U.S. v. Smith

• Decision Date: 29 March 1990
• Docket Number: No. 88-2563,88-2563
• Citation: 900 F.2d 1442
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert L. SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1442

900 F.2d 1442

UNITED STATES of America, Plaintiff-Appellee, v. Robert L. SMITH, Defendant-Appellant.

No. 88-2563.

United States Court of Appeals, Tenth Circuit.

March 29, 1990.

David Cooper, Asst. U.S. Atty. (Benjamin L. Burgess, Jr., U.S. Atty., and Kurt J. Shernuk, Asst. U.S. Atty., with him on the briefs), Topeka, Kan., for plaintiff-appellee.

Michael L. Harris, Asst. Federal Public Defender (Charles D. Anderson, Federal Public Defender, with him on the brief), Kansas City, Kan., for defendant-appellant.

Before LOGAN and BALDOCK, Circuit Judges, and PHILLIPS ^*, District Judge

PHILLIPS, District Judge.

"Dates are important." Derstein v. Van Buren, 828 F.2d 653, 654 (10th Cir.1987). So are prepositions. In this case we examine the chronology of a defendant's criminal record and interpret the meaning of the preposition "within" in the context of a Sentencing Guideline utilized in computing a defendant's criminal history category. Riding on the outcome of this interpretation is whether the defendant's permissible sentencing range is 70 to 87 months, or 92 to 115 months. We hold that the higher range governs and AFFIRM the sentence imposed by the district judge.

I.

On June 24, 1988, defendant Robert L. Smith entered a plea of guilty in the United States District Court for the District of Kansas to one count charging him with the December 12, 1987 kidnapping of Linda Lampley, defendant's former wife. [Vol. I at 3]. A presentence report was ordered and a sentencing hearing was set for September 16, 1988.

The statutory penalty for kidnapping is a term of imprisonment for any term of years or for life. 18 U.S.C. Sec. 1201(a). Because defendant's kidnapping offense was committed after November 1, 1987, the Sentencing Reform Act of 1984 was applicable. Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, Secs. 211-39, 98 Stat. 1837, 1987-2040 (1985) ("the Act"). The Probation Officer's application of the Act's Sentencing Guidelines ("the guidelines") produced a recommended range of punishment from 92 to 115 months. This range was set forth in the presentence report. [Vol. II at 8].

Prior to the sentencing date, the parties were given an opportunity to lodge objections to the presentence report. Defendant's objections focused on the Probation Officer's computation of defendant's criminal history category under the guidelines. Specifically, Smith objected to the Probation Officer's inclusion of six points given for two state court sentences imposed on Smith after December 12, 1987, the date of the Lampley kidnapping, but prior to the September 16, 1988 sentencing proceeding on the kidnapping charge. [Vol. II at 15].

The six point addition to defendant's criminal history score arose out of two sentences imposed by a Minnesota state court judge on March 22, 1988, more than three months after the December 12, 1987 kidnapping offense. [Vol. II at 5-7]. Specifically, on March 22, 1988, in the District Court of Hennepin County, Minneapolis, Minnesota, Smith was sentenced to 15 months incarceration following his plea of guilty to the charge of being a convicted felon in possession of a handgun. Defendant committed this offense on December 30, 1987. Id. Also, on March 22, 1988, defendant's probation from a 1984 felony assault conviction was revoked and defendant was sentenced to 21 months incarceration. The Minnesota state judge who sentenced the defendant ordered the two sentences to run concurrently. [Vol. II at 5-7]. ¹ As noted above, the sentencing for both of these Minnesota offenses occurred after the events which formed the basis of the kidnapping charge but prior to the sentencing on the kidnapping charge.

On September 16, 1988, defendant appeared for sentencing in Kansas federal court on the kidnapping charge. ² Defendant objected to the presentence report on the ground that the 1988 Minnesota sentences did not qualify as "prior sentences" for purposes of computing defendant's criminal history category for sentencing on the 1987 kidnapping. He argued that the guidelines only included as "prior sentences" those sentences imposed by a court prior to the commission of the instant offense. [Vol. III at 3-5]. Relying on guideline Section 4A1.2(a)(1), the government asserted that "prior sentence" meant any sentence previously imposed. [Vol. III at 5]. The district court overruled defendant's objections, found the relevant guideline range to be 92 to 115 months, and sentenced appellant to a term of imprisonment of 92 months, the very bottom of the guideline range. ³ According to defendant, had the trial court applied the guidelines correctly, and deleted the 1988 Minnesota sentences from defendant's criminal history score on the 1987 kidnapping, his sentencing range would be 70 to 87 months. ⁴

This appeal followed. The sole issue on appeal is whether the Minnesota sentences, imposed after the date of defendant's kidnapping offense, but prior to the date of the sentencing on the kidnapping charge, are "prior sentences" for purposes of the guidelines.

II.

The Sentencing Reform Act of 1984 was enacted to achieve greater uniformity in the sentencing of federal crimes. Its provisions "are designed to structure judicial sentencing discretion, eliminate indeterminate sentencing, phase out parole release, and make criminal sentencing fairer and more certain." S.Rep. No. 225, 98th Cong., 2d Sess. 65, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3248. The Act provides that "[e]xcept as otherwise specifically provided, a defendant who has been found guilty of an offense described in any Federal statute ... shall be sentenced in accordance with the provisions of this chapter." 18 U.S.C. Sec. 3551(a) (Supp. V 1987) (current version at 18 U.S.C. Sec. 3551(a) (1988)).

The guidelines adopted pursuant to the Sentencing Reform Act are an integrated, comprehensive set of rules intended to replace the former system of federal sentencing. In January 1989, the Supreme Court upheld the constitutionality of the guidelines and the Sentencing Reform Act against challenges that the Act constituted an unconstitutional delegation of legislative authority and that, together with the guidelines, the Act violated the constitutional doctrine of separation of powers. Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The guidelines establish a recommended range of determinate sentences based in part on categories of offenses and the history and characteristics of the defendant. In general, a sentencing court must select a sentence within a guideline's range but may depart from the guidelines if it "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. Sec. 3553(b). This case does not involve an alleged improper departure, e.g., United States v. White, 893 F.2d 276, 277 (10th Cir.1990), but rather a challenge to the guideline range selected by the district court.

This court reviews sentences imposed under the guidelines according to the statutory standard provided by the Sentencing Reform Act of 1984 and codified at 18 U.S.C. Sec. 3742. Section 3742(e) provides, in relevant part:

Consideration.--Upon review of the record, the court of appeals shall determine whether the sentence--

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines;

(3) is outside the applicable guideline range, and is unreasonable, having regard for--

(A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and

(B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or

(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.

While we must give "due deference to the district court's application of the guidelines to the facts," 18 U.S.C. Sec. 3742(e), we review the application of the guidelines fully for errors of law. United States v. Kirk, 894 F.2d 1162 (10th Cir.1990) ("legal conclusions with respect to the guidelines are subject to de novo review"); United States v. Smith, 888 F.2d 720, 723 (10th Cir.1989); United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989).

The guidelines must be interpreted as if they were a statute or a court rule. Cf. Mistretta v. United States, 109 S.Ct. at 664-65; United States v. Goldbaum, 879 F.2d 811, 813 (10th Cir.1989). As with statutory interpretations, our analysis must begin with the language of the guidelines in question. In the absence of express contrary intent we must follow the clear and unambiguous language of the guidelines. United States v. Goldbaum, 879 F.2d at 813.

III.

Under the guidelines, a defendant's criminal history category is to be determined independently of the offense level. United States v. Goldbaum, 879 F.2d 811 (10th Cir.1989); United States v. Reyes-Ruiz, 868 F.2d 698, 700 (5th Cir.1989). The rules for calculating a defendant's criminal history category are delineated in Chapter Four of the guidelines. Under Section 4A1.1, points are given for each "prior sentence."

The term "prior sentence" is defined in guideline section 4A1.2(a)(1). A "prior sentence" is "any sentence previously imposed upon adjudication of guilt.... for conduct not part of the instant offense." U.S.S.G. Sec. 4A1.2(a)(1). The number of points given for each "prior sentence" is dependent on the length of the prior sentence. U.S.S.G. Sec. 4A1.1(a)-(c). A "prior sentence of imprisonment" greater than one year and one month is given three (3) criminal history points. U.S.S.G. Sec. 4A1.1(a). Here the two March 22, 1988 Minnesota sentences were undeniably imposed prior to the September 16, 1988 kidnapping sentence. Similarly, it is undisputed that the Minnesota sentences...