     Case: 13-10291      Document: 00512569525         Page: 1    Date Filed: 03/21/2014




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

                                                                                  FILED
                                      No. 13-10291                          March 21, 2014
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff - Appellee
v.

JUAN CARLOS CASTANEDA MENDEZ,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CR-167-1


Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Juan Carlos Castaneda Mendez appeals the district court’s enhancement
of his sentence pursuant to U.S.S.G. § 4A1.1(a) based on its determination that
he served a prior sentence of imprisonment of more than one year and one
month for a 2003 burglary conviction. We AFFIRM.
                      FACTS AND PROCEDURAL HISTORY
       A Texas jury convicted Mendez of burglary of a habitation in 2003. The
Texas court sentenced Mendez to what is called “shock probation.”                            The


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-10291    Document: 00512569525    Page: 2   Date Filed: 03/21/2014



                                No. 13-10291
sentence of imprisonment was for ten years, but after serving only 180 days in
prison, Mendez was placed on community supervision. See TEX. CODE CRIM.
PROC. ANN. art. 42.12, § 6. Mendez was subsequently arrested for driving with
a suspended license and possession of cocaine. The State filed a motion to
revoke his community supervision but later withdrew the motion. The court
then modified the terms of Mendez’s community supervision to include a term
of up to one year in a Texas substance abuse felony punishment facility
(“SAFPF”). Mendez served 365 days in an SAFPF and was under community
supervision when he was arrested for illegal reentry in 2013.
      Mendez pled guilty to illegal reentry. See 8 U.S.C. § 1326(a). The
presentence report (“PSR”) assigned seven points as a criminal history score,
three of which were based on U.S.S.G. § 4A1.1(a) due to Mendez’s sentence for
burglary. Section 4A1.1(a) provides for a three-point addition to a defendant’s
criminal history score if the defendant served a “sentence of imprisonment
exceeding one year and one month” for a prior conviction. Mendez objected,
arguing that the time he spent in the SAFPF under a suspended sentence did
not count for purposes of Section 4A1.1(a) because the confinement was not the
result of revocation of his prior sentence. The district court overruled the
objection and applied the enhancement based on its determination that the
nature of Mendez’s confinement in an SAFPF amounted to imprisonment
under Section 4A1.1(a).
      Mendez’s criminal history category was IV, which, considered together
with the base offense level of 14, resulted in a recommended guideline range of
27 to 33 months imprisonment. The district court sentenced Mendez to 25
months imprisonment, after crediting him with two months for time he was
detained by the immigration office pending his indictment. Had the court
sustained his objection, Mendez’s criminal history category would have been
III, which would have resulted in a recommended guideline range of 21 to 27
                                      2
    Case: 13-10291     Document: 00512569525     Page: 3   Date Filed: 03/21/2014



                                  No. 13-10291
months. Mendez claims that since the district court expressed a desire to stay
at the bottom of the recommended guideline range and was willing to credit
him for his pre-indictment detention, he would have received a 19-month
sentence but for the district court’s error.
      Mendez’s only appellate issue concerns his criminal history score. He
argues that his initial imprisonment of 180 days for burglary, which was less
than the one year and one month required for 3 criminal history points under
Section 4A1.1(a), should not have been aggregated with the subsequently
imposed 365 days in an SAFPF. This issue was first raised by Mendez in his
objections to the PSR and was argued, albeit not with complete clarity, at his
sentencing hearing. The district court seemingly understood Mendez to be
challenging Section 4A1.1(a)’s enhancement because time served in the Texas
SAFPF did not constitute imprisonment for purposes of Section 4A1.1(a). The
district court accepted the PSR in toto.
                                  DISCUSSION
      “This Court reviews the application of the sentencing guidelines de
novo.” United States v. Valdez-Valdez, 143 F.3d 196, 197 (5th Cir. 1998).
      The Sentencing Guidelines provide that three points should be added to
a defendant’s criminal history score for “each prior sentence of imprisonment
exceeding one year and one month.” U.S.S.G. § 4A1.1(a). A prior sentence is
defined 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.” Id. § 4A1.2(a). According to a comment in the Guidelines,
a completely suspended sentence of imprisonment does not count toward the
one-year-and-one-month calculation under Section 4A1.1(a), “unless a
condition of probation requiring imprisonment of at least sixty days was
imposed.” U.S.S.G. § 4A1.2(a)(3) & cmt. n.2. This commentary has the same


                                         3
    Case: 13-10291    Document: 00512569525      Page: 4   Date Filed: 03/21/2014



                                  No. 13-10291
weight as the Guidelines, provided it is not plainly erroneous. United States
v. Rodriguez-Parra, 581 F.3d 227, 229 n.3 (5th Cir. 2009).
      Mendez has argued on appeal that the district court misunderstood the
nature of his objection. To the extent Mendez has argued that time served in
an SAFPF is not imprisonment under Section 4A1.1(a) because of the nature
of the confinement, he is incorrect. Time served in a facility where a defendant
is not free to leave qualifies as imprisonment under Section 4A1.1(a). United
States v. Brooks, 166 F.3d 723, 727 (5th Cir. 1999). We have previously held
in an unpublished decision that the SAFPF is such a facility. United States v.
Chavez, 476 F. App’x 786, 790 (5th Cir. 2012). We agree with the analysis in
Chavez that time in an SAFPF constitutes imprisonment. The district court
did not err in finding that Mendez’s year in the SAFPF was a term of
imprisonment under Section 4A1.1(a).
      Mendez’s principal argument, which was not addressed by the district
court at sentencing, is whether his community supervision had to be revoked
before his time in the SAFPF could properly be aggregated with his original
six month term of imprisonment. We conclude that Mendez’s objections to the
PSR made this argument. Mendez relies on Section 4A1.2(k): “In the case of a
prior revocation of probation, parole, supervised release, special parole, or
mandatory release, add the original term of imprisonment to any term of
imprisonment imposed upon revocation.”         Mendez argues that an actual
revocation is required and, consequently, before a subsequently imposed term
of imprisonment may be added to an original term, it must have arisen after
proceedings that satisfy the constitutional standards established by Morrissey
v. Brewer, 408 U.S. 471 (1972).
      Though Mendez challenges the criminal history calculation based on his
interpretation of Section 4A1.2(k), the PSR and the district court’s ruling do
not refer to that subsection. Instead, the PSR states that three criminal history
                                       4
    Case: 13-10291     Document: 00512569525      Page: 5     Date Filed: 03/21/2014



                                   No. 13-10291
points should be assigned due to Section 4A1.1(a). That subsection provides
for three history points for “each prior sentence of imprisonment exceeding one
year and one month.” U.S.S.G. § 4A1.1(a). Admittedly, that subsection is a
proper reference regardless of whether some other Guideline provides
additional relevant guidance. In an addendum to the PSR, the Probation Office
responded to Mendez’s Section 4A1.2(k) arguments by saying that Mendez’s
original incarceration for 180 days and his 365 days in an SAFPF amounted to
545 days of confinement, which allowed for the criminal history points under
Section 4A1.1(a).    The addendum did not discuss the language of Section
4A1.2(k). The district court’s statement of reasons for the sentence adopted the
PSR “without change.”
      Despite the absence of any reference to Section 4A1.2(k), we accept that
one reading of the PSR and the district court’s ruling is that Section 4A1.1(a)
is applicable because the prior sentence was more than one year and a month
due to the revocation provision.
      On appeal, the Government urges us to ignore Section 4A1.2(k). It
argues that it is appropriate to add the 365 days of imprisonment imposed
upon modification of Mendez’s sentence to the original 180 days imprisonment
simply because both terms of imprisonment were imposed for the same
adjudication of guilt of the burglary offense.     Of unclear significance, the
government also points out that the aggregate time served by Mendez falls
within the district court’s original sentence of ten years.
      This argument is similar to one considered by an earlier panel in an
unpublished opinion. See Chavez, 476 F. App’x at 788-89. The defendant had
received a suspended sentence from a state court, then later had the sentence
modified such that he was to spend up to one year in an SAFPF. There was no
revocation. Under a Texas statute, community supervision may be modified if
one of its conditions has been violated; the modification can include placing the
                                        5
    Case: 13-10291     Document: 00512569525      Page: 6   Date Filed: 03/21/2014



                                  No. 13-10291
defendant in an SAFPF.         Id. at 787.    The court held that the modified
community supervision that added a term of restriction or imprisonment in an
SAFPF was a “sentence of incarceration” under Section 4A1.1. It did not
matter that Chavez received that sentence in a modification:
            Nothing in the applicable Guidelines or accompanying
      commentary indicates that the sentence can only be the one that
      was initially pronounced, without inclusion of any later
      modifications.
Chavez, 476 F. App’x at 789.
      Mendez asserts that this prior opinion is not relevant. He points out that
a different Guideline was applied in Chavez, namely, Section 2L1.2(b), which
concerns specific characteristics of offenses committed after unlawful entry
into or remaining in the United States. Chavez’s specific offense was drug
trafficking “for which the sentence imposed was 13 months or less. . . .” Id. at
787; see U.S.S.G. § 2L1.2(b)(1)(B).       In deciding whether Chavez’s SAFPF
sentence, which was a modification of his original community supervision due
to his violation of supervision terms, the court relied on Section 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 court then referred to
the same Application Note we have already quoted: if a condition of probation
is that the defendant serve at least sixty days imprisonment, that incarceration
is counted. U.S.S.G. § 4A1.2, cmt. n.2.
      We disagree with Mendez. It does not matter here that Chavez was
initially discussing a different Guideline, as the court then used the same
criminal history Guidelines we must apply. Section 4A1.1 is entitled “Criminal
History Category,” while Section 4A1.2 is called “Definitions and Instructions
for Computing Criminal History.” Those sections applied in Chavez just as
they do here.


                                          6
    Case: 13-10291    Document: 00512569525     Page: 7   Date Filed: 03/21/2014



                                 No. 13-10291
      The Government’s argument is straightforward. Mendez received an
initial sentence of imprisonment of 180 days, then received, on the same
conviction, an additional sentence of 365 days as a modification of the nature
of his supervision, not a revocation of that supervision. Section 4A1.2(k), the
Government suggests, simply does not apply.
      We consider one more part of the Guidelines to be relevant. To count
toward criminal history, a “prior sentence” must be one that was “imposed
upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo
contendere . . . .” U.S.S.G. § 4A1.2(a)(1). The original sentence of community
supervision imposed on Mendez followed an adjudication of guilt of the
underlying crime of burglary, but the modification did not follow an
adjudication of guilt of violations of supervision. Section 4A1.2(k) provides
clarity that should the procedures for revocation of probation, parole, and the
like have been followed, a new term of imprisonment may be added together
with the original term.      Mendez’s community supervision modification
definitely was not based on a revocation, as the motion to revoke had been
withdrawn. Instead, the only document we discover in the record relevant to
this is an order of September 6, 2006, in which a state trial judge ordered that
the conditions of community supervision be modified to add a period of
confinement within an SAFPF for between 6 and 12 months. No findings of
any kind, including about violations of conditions of supervision, appeared in
the order that modified the sentence.
      The Government’s argument that the period of confinement in the
SAFPF can be added to the initial incarceration suggests we do two things: (1)
ignore Section 4A1.2(k) on revocation as irrelevant to Mendez’s modified
sentence of community supervision, and (2) interpret “sentence imposed upon
adjudication of guilt” under Section 4A1.2(a)(1) to include a later modification


                                        7
    Case: 13-10291    Document: 00512569525    Page: 8   Date Filed: 03/21/2014



                                No. 13-10291
to the original sentence of community supervision, even when the revised
sentence included a period of confinement.
      As to why we may not properly ignore the subsection on revocation,
Mendez relies heavily on a Ninth Circuit case. See United States v. Ramirez,
347 F.3d 792 (9th Cir. 2003). In that case, the defendant was on parole. A
parole board twice determined that his parole should not be revoked, but each
time Ramirez was ordered to spend a few weeks in temporary detention. Id.
at 796-97. The district court held that because there was no revocation of
parole, Section 4A1.2(k) was inapplicable, and the brief detentions were not
relevant to his criminal history. Id. at 797. On appeal, the court focused on
whether Ramirez’s modification amounted to a constructive revocation. Id. at
799. The Ninth Circuit held that it did not because the hearing Ramirez
received did not meet the constitutional standards for a revocation hearing
established by the Supreme Court in Morrissey. Id. at 801. The court ascribed
special meaning to the Commission’s use of the term “revocation” and
suggested that Section 4A1.2(k) prevents any aggregations under Section
4A1.1(a) that do not occur through revocation. Id.
      Ramirez stands alone. Our research reveals that all other circuits to
address the question have interpreted the phrase “revocation of probation”
broadly enough to apply to terms of imprisonment that were not imposed
through formal revocation proceedings. See United States v. Galvan, 453 F.3d
738, 741 (6th Cir. 2006); United States v. Glover, 154 F.3d 1291, 1295-96 (11th
Cir. 1998); United States v. Reed, 94 F.3d 341, 346 (7th Cir. 1996); United
States v. Glidden, 77 F.3d 38, 40 (2d Cir. 1996). These courts reasoned that
allowing a district court to aggregate two terms of imprisonment imposed for
the same prior conviction under Section 4A1.2(k) is consistent with the purpose
of that Guideline and more fundamentally with the purpose of Chapter Four
of the Sentencing Guidelines. Id.
                                      8
    Case: 13-10291    Document: 00512569525     Page: 9    Date Filed: 03/21/2014



                                 No. 13-10291
      We do not explore this issue further, as the Government stated in its
brief that it does not advance the possibility of using the subsection on
revocation.   Though we apply de novo review to the application of the
Guidelines, we generally do not rely on arguments not fully briefed by the
parties. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      Thus what is left is the Government’s argument that there is only one
prior sentence, imposed immediately after the initial adjudication of guilt, and
for criminal history purposes the sentence includes any confinement such as to
an SAFPF ordered after modification of the original community supervision.
The question is one of federal law, not that of Texas. Brooks, 166 F.3d at 727.
The question is whether a sentence that modifies the terms of community
supervision can be said to arise from the original adjudication of guilt.
      The Guidelines do not directly address this situation. As we quoted
already, the Chavez court noted that the Guidelines and commentary do not
state “that the sentence can only be the one that was initially pronounced,
without inclusion of any later modifications.” Chavez, 476 F. App’x at 789. Not
at issue is the power of a Texas state court to modify under its own procedures,
and there is no constitutional argument before us that any defect under federal
law exists in the modification. The only issue is how the modification should
be treated for purposes of criminal history.
      We conclude that the natural interpretation of the words of Section
4A1.2(a)(1), that a prior sentence is one “previously imposed upon adjudication
of guilt,” looks to the currently operative sentence for that conviction. Under
Texas law, the trial judge retained the power to modify the part of the sentence
regarding community supervision. Thus the sentence, based on the original
adjudication, was always subject to modification in certain limited ways and
after following certain procedures that we will discuss. Using that power, the
judge added an obligation of supervision in a substance-abuse facility. We
                                       9
    Case: 13-10291     Document: 00512569525    Page: 10   Date Filed: 03/21/2014



                                 No. 13-10291
conclude the revised sentence is the one that was imposed upon, i.e., as a result
of, an adjudication of guilt.
      We also consider it relevant that allowing this interpretation would not
undermine Section 4A1.2(k). If our interpretation would allow for bypassing
that specific Guideline provision, we risk weakening it or even making it
superfluous. On this question, it is important to know how Texas governs
community supervision. The sentencing court retains jurisdiction to revoke or
modify the supervision after notice and hearing. TEX. CODE CRIM. PROC. ANN.
art. 42.12. The Texas Court of Criminal Appeals has examined the process for
revocation of community supervision and determined that Morrissey applies.
Ex parte Carmona, 185 S.W.3d 492, 495-96 (Tex. Crim. App. 2006) (plurality
op.). A later opinion pointed out one distinction that it thought likely did not
make a constitutional difference, which is that there is no preliminary hearing
to determine probable cause before an independent parole officer. Ex parte
Doan, 369 S.W.3d 205, 209-10 (Tex. Crim. App. 2012) (plurality op.). The
procedures apply not only to revocations but also to modifications. TEX. CODE
CRIM. PROC. ANN. art. 42.12, §§ 21 & 22. Instead of a hearing, it appears that
Mendez waived his rights and agreed to the modification. At least there is no
suggestion that what occurred in 2006 to modify the community supervision
was objected to in any way.
      In sum, Texas courts have held that the provisions of Texas Article 42.12
for community supervision modifications largely comply with the due process
requirements applicable to parole and probation revocations. No one argues
the point in this appeal.       Consequently, considering a modification of
community supervision imposed after waiver of those procedures to be a
sentence of imprisonment for purposes of Section 4A1.1, does not trench upon
the protections of Section 4A1.2(k) regarding revocations.


                                       10
   Case: 13-10291    Document: 00512569525     Page: 11    Date Filed: 03/21/2014



                                No. 13-10291
      The sentence of 365 days after modification of community service was
properly added to the initial sentence of 180 days.       The determination of
criminal history was correct.
      The motion for expedited consideration is denied.
      AFFIRMED




                                     11
    Case: 13-10291     Document: 00512569525     Page: 12    Date Filed: 03/21/2014



                                  No. 13-10291
PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting:

      Juan    Carlos   Castaneda     Mendez    was    sentenced    to   ten   years
imprisonment for a burglary conviction. All but 180 days was suspended, with
the remainder to be served as “shock probation.” Several years later while
Castaneda Mendez was on probation, the judge modified the terms of his
probation to require he spend 365 days in a substance abuse felony punishment
facility (SAFPF). It is undisputed that the judge did not revoke Castaneda
Mendez’s probation.
      The main issue presented now is whether the district court, in
calculating a sentencing enhancement for a prior term of imprisonment of one
year and one month or more, may aggregate the 180 days Castaneda Mendez
originally served with the 365 days in the SAFPF to reach the period required
for enhancement.       The Sentencing Guidelines specifically provide for
aggregation of sentences in U.S.S.G. § 4A1.2(k), which states that “[i]n the case
of a prior revocation of probation . . . add the original term of imprisonment to
any term of imprisonment imposed upon revocation. The resulting total is used
to compute the criminal history points for § 4A1.1(a), (b), or (c), as applicable.”
      This is the precise scenario presented here, with the sole exception being
that the constitutional protections of a formal revocation of probation were not
provided.    Having failed to meet the requirements for aggregation under
U.S.S.G. § 4A1.2(k), the government urges us to disregard that provision
altogether and aggregate Castaneda Mendez’s sentences under U.S.S.G.
§ 4A1.2(a)(1), a generic provision that says nothing about aggregation and
simply defines “prior sentence” to mean “any sentence previously imposed
upon adjudication of guilt.” This asks us to hold that a specific provision for
the aggregation of sentences if and when probation has been revoked is of no

                                        12
    Case: 13-10291        Document: 00512569525          Page: 13      Date Filed: 03/21/2014



                                        No. 13-10291
moment. But “[a]s always, where there is no clear intention otherwise, a
specific statute will not be controlled or nullified by a general one.” 1 In line
with “our longstanding practice of construing statutes in pari materia,” 2 the
provision in the same statute that deals precisely with the situation here—
where an initial term of imprisonment is followed by probation and then by
imprisonment when the terms of probation are violated—must be read
together with the generic provision that simply defines “prior sentence” as “any
sentence previously imposed upon adjudication of guilt.” If no “aggregation
mechanism” is needed, as the government urges, § 4A1.2 is an odd statutory
scheme indeed: one that provides for the aggregation of sentences when
probation formally is revoked but also allows courts to aggregate sentences on
no authority at all when probation merely is modified. This reading renders
§ 4A1.2(k) entirely superfluous.
       Nor is the distinction between revocation and modification one without
a difference.        The meaningful differences between “modification” and
“revocation” are not lightly dismissed by district court judges, and should not
be by this Court. Revocation is a very different procedure than modification, a
distinction appreciated by the Sentencing Guidelines themselves. 3 Before a



       1 Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (quotation marks
and alterations omitted) (emphasis in original). See also, e.g., Hinck v. United States, 550
U.S. 501, 506 (2007) (describing the “well-established principle” that “a precisely drawn,
detailed statute preempts more general remedies” (internal quotation marks and citations
omitted)); EC Term of Years Trust v. United States, 550 U.S. 429, 433 (2007) (same);
Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976) (“Where there is no clear
intention otherwise, a specific statute will not be controlled or nullified by a general one,
regardless of the priority of enactment.” (quoting Morton v. Mancari, 417 U.S. 535, 550–51
(1974))).
       2 Crawford Fitting Co., 482 U.S. at 445.
       3 See, e.g., U.S.S.G. § 7B1.3 (explaining a court’s discretion to revoke probation, on the

one hand, or modify or extend its terms, on the other, and the factors and consequences that
apply to each).
                                              13
    Case: 13-10291        Document: 00512569525          Page: 14      Date Filed: 03/21/2014



                                        No. 13-10291
revocation of parole or probation can occur, the Constitution weighs in,
requiring that there be (1) a formal finding that a probationer has committed
a violation and (2) a determination that the violation was serious enough to
warrant reimposing the probationer’s original sentence. 4 Because the
consequences of the revocation process are serious, the probationer must be
afforded an opportunity to present evidence to suggest that his violation does
not warrant revocation. 5 Due Process requires both a preliminary hearing to
determine whether there was reasonable cause to believe that a probationer
violated the conditions of his probation, and if requested a final revocation
hearing to determine whether revocation actually is warranted. 6                         These
procedural safeguards ensure that the more serious consequences of
revocation—among many others, the aggregation of sentences under
§ 4A1.2(k)—are not imposed without Due Process safeguards. As Morrissey
recognized, lower court judges and probation authorities are better positioned
to determine, in their discretion, which sanction is appropriate for a
defendant’s particular situation. 7 For this Court to gloss over § 4A1.2(k)’s
explicit requirement that the more serious sanction of revocation be imposed
before two sentences can be aggregated undermines the balance struck by the




       4  Morrissey v. Brewer, 408 U.S. 471, 479–80 (1972); Gagnon v. Scarpelli, 411 U.S. 778
(1973) (extending requirements of Morrissey to probation revocation hearings).
        5 See Morrissey, 408 U.S. at 482, 487–88.
        6 Id. at 486–88.
        7 408 U.S. at 480 (The question whether revocation is necessary “involves the

application of expertise by the parole authority in making a prediction as to the ability of the
individual to live in society without committing antisocial acts. This part of the decision, too,
depends on facts, and therefore it is important for the board to know not only that some
violation was committed but also to know accurately how many and how serious the
violations were. Yet this second step, deciding what to do about the violation once it is
identified, is not purely factual but also predictive and discretionary.”)
                                              14
   Case: 13-10291       Document: 00512569525        Page: 15     Date Filed: 03/21/2014



                                     No. 13-10291
Sentencing Guidelines and by sentencing judges, and I decline to do so absent
compelling justification.
      The majority is mollified by a suggestion, not argued or briefed by either
party, that the procedures for revocation of community supervision apply also
to modifications under Texas Code of Criminal Procedure Article 42.12, and
that these largely comply with the Due Process requirements applicable to
parole and probation revocations. But while the requirement of a preliminary
hearing under Tex. Art. 42.12 § 21 applies to both modifications and
revocations, the similarity under Texas law ends there.                 Modification is
addressed in 42.12 § 22; revocation is addressed separately under § 23, and
only the latter mentions a right to appeal. 8 The Texas statute likewise grants
more extensive powers to a judge who revokes community supervision under
§ 23, such as “proceed[ing] to dispose of the case as if there had been no
community supervision,” consistent with the higher Due Process bar that must
be met. Moreover, as the majority concedes, Ex Parte Carmona 9 recognized
only that the Due Process protections outlined in Morrissey apply to revocation
of community supervision—I find no authority that suggests Texas extends
these same Due Process protections to mere modifications of the same.
      I thus find persuasive the reasoning of United States v. Ramirez, 10 where
it likewise was undisputed that parole was not revoked, insofar as it held that
modification cannot serve as revocation of probation to aggregate sentences
under § 4A1.2(k). While this decision stands alone in squarely deciding the
issue presented here, so does the Eleventh Circuit’s decision to the contrary in




      8 Tex. Code. Crim. Proc. Art. 42.12 § 23(b).
      9 185 S.W.3d 492, 495–96 (Tex. Crim. App. 2006) (plurality op.)
      10 347 F.3d 792 (9th Cir. 2003).

                                           15
    Case: 13-10291        Document: 00512569525          Page: 16     Date Filed: 03/21/2014



                                       No. 13-10291
United States v. Glover. 11 But the Eleventh Circuit’s reasoning is unpersuasive
insofar as it fails to provide a compelling justification for departing from the
plain text requirement of “revocation” in § 4A1.2(k) and the distinctions drawn
elsewhere—by Due Process as articulated in Morrisey, by district judges, and
by the Sentencing Guidelines themselves—between modification and
revocation.
       Finally, the government urges us to look to Chavez, 12 an unpublished
opinion where we held that modification of probation that required the
defendant to attend a SAFPF for up to one year constituted a sentence of
imprisonment for a sentencing enhancement under a different provision,
U.S.S.G. § 2L1.2(b)(1)(B). But unlike Castaneda Mendez, who served an initial
term of 180 days that the government seeks to aggregate with the later SAFPF
term, the entirety of Chavez’s sentence was initially suspended. There being
no multiple stays behind bars to aggregate, Chavez has little to say about the
difficult aggregation question presented here.
       I take no issue with the majority’s holding that an SAFPF qualifies as a
term of imprisonment. But I cannot look past the plain text of § 4A1.2(k) in
ignoring the specific for the general when the requirements of the former are
not met. Nor can I accept the odd statutory scheme that results, in which



       11  154 F.3d 1291 (11th Cir. 1998). Of the four cases cited by the majority opinion, only
Glover explicitly addressed the modification versus revocation distinction that troubles us
here. In the other three cases, the probationer was resentenced to probation after the period
of incarceration. See United States v. Reed, 94 F.3d 341, 342–43 (7th Cir. 1996); United States
v. Glidden, 77 F.3d 38, 39 (2d Cir. 1996); United States v. Galvan, 453 F.3d 738, 740 (6th Cir.
2006) (noting that the court found it “telling” that an electronic monitoring condition of
probation had to be “reinstated” after a prison term, in concluding that probation was
constructively revoked despite the lack of specific terminology to that effect). This procedure
is more in line with the common understanding of “revocation” and thus does not squarely
present the difficult issue here.
        12 476 Fed. App’x 786 (5th Cir. 2012).

                                              16
   Case: 13-10291     Document: 00512569525     Page: 17   Date Filed: 03/21/2014



                                 No. 13-10291
sentences can be aggregated under § 4A1.2(k) if the constitutional protections
of a formal revocation are met, and also if not. I respectfully dissent.




                                       17
