     Case: 09-30998     Document: 00511142346          Page: 1    Date Filed: 06/15/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 15, 2010
                                     No. 09-30998
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SEAN SULLIVAN,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:08-CR-114-2


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Sean Sullivan appeals the 16-month sentence imposed following his guilty
plea conviction of one count of possession of contraband by a prisoner. Sullivan,
who was serving a 480-month sentence when he committed the instant offense,
contends that the district court erred in calculating his criminal history points.
Specifically, Sullivan argues that because being a prisoner was an element of his
offense, the district court engaged in impermissible double counting by assigning



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                No. 09-30998

criminal history points under U.S.S.G. § 4A1.1(a), (d), and (e) based on the fact
that he was in prison when he committed the offense.
      The Sentencing Guidelines do not forbid all double counting. United
States v. Godfrey, 25 F.3d 263, 264 (5th Cir. 1994). Double counting is prohibited
only if the particular guidelines at issue specifically forbid it.   Id.   Double
counting is allowed “where a single act is relevant to two dimensions of the
Guideline analysis.”   United States v. Franklin, 148 F.3d 451, 461-62 (5th
Cir.1998) (internal quotations and citations omitted).        “The offense level
represents a judgment as to the wrongfulness of a particular act. The criminal
history category principally estimates the likelihood of recidivism.” United
States v. Dadi, 235 F.3d 945, 956 n.10 (5th Cir. 2000) (quotation and citation
omitted).
      The multiple additions that Sullivan received under § 4A1.1(a), (d), and
(e) are authorized by the Guidelines and are not repetitious: (1) the three points
assigned under § 4A1.1(a) were for a prior conviction with a sentence greater
than one year and one month; (2) the two points added under § 4A1.1(d) were for
committing an offense while currently serving a criminal sentence; and (3) the
point added under § 4A1.1(e) was for committing an offense while he was
imprisoned. The plain language of § 4A1.1(e) envisions a scenario where points
will be added under both § 4A1.1(d) and (e). See § 4A1.1(e) & comment. (n.5).
Sullivan has not pointed to any guideline section that prohibits the addition of
criminal history points that occurred in his case. He has therefore not shown
that the particular guidelines at issue specifically forbid double counting. See
Godfrey, 25 F.3d at 264.
      Moreover, in United States v. Vickers, 891 F.2d 86 (5th Cir. 1989), this
court rejected a double counting contention that parallels Sullivan’s argument.
Vickers, who appealed his sentence for escape, asserted that it was
impermissible double counting to add criminal history points under § 4A1.1 for
being in prison when the instant offense was committed given that the base

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                                No. 09-30998

offense level for escape necessarily took into consideration the fact that he was
in custody. This court determined that there was no exception to the application
of the criminal history provisions of Chapter Four of the Guidelines to the
offense of escape. Id. As was the case in Vickers, Sullivan’s criminal history
category score did not result from impermissible double counting. See id. at 87-
88.
      The judgment of the district court is AFFIRMED.




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