                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         AUG 19 1998
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                       No. 97-6423
v.                                                 (W. Dist. Oklahoma)
                                                   (D.C. No. 97-CR-78)
BOBBY LEON JACKSON,

             Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.


                                   BACKGROUND

      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The court therefore

honors the parties’ requests and orders the case submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Bobby Leon Jackson entered a guilty plea to a one-count indictment

charging Jackson with possessing a firearm following a previous felony

conviction in violation of 18 U.S.C. § 922(g)(1). The United States Probation

Office prepared a presentence report (“PSR”) which concluded that Jackson had

seven criminal history points and a resultant criminal history category of IV.       See

U.S.S.G. § 4A1.1 (assigning criminal history points to past convictions);        id. Ch. 5

pt. A Sentencing Table (setting forth criminal history categories). Three of the

seven criminal history points resulted from a 1995 Oklahoma conviction for

driving under the influence (“DUI”) after a former DUI conviction.          See Okla.

Stat. Ann. tit. 47, § 11-902 (West 1988. Jackson received the following sentence

for the 1995 Oklahoma conviction: “Sentenced to a term of Three (3) Years

imprisonment, satisfied by 90 Nights incarceration pursuant to 22 O.S. § 991a-2.”

       Jackson objected to the assessment of three criminal history points for the

conviction, asserting that he should receive only two points for that conviction

because all but ninety days of the sentence had been suspended.        See U.S.S.G. §

4A1.1(a), (b) (providing for three criminal history points for each sentence of

imprisonment exceeding one year and one month and two points for sentences of

at least sixty days but not more than one year and one month);       id. § 4A1.2(b)(2)

(“If part of a sentence of imprisonment was suspended, ‘sentence of

imprisonment’ refers only to the portion that was not suspended.”). The district


                                            -2-
court held a sentencing hearing, overruled Jackson’s objections, utilized the

criminal history category set out in the PSR, and sentenced Jackson to a term of

twenty-four months. Jackson appeals, asserting that the district court erred in

adopting the criminal history calculations set out in the PSR.         1
                                                                           Exercising

jurisdiction pursuant to 18 U.S.C. § 3742(a), this court         reverses and remands to

the district court for resentencing in accordance with this opinion.



                                       ANALYSIS

       There are no facts in dispute on appeal. Instead, the parties’ contentions

center around the proper meaning and application of the terms “suspended

sentence” and “sentence of imprisonment” in section 4A1.2(b) of the Sentencing

Guidelines to Jackson’s conviction for driving under the influence. This court

reviews the district court’s interpretation and application of the Guidelines           de

novo . See United States v. Pettit   , 938 F.2d 175, 178 (10     th
                                                                      Cir. 1991).

       The number of criminal history points assigned to a criminal conviction is

determined by the sentence imposed and can vary from one to three points

depending on the length of sentence. A sentence of imprisonment of less than



       1
         Jackson further notes that when properly calculated, he has six criminal
history points, a criminal history category of III, and a proper sentencing range of
fifteen to twenty-one months.    See U.S.S.G. § 4A1.1 & Ch. 5 pt. A Sentencing
Table.

                                            -3-
sixty days earns one criminal history point.         See U.S.S.G. § 4A1.1(c). A sentence

of imprisonment of at least sixty days up to and including one year and one

month earns two criminal history points.        See id. § 4A1.1(b). Finally, any

sentence of imprisonment for more than one year and one month earns three

criminal history points.   See id. § 4A1.1(a).

       “Sentence of imprisonment” is defined in Guideline section 4A1.2, which

provides in pertinent part as follows:

       § 4A1.2 Definition and Instructions for Computing Criminal History

              ....

              (b) Sentence of Imprisonment Defined

              (1) The term “sentence of imprisonment” means a
              sentence of incarceration and refers to the maximum
              sentence imposed.

              (2) If part of a sentence of imprisonment was
              suspended, “sentence of imprisonment” refers only to
              the portion that was not suspended.

The application notes to Guideline section 4A1.2 further clarify it is the sentence

imposed or “pronounced,” rather than the sentence actually served, that

determines the number of criminal history points assigned to the conviction.

Id. § 4A1.2 application note 2.

       With this background in mind, we note that Jackson’s appeal raises a

single question: Was the state court judgment and sentence ordering Jackson to


                                               -4-
serve “Three (3) Years imprisonment, satisfied by 90 Nights incarceration

pursuant to 22 O.S. § 991a-2,” a sentence of imprisonment for ninety days or

three years? If for ninety days, the sentence would count as two criminal history

points. See id. § 4A1.1(b). If for three years, on the other hand, the sentence

would count as three criminal history points.    See id. § 4A1.1(a).

      In overruling Jackson’s objection to the PSR and concluding that the

sentence in question was for a term of three years, the district court stated as

follows:

             I have studied the issue, and the response of the probation
      officer, I think, is a good summary of, not only the position of the
      government, but what I think; and my conclusion, having studied the
      issue as a matter of law under these facts, is correct. . . .
             The response by the probation officer is that: “The probation
      officer believes that the assessment of three criminal history points
      for this conviction is appropriate. Criminal history points are
      assessed based on the sentence imposed, not on the amount of time
      served.”
             Now, that is the crux of the issue and that is the legal
      conclusion that I have reached, as well, which answers this objection
      and on which my decision is based.
             Continuing with his response: “If a portion of the term of
      imprisonment is suspended, then criminal history points are assessed
      based on the portion that is not suspended. In this case, the three-
      year sentence was imposed and the Court ordered that the sentence
      could be satisfied by the defendant serving 90 consecutive nights in
      the county jail. No portion of the sentence imposed was suspended,
      therefore, the [total] of the criminal history points for this conviction
      is three as presented in this paragraph.”
             And I think that’s exactly correct as a matter of law and that is
      the basis for my overruling of that particular objection.



                                           -5-
        On appeal, Jackson argues that the district court’s decision is flawed in two

important respects. First, Jackson asserts that the district court interpreted his

objection as being based on the amount of time he actually served on the relevant

conviction rather than the sentence pronounced. Jackson notes for the benefit of

this court that he is not arguing the conviction earns two points because he only

served ninety days. Instead, he asserts that it only earns two points because the

state court pronounced a sentence of three years, suspending all of it but ninety

days.

        The second, and more profound, error identified by Jackson is that the

district court gave talismanic effect to the absence of the words “suspended

sentence” from the state court judgment of conviction. Although the state court

did not say it was suspending all but ninety days of the sentence, Jackson argues

that is the only reading of the judgment that makes sense. This court agrees that

although sometimes instructive, the presence or absence of the term “suspended

sentence” in a state court judgment of conviction is not always determinative of

whether a portion of that sentence has been suspended.

        In the case at hand, the judgment of conviction specifically indicates that

Jackson is required to serve only ninety days of the three-year sentence, and that

those ninety days can be served in the county jail. The specific statutory

provision giving the state court the power to impose confinement in the county


                                          -6-
jail in lieu of custody with the department of corrections is in a subsection of the

Oklahoma code entitled “Suspension of Judgment and Sentence.”         2
                                                                          In particular,

section 991a of title 22 provides Oklahoma trial courts with three sentencing

options: (1) suspend the sentence in whole or in part; (2) impose a fine with or

without commitment; or (3) confine the person as provided by law.          See Okla.

Stat. Ann. tit. 22, § 991a (West 1986).   3
                                              That portion of section 991a dealing

with suspended sentences specifically provides as follows:

       A. When a defendant is convicted of a crime and no death sentence
       is imposed, the court [has the option to]:

              1. suspend the execution of sentence in whole or in
              part, with or without probation. The court, in addition,
              may order the convicted defendant at the time of
              sentencing or at any time during the suspended sentence
              to do one or more of the following:

                     ....

                     e. To confinement in the county jail for a
                     period not to exceed ninety (90) days.




       The state court judgment of conviction further provides that Jackson is
       2

only required to spend the night in the county jail during the ninety-day term.
The state trial court imposed night incarceration pursuant to Okla. Stat. Ann. tit.
22, § 991a-2 (West 1986), a provision of law also located in the section of the
Oklahoma code titled “Suspension of Judgment and Sentence.”
       3
        The provisions dealing with the sentencing powers of Oklahoma trial
courts were substantially revised in 1997, well after Jackson was sentenced for
driving under the influence.  See Okla. Stat. Ann. tit. 22, §§ 991a to 991a-4 (West
Supp. 1998).

                                              -7-
It must be noted that the conviction at issue here is for driving under the

influence after a former DUI conviction.       See Okla. Stat. Ann. tit. 47, § 11-902

(West 1988). The relevant portions of section 11-902 of title 47 provide for a

term of one to five years in the custody of the Oklahoma Department of

Corrections. See id. § 11-902(C). The only reasonable interpretation of the

judgment of conviction here is that the Oklahoma court imposed a three-year

term pursuant to section 11-902 but suspended the sentence and ordered him to

serve ninety days in the county jail pursuant to section 991a(A)(1)(e) of title 22

of the Oklahoma code. Section 991a(A), the specific provision of the Oklahoma

code dealing with the trial court’s power to suspend sentences, appears to be the

only provision of the Oklahoma code giving the state court the power to impose

the ninety-day jail term for the crime at issue here.   4



       In support of the district court’s ruling that the state court did not intend to

suspend any portion of Jackson’s sentence, the United States notes that the

section dealing with suspended sentences on the Uniform Plea of Guilty Form

Exhibit “A” to Summary of Facts and Judgment and Sentence is crossed out.



       4
        The United States asserts that “The state court could have simply ordered
‘90 nights incarceration,’ if it had meant to pronounce a sentence for 90 nights
rather than a sentence of three years imprisonment.” Unfortunately, the United
States does not identify under what authority the state court could have imposed
such a sentence. This court can find no authority except section 991a of title 22,
the Oklahoma provisions dealing with suspended sentences.

                                             -8-
This fact is of minimal probative value. The section crossed out on Exhibit A

appears to relate solely to individuals sentenced to the supervision of the

Oklahoma Department of Corrections. In the instant case, the state court never

sentenced Jackson to the custody of the Department of Corrections. Instead, the

state court judgment provides that Jackson’s sentence could be fully satisfied by

confinement in the county jail. More importantly, as noted above, the United

States has not identified under what authority, except Oklahoma’s suspended

sentence statute, the state court could have ordered Jackson to serve ninety-days

in the county jail for driving under the influence after a prior DUI conviction.

Accordingly, the crossed out section on Exhibit A does not alter this court’s

conclusion that the state trial court suspended all of Jackson’s sentence except

for ninety days.   5




                                  CONCLUSION

       In light of section 991a of title 22 of the Oklahoma code, we conclude that

the district court erred in holding that Jackson had been sentenced to a three year


       5
        As an alternative argument, Jackson argues that if there is doubt as to
whether the state court suspended part of his sentence, the rule of lenity should
determine the issue in his favor.  See United States v. Tabaka , 982 F.2d 100, 103
(3d Cir. 1992) (applying rule of lenity where it was unclear whether portion of
state sentence of imprisonment had been suspended). In light of this court’s
conclusion that the state court did indeed suspend all of Jackson’s sentence except
ninety days, we need not address the applicability of the rule of lenity here.

                                         -9-
term of imprisonment, rather than a three year term of imprisonment with all but

ninety days of the term suspended. Accordingly, the district court’s assessment

of three criminal history points for the conviction was also in error. This court

therefore REVERSES the district court and      REMANDS the case for

resentencing in accordance with this opinion.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




                                        -10-
