                                      PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-4167


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.

JUSTIN TYME HAWLEY,

             Defendant - Appellant.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Malcolm J. Howard, Senior District Judge. (5:17-cr-00219-H-1)


Argued: January 31, 2019                                        Decided: March 26, 2019


Before WYNN, DIAZ, and RICHARDSON, Circuit Judges.


Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Diaz
joined. Judge Richardson wrote an opinion concurring in part and concurring in the
judgment.


ARGUED: Jaclyn L. DiLauro, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan
DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
WYNN, Circuit Judge:

      Defendant Justin Hawley pleaded guilty to two counts of being a felon in

possession of a firearm and two counts of distributing heroin.          The district court

sentenced him to fifty-seven months’ imprisonment, in part because his criminal history

included a prior sentence of thirty days’ imprisonment for an uncounseled misdemeanor

offense. Defendant argues that the district court contravened the Sentencing Guidelines

in calculating his criminal history by counting the prior uncounseled misdemeanor that

resulted in imprisonment. Finding no reversible error, we affirm Defendant’s sentence.

                                            I.

      On August 8, 2017, a federal grand jury in the Eastern District of North Carolina

returned a superseding four-count indictment charging Defendant with: (1) two counts of

possessing a firearm after being convicted of a crime punishable by imprisonment for a

term exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) & 924; and (2) two

counts of distributing heroin, a Schedule I controlled substance, in violation of 21 U.S.C.

§ 841(a)(1). Thereafter, on November 6, 2017, Defendant pleaded guilty to all four

counts.

       On March 7, 2018, the district court conducted a sentencing hearing. Before

sentencing, the United States Probation Office prepared a presentence report that

calculated the Defendant’s offense level and criminal history category. The Probation

Office first determined that Defendant had an offense level of 19. Next, considering

Defendant’s prior offenses, the Probation Office determined that Defendant had a

criminal history score of 10, and thus Defendant had a criminal history category of V. As

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relevant here, the Probation Office added one point to Defendant’s criminal history score

because Defendant pleaded guilty in April 2015 to the misdemeanor offense of providing

false information to a police officer and failure to wear a seatbelt. Defendant did not

dispute—and therefore conceded for purposes of this appeal—that he validly waived his

right to counsel in the proceedings giving rise to that conviction and that he was

imprisoned for thirty days. Because Defendant had an offense level of 19 and a criminal

history category of V, the Guidelines’ advisory sentencing range was fifty-seven to

seventy-one months’ imprisonment for each of the four counts.

      At his sentencing hearing, Defendant objected to adding a criminal history point

for the misdemeanor offense of providing false information to a police officer.

Defendant argued that because he was uncounseled—albeit voluntarily—and was

imprisoned, the Guidelines precluded the district court from adding a point for that

offense. To support this position, Defendant relied upon the Guidelines background

commentary, which provides: “[p]rior sentences, not otherwise excluded, are to be

counted in the criminal history score, including uncounseled misdemeanor sentences

where imprisonment was not imposed.”        U.S.S.G. § 4A1.2 (background) (emphasis

added). Without this additional point, Defendant would have had a criminal history score

of 9 and a criminal history category of IV, and the Guidelines’ advisory sentencing range

would be forty-six to fifty-seven months’ imprisonment.

      At sentencing, the district court adopted the Probation Office’s recommendation

and rejected Defendant’s reading of the background commentary. The court reasoned

that the Guidelines required it to count the offense of providing false information to a

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police officer because Defendant was sentenced to a term of imprisonment of at least

thirty days. See U.S.S.G. § 4A1.2(c)(1). And though the background commentary

explicitly   contemplates   counting   prior         uncounseled   misdemeanors   for   which

“imprisonment was not imposed,” this reference is preceded by the word “including,”

indicating that the Guidelines do not exclude counting other valid convictions, like

Defendant’s voluntarily uncounseled misdemeanor which resulted in imprisonment.

Thus, because Defendant was imprisoned for thirty days after pleading guilty to

providing false information to a police officer, the court added one point for that offense.

Thereafter, the court concurrently sentenced Defendant on all four counts to fifty-seven

months’ imprisonment—the bottom of the Guidelines’ advisory range. Defendant timely

appealed.

                                               II.

       Before this Court, Defendant solely contends * that the district court misapplied the

Guidelines in calculating his criminal history by counting his prior uncounseled

misdemeanor that resulted in 30-days imprisonment.




       *
          In his brief, Defendant also argued that the district court erred by adding three
criminal history points for each of Defendant’s prior state convictions of possessing a
stolen firearm and of breaking or entering and conspiracy to commit breaking or entering
of a building with intent to commit a felony or larceny. According to Defendant, the
court erroneously considered the statutory post-supervisory release period in determining
whether a conviction constitutes a term of imprisonment exceeding one year. U.S.S.G.
§§ 4A1.1 & 4A1.2. But Defendant recognized that this position was foreclosed by
United States v. Barlow, 811 F.3d 133 (4th Cir. 2015), and thus withdrew this contention
at oral argument. Oral Argument at 8:50–9:00.

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       “On a challenge to a district court’s application of the Guidelines, we review

questions of law de novo and findings of fact for clear error.” United States v. Allen, 909

F.3d 671, 677 (4th Cir. 2018) (citation omitted). In doing so, we discern the Guidelines’

“plain meaning, as determined by examination of its language, structure, and purpose.”

United States v. Strieper, 666 F.3d 288, 293–94 (4th Cir. 2012) (citations and alterations

omitted). “As in all cases of statutory interpretation, our inquiry begins with the text of

the statute.” United States v. Ashford, 718 F.3d 377, 382 (4th Cir. 2013) (citation

omitted). We consider not only the Guidelines’ text, but also the “commentary [which]

explains the guidelines and provides concrete guidance as to how even unambiguous

guidelines are to be applied in practice.” Stinson v. United States, 508 U.S. 36, 44

(1993). And when the Guidelines provide “commentary [that] interprets a guideline

provision or explains how a guideline is to be applied, the commentary is controlling . . .

unless it: [1] violates the Constitution or a federal statute; [2] is inconsistent with the

Guidelines; or [3] constitutes a plainly erroneous reading of the Guidelines.” Allen, 909

F.3d at 674 (internal quotation marks omitted) (quoting Stinson, 508 U.S. at 37–38).

       When computing a defendant’s criminal history for sentencing, the Guidelines

require the district court to count certain prior misdemeanor offenses, including

Defendant’s prior offense of providing false information to a police officer, “only if (A)

the sentence was a term of probation of more than one year or a term of imprisonment of

at least thirty days, or (B) the prior offense was similar to an instant offense.” U.S.S.G.

§ 4A1.2(c)(1). Defendant does not dispute that he was imprisoned for thirty days after

pleading guilty to the misdemeanor offense of providing false information to a police

                                            5
officer. Thus, under the plain language of Guideline 4A1.2(c)(1), Defendant’s offense

should be counted in calculating Defendant’s prior criminal history. See id.

       Nevertheless, Defendant argues that the district court erred in counting his

uncounseled misdemeanor offense resulting in 30-days imprisonment because a

“background” statement in the Guidelines commentary states that when courts count

prior offenses, “[p]rior sentences, not otherwise excluded, are to be counted in the

criminal   history   score,   including   uncounseled   misdemeanor     sentences   where

imprisonment was not imposed.” U.S.S.G. § 4A1.2 (background) (emphases added).

Appealing to the interpretive canon expressio unius est exclusio alterius, Defendant

maintains that the negative implication of Guideline 4A1.2’s background commentary

barred the district court from counting prior uncounseled misdemeanor convictions for

which imprisonment was imposed—even when, as here, a defendant validly waives his

right to counsel.

       Under the expressio unius canon, “expressing one item of an associated group or

series excludes another left unmentioned.” N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 940

(2017) (citation and alterations omitted). Though this canon can be an instructive tool for

discerning legislative intent, the “force of any negative implication . . . depends on

context.” Id. (citation omitted). Therefore, the “expressio unius canon applies only when

circumstances support a sensible inference that the term left out must have been meant to

be excluded.” Id. (citation and alterations omitted). The Guidelines do not support such

an inference in this case.



                                             6
       Here, the background commentary provides a general rule that prior sentences are

to be counted if they are “not otherwise excluded.” U.S.S.G. § 4A1.2 (background).

Although the background commentary identifies a specific application of this general

rule—that uncounseled misdemeanors for which imprisonment was not imposed are to be

counted—that specific application is preceded by the word “including.” Id. (emphasis

added). And “the term ‘including’ is not one of all-embracing definition, but connotes

simply an illustrative application of the general principle.” Fed. Land Bank of St. Paul v.

Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (quoting Phelps Dodge Corp. v. N.L.R.B.,

313 U.S. 177, 189 (1941)). In other words, the term “including” as used here is an

“introductory term for an incomplete list of examples.” Adams v. Dole, 927 F.2d 771,

776 (4th Cir. 1991) (emphasis added); see Include, Black’s Law Dictionary 880 (10th ed.

2009) (“The participle including typically indicates a partial list . . . .”). Because the

background commentary, by its plain language, contemplates that it is providing a non-

exhaustive list, an inference of negative implication is inappropriate. See Jones v. Am.

Postal Workers Union, 192 F.3d 417, 426 (4th Cir. 1999) (“When ‘include’ is utilized in

a statute, it is generally improper to conclude that entities not specifically enumerated are

excluded.” (alterations omitted) (quoting 2A Norman J. Singer, Sutherland Stat. Const.

§ 47.23 (5th ed. 1992))).

       It is interesting to note that the regulatory history of the Sentencing Commission

supports our determination of this issue.        In February 1990, when the Sentencing

Commission first proposed including background commentary to the relevant guideline,

it explained that its intention was to make clear that “all sentences resulting from

                                             7
constitutionally valid convictions . . . are counted.” Sentencing Guidelines for United

States Courts, 55 Fed. Reg. 5718, 5741 (proposed Feb. 16, 1990) (emphasis added).

Additionally, excluding “prior sentences resulting from constitutionally valid convictions

on the basis of whether the convictions were counseled or uncounseled would create wide

disparity . . . [and] would deprive the court of significant information relevant to the

purposes of sentencing.” Id. Notably, the Commission provided the specific application

of this general rule relied on by Defendant to make clear that the Commission “d[id] not

believe the inclusion of sentences resulting from constitutionally valid, uncounseled

misdemeanor convictions in the criminal history score [wa]s foreclosed by Baldasar v.

Illinois, 446 U.S. 222 (1980),” id.—a Supreme Court opinion which was subsequently

overruled, see Nichols v. United States, 511 U.S. 738, 748 (1994). Though the language

of the background commentary was modified before its enactment in November 1990,

the Commission reemphasized its intention to avoid “considerable disparity in guideline

application” and to count those misdemeanor convictions “for which counsel

constitutionally is not required.” U.S. Sentencing Guidelines Manual app. C, amend. 353

(1990). Accordingly, because Defendant voluntarily proceeded without counsel in the

prior proceeding—meaning that Defendant’s constitutional right to counsel was not

abridged and, therefore, that his misdemeanor conviction was “constitutionally valid”—

the district court did not err in counting the prior misdemeanor conviction in determining

Defendant’s Guidelines’ advisory range.

      Defendant’s voluntary waiver of his right to counsel in the prior proceeding also

sets this case apart from the principal decision upon which Defendant relies—the Second

                                            8
Circuit’s decision in United States v. Ortega, 94 F.3d 764 (2d Cir. 1996). Defendant

emphasizes that Ortega stated that “[a]lthough the [background commentary] does not

expressly exclude uncounseled misdemeanor sentences in which imprisonment was

imposed, the interpretive maxim expressio unius est exclusion alterius, coupled with the

constitutional problems raised by such sentences, convinces us that [the background

commentary] excludes from criminal history computations all uncounseled misdemeanor

sentences of imprisonment, including those imposed after the revocation of a defendant’s

probation.” Id. at 770–71 (emphases added). But in Ortega the government “d[id] not

contest” the defendants’ assertions that they were imprisoned and “unavailingly sought”

the assistance of counsel.    Id. at 769.   Of course, under the Sixth and Fourteenth

Amendments, “absent a knowing and intelligent waiver, no person may be imprisoned for

any offense . . . unless he was represented by counsel at his trial.” Argersinger v.

Hamlin, 407 U.S. 25, 37 (1972).        Unlike Ortega, Defendant does not contest the

constitutional validity of his waiver of the right to counsel in the prior proceeding. See

Oral Argument at 2:55–3:00, 5:20–5:25. And if Defendant did contest the constitutional

validity of his prior waiver, he could have collaterally attacked that waiver in the instant

sentencing proceeding. See United States v. Hondo, 366 F.3d 363, 365 (4th Cir. 2004);

see also Custis v. United States, 511 U.S. 485, 496 (1994). Accordingly, this case does

not invoke the “constitutional problems” that the Second Circuit confronted in Ortega.

Put simply, Ortega is inapposite. Accord United States v. Feliciano, 498 F.3d 661, 666

(7th Cir. 2007); United States v. Fitch, 39 F. App’x 518, 520 (9th Cir. 2002)

(unpublished).

                                             9
                                         III.

      In sum, the district court properly counted Defendant’s prior voluntarily

uncounseled misdemeanor offense of providing false information to a police officer for

which he was sentenced to thirty days’ imprisonment.         Accordingly, we affirm

Defendant’s sentence.

                                                                          AFFIRMED




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RICHARDSON, Circuit Judge, concurring in part and concurring in the judgment:

       I enthusiastically join my good colleague’s opinion except for the analysis of

regulatory history. That analysis relies substantially on language in the draft background

commentary initially proposed by the Commission.          Ante at 7–8.     After receiving

comments, the Commission discarded that proposed background commentary and

adopted different language. Compare 55 Fed. Reg. 5718, 5741 (Feb. 16, 1990) (notice of

proposed amendments), with 55 Fed. Reg. 19,188, 19,204–05 (May 8, 1990)

(amendments submitted to Congress). That initial, unadopted background commentary

provides no reliable interpretative guidance.     What is more, the passing paragraph

discussing it is unnecessary given the rest of my friend’s analysis. So I join only the rest

of the opinion.




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