U.S. v. Jasso

• Decision Date: 09 November 2009
• Docket Number: No. 08-10453.,08-10453.
• Citation: 587 F.3d 706
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maximiliano JASSO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

587 F.3d 706

UNITED STATES of America, Plaintiff-Appellee, v. Maximiliano JASSO, Defendant-Appellant.

No. 08-10453.

United States Court of Appeals, Fifth Circuit.

November 9, 2009.

As Revised November 10, 2009.

Susan Cowger, Asst. U.S. Atty. (argued), Dallas, TX, for U.S.

William Reynolds Biggs (argued), Kevin Joel Page, Fed. Pub. Defenders, Dallas, TX, for Jasso.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, DAVIS and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

The defendant-appellant appeals his sentence, arguing that the district court erred in assigning him two additional criminal history points, pursuant to § 4A1.2(e) and (k) of the United States Sentencing Guidelines (U.S.S.G.), based on his 1995 assault conviction in Texas state court and the subsequent sentence the Texas state court issued when he violated his term of probation.

Although we acknowledge that the district court's reading of the ambiguous language in § 4A1.2(k) was not unreasonable, our review of § 4A1.2, in its entirety, leads us to conclude that it was error to count the defendant-appellant's entire sentence issued upon his violation of probation, rather that considering only the portion of the sentence he actually served. This error resulted in the district court's assessment of the two additional criminal history points. The comprehensive analysis required to resolve the issue raised on appeal, however, preludes the conclusion that the district court's sentencing error was either clear or obvious.

Further, we conclude that the addition of these two points did not affect the defendant's substantial rights. As a result, we write principally to clarify this error— an error that prior to our defining it as such, constituted nothing more than an inconsistent ambiguity buried within one section of the Sentencing Guidelines.

I.

Maximiliano Jasso was charged in a single-count indictment with illegal reentry following removal, in violation of 8 U.S.C. § 1326(a) and (b)(2). He pled guilty to the offense without the benefit of a written plea agreement.

The Presentence Report (PSR) assigned Jasso a base offense level of eight. See U.S.S.G. § 2L1.2(a). The probation officer recommended the imposition of a sixteen-level enhancement on the ground that Jasso previously was deported following the commission of a crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). Following the application of a three-level adjustment for acceptance of responsibility, Jasso was assigned a total offense level of twenty-one. See U.S.S.G. § 3E1.1.

The district court assigned two criminal history points based upon Jasso's 1995 guilty-plea conviction in Texas state court for an aggravated assault causing serious bodily injury. The probation officer's narrative for the conviction stated that Jasso was sentenced to a ten-year term of felony probation in October 1995, but that he violated his probation in August 1999. Jasso's probation was consequently revoked in November 2005, and he was sentenced to ten years of imprisonment. After serving nearly six months of this prison term, Jasso returned to Texas state court in May 2006, at which time he was released from prison and sentenced to serve a six-year "shock probation" term.¹ As a result, he never served more than six months in prison for his probation violation.

Additionally, in calculating his criminal history points, the probation officer also applied (a) two criminal history points on the ground that Jasso committed the instant reentry offense while he was under a criminal justice sentence of probation for the aggravated assault conviction, and (b) one criminal history point because Jasso committed the instant offense less than two years after his release from imprisonment on a sentence that was counted pursuant to U.S.S.G. § 4A1.1(b). See U.S.S.G. § 4A1.1(e). Jasso was assigned a total criminal history score of five, which resulted in a criminal history category of III. This criminal history category, combined with a total offense level of twenty-one, yielded a guideline range of imprisonment of forty-six to fifty-seven months.

Jasso filed no objections to the PSR.² At sentencing, the defendant-appellant reiterated that he had no objections to the PSR. He did make a request for a downward departure/variance based on the PSR's over-representation of his criminal history and the presence of mitigating circumstances. The district court denied Jasso's request. The court then sentenced Jasso to forty-six months of imprisonment and a two-year term of supervised release.

Jasso filed a timely notice of appeal.

II.

This case requires this Court to decide whether the district court erred in assigning the defendant-appellant two additional criminal history points, pursuant to U.S.S.G. § 4A1.2(e) and (k), for his prior assault conviction in Texas state court, for which he received an additional term of imprisonment as a result of his violation of the original term of probation.³ "[W]e review the district court's application of the sentencing guidelines de novo." United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.2006).

In the present case, however, the defendant-appellant failed to make any objection to the district court's addition of these two criminal history points at the time the court actually sentenced him. Consequently, this argument has not been raised "to such a degree that the district court ha[d] an opportunity to rule on it." Keelan v. Majesco Software, Inc., 407 F.3d 332, 340 (5th Cir.2005) (quotations and citation omitted). To preserve an argument for appeal, the party must "must press and not merely intimate the argument during the proceedings before the district court." Id. (quotations and citation omitted).

Because Jasso failed to preserve this assertion of error in the district court below, "this court's review is for plain error" only. United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005). "This court finds plain error when: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant's substantial rights." Id. at 358-59 (citing United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also United States v. Gonzales, 484 F.3d 712, 715 (5th Cir.2007) ("Under plain-error review, we first inquire whether the district court's imposition of the enhancement was erroneous and, if so, whether the error was plain (i.e., clear or obvious).").⁴

Our decision to affirm the defendant-appellant's sentence hinges on our analysis under the second prong of the plain error analysis.⁵ That is, we conclude that the two contested criminal history points were assigned in error. This error, however, was neither clear nor obvious, and, as we will also discuss below, it did not affect the defendant-appellant's substantial rights. Accordingly, we respectfully observe that because "[t]he doctrine of plain error serves powerful institutional interests, including securing the role of the United States District Court as the court of first instance, as opposed to a body charged to make recommendations to appellate courts" United States v. Ellis, 564 F.3d 370, 378 (5th Cir.2009), we must affirm the district court in instances such as those presented in this case, where there is no clear error.

A. The Error in the Criminal History Category Assessment

This case requires us to address the question of whether "term of imprisonment," as it appears in § 4A1.2(k), refers only to the portion of the term of imprisonment that was not suspended—or, whether it refers to the entirety of the term of imprisonment issued upon revocation, regardless of any subsequent suspension of that term. We conclude that "term of imprisonment," as it appears in § 4A1.2 as a whole, is synonymous with "sentence of imprisonment" and therefore "refers only to the portion that was not suspended." § 4A1.2(b)(2).⁶ We recognize that the Commission's supplanting of § 4A1.2(e)'s "sentence of imprisonment" with a different, un-defined term ("term of imprisonment") in § 4A1.2(k) could reasonably lead to the conclusion that the two terms share different meanings. Our review of § 4A1.2, however, leads us to conclude that attaching disparate meanings to these two terms results in irreconcilable inconsistencies in § 4A1.2 as a whole. As a result, we write to clarify this error.

Section 4A1.2(e) governs whether Jasso's prior conviction in Texas state court counts for current criminal history purposes. Under § 4A1.2(e)(1), "[a]ny 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." Under § 4A1.2(e)(2), "[a]ny other prior sentence that was imposed within ten years of the defendant's commencement of the instant offense is counted." Under § 4A1.2(e)(3), however, "[a]ny prior sentence not within the time periods specified above is not counted." Thus, for a district court to properly assess criminal history points for a prior conviction pursuant to § 4A1.1, the prior conviction must fit into either of § 4A1.2(e)'s first two categories. United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir.2006) (holding that where a defendant's "conviction does not fall within the time periods specified in § 4A1.2(e)(1) or (2), it should not [b]e counted."). Jasso's 1995 state court sentence to felony probation, alone, cannot contribute any criminal history points since it was well-over the ten year limitation found in (e)(2) and because as a term of probation, it fails to meet the thirteen month minimum established in (e)(1).⁷

Thus, the only possible way his 1995 conviction could count for criminal history purposes would be if the "term of imprisonment" issued upon his revocation of probation affected the quantification of his "original term of imprisonment" in § 4A1.2(e), pursuant to § 4A1.2(k). Section 4A1.2(k) governs...