                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-11950                ELEVENTH CIRCUIT
                                   Non-Argument Calendar             JANUARY 21, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                          D.C. Docket No. 1:10-cr-00004-TWT-ECS-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff - Appellee,

                                          versus

DONNIE AUSBY,

lllllllllllllllllllll                                            Defendant - Appellant.

                                ________________________

                          Appeal from the United States District Court
                             for the Northern District of Georgia
                                ________________________

                                      (January 21, 2011)

Before BARKETT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

         Donnie Ausby appeals his sentence following his conviction for escape by

an inmate in the custody of an institution, in violation of 18 U.S.C. §751(a).
Because the district court applied the wrong legal standard in calculating Ausby’s

criminal history score and guideline range, it imposed a procedurally unreasonable

sentence. Accordingly, we vacate Ausby’s sentence and remand for further

proceedings.

       On January 12, 1989, Ausby was convicted of cocaine possession and

sentenced to six months’ imprisonment and two years’ probation. He was arrested

for violating probation on his 1989 conviction on February 18, 1999.1 A Florida

circuit court revoked Ausby’s probation on March 12, 1999, and sentenced him to

one year imprisonment, but the court ordered “that the defendant shall be allowed

a total of 210 DAYS as credit for time incarcerated before imposition of this

sentence.”2



       1
          Ausby violated his probation in 1991, but he was not arrested or sentenced on the
violation until 1999 because he was otherwise incarcerated.
       2
           The 210-day credit clearly accounts for more than just Ausby’s original six-month
sentence. The Government argues that, “based on the numbers” and based on the Florida circuit
court’s failure to refer to the earlier six-month sentence explicitly in giving the credit, we should
not construe the second sentence as incorporating the first.
         Ausby was imprisoned just over three weeks between his arrest for violating probation
and his sentencing. Though there is a slight discrepancy between the number of days he was
actually imprisoned and the 210 days credited, we have held that such a discrepancy is not fatal
to our analysis. See United States v. Glover, 154 F.3d 1291, 1296 n.5 (11th Cir. 1998).
         Moreover, the district court made no factual findings as to whether or not the 210-day
credit accounted for Ausby’s first six-month sentence, and we will make no such finding for the
first time on appeal. Should the district court determine on remand that the credit and Ausby’s
original sentence are unrelated, it may make that finding clearly and proceed with sentencing
accordingly.

                                                  2
      Ausby argues the district court erroneously assigned three criminal history

points for his 1989 cocaine conviction. He contends the credit of 210 days for

time served refers to his initial sentence of six months, and therefore the total

sentence—six months for possession and a net of six months for probation

violation—was only one year. Because his original sentence was imposed more

than twenty years before the conduct underlying his current plea, Ausby argues it

should not be counted in his criminal history calculation.

      We review a district court’s factual findings for clear error and its

application of the sentencing guidelines to those facts de novo. United States v.

Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir. 2006) (per curiam). We review a

sentence’s reasonableness under the abuse-of-discretion standard. Gall v. United

States, 552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007). When reviewing a sentence,

we must first determine that the “district court committed no significant procedural

error” such as, among other things, “failing to calculate (or improperly calculating)

the Guidelines range . . . .” Id. at 51, 128 S. Ct. at 597.

      To determine a criminal history category, courts are to “[a]dd 3 points for

each prior sentence of imprisonment exceeding one year and one month.”

U.S.S.G. § 4A1.1(a) (2009). The Commentary to § 4A1.2 clarifies that for

purposes of applying § 4A1.1(a), “the length of a sentence of imprisonment is the

                                            3
stated maximum . . . . That is, criminal history points are based on the sentence

pronounced, not the length of time actually served.” U.S.S.G. § 4A1.2 cmt. n.2

(2009). Where part of a sentence was suspended, however, “‘sentence of

imprisonment’ refers only to the portion that was not suspended.” U.S.S.G. §

4A1.2(b)(2) (2009). “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

§4A1.1(a), (b), or (c), as applicable.” U.S.S.G. § 4A1.2(k)(1) (2009).

      A court is to consider the length and date of a sentence in determining

whether it falls into the applicable time period for the criminal history calculation.

See U.S.S.G. § 4A1.2(e) (2009). Sentences of more than one year and one month

imposed or served within fifteen years of the instant offense are counted, as are

other sentences imposed within ten years of the instant offense. U.S.S.G. §

4A1.2(e)(1)–(2) (2009). Sentences not within these fifteen- and ten-year time

periods are not counted. U.S.S.G. § 4A1.2(e)(3) (2009). For a probation

revocation, use the following: “(i) in the case of an adult term of imprisonment

totaling more than one year and one month, the date of last release from

incarceration on such sentence (see §4A1.2(e)(1)); . . . and (iii) in any other case,

the date of the original sentence (see §4A1.2(d)(2)(B) and (e)(2)).” U.S.S.G.

                                           4
§ 4A1.2(k)(2)(B) (2009).

      In United States v. Glover, 154 F.3d 1291 (11th Cir. 1998), we considered

whether a sentence of imprisonment exceeded the “one year and one month”

threshold where the defendant’s sentence for a probation violation credited time

served for a previous violation. We refused to combine the two sentences without

accounting for the credit because to do so would essentially count the first

sentence twice. Id. at 1296.

      Taking Ausby’s one-year sentence for his probation violation, and giving

him credit for his initial six-month sentence, his total term of imprisonment for the

1989 conviction was only one year. See id. at 1296. Therefore, the date of his

initial sentence—January 12, 1989—should be used to determine whether criminal

history points apply. See U.S.S.G. § 4A1.2(k)(2)(B)(iii) (2009). Ausby

committed the instant offense on July 30, 2009. More than twenty years separate

Ausby’s 1989 conviction and the instant offense; therefore, the 1989 conviction

should not be included in calculating his criminal history. See U.S.S.G. §

4A1.2(e)(1)–(3) (2009).

      Had the district court assessed zero criminal history points for the 1989

conviction, Ausby would have had 11 criminal history points, which would have

yielded a criminal history category of V and a guideline imprisonment range of 24

                                          5
to 30 months’ imprisonment. Insofar as the district court erred in calculating

Ausby’s guideline range, his sentence is procedurally unreasonable. See Gall, 552

U.S. at 51, 128 S. Ct. at 597. Accordingly, we vacate his sentence and remand for

further proceedings.

      VACATED AND REMANDED.




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