               Case: 16-10871      Date Filed: 11/28/2017      Page: 1 of 11


                                                                                [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 16-10871
                              ________________________

                         D.C. Docket No. 1:15-cr-20372-JLK-1



UNITED STATES OF AMERICA,

                                                                        Plaintiff-Appellee,

                                              versus

EDRISS BAPTISTE,

                                                                     Defendant-Appellant.

                              ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________

                                  (November 28, 2017)

Before WILSON and ROSENBAUM, Circuit Judges, and TITUS, * District Judge.

ROSENBAUM, Circuit Judge:


       *
          Honorable Roger W. Titus, United States District Judge for the District of Maryland,
sitting by designation.
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      Theodor Seuss Geisel (perhaps better known as Dr. Seuss) is said to have

observed, “Sometimes the questions are complicated and the answers are simple.”1

This is one of those times.

      This direct appeal of Defendant-Appellant Edriss Baptiste’s sentence for

access-device fraud and aggravated identity theft requires us to determine how to

account in Baptiste’s criminal-history calculation for Baptiste’s ostensible sentence

from a prior state case. More specifically, a state court purported to sentence

Baptiste for a marijuana-possession conviction to “198 days time served,” referring

to time he spent in U.S. Immigration and Customs Enforcement detention. Based

on this disposition, the district court scored Baptiste two criminal-history points

and therefore concluded his criminal-history category was II.

      The parties debate whether time in Immigration custody can ever qualify as

“imprisonment” for purposes of determining criminal history under the Guidelines.

While the parties raise interesting arguments, we instead resolve this case by

concluding that where, as here, a defendant has pled guilty to a prior crime and

adjudication has been withheld, that disposition must be counted for a single

criminal-history point under § 4A1.1(c) of the Guidelines, regardless of whether

the sentencing court purported to impose—or even actually imposed—198 days or

      1
        See Wendy Welch, The Little Bookstore of Big Stone Gap: A Memoir of Friendship,
Community, and the Uncommon Pleasure of a Good Book 27 (2013) (citing H. Edward
Wesemann, Looking Tall by Standing Next to Short People & Other Techniques for Managing a
Law Firm (2007)).
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no days of imprisonment. For this reason, we vacate the sentence imposed by the

district court and remand for resentencing, using a criminal-history category of I.

                                             I.

       Defendant-Appellant Edriss Baptiste pled guilty to two federal crimes:

possessing at least fifteen unauthorized access devices, in violation of 18 U.S.C.

§ 1029(a)(3), and aggravated identity theft, in violation of 18 U.S.C.

§ 1028A(a)(1). In preparation for sentencing, a U.S. Probation officer prepared a

Presentence Investigation Report (“PSR”) that ultimately recommended Baptiste’s

total offense level as 21 and his criminal-history category as II, with a

corresponding guideline range of 41 to 51 months’ imprisonment, plus a

consecutive 24-month period of imprisonment on the aggravated-identity theft

conviction.2 The district court adopted these recommendations and sentenced

Baptiste to 41 months on the unauthorized-access-device count and another 24

months on the aggravated-identity-theft conviction, for a total of 65 months’

imprisonment.

       On appeal, Baptiste takes issue with the district court’s conclusion that his

criminal-history category was II. To arrive at that conclusion, the district court

relied on a single prior criminal disposition in Florida for possession of marijuana

       2
         Originally, the PSR recommended a total offense level of 23. Following Baptiste’s
objection to a two-level enhancement for trafficking in an access device, though, Probation
agreed that the enhancement should not be applied. As a result, Probation modified its total-
offense-level calculation to 21.
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and possession of paraphernalia.         The PSR described the resolution of these

charges in the following way: “Adjudication withheld, 198 days time served.”

Citing U.S. Sentencing Guideline Manual (“U.S.S.G.”) § 4A1.1(b), the PSR

applied two criminal-history points for this disposition.3               And because the

Sentencing Table at Chapter 5, Part A, of the Guidelines shows that two criminal-

history points translate to a Category II criminal-history level, the PSR calculated

Baptiste’s criminal-history category as a II.

       Baptiste objected to the PSR’s Category II designation. As it turns out,

Baptiste’s criminal disposition was a bit more complicated than the PSR revealed.

Originally, he pled nolo contendere in Florida court to the felony offense of

possession with intent to distribute marijuana. For that, he was convicted and

sentenced to forty-five days in a jail work camp, two years of drug-offender

probation, and twelve months of regular probation. Baptiste actually served a total

of only two days in jail in connection with this sentence.


       3
          As relevant to the PSR’s recommended counting of Baptiste’s prior criminal
disposition, § 4A1.1 instructs,

              The total points from subsections (a) through (e) determine the
              criminal history category in the Sentencing Table in Chapter Five,
              Part A.
              (a)     Add 3 points for each prior sentence of imprisonment
              exceeding one year and one month.
              (b)     Add 2 points for each prior sentence of imprisonment of at
              least sixty days not counted in (a).
              ....

U.S.S.G. § 4A1.1.
                                              4
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       While Baptiste was serving his state probation on this felony conviction,

U.S. Immigration and Customs Enforcement detained him. And based on this

same conviction, Immigration scheduled Baptiste for removal proceedings. But

before he could be removed, Baptiste filed a motion under Rule 3.850, Fla. R.

Crim. P., to vacate his earlier plea to the Florida felony offense, asserting that he

had not been advised before entering his plea that his conviction could result in

deportation.     The Florida court granted Baptiste’s motion, vacated the prior

conviction, and returned the charges to pending status. By the time Baptiste was

released from Immigration custody on the news of the vacatur of his felony

conviction, he had been detained there from August 24, 2009, through March 16,

2010. 4

       Then Baptiste once again had to deal with the newly revived Florida

marijuana-related charges. This time, though, Baptiste bargained with the state

and pled to the misdemeanor offenses of possession of marijuana and possession of

paraphernalia,5 which were not deportable offenses. The state court withheld



       4
          We calculate this period to have lasted 205 days. Baptiste, on the other hand, refers in
different parts of the record to this same period of Immigration detention as lasting 198 days and
196 days, alternatively. The exact duration, however, does not affect the analysis here.
       5
         The record does not clearly indicate whether Baptiste pled guilty or nolo contendere to
the misdemeanor charges. No judgment for the Florida misdemeanor disposition is entered into
the record, and the PSR simply says that Baptiste “pled” to the offenses, without specifying the
type of plea. Baptiste’s opening brief indicates that the plea was nolo contendere, but his reply
brief suggests that he pled guilty. For its part, the government characterizes the plea as one of
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adjudication and purported to sentence Baptiste to 198 days of time served,

referring to, at least in substantial part, the time Baptiste spent in Immigration

custody. 6 For convenience, in this opinion, we refer to this disposition as the

“Florida Case.”

       That brings us back to Baptiste’s sentencing in federal court for the

unauthorized-access-devices and aggravated-identity-theft convictions.                 In the

district court, Baptiste contended that his time in Immigration custody could not be

counted as a “prior sentence of imprisonment” under U.S.S.G. § 4A1.1, and, as a

result, his criminal-history category was I. As we have noted, the district court

disagreed and concluded that Baptiste’s criminal-history category was II. Baptiste

now appeals.

                                              II.

       Title 18, United States Code, § 3742(e) governs the standard of review we

apply when determining a Guidelines issue. United States v. Williams, 340 F.3d

1231, 1235 (11th Cir. 2003). That statute instructs us to “accept the findings of



“no contest.” Ultimately, though, whether Baptiste pled guilty or nolo contendere to the
misdemeanor offenses makes no difference to the resolution of this appeal.
       6
          We suspect that the Florida court was relying solely on the time Baptiste spent in
Immigration custody. But Baptiste has also noted that he spent two days in jail based on the
original felony charges, and Baptiste at one point during the sentencing hearing stated that he
spent 196 days in Immigration custody. Based on these facts, it is possible that the 198 days’
time served was intended to refer to a combination of two days in jail plus 196 days in
Immigration custody. As with the nature of Baptiste’s plea to the misdemeanor charges, though,
the resolution of this question does not affect the outcome of this appeal.
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fact of the district court unless they are clearly erroneous” and generally, to “give

due deference to the district court’s application of the guidelines to the facts.” 18

U.S.C. § 3742(e).

      We have construed the phrase “due deference,” in turn, to require us to apply

a “sliding scale” of standards of review, depending upon the particular type of

question at issue. Williams, 340 F.3d at 1238-39 (citing Koon v. United States, 518

U.S. 81, 98 (1996); Buford v. United States, 532 U.S. 59, 65 (2001)). In other

words, “we give the district court the deference that is due in regard to [the nature

of the] finding.” Id. at 1239 (citation and quotation marks omitted). As relevant

here, we apply de novo review when we must determine whether the district court

applied the correct sentencing guideline. See id. at 1240.

                                        III.

      To ascertain how to account for Baptiste’s sentence in the Florida Case, we

begin with U.S.S.G. § 4A1.1. As relevant here, that guideline provides,

             The total points from subsections (a) through (e)
             determine the criminal history category in the Sentencing
             Table in Chapter Five, Part A.
             (a) Add 3 points for each prior sentence of
                   imprisonment exceeding one year and one month.
             (b) Add 2 points for each prior sentence of
                   imprisonment of at least sixty days not counted in
                   (a).
             (c) Add 1 point for each prior sentence not counted in
                   (a) or (b), up to a total of 4 points for this
                   subsection.
             . . .
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U.S.S.G. § 4A1.1 (emphasis added). The parties focus their arguments on whether

the Florida court’s imposition of “198 days time served,” referring at least

predominantly to Baptiste’s time in Immigration custody, qualifies as a “prior

sentence of imprisonment” under § 4A1.1(b), as the district court concluded it did.

Their disagreement centers on whether time served in Immigration custody meets

the Guidelines’ prescribed definition of a “sentence of imprisonment.”

      But in the end, we need not address that issue. Regardless of whether time

served in Immigration custody can ever qualify as a “sentence of imprisonment,”

the Guidelines and our precedent reveal that Baptiste’s Florida Case does not meet

the statutory definition of a “prior sentence” except under one small carve-out—for

which he was eligible to receive only one criminal history point, not two.

      As relevant here, U.S.S.G. § 4A1.2(a) defines the term “prior sentence”

appearing in § 4A1.1 as “any sentence previously imposed upon adjudication of

guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part

of the instant offense” (emphasis added). Significantly, we have explained that

generally, “[s]entences imposed wherein adjudication of guilt is withheld do not

fall under the definition of section 4A1.2(a)(1)” because no adjudication of guilt

occurs. United States v. Rockman, 993 F.2d 811, 813 (11th Cir. 1993); see also

United States v. Wright, 862 F.3d 1265, 1280 (11th Cir. 2017). Here, as Baptiste

and the government agree, adjudication of guilt was withheld in the Florida Case.
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As a result, any sentence imposed in that case generally cannot qualify as a “prior

sentence” under § 4A1.2(a)(1)—and, therefore, cannot under section 4A1.1, either.

       Nevertheless, we have noted a limited exception to this rule.                     When a

defendant pleads guilty or nolo contendere to the offense where the state court

withheld adjudication of guilt, that prior offense constitutes a diversionary

disposition for purposes of the Guidelines. Wright, 862 F.3d at 1280; Rockman

993 F.2d at 814.

       Section 4A1.2(f), in turn, instructs us on how to account for diversionary

dispositions.     Although generally, we do not count these dispositions in a

defendant’s criminal history, “[a] diversionary disposition resulting from a finding

or admission of guilt, or a plea of nolo contendere, in a judicial proceeding is

counted as a sentence under § 4A1.1(c) even if a conviction is not formally entered

. . . .” U.S.S.G. § 4A1.2(f) (emphasis added). The Commentary to § 4A1.1(c)

confirms this rule: “A diversionary disposition is counted [under § 4A1.1(c)] only

where there is a finding or admission of guilt in a judicial proceeding.” U.S.S.G.

§ 4A1.1(c) cmt. n.3 (citing U.S.S.G. § 4A1.2(f)). 7

       That exception, however, applies to only § 4A1.1(c). Under the negative-

implication canon of statutory interpretation (also known as “expressio unius” and
       7
          While Wright and Rockman both involved defendants who pled nolo contendere, a
guilty plea (or any other finding of guilt) where adjudication is withheld counts as a diversionary
disposition just the same. Under the Guidelines, a withheld adjudication does not qualify as
“diversionary” under § 4A1.2(f) only where no finding of guilt occurs. See U.S.S.G. § 4A1.2(f)
(“Diversion from the judicial process without a finding of guilt . . . is not counted.”).
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“inclusio unius”), the express inclusion of one thing—here, § 4A1.1(c)—implies

the exclusion of others—the rest of § 4A1.1. See Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 107 (2012). So since

§ 4A1.2(f) specifies an exception for only § 4A1.1(c), no such exception exists for

§ 4A1.1(b) (or for any other subsection of 4A1.1). And Baptiste’s disposition in

the Florida Case does not count as a “prior sentence” under section 4A1.1(b) since

he never received an adjudication of guilt. As a result, the district court erred in

assigning him the two criminal-history points prescribed by that provision.

       But our analysis does not end there. Because of § 4A1.2(f), § 4A1.1(c)

necessarily remains on the table. Since Baptiste entered a plea of either guilty or

nolo contendere (though the record does not specify which) and adjudication was

withheld, the Florida Case counts as a diversionary disposition qualifying him for

only a single criminal-history point. And because that criminal-history point is

Baptiste’s only criminal-history point, his correct criminal-history category is I, not

II.   See U.S.S.G. Ch. 5, Pt. A, Sentencing Table (reflecting Category I as

encompassing defendants with either 0 or 1 criminal-history point).

       Since the district court did not correctly determine Baptiste’s criminal-

history category, it committed significant procedural error. See Molina-Martinez v.

United States, --- U.S. ----, 136 S. Ct. 1338, 1345-46 (2016); United States v.




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Carpenter, 803 F.3d 1224, 1232 (11th Cir. 2015). So we must vacate Baptiste’s

sentence and remand for resentencing, consistent with this opinion.

                                        IV.

      For the reasons we have stated, Baptiste’s sentence is vacated, and this

matter is remanded to allow the district court to resentence him.

      VACATED AND REMANDED.




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