                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-2004

USA v. Schnupp
Precedential or Non-Precedential: Precedential

Docket No. 03-1964




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                   PRECEDENTIAL            Before: SCIRICA, Chief Judge,
                                          ROTH and McKEE, Circuit Judges
      UNITED STATES
     COURT OF APPEALS                            (Filed May 18, 2004)
   FOR THE THIRD CIRCUIT
                                       Karen S. Gerlach, Esquire (Argued)
                                       Office of Federal Public Defender
     Nos. 03-1964 & 03-3384            1450 Liberty Center
                                       1001 Liberty Avenue
                                       Pittsburgh, Pennsylvania 15222
UNITED STATES OF AMERICA                      Attorney for Appellants
             v.
    ANDREA SCHNUPP,                    Christine A. Sanner, Esquire (Argued)
    a/k/a ANDREA LYLE                  Bonnie R. Schlueter, Esquire
                                       Office of United States Attorney
         Andrea Schnupp,               700 Grant Street, Suite 400
           Appellant at No. 03-1964    Pittsburgh, Pennsylvania 15219
                                              Attorneys for Appellee

UNITED STATES OF AMERICA
               v.
 ERIC LAMAR WORMSLEY,                        OPINION OF THE COURT
   a/k/a M ichael Wormsley,
     a/k/a Michael Wallace
                                       SCIRICA, Chief Judge.
      Eric Lamar Wormsley,
            Appellant at No. 03-3384           At issue is whether a criminal
                                       sentence served in an alternative housing
                                       facility such as a halfway house can
       On Appeal from the              quali fy as “a prior sentence of
United States District Court for the   imprisonment” under § 4A1.1 of the U.S.
 Western District of Pennsylvania      Sentencing Guidelines for the purpose of
 D.C. Criminal No. 02-cr-00279         calculating the criminal history score. In
(Honorable Donetta W. Ambrose)         two separate cases before us, United States
 D.C. Criminal No. 02-cr-00203         v. Schnupp, No. 03-1964, and United
(Honorable Maurice B. Cohill, Jr.)     States v. Wormsley, No. 03-3384,
                                       defendants contend their prior sentences
                                       served in halfway houses should be
     Argued February 9, 2004           classified under § 4A1.1 as “prior
                                       sentences,” not “prior sentences of
                                       imprisonment.” Defendants seek to vacate
and remand for resentencing.           We will           But the judge also permitted alternative
affirm.                                                  housing. The state court’s judgment3
                                                         reads:
                        I.
                                                                And now [count two] Jan 08 1998,
                       A.
                                                                in open court, defendant appearing
        Andrea Schnupp pled guilty to                           with counsel, sentenced to pay a
fraudulently receiving Social Security                          fine of 6¼¢ to the Commonwealth.
benefit payments in violation of 42 U.S.C.                      Pay costs of prosecution and
§ 408(a)(5). 1 The presentence report                           undergo an imprisonment of 6 mos
(PSR) designated an adjusted offense level                      in the Allegheny County Jail and
of 8 and a criminal history score of 7 –                        stand committed. Eff 3-9-98.
three points under U.S.S.G. § 4A1.1(a) for
                                                                And now [count three] Jan 08
a 1998 narcotics conviction; one point
                                                                1998, in open court, defendant
under § 4A1.1(c) for a conviction for
                                                                appearing with counsel, sentenced
resisting arrest and disorderly conduct; two
                                                                to pay a fine of 6¼¢ to the
points under § 4A1.1(d) for committing
                                                                Commonwealth.       Pay costs of
the instant offense while on parole; and
                                                                prosecution and undergo an
one point under § 4A1.1(e) for committing
                                                                imprisonment of 6 mos in the
the instant offense within two years of
                                                                Allegheny County Jail and stand
being released from a sentence of
                                                                committed. Consec. [consecutive]
imprisonment.       Schnupp’s sentencing
                                                                Ct 2 with work release[.]
guideline range was 10-16 months.
          Schnupp contests the assignment of
criminal history points on her 1998 state                       partial confinement for:
narcotics conviction. In 1998, a state                          ...
judge sentenced Schnupp to three                                (3) maximum terms of less than
c o n s e c u t iv e six - m o n t h t e r m s o f              two years shall be committed to a
imprisonment in the Allegheny County                            coun ty prison with in the
jail. See 42 Pa. Cons. Stat. § 9762(3). 2                       jurisdiction of the court except that
                                                                as facilities become available on
                                                                dates and in areas designated by the
       1
     From December 1997 to May 2001,                            G o v e r n o r i n p r o c la m a t i o ns
Schnupp had withdrawn approximately                             declaring the availability of State
$26,942.80 in Social Security funds from                        correctional facilities, such persons
her son’s direct deposit account after her                      may be committed to the Bureau of
son had become self-sustaining and                              Correction for confinement.
employed.
                                                            3
                                                             The portions appearing in italics were
   2
       42 Pa. Cons. Stat. § 9762 specifies:              either handwritten or added with a date
          All persons sentenced to total or              stamp to the pre-printed form.

                                                     2
        And now [count four] Jan 08 1998,         IV. With an offense level of 8, her
        in open court, defendant appearing        guideline sentencing range would have
        with counsel, sentenced to pay a          been 6-12 months instead of 10-16
        fine of 6¼¢ to the Commonwealth.          months, and she would have been eligible
        Pay costs of prosecution and              for probation together with home
        undergo an imprisonment of 6 mos          detention, intermittent confinement, or
        in the Allegheny County Jail and          community confinement.
        stand committed. Consec. Ct 3[.]
                                                          The District Court rejected
        Alt hsng [alternative housing] as
                                                  Schnupp’s argument and assigned her a
        arranged with work release[.]
                                                  split sentence of five months imprisonment
Schnupp served her sentence by spending           followed by five months of home
15 months at the Alcohol Rehabilitation           detention, three years of supervised
House (“ARC House”), a halfway house              release, and restitution of $25,900.
that permits work release and judicially          Schnupp appealed, seeking to vacate and
authorized holiday passes.                        remand.
       Schnupp contends the plain                                     B.
meaning of “sentence of imprisonment” in
                                                         Eric Lamar Wormsley pled guilty to
U.S.S.G. § 4A1.1(a) requires actual
                                                  possession of a firearm in violation of 18
imprisonment in a prison or jail. Because
                                                  U.S.C. § 922(g) and possession with intent
she served her sentence in a halfway
                                                  to distribute heroin in violation of 21
house, not a jail, she argues, her prior
                                                  U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
sentence does not qualify as a “sentence of
                                                  Wormsley’s PSR calculated his base
imprisonment” under § 4A1.1(a), and her
                                                  offense level at 21 and his criminal history
1998 conviction should be classified
                                                  score at 10. W ormsley was assigned two
instead as a “prior conviction” under §
                                                  criminal history points each under §
4A1.1(c).    With this reclassification,
                                                  4A1.1(b) for his prior convictions in 1996,
Schnupp would have received only four
                                                  1997 and 1998; one point each under §
criminal history points,4 placing her in
                                                  4A1.1(c) for prior convictions in 1997 and
criminal history category III rather than
                                                  1999; and two points under § 4A1.1(e) for
                                                  committing the instant offense while on
                                                  probation, for a total of ten criminal
    4
      Schnupp contends she should have            history points. This placed Wormsley in
received one point each under § 4A1.1(c)          criminal history category V, and combined
for the prior 1998 narcotics conviction and       with the offense level of 21, resulted in a
the 1993 resisting arrest and disorderly          guideline range of 70-87 months of
conduct conviction, and two points under          imprisonment.
§ 4A1.1(d) because the offense was
                                                        Wo rmsley objec ted to th e
committed while on probation, for a total
                                                  assignment of two criminal history points
of four criminal history points.

                                              3
to his 1998 conviction. The state court            We exercise plenary review of the
judge sentenced Wormsley5 as follows:              interpretation of the sentencing guidelines.
                                                   United States v. Figueroa, 105 F.3d 874,
       And now 8-3-99, Defendant
                                                   875-76 (3d Cir. 1997).         We review
       sentenced to pay a fine of 6¼¢ to
                                                   deferentially the District Co urt’s
       the Commonwealth. Pay costs of
                                                   application of the guidelines to the facts,
       prosecution, and undergo an
                                                   applying the clear error standard. Buford
       imprisonment of not less than 3 or
                                                   v. United States, 532 U.S. 59, 64 (2001);
       more than 6 months in the
                                                   United States v. Zats, 298 F.3d 182, 185
       Allegheny County Jail and stand
                                                   (3d Cir. 2002).
       committed. [E] ffective 9-14-99.
       Defendant is permitted Alternative                              III.
       Housing at ARC-Goodwill-ACTA.
                                                                       A.
       Defendant to pay costs.
                                                          U.S.S.G. § 4A1.1 provides the
       Wormsley raised the same
                                                   following instructions to calculate criminal
argument as did Schnupp. Because he
                                                   history scores for sentencing purposes:
served his sentence in ARC House,
Wormsley contended the 1998 prior                         The total points from items (a)
sentence should not be categorized as a                   through (f) determine the criminal
“sentence of incarceration of at least sixty              history category in the Sentencing
days” as specified by § 4A1.1(b), but                     Table in Chapter Five, Part A.
rather as a “prior sentence” under §
                                                          (a) Add 3 points for each prior
4A1.1(c). Under this calculation, his
                                                          sentence of imprisonment
criminal history score would have been 9,
                                                          exceeding one year and one month.
his adjusted offense level 21, and his
sentencing guideline range 57-71 months                   (b) Add 2 points for each prior
instead of 70-87 months. The District                     sentence of imprisonment of at
Court rejected this argument and sentenced                least sixty days not counted in (a).
Wormsley to 80 months in prison.
                                                          (c) Add 1 point for each prior
Wormsley timely appealed.
                                                          sentence not counted in (a) or (b),
                    II.                                   up to a total of 4 points for this
                                                          item.
       We have jurisdiction under 18
U.S.C. § 1291. In addition, 18 U.S.C. §§                  (d) Add 2 points if the defendant
3742(a)(1) and (a)(2) confer appellate                    committed the instant offense while
jurisdiction to review criminal sentences.                under any criminal justice sentence,
                                                          including probation, p arole ,
                                                          supervised release, imprisonment,
  5                                                       work release, or escape status.
    Portions in italics were handwritten on
the preprinted form.

                                               4
       (e) Add 2 points if the defendant            states, “[t]he term ‘sentence of
       committed the instant offense less           imprisonment’ means a sentence of
       than two years after release from            incarceration and refers to the maximum
       imprisonment on a sentence                   sentence imposed.” U.S.S.G. § 4A1.2(b)
       counted under (a) or (b) or while in         (2003). The guidelines provide no further
       imprisonment or escape status on             guidance on whether a “sentence of
       such a sentence. If 2 points are             incarceration” for these purposes requires
       added for item (d), add only 1 point         confinement in a prison or jail. Black’s
       for this item.                               Law Dictionary defines “imprisonment” as
                                                    “[t]he act of confining a person, esp. in a
U.S.S.G. § 4A1.1 (2003). The sentencing
                                                    prison; the state of being confined.”
guidelines define the term “prior sentence”
                                                    Black’s Law Dictionary 760 (7th ed.
as “any sentence previously imposed upon
                                                    1999). “Incarceration” is similarly defined
adjudication of guilt.” Id. § 4A1.2(a)(1).
                                                    as “[t]he act or process of confining
        At issue is how to define the term          someone.” Id. at 764. A person may be
“sentence of imprisonment” found in §§              confined if he is “[held] within bounds [or]
4A1.1(a) and (b) for criminal history               restrain[ed] from exceeding boundaries.”
scoring purposes. Defendants claim that a           Id. at 476. Nevertheless, neither the
“sentence of imprisonment” must be spent            guidelines, its commentary, nor common
in a prison, jail or jail-type institution in       usage reflect whether the term “sentence
order to assign criminal history points             of imprisonment” or “sentence of
under §§ 4A1.1(a) or (b). They argue that           incarceration” refers to the initial
time served at an alternative housing               pronouncement of sentence, the type or
facility, such as a halfway house, should           location of confinement, or the conditions
not qualify as “imprisonment,” even if the          of confinement.
pronounced sentence initially assigned
                                                            The Commission has offered some
them to a prison or jail. They maintain
                                                    guidance, although not in its official
they did not serve a “sentence of
                                                    c o m m e n ta r y.  In Supplemental
imprisonment” at ARC House because
                                                    Illustrations on Criminal History Scores,
they were never confined in a jail-type
                                                    the Commission stated that the sentencing
institution.
                                                    court’s pronouncement of sentence
       Although § 4A1.2 does not define             controls when calculating criminal history,
the term “sentence of imprisonment,” the            not the manner in which or location where
commentary for § 4A1.1 provides, “[t]he
definitions and instructions in § 4A1.2
govern the computation of the criminal
history points. Therefore, §§ 4A1.1 and
4A1.2 must be read together.” U.S.S.G. §
4A1.1, cmt. (2003). Section 4A1.2(b)


                                                5
the sentence is served. 6 Example D.5 of                       this would be treated as a sentence
the Supplementary Illustrations states:                        of imprisonment. If the sentence
                                                               did not involve a term of
        Residence in a halfway house
                                                               imprisonment (e.g., a sentence of
        [when assigned as a condition of
                                                               probation with a cond ition
        probation] is treated as a non-
                                                               requiring residency in a halfway
        i mp riso n m e n t s e n t e n c e f o r
                                                               house), the sentence would not be
        purposes of criminal history. Had
                                                               considered imprisonment and
        the defendant been sentenced to
                                                               would fall under § 4A1.1(c). A
        imprisonment                with       a
                                                               sentence of residency in a halfway
        recommendation for halfway house
                                                               house is not c onsidered
        placement, the sentence would be
                                                               imprisonment (see Background
        tre a t e d a s a se n t e n c e of
                                                               Commentary to § 4A1.1 (second
        imprisonment.
                                                               paragraph)).
United States Sentencing Commission,
                                                        United States Sentencing Commission,
Supplementary Illustrations on Criminal
                                                        Questions Most Frequently Asked About
History 17 (Dec. 1987). According to the
                                                        the Sentencing Guidelines, Vol. VII,
illustration, an additional condition or
                                                        question 76 (June 1, 1994). According to
recommendation specified by the judge
                                                        the Questions, therefore, a sentence of
should not alter the status of the sentence
                                                        probation or sentence to a halfway house is
as one of “imprisonment.” The decisive
                                                        not considered imprisonment, while a
factor apparently is whether the initial
                                                        sentence of imprisonment which stipulates
sentence was one of imprisonment or
                                                        or permits alternative treatment is treated
probation.
                                                        as a sentence of imprisonment for criminal
      In its publication, Questions Most                history calculation.
Frequently Asked About the Sentencing
                                                                As noted, neither the Supplemental
Guidelines, the Commission addressed
                                                        Illustrations nor the Most Frequently
whether alternative sentences counted as
                                                        Asked Questions are binding. Still, one
imprisonment for sentencing purposes.
                                                        othe r section of the guide lin es
               If the offender was                      demonstrates a preference for reliance on
        sentenced to imprisonment and as                the sentencing judge’s pronouncement of
        part of the term of imprisonment                sentence for calculation purposes, rather
        was placed on work release status,              than on the location or manner of service
                                                        by the defendant. Application Note 2 to §
                                                        4A1.2 instructs the court to determine the
    6                                                   length of the sentence by looking at the
     The Commission issued, but did not
                                                        stated maximum of the pronounced
officially adopt as commentary, the
Supplementary Illustrations to accompany
the 1987 Guidelines.

                                                    6
sentence, not at the length of the sentence        defendant’s eligibility for alternate
actually served by the defendant. 7                housing may be guided by several factors
                                                   including assessment of the defendant,
       Reliance on the pronouncement of
                                                   availability of space, and levels of
sentence rather than on the manner or
                                                   restriction. See United States v. Urbizu, 4
location of service is likely to yield more
                                                   F.3d 636, 639 (8th Cir. 1993); United
consistent application of the guidelines.
                                                   States v. Schomburg, 929 F.2d 505, 507
As noted, the judges here sentenced
                                                   (9th Cir. 1991). If the manner or location
defendants to terms of imprisonment but
                                                   of service should define “sentence of
granted permission to serve the sentences
                                                   imprisonment,” then a “prior sentence of
in an alternative housing facility. Under
                                                   imprisonment” could be determined by
Pennsylvania law, the Allegheny County
                                                   variables like availability of space. On the
jail had discretion to designate alternate
                                                   other hand, reliance on the pronouncement
housing. See Commonwealth v. Koskey,
                                                   of sentence will promote consistency in
812 A.2d 509, 512 n.3 (Pa. 2002) (“In
                                                   application of the guidelines.
Allegheny County, alternative housing is
governed by the County Jail Oversight                                   B.
Board pursuant to 16 P.S. § 6004-A.”). 8
                                                          Defendants rely on Application
This discretion in determining a
                                                   Note 2 to § 4A1.2 to support their
                                                   assertion that time must be served in a
   7
                                                   prison or jail to be classified as a “sentence
   Application Note 2 reads:                       of imprisonment.” Application Note 2
      For the purposes of applying §               reads:
      4A1.1(a), (b), or (c), the length of a
      sentence of imprisonment is the                     To qualify as a sentence of
      stated maximum . . . That is,                       imprisonment, the defendant must
      criminal history points are based on                have actually served a period of
      the sentence pronounced, not the                    imprisonment on such sentence (or,
      length of time actually served. See                 if the defendant escaped, would
      § 4A1.2(b)(1) and (2).                              have served time).        See §
U.S.S.G. § 4A1.2, appl. n.2 (2003).                       4A1.2(a)(3) and (b)(2).

       8                                           U.S.S.G. § 4A1.2, appl. n.2 (2003).
      See also Testimony of John Ross,
                                                   Defendants contend the directive that “the
ARC House Director of Admissions
                                                   defendant must have actually served a
(“[T]he judge sentences everybody to the
                                                   period of imprisonment” addresses the
Allegheny County Jail for a term of
                                                   situs and manner of the sentence and
imprisonment and recommends alternative
                                                   requires service in a jail-type institution,
housing. It’s up to the jail to determine
                                                   not an alternative housing facility like a
whether or not they would be eligible for
                                                   halfway house. But this argument does not
alternative housing and Ms. Schnupp
                                                   address the meaning of “imprisonment” or
was.”).

                                               7
the type, nature or level of confinement. A        and sentences served in an alternate
straightforward reading of Application             housing facility. Therefore Application
Note 2 is that it refers to a temporal             Note 2 cannot support the proposition that
concept — the period of time the                   § 4A1.1 requires a sentence to be served in
defendant served or would have served in           a jail-type institution. See Urbizu, 4 F.3d
the event of an escape.                            at 638 (rejecting a similar argument
                                                   regarding Application Note 2 and holding
        The citation at the end of
                                                   that a sentence of imprisonment served on
Application Note 2 refers to §§
                                                   work release was a “sentence of
4A1.2(a)(3) and (b)(2).            Sectio n
                                                   imprisonment”).
4A1.2(a)(3) provides that, for criminal
history computation purposes, sentences                  Defendants also claim that
that have been suspended should be                 Application Note 6 to § 4A1.1 dictates that
classified as “prior sentences,” not “prior        a sentence of imprisonment under §§
sentences of imprisonment.” 9 Section              4A1.1(a) and (b) must be served in a
4A1.2(b)(2) specifies that, where part of a        prison or jail, not a halfway house.
sentence is suspended, that portion is             Application Note 6 instructs:
properly excluded in calculating the
                                                           Subdivisions (a), (b), and (c) of §
sentence’s length. As a result, suspended
                                                           4A1.1 distinguish confinement
incarceration time that was not served in
                                                           sentences longer than one year and
any facility is not counted as prison time.
                                                           one month, shorter confinement
United States v. Jones, 107 F.3d 1147,
                                                           sentences of at least sixty days, and
1167 (6th Cir. 1997) (Krupansky, J.,
                                                           all other sentences, such as
dissenting) (“[S]uspended incarceration
                                                           confinement sentences of less than
time will not be served anywhere, and
                                                           sixty days, probation, fines, and
hence is not counted as prison sentence
                                                           residency in a halfway house.
time.”). Sections 4A1.2(a)(3) and (b)(2)
do not distinguish between sentences               U.S.S.G. § 4A1.1, appl. n.6 (2003). But
“actually served” in a jail-type institution       Application Note 6 does not specify that it
                                                   is the manner in which a sentence is served
                                                   that dictates whether a sentence is a
        9
         Section 4A1.2(a)(3) states: “A            “sentence of imprisonment.” Furthermore,
conviction for which the imposition or             the Note contains no definition of
execution of a sentence was totally                confinement. Application Note 6 does not
suspended or stayed shall be counted as a          advance defendants’ argument.
prior sentence under § 4A1.1(c).” Section
                                                                         IV.
4A1.2(b)(2), in turn, specifies: “If part of
a sentence of imprisonment was                            The     pr ono u n c e d s e n t en c e ,
suspended, ‘Sentence of imprisonment’              therefore, determines the criminal history
refers only to the portion that was not            score. A sentence to prison or jail is
suspended.”

                                               8
“sentence of imprisonment” under §                received prior sentences of imprisonment
4A1.1(a) and (b) and results in the               under § 4A1.1(a) and (b), respectively,
assignment of additional points, whether          plus additional points under § 4A1.1(e).
or not permission is given for work               The District Court properly held that
release, furlough or placement in a less          d e f e n d a n ts ’ p r i o r s e n t e n c e s o f
restrictive alternative facility.                 imprisonment increased their criminal
                                                  history calculations.
        The sentencing judges here
imposed upon each defendant a sentence
of imprisonment in the Allegheny County
jail.10  Both Wormsley and Schnupp
                                                          Q: What would have happened if
                                                          Ms. Schnupp would have left
   10                                                     without that permission?
     ARC House Director of Admissions
John Ross described the procedure by
                                                          A: We would have went back to the
which Ms. Schnupp was sentenced by the
                                                          judge and reported her as an
judge and housed at ARC House:
                                                          escaped prisoner. A warrant would
       Q: Based on your review and your
                                                          have been issued. We would also
       knowledge of ARC House and the
                                                          have notified the Allegheny County
       Allegheny County prison system,
                                                          Jail and the county police.
       was Ms. Schnupp sentenced to a
       term of imprisonment?
                                                          Q: Was Ms. Schnupp, while at your
                                                          facility, considered an inmate of the
        A: Yes. The way that works is the
                                                          Allegheny County Jail?
        judge sentences everybody to the
        Allegheny County Jail for a term of
                                                          A: Yes, she is an open file and a
        imprisonment and recommends
                                                          record is kept on her. When I get
        alternative housing. It’s up to the
                                                          her out of jail, she is released to my
        jail to determine whether or not
                                                          custody. I have to sign for her
        they would be eligible for
                                                          release.
        alternative housing and Ms.
                                                          ...
        Schnupp was.
                                                          Q: To your knowledge, did Judge
                                                          McGregor have the option to
        Q: Was Ms. Schnupp free to come
                                                          sentence Ms. Schnupp to
        and go at her own choosing from
                                                          intermediate punishment in this
        ARC House when she was there?
                                                          case?
        A: No, she is not. She has to have                A: Yes, sir.
        permission to do so both by the
                                                          Q: Did he do so?
        Court and by the staff at ARC
        House.                                            A: No, sir.

                                              9
                    V.                                    In United States v. Ruffin, the Court
                                                   of Appeals for the District of Columbia
        Other courts of appeals have relied
                                                   considered the prior sentence of the
on the pronouncement of sentence, not the
                                                   defendant “for imprisonment for a period
location or manner of service, in
                                                   of (1) one year. Work release ordered.
calculating the criminal history score. In
                                                   Hours: 6:00 AM thru 6:00 PM Monday
United States v. Schomburg, the Court of
                                                   thru Friday.” 40 F.3d 1296, 1299 (D.C.
Appeals for the Ninth Circuit held that a
                                                   Cir. 1994). The court concluded the
defendant’s prior sentence to a county jail
                                                   defendant “actually served a period of
was properly classified as a “sentence of
                                                   imprisonm ent” for criminal history
imprisonment” under § 4A1.1(b) even
                                                   calculation purposes, even though he was
though the defendant served his sentence
                                                   allowed to leave the facility on a weekday
by participating in a weekend work project
                                                   work release pass. Id.
administered by the sheriff. 929 F.2d 505,
507 (9th Cir. 1991). The court held that,                  The Courts of Appeals for the Fifth
while the sheriff had the discretion to            and Sixth Circuits have stated in dicta that
modify the defendant’s sentence, it was            the original pronounced sentence, not the
“the sentence, as pronounced by the court          judge’s recommendation or the actual
at the outset” that determined its                 location or manner of serving the sentence,
classification under the guidelines. Id. at        should be relied upon for sentencing
507; see also United States v. Latimer, 991        guideline calculations. See United States
F.2d 1509, 1515 (9th Cir. 1993).                   v. Valdez-Valdez, 143 F.3d 196, 202 n.41
                                                   (5th Cir. 1998) (“We note in passing that
        Similarly, in United States v.
                                                   Valdez did not argue that his work release
Urbizu, the defendant was sentenced to a
                                                   was not a ‘sentence of imprisonment’
six-month term of imprisonment in a “jail
                                                   under the Guidelines. Such an argument
type institution” but instead served five
                                                   would likely fail as well.”); United States
months in a halfway house. 4 F.3d at 638.
                                                   v. Rasco, 963 F.2d 132, 136 n.4 (6th Cir.
The Court of Appeals for the Eighth
                                                   1992) (“Had the defendant been sentenced
Circuit found that Application Note 2 to §
                                                   to imprisonment with a recommendation
4A1.2 could not be used by the defendant
                                                   for halfway house placement, the sentence
“to characterize his five-month stint in a
                                                   would be treated as a sentence of
halfway house as something other than
                                                   imprisonment.”).
imprisonment.” Id. In affirming the
district court’s reliance on the sentencing               Defendants cite to United States v.
court’s written judgment in awarding two           Pielago, 135 F.3d 703 (11th Cir. 1998), for
criminal history points under § 4A1.1(b),          the proposition that a sentence to a
the court held that the nature of a                halfway house is not a “sentence of
defendant’s prior confinement should be            imprisonment.” In Pielago, the Court of
determined by the prior sentencing court’s         Appeals for the Eleventh Circuit held that
pronouncement of sentence. Id.                     a prior term of confinement in a

                                              10
community treatment center cannot be                 and was not an additional term of
treated as a “sentence of imprisonment”              imprisonment. Id. at 1021. In contrast,
under § 4A1.1. Id. at 705. But the court             defendants here were sentenced directly to
based its decision on the assumption that            jail and permitted to serve that
the sentencing judge sentenced the                   imprisonment term in an alternative
defendant directly to the community                  housing facility.
treatment center. Id. at 712-13 (“Pielago’s
                                                                        VI.
stay in a community treatment center was
not the consequence of a parole violation.                  The sentencing judges correctly
He was sentenced directly to that                    applied the sentencing guidelines in
confinement.”).      This distinction is             calculating the defendants’ criminal
essential. Here, Schnupp and Wormsley                history scores.    We will affirm the
were sentenced directly to imprisonment in           judgments of conviction and sentences in
the Allegheny County jail with permission            both United States v. Schnupp and United
for work release and alternative housing.            States v. Wormsley.
       One court of appeals has interpreted
“imprisonment” to denote time actually
                                                     UNITED STATES OF AMERICA v.
spent in a prison. See United States v.
                                                     ANDREA SCHNUPP, a/k/a ANDREA
Elkins, 176 F.3d 1016 (7th Cir. 1999). But
                                                     LYLE
the facts in Elkins differ substantially from
those here. In Elkins, the defendant was             Andrea Schnupp,       Appellant   at   No.
sentenced to tw enty-four mo nth s                   03-1964
imprisonment, plus five years of
                                                     UNITED STATES OF AMERICA v.
supervised confinement upon his release
                                                     ERIC LAMAR WORMSLEY, a/k/a
from confinement, with the first 120 days
                                                     Michael Wormsley, a/k/a Michael Wallace
of supervised release to be served in a
community correctional center. Id. at                Eric Lamar Wormsley, Appellant at No.
1019.       The defendant argued that                03-3384
community confinement was a form of
                                                     McKee, Circuit Judge, concurring.
imprisonment, so the two components of
his sentence were redundant. The court                      I join in the analysis of my
rejected this argument, drawing a                    colleagues because I agree that the
distinction between the sentence of                  principles of statutory construction their
imprisonment and subsequent sentence to              analysis relies upon dictate the result in
community confinement up on th e                     these cases. We therefore must hold that
defendant’s release. Id. at 1020. The                the “pronounced sentence. . . determines
court found that community center                    the criminal history score” for purposes of
confinement resulted from an order of                determining whether a prior sentence is a
supervision related to supervised release            “sentence of im prisonment” under


                                                11
U.S.S.G. § 4A1.1. However, I write                    principles of statutory construction require
separately to call attention to the fact that         a different conclusion.
this result leads to unintended and unjust
                                                              Had this precise question been
disparities in awarding criminal history
                                                      considered when the guidelines were
points. These disparities arise because the
                                                      drafted, I believe subsection (c) would
manner of pronouncing sentences of
                                                      have been worded differently. At the very
imprisonment will often be governed by
                                                      least, language would have been added to
factors that have nothing to do with
                                                      address alternative sentences by either
assessments that the guidelines attempt to
                                                      distinguishing them from             “prior
incorporate into a defendant’s criminal
                                                      sentence(s ) of imprisonment,” or
history category. As I shall explain,
                                                      specifically directing how such alternative
serendipity can often play as significant a
                                                      confinement should be treated under §
role in the way a sentence is pronounced as
                                                      4A1.1. Instead, the guidelines contain the
the prior judge’s assessment of the need to
                                                      “catch all” reference to “sentence[s] not
incarcerate.
                                                      counted in [§ 4A1.1] (a) or (b).”
           Given the wording of § 4A1.1 and
                                                             We rely upon the pronounced
the structure of the sentencing guidelines,
                                                      sentence because we assume that
I doubt that Congress or the Sentencing
                                                      pronouncement is the best way to
Commission actually considered whether
                                                      determine the sentencing court’s intent.
confinement in “alternative housing” is
                                                      We further assume that the sentencing
t a n t a m o u n t t o a “ s e n te n c e o f
                                                      judge’s intent regarding where a defendant
imprisonment” for purposes of calculating
                                                      is to be confined is more germane to a
a criminal history category when the
                                                      subsequent criminal history category than
guidelines were initially drafted. As my
                                                      whether the defendant was actually
colleagues note, U.S.S.G. §§ 4A1.1(a) and
                                                      confined in a prison or jail-type facility as
(b) both refer to a “sentence of
                                                      opposed to alternative housing. However,
imprisonment . . . . ” Yet, subsection (c)
                                                      that pronouncement is not necessarily
of that guideline refers only to “each prior
                                                      more relevant to a subsequent § 4A1.1
sentence not counted in (a) or (b) . . . .”
                                                      calculation than any accompanying
This certainly suggests that the “prior
                                                      sentencing recommendation.          In fact,
sentence” referenced in subsection (c) is to
                                                      consideration of the actual place of
be distinguished from a “sentence of
                                                      confinement will often tell a subsequent
imprisonment.” The latter obviously refers
                                                      court far more about a defendant’s
to incarceration in a prison or jail-type
                                                      background than the precise language used
facility. The guideline therefore appears to
                                                      in imposing a prior sentence.
distinguish between such incarceration and
other sentences.         However, as my                     In the cases before us, the
colleagues explain, the applicable                    sentencing judge did articulate that the
                                                      defendants were to “undergo an


                                                 12
imprisonment [for] . . .” a given period.                 Therefore, a sentencing judge lost
See Maj. Op. at 2-4. In Schnupp’s case,                   authority to confine a defendant in
the court added “[alternative housing] as                 alternative housing if the defendant
arranged with work release.”                  In          received a “state sentence.” However, a
Wormsley’s case, the court stipulated that                judge could sentence such a defendant to
Wormsley was “permitted Alternative                       alternative housing by imposing a
Housing at ARC . . . .” Id. Both                          probationary sentence and ordering a
defe ndan ts ultimately served their                      certain period of residency at an
sentences in the alternative housing rather               appropriate alternative facility (including
than the county jail, just as the judge
recommended. A brief discussion of the
manner in which judges pronounce
s e n t e n c es i n P e n n sy lv a n i a w i l l
demonstrate why that is more significant to
a subsequent calculation under § 4A1.1                    than two years but less than five years
than the manner in which the sentences                    could be committed to the state prison
were pronounced.                                          under the Bureau of Corrections or to a
                                                          county prison within the jurisdiction of the
        Prior to 1990, a state trial judge in
                                                          court, at the discretion of the sentencing
Pennsylvania had two options if he/she
                                                          judge. 42 Pa. C.S.A. § 9762(2). Thus,
wanted to impose a sentence of
                                                          when imposing such a sentence, a court
confinement. The judge could either
                                                          also had authority to commit defendants to
impose a state sentence or a county
                                                          the Bureau of Corrections for confinement
sentence. 42 Pa. C.S.A. § 9762. If the
                                                          when “facilities become available . . .[as]
sentence that was imposed had a maximum
                                                          de signa te d by the G o vernor i n
period of incarceration of five or more
                                                          proclamations declaring the availability of
years, it was deemed a state sentence and
                                                          State correctional facilities. . . .” 42 Pa.
the defendant had to be incarcerated in a
                                                          C.S.A. § 9762(3).
state prison. Such defendants were in the
custody and control of the Pennsylvania                          Therefore, considerations of space
Bureau of Corrections, and the Bureau                     could affect how a sentence was
therefore determined where the defendant                  pronounced despite my colleagues’ belief
would be incarcerated. If the sentence had                that relying upon the pronouncement
a maximum term of less than two years,                    rather than the place of confinement will
the defendant was to be “committed to a                   negate such extraneous factors as
county prison within the jurisdiction of the              availability of space. See Maj. Op. at 7
court.” 42 Pa. C.S.A. § 9762(3). 11                       (“This discretion in determining a
                                                          defendant’s eligibility for alternate
                                                          housing may be guided by several factors
   11
    Defendants who were sentenced to a                    including assessment of the defendant,
maximum period of incarceration of more                   availability of space . . . ”).

                                                     13
successful completion of inpatient                      including an inpatient treatment program.
treatment) as a condition of probation.12               However, the judge could also impose a
                                                        sentence of less than two years in jail and
        However, in 1990, the Pennsylvania
                                                        recommend that the defendant be
legislature enacted 42 Pa. C.S.A. § 9763,
                                                        transferred to alternative housing, or
which specifically permits a court to
                                                        directly pr onounc e a pe r iod of
sentence a defendant receiving a county
                                                        confinement in alternative housing (with
sentence to intermediate punishment or
                                                        or without the component of inpatient
“partial confinement” in alternative
                                                        treatment). For purposes of a subsequent
housing such as a halfway house or
                                                        inquiry under § 4A1.1, the only distinction
inpatient program.13 Accordingly, after
                                                        between those sentences may well have
1990, a state judge in Pennsylvania who
                                                        been nothing more than the habits of
wanted a defendant to be confined in
                                                        different judges.
alternative housing rather than a jail or
prison had several options. The judge                           As noted above, the sentences here
could still give a probationary sentence                were pronounced as sentences of
and impose the condition of a given period              imprisonment with a recommendation that
of confinement in alternative housing                   they be served in alternative housing, ARC
                                                        House. However, even assuming that we
                                                        can therefore conclude that the sentencing
   12
       I will elaborate upon the significance           judges pronounced a “sentence of
of this in greater detail below. For now, it            imprisonment,” we still learn little about
suffices to note that, given sentencing                 the particular offender. This is true
regimes like the one in Pennsylvania prior              because sentences may be pronounced in a
to 1990, the distinction drawn by the                   particular manner simply to allow the
S e n t e n c in g C o m m i s s i o n i n i t s        alternative housing facility to be
Supplemental Illustrations on Criminal                  reimbursed under its contract with a given
History Scores between imposing a stay at               county. See Commonwealth v. Garbisch,
a halfway house as a condition of                       No. CC 20010301 (Pa. Ct. of Common
probation and pronouncing a jail sentence               Pleas, Allegheny Cty., filed Feb. 6,
with a recommendation that the                          2003). 14
confinement be in a halfway house was                          In Garbisch, the sentencing judge
often an illusory distinction at best, see              entered into a discussion with the director
Maj. Op. at 5-6, because it often said more
about the authority of the sentencing judge
than the culpability of the defendant.
                                                            14
                                                               Garbisch is an unreported opinion
  13
    This change in the sentencing scheme                that may be found on the website kept by
is discussed in Comm onwealth v.                        the Allegheny County Bar Association at
Conahan, 589 A.2d 1107, 1110 n.1 (Pa.                   http://www.acba.org/scripts/cr2br.pl?/opi
1991).                                                  nion/03053004.opn.

                                                   14
of the Program for Female Offenders, a                     housing of inmates there.
program maintained to provide alternative                  The County paid for the
housing and rehabilitation options for                     construction of the facility
female defendants “sentenced to serve                      out of which the Program
periods of incarceration in the Allegheny                  operates. For all practical
County Jail.”      The program director                    purposes, the Program
explained that under the terms of his                      operates as an adjunct to the
contract with Allegheny County, the                        County Jail. The contract
warden of the county jail referred suitable                makes it clear that as such
inmates to the program for housing, and                    an adjunct, its operation is
the program was then reimbursed by the                     to be supervised by the
county. 15 A judge who wanted to confine                   Warden. . . . It is the Court
a defendant at the Program for Female                      that directs the Warden
Offenders was therefore compelled to                       whether a particu lar
pronounce a sentence of imprisonment in                    defendant may be . . .
the county jail with a recommendation that                 released to serve th e
she be transferred to alternative housing.16               sentence at an alternative
 That appears to be what happened in                       housing facility. . . .
Garbisch, and it may explain why
                                                    Garbisch, at *3-4 (citing to 42 Pa. C.S.A.
Schnupp’s and Wormsley’s sentences were
                                                    § 9751 et seq.).
pronounced as they were. In Garbisch, the
court explained:                                            The arrangement in Garbisch was
                                                    dictated to a large extent by the
          The program is completely
                                                    jurisdiction of the Allegheny County
          funded by the County
                                                    Board of Prisons, which had ultimate
          through its payments for the
                                                    jurisdiction over the jails in Allegheny
                                                    County. The Board had, in turn, delegated
    15
                                                    some of that authority to the warden of the
        Counties are more than willing to           county jail. However, the legislation
enter into such contracts with appropriate          establishing that Board applies only to
facilities because defendants can usually           Pennsylvania cities of the second class,
be housed for less money in the less secure         and therefore excludes most of the
facilities than in the county jail.                 jurisdictions in Pennsylvania including the
     16                                             Commonwealth’s largest jurisdiction,
         Given the dialogue between the
                                                    Philadelphia. It would therefore have been
director of the program and the sentencing
                                                    very misleading to afford sentencing
court, it appears that the Program could
                                                    pronouncements in Allegheny County the
not accept inmates directly from court
                                                    same significance as pronouncements in
under the terms of its contract or under the
                                                    Philadelphia County irrespective of any
administrative structure in Allegheny
County at the time.

                                               15
accompanying recommendation by the                    upon residence in alternative housing or
sentencing judge.                                     successful completion of an inpatient
                                                      program.
        By way of further illustration, I note
that my colleagues cite part of the                           Although one could argue that it is
discussion that occurred between the                  appropriate to distinguish the former from
sentencing judge in Schnupp’s case and                the latter because one situation involves a
John Ross, ARC’s director of admissions.              pronounced sentence of jail and the other
Ross explained the relationship between               a sentence of probation, that argument
his program and the courts in Allegheny               loses much of its force when we consider
County.      He explained that judges                 the situation after 1990. After 1990, the
“sentence[] everybody to the Allegheny                sentencing court could simply sentence a
County Jail for a term of imprisonment                defendant to a period of intermediate
and recommend[] alternative housing. It’s             punishment in alternative housing or an
up to the jail to determine whether or not            inpatient drug program. See 42 Pa. C.S.A.
they would be eligible for alternative                § 9763(c). Pennsylvania courts have
housing and Ms. Schnupp was.” Maj. Op.                concluded that the Pennsylvania legislature
at 7 n.8. That arrangement arises from the            “intended imprisonment and intermediate
particular relationsh ip of c oun ty,                 punishment to be mutually exclusive, to be
sentencing judge, and program as well as              treated differently.” Commonwealth v.
the jurisdiction of the Allegheny County              Koskey, 812 A.2d 509, 513-14 (Pa. 2002).
Board of Prisons.                                     Accordingly, relying upon the definition of
                                                      “imprisonment” under the sentencing law
       I delve into this level of detail
                                                      of Pennsylvania, a subsequent § 4A1.1
because it demonstrates the problems that
                                                      analysis would define the pre-1990 jail
are endemic in attaching too much
                                                      sentence with a recommendation for
significance to the manner of pronouncing
                                                      alternative housing as a prior “sentence of
an earlier sentence and ignoring an
                                                      imprisonment.”        Yet, a subsequent
accompanying recommendation when
                                                      sentence of confinement in alternative
subsequently attempting to calculate a
                                                      housing would not be a “prior sentence of
sentence under § 4A1.1. If a defendant
                                                      imprisonment” under § 4A1.1.            The
had been sentenced in Pennsylvania when
                                                      difference stems from no offender
a judge who wanted to impose a custodial
                                                      characteristic and it tells us nothing about
sentence in alternative housing had to
                                                      a prior judge’s assessment of a defendant
sentence a defendant to the county jail, “a
                                                      or the defendant’s level of culpability.
sentence of imprisonment” may well have
                                                      Rather, the distinction in the sentences
been pronounced with an appropriate
                                                      pronounced arises entirely from the
“recommendation” for alternative housing.
                                                      intervening change in the law or, as
On the other hand, the defendant may have
                                                      illustrated by Garbisch, from the
received an identical sentence pronounced
                                                      contractual relationship of the entities
as a sentence of probation conditioned

                                                 16
involved in carrying out a “sentence” of                       defendant on probation, but
alternative housing. Therefore, I can not                      requires that confinement in
a g r e e t h a t “ [ r ] e li a n c e o n t h e               the county corrections
pronouncement of sentence rather than on                       residential center be made a
the manner or location of service is likely                    condition of probation. If a
to yield more consistent application of the                    defendant is committed
guidelines.” Maj. Op. at 7.                                    under a sentence, the
                                                               commitment must be made
        Moreover, this problem is not
                                                               to the custody of the
unique to Pennsylvania.       Rather, the
                                                               Secretary of Corrections,
disparity is relevant when comparing
                                                               who may the n utilize
various sentences from different states. A
                                                               c ommuni ty c o r r e c tions
cursory comparison of various states’ laws
                                                               facilities by contract in
illustrates this.
                                                               carrying out programs to
       In Kansas, a judge could not                            rehabilitate a convicted
sentence a felony offender to alternative                      felon.
housing under state law at the time the
                                                        Id. at 1276.
defendant was sentenced in State v.
Fowler, 710 P.2d 1268 (Kan. 1985).                             Similarly, in the District of
However, as in Pennsylvania before 1990,                Columbia, prisoners are sentenced to the
a judge could accomplish the same result                custody of the Attorney General for a
by imposing a period of probation and                   period of time and thereupon placed in the
conditioning the probation upon successful              custody of the Corrections Department of
confinement in a residential center. The                the District of Columbia pursuant to a
court in Fowler explained: “[i]f the trial              delegation of authority from the Attorney
court actually imposes a sentence of                    General to the Commissioner of the
commitment and desires to place the                     District. The Commissioner has statutory
defendant in a community corrections                    authority to transfer prisoners “to any
residential center, it may do so only by                available suitable or appropriate institution
placing the defendant on probation and                  or facility (including a residential
making confinement in the community                     community treatment center). . .”.17
corrections residential center a condition                     Sentences pronounced under such
of his probation.” Id. at 1274 (emphasis                sentencing schemes will later be “a prior
added). The court also stated:                          sentence of imprisonment” under U.S.S.G.
        the legislative scheme . . .
        permits a sentencing court
                                                              17
        to utilize a community                                   This authority is pursuant to a
        corrections center through                      Department of Justice order. See United
        the process of placing the                      States v. Venable, 316 A.2d 857, 858 n.3
                                                        (App. D.C. 1974).

                                                   17
§ 4A1.1 because the prior sentencing judge           A.2d 836, 838 (Del. 1999). Similarly, in
lacked authority to sentence directly to a           certain instances, Ohio requires that a
community sanctions facility, not because            judge specifically state whether he or she
the judge intended to incarcerate a                  is sentencing a defendant to a community-
defendant in a jail-type facility. The actual        based facility such as a halfway house. In
intent to avoid “incarceration” is only              State v. Salter, 2000 WL 1038178 (Ohio
revealed through the sentencing court’s              App. Jul. 27, 2000), the court was
recommendation.                                      reviewing a sentence imposed under Ohio
                                                     Revised Cod e § 451 1.99(A )(4)(a)
        However, in Colorado (as in
                                                     pertaining to sentencing for drunk driving.
Pennsylvania after 1990), a sentencing
                                                     The court stated: “When sentencing an
judge can simply impose “[a] direct
                                                     offender to a mandatory term of local
sentence to community corrections . . .”.
                                                     incarceration, the court shall specify
Beecroft v. Colorado, 874 P.2d 1041, 1045
                                                     whether the term is to be served in a jail, a
(Colo. 1994). 18 Delaware also gives
                                                     community-based correctional facility, a
sentencing courts the authority to sentence
                                                     halfway house, or an alternative residential
directly to confinement in a halfway house
                                                     facility.” 2000 WL 1038178 at *1 (internal
or similar facility.19 See Walt v. State, 727
                                                     citation and quotation marks omitted).
                                                     Similarly, under Ohio Revised Code §
  18
                                                     2929.16, Ohio courts are specifically
     Any subsequent consideration of such            authorized to sentence first degree felons
a sentence under § 4A1.1 is further                  to “non-prison alternatives.” See State v.
complicated by the fact that Colorado                Winstead, 2004 WL 720331 (Ohio App.
distinguishes non-residential status at a            Apr. 5, 2004). 20 That statute expressly
community correction facility from                   authorizes the trial court to sentence
residential status at a community                    certain felony offenders to a period of
correction facility. See generally People v.
Hoecher, 822 P.2d 8 (Colo. 1991).
Colorado cour ts view com mu nity                    sentence. For a comprehensive discussion
corrections programs as providing trial              of the four general approaches to awarding
courts “with a sentencing medium that is             jail time credit for confinement in
more severe than probation, but not as               alternative housing see Arizona v.
harsh as incarceration.” Beecroft, 874 P.2d          Reynolds, 823 P.2d 681, 681-85 (Ariz.
at 1045.                                             1992).
       19                                               20
       However, Delaware also takes the                   Salter and Winstead are unreported.
view that such a sentence constitutes                However, I do not cite them for any
“imprisonment” as that word is used in               precedential value. Rather, I refer to them
Article IV, Section 11(1)(b) of the                  merely because they show the manner in
Delaware Constitution, id., for purposes of          which some sentences have to be
awarding “jail time” credit against a later          pronounced in Ohio.

                                                18
confinement in alternative housing. Id. at          unambiguous situation. For example, in
*3.                                                 People v. Sturdivant, 312 N.W.2d 622, 623
                                                    (Mich. 1981), defendants were sentenced
       Finally, the majority notes that the
                                                    to terms of probation with a condition that
United States Sentencing Commission has
                                                    six months of the probationary period be
addressed the issue of alternative sentences
                                                    served in the county jail.21          When
in the publication Questions Most
                                                    sentenced, the applicable statute stated,
Frequently Asked About Sentencing
                                                    “[a]s a condition of probation, the court
Guidelines. As my colleagues note, that
                                                    may require the probationer to be
publication states:
                                                    imprisoned in the county jail or the house
       If the offender was                          of correction . . . .” Id. at 623 n.1
       sentenced to imprisonment                    (emphasis added). It is difficult for me to
       and as part of the term of                   conclude that such defendants were not
       imprisonment was placed on                   sentenced to six months in jail even though
       work release status, this                    a sentence of probation was “pronounced.”
       would be treated as a
                                                            Yet, the rule we announce under
       sentence of imprisonment.
                                                    U.S.S.G. § 4A1.1 relies on the kind of
       If the sentence did not
                                                    sentence that is pronounced. This defines
       i n v o lve a term o f
                                                    the sentence in Sturdivant as a sentence of
       im prisonment (e.g ., a
                                                    probation even though the sentencing court
       sentence of probation with a
                                                    clearly intended to sentence the defendants
       c o n d i t io n r e q u i r i n g
                                                    to six months in jail. The intent of the
       residency in a halfway
                                                    sentencing court is thus lost to the manner
       house), the sentence would
                                                    of articulation because § 4A1.1 ignores the
       not be considered
                                                    reality that the precise pronouncement of a
       imprisonment and would
                                                    sentence is governed by many factors that
       fall under § 4A1.1(c). A
                                                    are irrelevant to an ap prop riate
       sentence of residency in a
                                                    determination of a criminal history
       halfway house is not
                                                    category. Those factors can dictate the
       considered imprisonment . .
                                                    manner of pronouncing sentence even as
       ..
                                                    they obfuscate the sentencing court’s
Maj. Op. at 6.                                      actual intent.
As I have discussed, this refers to the
seemingly straightforward situation of a
judge pronouncing a probationary sentence              21
                                                          It is not clear from the opinion why
and simply imposing residency in
                                                    the judge pronounced the sentence in this
alternative housing as a condition of that
                                                    manner rather than simply sentencing the
probation. However, problems can arise
                                                    defendants to a period of incarceration in
under § 4A1.1 even in this deceptively
                                                    the county jail.

                                               19
          The place of confinement is usually               codifies unintended disparities by treating
more significant than the manner in which                   very different sentences alike and very
a sentence is pronounced because the place                  similar sentences differently under §
of confinement is more indicative of                        4A1.1.     It erroneously assumes that
pertinent offender characteristics for                      sentences are pronounced uniformly in all
purposes of calculating a subsequent                        jurisdictions, and that such
sentence under § 4A1.1. Furthermore, I                      pronouncements best allow a subsequent
submit that relying upon the place of                       court to determine if an earlier sentence
confinement rather than the manner of                       was intended to be served in a jail or in
pronouncement is of greater, not less,                      alternative housing. In doing so, the rule
significance if a judge recommends                          totally ignores the fact that many factors
placement while leaving the ultimate                        unrelated to offender characteristics can
decision to an administrator of a                           influence how sentences are pronounced in
com mu nity corrections facility or                         various jurisdictions.
alternative housing. Such administrators
                                                                    In United States v. Nelson, 918 F.2d
a r e a l m os t al w ays e x p e r i en c e d
                                                            1268, 1272 (6th Cir. 1990), the Court of
p ro f e s s i o n a l s w i t h e x p e r ti s e in
                                                            Appeals for the Sixth Circuit noted that
rehabilitation and/or treatment programs,
                                                            Congress was attempting to eliminate
and sentencing judges usually lack such
                                                            “illogica l, unjust and unw arrante d
expertise. The administrator’s decision to
                                                            disparity” in enacting the guidelines.22 I
admit a defendant to his/her program says
                                                            can only hope that Congress and the
something about the level of threat the
                                                            Sentencing Commission will act to
defendant poses to the community, the
                                                            eliminate the illogical, unjust and
defendant’s potential for successful
                                                            unwarranted disparity that will inevitably
rehabilitation and his/her ability to
                                                            accompany widespread use of the
cooperate in a therapeutic setting. That
                                                            pronouncement rule rather than allowing
assessment is certainly no less important
                                                            that rule to hold sway. In the meantime, it
than a court’s pronouncement, and it may
                                                            may be that such problems can only be
be a great deal more important. It can be
factored into a § 4A1.1 analysis simply by
allowing the recommendation and the
place of confinement to be considered
when determining “a prior sentence of                            22
                                                                    This court was not persuaded by
imprisonment.”
                                                            Nelson’s justification of using such
       To sum up, I am skeptical that the                   departures to eliminate disparities between
Sentencing Commission or Congress                           co-defendants in the same case. See United
intended the result we reach today because                  States v. Seligsohn, 981 F.2d 1418, 1428
the rule we apply is inconsistent with the                  (3d Cir. 1992). We have, however, relied
objectives of the sentencing guidelines. It                 upon the reasoning to support other
                                                            propositions. Id.

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minimized by judicious use of guideline
departures as suggested in Nelson.23




     23
         It may also be that the kind of
discrepancies I am concerned about are the
inevitable result of an attempt to
systematically quantify every conceivable
offender characteristic rather than
individualizing sentencing by allowing
experienced judges to consider everything
he/she deems relevant in a particular case
and impose a sentence that the judge
believes is fair, consistent with the
objectives of criminal sanctions, and in the
best interest of the community.
        Although the pre-guidelines
approach certainly allowed disparity and
bias to creep into sentencing, it also
allowed judges to distinguish prior
sentences of imprisonment from treatment
in a custodial facility where appropriate.
Amending § 4A1.1 to allow consideration
of a prior sentencing recommendation will
certainly not transform the guidelines.
However, it will at least address one of the
disparities that now exist and it can do so
without opening the door to the bias that
many thought existed before the guidelines
were enacted.

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