          United States Court of Appeals
                      For the First Circuit


No. 12-1345

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                        DONALD LEE PETERS,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Francisco A. Besosa, U.S. District Judge]



                              Before

                   Howard, Lipez and Thompson,
                         Circuit Judges.


     Thomas J. Trebilcock-Horan, Research and Writing Specialist,
with whom Héctor E. Guzmán-Silva, Federal Public Defender, and
Héctor L. Ramos-Vega, Assistant Federal Public Defender, were on
brief, for appellant.
     Dina Avila-Jimenez, Assistant United States Attorney, with
whom Rosa Emilia Rodriguez-Velez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief,
for appellee.



                        November 21, 2012
               HOWARD, Circuit Judge.             Donald Lee Peters appeals a

judgment of the United States District Court for the District of

Puerto    Rico,         which   sentenced        him   to    thirty-three       months'

imprisonment for failing to register as a sex offender.                               In

calculating         a   range   for    his   sentence       under    the    sentencing

guidelines, the district court included two additional criminal

history points because Peters was under a criminal justice sentence

when he failed to register.             Peters contends that he was not under

a criminal justice sentence at that time.                   We affirm.

                                    I. Background

               To   explain     Peters's     sentence,      we    first    discuss   the

relevant portion of his criminal history.                   In 2001, Peters pleaded

guilty in a Wyoming court to various counts of child abuse and

indecent liberties against minors and was sentenced to eight years

of incarceration.          As a result, he must register as a sex offender

under    the    Sex      Offender     Registration     and       Notification    Act.

18 U.S.C. § 2250(a).            In 2004, Wyoming released Peters on parole

and transferred the supervision of his parole to Virginia.                        While

in Virginia, Peters committed grand larceny, and in August 2006 a

Virginia court sentenced him to two years of incarceration with the

Virginia Department of Corrections, with one year and nine months

suspended on the condition that Peters "be of good behavior for 3

years from [his] release from confinement." In doing so, the court

considered a presentence report indicating that Wyoming had revoked


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Peters's    parole     and    had   issued   a   warrant   for   his    further

confinement.     Peters was incarcerated in Virginia until November

2006.      Without    being   released   from    confinement,    he    was then

transferred to Wyoming, where he was incarcerated until November

2008.      After his release from confinement in Wyoming, Peters

traveled to Puerto Rico but failed to register as a sex offender

there, a crime which he was alleged to have committed in February

2010 and to which he pleaded guilty.

            Peters's sentence for failing to register as a sex

offender was calculated in part under Section 4A1.1 of the United

States Sentencing Guidelines, which provides, "Add 2 [criminal

history] points if the defendant committed the instant offense

while under any criminal justice sentence . . . ."           The presentence

investigation report prepared in advance of sentencing stated that

Peters's    requirement,      under   the    Virginia   sentence,      of   "good

behavior for 3 years from [his] release from confinement" began to

run when he was released from confinement in Wyoming in 2008 and

ended in 2011.       As a result, the report stated, Peters was under a

criminal justice sentence when he failed to register in 2010.                The

report thus recommended that the court add two criminal history

points when calculating Peters's sentence, a recommendation the

government supported. At the sentencing hearing, the United States

probation officer who prepared the report testified that he reached

this recommendation after conferring with a Virginia district


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attorney.     Peters, who concedes that he was under a criminal

justice   sentence    so   long    as    he   was   subject        to    Virginia's

requirement that he "be of good behavior for 3 years from [his]

release from confinement," argued at sentencing that this period

started to run when he was transferred from Virginia to Wyoming in

2006, so that he was no longer under a criminal justice sentence in

2010.   The court agreed with the government and added two criminal

history points, which resulted in a guideline sentence of twenty-

seven to thirty-three months' imprisonment.                The court sentenced

Peters to thirty-three months' imprisonment.               If the court had not

added these two points, the guideline sentence would have been

twenty-one to twenty-seven months.

                                II. Analysis

            We review the district court's Guidelines calculation de

novo and any predicate factual findings for clear error.                     United

States v. Thomas, 635 F.3d 13, 16 (1st Cir. 2011).

            The   fundamental     question    in    this    case    is    what   the

Virginia court meant when it suspended a portion of Peters's

sentence on the condition that he "be of good behavior for 3 years

from [his] release from confinement."          Peters asserts that because

the sentencing order stated that his incarceration was to be "with

the Virginia Department of Corrections," the phrase "release from

confinement" should be understood to mean "release from confinement




                                        -4-
with the Virginia Department of Corrections."       Peters also relies

on the sentencing order's lack of references to Wyoming.

          We hesitate to assume that the Virginia court meant

something other than what it said:         the requirement of good

behavior began when Peters was released from confinement, not just

from confinement in Virginia.   At sentencing, the court was fully

aware that Wyoming intended to confine Peters after he served his

sentence in Virginia. Knowing that fact, if the court nevertheless

had meant for Peters's good-behavior period to run while Peters was

imprisoned in Wyoming, it easily could have said so. Therefore, we

decline to adopt Peters's reading.

          This is not to say that an order of the type represented

by the Virginia sentencing order must be read, regardless of the

circumstances, to commence the running of the supervised release

period only after all conceivable consecutive confinement has been

served.   It became clear during oral argument that such a rule

potentially could result in an unreasonably lengthy hold over a

person who had long since completed the incarcerative term related

to the charges for which sentence had been imposed.             But the

factual context of the Virginia sentencing at issue does not

remotely suggest such an eventuality.

          Given   the   circumstances   attendant    to   the   Virginia

sentencing, reading the sentencing order as written serves an

apparent purpose of the good-behavior requirement:         to evaluate


                                 -5-
Peters's ability to function in free society. Peters concedes that

a requirement of good behavior is the functional equivalent of

unsupervised probation.        See Dyke v. Commonwealth, 69 S.E.2d 483

(Va. 1952).    "An order granting probation is not a sentence to

confinement.     Indeed, it has exactly the opposite effect.                  A

probation   order     stays,    relieves,    or   prevents    a   person   from

confinement in prison."        Vick v. Commonwealth, 111 S.E.2d 824, 826

(Va. 1960), superseded on other grounds by statute as recognized in

Vincent v. Warden of the Dillwyn Corr. Ctr., 517 S.E.2d 17, 18-19

(Va. 1999). Peters's interpretation of the sentencing order, which

would count his time in prison in Wyoming toward his good-behavior

requirement, works against these principles.             Moreover, Virginia's

statutes    "confer    upon    trial   courts     wide   latitude   and    much

discretion in matters of suspension and probation to provide a

remedial tool in the rehabilitation of criminals . . .."              Deal v.

Commonwealth, 421 S.E.2d 897, 899 (Va. Ct. App. 1992) (alterations

omitted) (citations omitted) (internal quotation marks omitted).

In light of this guidance, we will not impose an unduly narrow

reading of the sentencing order.

            Although no Virginia law clearly addresses the question

at hand, analogous cases support the conclusion that the good-

behavior period did not begin until Peters was released from

incarceration in Wyoming. The Virginia Supreme Court has held that

when a defendant commits another crime during his probation, the


                                       -6-
statutory time limit for the state to revoke his probation is

tolled during the defendant's incarceration for the other crime.

Rease v. Commonwealth, 316 S.E.2d 148, 151–52 (Va. 1984).          The

Court reasoned that

          [r]ehabilitation is more readily accomplished
          when the probationer is under the broad
          control   of   the   court  and   the   direct
          supervision of the court's probation officer.
          And when defendant, due to his own conduct, is
          no longer under such control and supervision,
          the act of grace in granting probation in the
          first place is rendered a nullity.

Id. at 151. The probation period itself is also tolled under these

circumstances. Pierce v. Commonwealth, 633 S.E.2d 755, 759–60 (Va.

Ct. App. 2006) (citing Rease).    We recognize that the facts of this

case differ in that Peters committed his crimes in Wyoming before

he was sentenced in Virginia, and that he was not sentenced to

supervised probation.    But measuring Peters's good-behavior period

from his release from confinement in Wyoming serves Virginia's

interest in ascertaining whether Peters can behave himself as a

member   of   free   society.1   The    district   court's   sentencing

calculation was sound.

                            III. Conclusion

          We affirm the district court's judgment.




     1
       Because we hold that Peters's good-behavior requirement did
not begin until 2008, we do not reach the government's alternative
argument that the requirement began in 2006 but was tolled while
Peters was incarcerated in Wyoming.

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