     Case: 13-50131    Document: 00512542343   Page: 1   Date Filed: 02/24/2014




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

                                                                         FILED
                                No. 13-50131                      February 24, 2014
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


                                          Plaintiff - Appellee
v.

EDWARD FERNANDEZ,

                                          Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before STEWART, Chief Judge, and GARZA and SOUTHWICK, Circuit
Judges.
EMILIO M. GARZA, Circuit Judge:
      Edward Fernandez (“Fernandez”) was convicted of methamphetamine-
related offenses.     Under the United States Sentencing Guidelines, the
sentencing judge assessed two criminal history points for Fernandez’s prior
sentence of imprisonment. On appeal, Fernandez submits that the district
court committed reversible error in assessing two points rather than only one,
because his prior sentence did not involve imprisonment.         We affirm the
district court’s judgment.
                                      I
      Fernandez was charged with Possession with Intent to Distribute Five
or More Grams of Actual Methamphetamine in violation of 21 U.S.C. §§
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                                No. 13-50131
841(a)(1), (b)(1)(B) and Aiding and Abetting in the Distribution of a Quantity
of Methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 18
U.S.C. § 2. Fernandez pleaded guilty to both counts.
      At sentencing, the district court consulted Fernandez’s Revised
Presentence Investigation Report (“RPSR”). The RPSR assessed two criminal
history points pursuant to § 4A1.1(b) of the Sentencing Guidelines, based on a
2007 assault conviction in Colorado. For this assault conviction, Fernandez
was sentenced to 24 months in jail. However, he received a 254-day credit for
time served, and the sentence was suspended, under the condition that he paid
fines and costs. 1
      Fernandez objected to the two-point assessment for the Colorado
conviction prior to sentencing, contending that because the sentence was fully
suspended, he should have been assessed a one-point enhancement under
§ 4A1.1(c), rather than two points under § 4A1.1(b). The two-point assessment
brought Fernandez’s criminal history points to a total of four, resulting in a
Criminal History Category of III. Accordingly, his Guidelines sentencing range
was 70 to 80 months. A one-point assessment would have reduced his Criminal
History Category from III to II, and the applicable sentencing range would
have been 63 to 78 months.
      The district court overruled this objection and adopted the RPSR’s
recommended range. The district court’s reasoning hinged on the 254-day
credit:



      1   The Colorado judgment reads:
               Credit for Time Served: 254 Days
               Jail SUSPENDED: 24 Months
               ...
               Other Conditions of Sentence: JAIL SUSPENDED ON
               CONDITION DEF PAYS ALL FINES AND COSTS BY END OF
               YEAR.
                                      2
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                                   No. 13-50131
             The Court finds that [Fernandez] sat in jail for 254
             days, according to the judgment. He was—he was
             sentenced to 24 months, and he got credit for 254 days.
             And so the Court declines to grant [Fernandez’s]
             objection.

After explaining that it had considered the § 3553(a) factors, hearing
testimony, the RPSR contents, and Fernandez’s allocution, the district court
sentenced Fernandez to a term of 70 months, with five years of supervised
release, based on a total offense level of 25 and Criminal History Category of
III. Fernandez now appeals his sentence.
                                         II
      Where a defendant preserves a Sentencing Guidelines-based objection to
a sentence, we review a district court’s calculation of the Guidelines range de
novo, factual findings for clear error, and the ultimate sentence for abuse of
discretion. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
                                         III
      On appeal, Fernandez contends that the district court committed
reversible error in assessing two points to his criminal history on the basis of
his prior Colorado sentence.
      Under the Guidelines, a defendant’s criminal history score is based on
sentences imposed for prior offenses. Under § 4A1.1(a), three points are added
to a defendant’s criminal history “for each prior sentence of imprisonment
exceeding one year and one month,” and under § 4A1.1(b), two points are added
“for each prior sentence of imprisonment of at least sixty days not counted in
(a).” § 4A1.1(c) provides that only one point is assessed “for each prior sentence
not counted in (a) or (b),” up to a total of four points.
      § 4A1.2(b) defines “sentence of imprisonment”:


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                                         No. 13-50131
            (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.

Id. § 4A1.2(b)(1), (2). 2 In other words, “[a]lthough the maximum sentence
imposed generally provides the measure for assigning criminal history points
[pursuant to § 4A1.2(b)(1)], § 4A1.2(b)(2) limits the application of §§ 4A1.1(a)-
(c) when a sentence is suspended.” United States v. Dixon, 230 F.3d 109, 112
(4th Cir. 2000). Additionally, where a prior sentence was “totally suspended
or stayed,” it is treated as a one-point prior sentence under § 4A1.1(c). U.S.S.G.
§ 4A1.2(a)(3); see also United States v. Atkinson, 15 F.3d 715, 721 (7th Cir.
1994) (explaining same provision).
      In United States v. Minton, the Tenth Circuit considered whether a
“credit” for time served qualified for Guidelines purposes as a non-suspended
portion of an otherwise suspended sentence. 407 F. App’x 336 (10th Cir. 2011)
(unpublished). In connection with a prior state court conviction, Minton had
served 229 days in pre-sentence confinement. The state court’s sentencing
order gave him “credit” for this period and articulated his sentence as three to
five years, with Minton “receiving Two Hundred Twenty Nine (229) days credit


      2   The Commentary to § 4A1.2(b) further clarifies that:
               [t]o qualify as a sentence of imprisonment, the defendant must
               have actually served a period of imprisonment on such sentence
               . . . . For the purposes of applying § 4A1.1(a), (b) or (c), the length
               of a sentence of imprisonment is the stated maximum . . . . That
               is, criminal history points are based on the sentence pronounced,
               not the length of time actually served. A sentence of probation
               is to be treated as a sentence under § 4A1.1(c) unless a condition
               of probation requiring imprisonment of at least sixty days was
               imposed.

      Id. § 4A1.2 cmt. n.2 (citations omitted).
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                                      No. 13-50131
of both the minimum and maximum sentence.” Id. at 338. But the court
ultimately suspended this sentence and mandated four years of supervised
probation. Id. The Tenth Circuit reasoned that the state court “explicitly took
the period of pre-sentence confinement into account” in determining the
sentence; accordingly, the confinement was “part of the punishment ultimately
imposed” by the state court. Id. at 339. Thus, the period of actual confinement
was not suspended, despite suspension of the rest of the sentence. And because
this period exceeded 60 days, the court concluded that Minton was properly
assessed two criminal history points for a prior sentence of imprisonment
under § 4A1.1(b). Id. at 340.
                                             A
       Fernandez first contends that his prior sentence could not have been a
“prior sentence of imprisonment of at least sixty days” under § 4A1.1(b) since
the sentence was suspended in its entirety.
       Here, it is undisputed that at least part of Fernandez’s 24-month
sentence “was suspended.”          U.S.S.G. § 4A1.2(b)(2).        Thus, the “maximum
sentence imposed” will not be the basis for assessing Fernandez’s criminal
history points. Id. § 4A1.2(b)(1); Dixon, 230 F.3d at 112. Rather, the central
question is whether Fernandez’s 254-day credit was a portion of the sentence
that “was not suspended,” notwithstanding the fact that the judgment provides
for a 24-month suspended sentence. Id. § 4A1.2(b)(2). If so, then this non-
suspended portion functions as the “sentence of imprisonment” under § 4A1.1,
and the two-point assessment was proper because 254 days exceeds 60 days.
Id. Alternatively, if the sentence was “totally suspended,” then Fernandez
should be assessed only one point under § 4A1.1(c). Id. § 4A1.2(a)(3). 3 In the



       The statutory maximum for the relevant assault offense (assault in the third degree)
       3

was two years. Colo. Rev. Stat. §§ 18-3-204, 18-1.3-501(3). Thus, a third logical possibility
                                             5
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                                      No. 13-50131
latter case, we would need to remand for re-sentencing, since the Government
has not alleged that the district court would have imposed the same sentence
notwithstanding the error. 4
       The text of the Guidelines is not dispositive, since its provisions do not
explicitly contemplate a suspension and time-served credit operating together
as they do in this case. That is, the Guidelines do not explain whether, despite
a sentencing order’s literal suspension of a prior sentence in its entirety, a
time-served credit constitutes a non-suspended portion of that sentence for
Guidelines purposes.
       The reasoning of Minton is persuasive, and we adopt it here. We hold
that because a time-served “credit” noted in a prior sentencing order cannot be
suspended, the period credited serves as the measure for assessing criminal
history points in accordance with § 4A1.2(b)(2) of the Sentencing Guidelines
when the prior sentence is otherwise suspended. Like the state court order in
Minton, the Colorado sentencing order here provided time-served credit for a
period of confinement while ultimately suspending the sentence. The Colorado
order’s language “Credit for Time Served” necessarily implies that the court
accorded a sentence-reducing value to Fernandez’s pretrial confinement—that
the court “explicitly took the period of pre-sentence confinement into account.”
Minton, 407 F. App’x at 339. Thus, as in Minton, Fernandez’s sentence was
not suspended in full, and because the non-suspended portion exceeded 60
days, the district court correctly assessed two criminal history points under §
4A1.1(b). 5 U.S.S.G. § 4A1.2(b)(2).



is precluded—that the 24-month sentence was suspended in full, but that the credited 254-
day period was an additional, non-suspended punishment.
        4 See United States v. Harris, 597 F.3d 242, 261 (5th Cir. 2010).
        5 Fernandez’s brief explains quite concisely why the 254-day “credit” was not

suspended: “[T]he 254 day pretrial credit . . . [was] a credit applied toward the completion
and satisfaction of the 2 year time period of the suspended sentence. In other words,
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                                       No. 13-50131
                                              B
       Fernandez’s other theory about his prior sentence is unavailing.
       Fernandez characterizes his suspended 24-month sentence as a
“sentence of probation [that] is to be treated as a sentence under § 4A1.1(c)
unless a condition of probation requiring imprisonment of at least sixty days
was imposed.” Id. § 4A1.2 cmt. n.2. Fernandez correctly notes that his pretrial
incarceration was “not a condition” of his suspended sentence; the Colorado
sentencing order conditioned his suspended sentence on payment of fines and
costs and not on incarceration. But his contention rests on the mistaken
premise that his suspended sentence is equivalent to a “sentence of probation”
under the commentary to § 4A1.2.                Id.   As the district court explained,
Fernandez was given a suspended sentence, not probation. Thus, there is no
“sentence of probation” meriting only one criminal history point “as a sentence
under § 4A1.1(c).” Id.
       In sum, although Fernandez’s incarceration occurred prior to a
determination of his guilt, his ultimate sentence was premised on the fact that
he had served time. In this way, his time-served credit was incorporated into
his sentence. 6



Fernandez was subject to the suspended sentence for 2 years less the 254 days.” We
acknowledge that the state court here did not recognize the time-served credit as “explicitly”
as the sentencing court did in Minton; here, the court did not reduce the 24-month sentence
by 254 days prior to suspending the remaining balance. Minton, 407 F. App’x at 339. But on
the record before us, we are satisfied that this “credit” was not suspended.
       6 Compare this to the Ninth Circuit’s reasoning that “when the reason behind a period

of incarceration is administrative necessity, rather than an adjudication of guilt, this period
of incarceration says nothing about the defendant’s culpability . . . [and] may not provide a
basis for sentence enhancement.” United States v. Latimer, 991 F.2d 1509, 1517 (9th Cir.
1993) (concluding that detention while awaiting parole revocation hearing was “analogous to
pretrial custody” and could not result in Guidelines points assessment). Here, although
Fernandez’s pretrial incarceration might have initially grown out of “administrative
necessity,” his later receiving “credit” for time served linked the incarceration to an
“adjudication of guilt.” Id.; see also United States v. Cruz-Alcala, 338 F.3d 1194, 1200 (10th
Cir. 2003) (distinguishing Latimer on same grounds).
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                                       No. 13-50131
                                              C
       Lastly, we note that the Government misunderstands this case. The
Government’s application of the law to these facts consists of a one-paragraph,
two-step analysis: (1) Because Fernandez’s pretrial confinement was some
amount of time “actually served,” (2) the applicable sentence of imprisonment
is the entire 24-month “sentence pronounced,” which exceeds 60 days for the
purposes of § 4A1.1(b).
       The Government curiously disregards the critical fact of this case—the
suspension of Fernandez’s sentence. The Government relies on § 4A1.2(b)(1)
and its commentary, which provide that the “sentence imposed” is the basis for
assessing criminal history points, so long as some time is actually served on
that sentence. Id. § 4A1.2(b)(1). 7 But under the Guidelines, this approach is
inapplicable whenever a prior sentence is suspended.                      Rather, when a
suspended prior sentence is at issue, the sentencing court must assess criminal
history points based only on the non-suspended portion of the sentence. Id.
§ 4A1.2(b)(2); Dixon, 230 F.3d at 112. The Government’s approach writes
§ 4A1.2(b)(2) out of the Guidelines and is thus untenable. 8
                                             IV
       For the foregoing reasons, we conclude that the district court did not err
in assessing two criminal history points for Fernandez’s prior Colorado
sentence, and the judgment of the district court is AFFIRMED.




       7See supra n.2.
       8 Cf. United States v. Tabaka, 982 F.2d 100 (3d Cir. 1992) (holding that under
§ 4A1.2(b)(2), only non-suspended 48 hours of sentence, not original pre-suspension sentence,
counted toward 60 day minimum under § 4A1.1(b)). Furthermore, the Government
incorrectly relies on United States v. Staples, 202 F.3d 992 (7th Cir. 2000). Staples explained
that suspended sentences and time-served credits are distinct and did not consider their
potential overlap; it is thus unhelpful to resolving this case. See id. at 997–98.
                                              8
