glover's total sentence of imprisonment.

In United States v. Reed, 94 F.3d 341 (7th Cir.1996), on which the government primarily relies, the defendant challenged the district court's application of § 4A1.2(k) with respect to his conviction for the offense of robbery. Although the defendant had originally been sentenced to a six-month prison term to be followed by a four-year term of probation, he subsequently violated his probation on two occasions and was sentenced to a sixty-nine-day and a 249-day jail term, respectively. In determining the defendant's total sentence of imprisonment for the burglary offense pursuant to § 4A1.2(k), the district court added both the sixty-nine-day and the 249-day jail terms to the defendant's original six-month sentence. On appeal, the defendant argued that neither of the sentences imposed as a result of his probation violations should have been used to calculate his total sentence for the robbery offense because "his probation had never actually been revoked as required by the guideline." Id. at 343.

Observing that "[l]ike any other federal statute, the [Sentencing] Guidelines must be interpreted in accordance with federal law, even when those Guidelines refer to some event occurring in state court," the Seventh Circuit initially rejected the defendant's contention that the federal courts "should look to state law in determining what constitutes a 'revocation of probation.' " Id. at 344. The court then proceeded to interpret the phrase "revocation of probation" as a matter of federal law. Remarking that the purpose of § 4A1.2(k)'s aggregation rule is to "limit[ ] the number of criminal history points that may be assigned to a single conviction ..., even if the defendant served multiple prison sentences on that conviction due to violations of his probation," id., the court concluded that "the finding of a probation violation coupled with a time-served imprisonment sentence and a resentencing to probation constitutes a 'revocation of probation' under section 4A1.2(k)(1)," id. at 345.

Similarly, in United States v. Glidden, 77 F.3d 38 (2d Cir.1996), the Second Circuit held that

when a defendant has been given a suspended sentence of imprisonment and been placed on probation, and the court has thereafter, upon finding he violated probation, ordered him to serve a period of incarceration, we think it proper to view that order as at least a partial revocation of probation that falls within the scope of Guidelines § 4A1.2(k)(1).

Id. at 40. As in Glover's case, the defendant in Glidden had twice violated his probation, in response to which the state trial court had initially resentenced him to a term of incarceration plus probation and had subsequently revoked the defendant's probation entirely, again imposing a term of incarceration. In calculating the defendant's total sentence of imprisonment for the state offense under the federal Sentencing Guidelines, the district court had included both of the terms of incarceration imposed following the defendant's probation violations. On appeal, the Second Circuit rejected the defendant's argument that because his probation was not actually revoked until after his second probation violation, only the sentence imposed for that violation should have been included pursuant to § 4A1.2(k), noting that such an interpretation would be "contrary to the Guidelines' premise that '[r]epeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation,' and 'aggravate[s] the need for punishment with each recurrence.' " Id. (citing U.S.S.G. Ch. 4, Pt. A, intr. comment.).

We agree with the Second and Seventh Circuits that § 4A1.2(k)(1) contemplates that, in calculating a defendant's total sentence of imprisonment for a particular offense, the district court will aggregate any term of imprisonment imposed because of a probation violation with the defendant's original sentence of imprisonment, if any, for that offense. Accordingly, we reject Glover's contention that the ninety-day jail term imposed pursuant to the state trial court's modification order should not have been counted in calculating his total term of imprisonment pursuant to § 4A1.2(k)(1).

II.

We thus turn to Glover's alternative argument that even added together, the two jail terms imposed as a result of his probation violations do not amount to a sentence of imprisonment exceeding one year and one month. Glover maintains that, having been sentenced to a ninety-day jail term because of his first probation violation, and then to a 364-day jail term with credit for the original ninety-day sentence upon the subsequent revocation of his probation, his total sentence of incarceration was 364 days. The government responds that the district court properly treated the jail terms imposed as a result of Glover's probation violations as separate sentences, and thus was correct in adding the ninety-day to the 364-day term of imprisonment to calculate Glover's total sentence of imprisonment for the burglary offense.

The Sentencing Guidelines provide that "[t]he term 'sentence of imprisonment' means a sentence of incarceration and refers to the maximum sentence imposed." U.S.S.G. § 4A1.2(b)(1). The Commentary to § 4A1.2 clarifies that for purposes of determining the number of criminal history points that should...