                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1217n.06

                                            No. 11-2612                                    FILED
                                                                                       Nov 26, 2012
                           UNITED STATES COURT OF APPEALS                        DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA                           )
                                                   )
        Plaintiff - Appellee                       )
                                                   )    ON APPEAL FROM THE UNITED
v.                                                 )    STATES DISTRICT COURT FOR THE
                                                   )    WESTERN DISTRICT OF MICHIGAN
XAVIER ALEXANDER PRIESTER                          )
                                                   )
        Defendant - Appellant                      )


Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.

        JULIA SMITH GIBBONS, Circuit Judge. Xavier Priester appeals his sentence, arguing

that the district court erroneously found that he served substantial sentences on two prior criminal

offenses, resulting in a higher sentencing range under the U.S. Sentencing Guidelines (“Guidelines”)

than he would otherwise have received. Priester has also filed a motion to remand this case for re-

sentencing and a motion to supplement the record on appeal. We grant the motion to remand and

deny as moot the motion to supplement the record. Accordingly, we vacate Priester’s sentence and

remand for re-sentencing so the district court can assess, in the first instance, the accuracy of the

representations the parties have made about the time Priester spent in jail as a result of his March 14,

2005, state-court criminal adjudication.




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                                                   I.

                                                   A.

        Priester pled guilty to conspiring to distribute crack cocaine, powder cocaine, and marijuana

in 2008 and received a sentence of 180 months’ imprisonment. On his first appeal, we vacated and

remanded for re-sentencing in light of Spears v. United States, 555 U.S. 261 (2009). See United

States v. Priester, 646 F.3d 950, 953 (6th Cir. 2011).

        The pre-sentence report (“PSR”) prepared for Priester noted that he had been arrested for

marijuana possession and driving with a suspended license on March 14, 2005, in Washtenaw

County, Michigan. The PSR described the adjudication of the offense as follows:

        9-30-05/ Ct. 1, 12 months probation, 180 days jail, suspended, $1,195 fine; Ct. 2, 90
        days jail, suspended, $645 fine
        03-01-06/ 180 days jail, release on payment of $1,840 fine, unsuccessful probation
        discharge

        Washtenaw County Jail, Ann Arbor, Michigan, records reflect Mr. Priester was
        released from custody on July 23, 2006.

Because the PSR found that Priester spent more than sixty days in jail for this offense, it assessed

two criminal history points to Priester, as mandated by the 2008 version of the Guidelines. U.S.

Sentencing Guidelines Manual § 4A1.1(b) (2008). In addition, since Priester committed the

conspiracy offense for which he was being sentenced in federal court “less than two years after

release from imprisonment on a sentence counted under” § 4A1.1(b), this offense triggered the

Guidelines’ “recency” provision. Id. § 4A1.1(e). Accordingly, the PSR assessed two additional

criminal history points to Priester for this offense, for a total of four points related to this offense.

        Priester objected to the PSR’s scoring of this offense. He agreed that the sentence he

received on September 30, 2005, was accurately stated by the PSR and admitted that he had been


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arrested on a bench warrant in February 2006 for violating his probation terms and imprisoned for

a few days. But he argued that he paid his $1,840 fine on March 1, 2006, in lieu of serving out the

jail sentence and “did not serve [the 180-day] term that was imposed.” Priester relied upon the

county’s Misdemeanor Register of Actions (“Register”) to prove his assertion, which he submitted

as an exhibit to his sentencing memorandum. The Register includes the following note on Priester’s

sentence, dated March 1: “Serve 180D Jail/Credit 5D/Bal 175D to serve Release on payment of

$1,840” on March 1. The entry immediately below it, also dated March 1, indicates Priester paid

the fine: “pd 1840 bal 0.” Priester contends that this offense should have been scored under

§ 4A1.1(c), rather than § 4A1.1(b), because he paid a fine as an alternative to serving out the full

term of imprisonment. U.S. Sentencing Guidelines Manual § 4A.2, cmt. 4 (2008) (“A sentence

which specifies a fine or other non-incarcerative disposition as an alternative to a term of

imprisonment . . . is treated as a non-imprisonment sentence.”). This would lead to one criminal

history point being assessed against Priester related to this offense, instead of four, since subsection

(c) prior offenses merit only one criminal history point and do not trigger additional points for

“recency” under § 4A1.1(e). Scoring the offense in the manner Priester proposes would have

significantly reduced his Guidelines sentencing range.

        The government argued at the re-sentencing hearing that Priester’s interpretation of the

Register was erroneous. It asserted that the fine was an additional requirement for Priester’s release,

rather than an alternative sentence, and that he actually served a jail term longer than sixty days after

violating probation. The district judge agreed and made the following ruling from the bench on the

dispute:




                                                  -3-
                 Paragraph 64, as I indicated, does show that the 180 days of jail that was
        imposed initially I think sometime in 2005 was suspended. That’s clear on the face
        of the document. But when you read in later in what the presentence report indicates
        it’s that the 180 days was later imposed because of a probation violation with credit
        for five days’ time served and the remaining 175 then to be served. And that’s an
        entry from March 1 of 2006.

                The argument from defense here, I think, is that the Court should treat this as
        an alternative sentence and treat it as a noncustodial sentence because the document
        says that release could happen upon payment of $1,840 for the costs and fines.

                 I don’t think that’s really what an alternative sentence is . . . . It certainly was
        not imposed as an alternative sentence . . . . Rather it was imposed ultimately based
        on the probation violation as the jail term. In fact, five days had already been served
        and credited with 175 to go, and it’s simply a future condition of release, not imposed
        in my view as an alternative sentence from the inception as we sometimes see. So
        it seems to me that the two points there are appropriately scored even if there was a
        later release that occurred before the full 180 days had been served.

        Priester also objected to the scoring of an October 6, 2001, arrest in Oakland County for

driving with a suspended license. The PSR states that Priester served thirty-one days in jail for this

offense and assessed him one criminal history point, but Priester maintains that the court suspended

his sentence. The first page of the Register for this offense notes that Priester received a thirty-one-

day jail sentence. But on the January 28, 2002 entry reflecting the minutes of Priester’s sentencing,

the phrase “jail term suspended” appears immediately below the listing for a “jail term” of thirty-one

days. The district judge agreed with the government that Priester actually served thirty-one days in

jail for this offense:

        [M]y reading of the documents . . . is that the 31 days was actually imposed and was
        not judicially suspended. Certainly that’s what the [first] page of even the Register
        of Actions indicates where in the middle of the page it says, “Jail sentence, 31 days,”
        and there’s no indication of suspension at all. As in contrast, for example, to the
        paragraph 64 papers, which we’ll look at in a minute, there’s an asterisk right on the
        face page indicating that the jail time was suspended. At least initially. But 61
        there’s no such indication. And when you look into that January 28, ‘02, entry where
        the jail term is noted, it’s 31 days. There’s then what I would interpret as a field for


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        jail term suspended which would either have to be indicated yes with an X or
        something like that and it isn’t. So I don’t think the fairest reading of this paper is
        that the sentence was suspended even in the view of whoever prepared the Register
        of Actions.

        Based on Priester’s category IV criminal history and offense level of thirty-five, the district

judge calculated a sentencing range of 151 to 188 months’ imprisonment. Because Priester offered

substantial assistance to the government, the district judge adjusted his sentencing range downward

pursuant to § 5K1.1 of the Guidelines, resulting in a final range of 110 to 137 months’ imprisonment.

The district judge sentenced Priester to 117 months’ imprisonment. This timely appeal followed.

                                                   B.

        Priester’s principal brief on appeal addressed his issue with the scoring of his March 14, 2005

prior offense, but not his October 6, 2001 prior offense. In his reply brief on appeal, Priester

submitted the Washtenaw County jail records upon which the probation department supposedly

relied in calculating the criminal history points on his March 14, 2005 offense. These records show

that authorities brought Priester to the jail on February 27, 2006 at 4:30 p.m., but released him on

March 1, 2006 at 6:47 p.m. A code on the records explains that the jail released Priester because he

“POSTEDBOND.” The July 23, 2006, date included in the PSR as Priester’s release date is never

mentioned in these records, and they do not indicate that he spent more than a handful of days in the

Washtenaw County jail on any prior offense. Priester also challenged the scoring of his October 6,

2001, offense in his reply brief by submitting an e-mail from the Oakland County Sheriff’s Office

Records Bureau. The e-mail states that the Oakland County jail did not have any record of Priester

being a prisoner in their facilities. This undercuts the assertion in the PSR that Priester spent thirty-

one days in jail on the October 6, 2001 incident.



                                                  -5-
        After the completion of briefing, Priester filed a motion to remand this case for re-sentencing

and a motion to expand the record on appeal in light of the contents of these records, both of which

are pending. Priester also moved to expand the record in the district court, but the district judge

denied the motion without prejudice, reasoning that this court is “in the best position to evaluate

whether to supplement the record, remand for further consideration, or proceed with a plain error

standard of review . . . .”

                                                  II.

                                                  A.

        We address issues raised by Priester’s March 14, 2005, arrest for marijuana possession and

driving with a suspended license first. The scoring of this prior offense was the original subject of

this appeal, but Priester did not submit the Washtenaw County jail records that are now at issue until

he filed his reply brief. The government asserts that these records are “new evidence” and that we

should review Priester’s sentence without considering them. Generally, arguments not raised in an

appellant’s opening brief are considered abandoned. Youghiogheny & Ohio Coal Co. v. Milliken,

200 F.3d 942, 955 (6th Cir. 1999). Nonetheless, this rule “is prudential and not jurisdictional.” Id.

“Deviations are permitted in ‘exceptional cases or particular circumstances,’ or when the rule would

produce a ‘plain miscarriage of justice.’” Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d

1445, 1461 (6th Cir. 1988) (quoting Hormel v. Helvering, 312 U.S. 552, 558 (1941)).

        Overlooking Priester’s failure to produce the jail records until this stage of the case is

warranted. In the district court, the government relied upon the PSR’s assertions about the

Washtenaw County jail records to argue for a higher sentencing range for Priester. While the

government asserts in its response to the motion to remand that the records Priester submitted do not


                                                  -6-
prove conclusively that he is correct, it does not dispute that the records are genuine and offers no

explanation as to how the PSR reached its conclusions about the time Priester spent in jail.

Moreover, while Priester did not introduce the actual jail records until a very late stage of litigation,

he raised the substance of his objection to the criminal history scoring of this offense in both the

district court and in his opening brief on appeal. To guard against a potential miscarriage of justice,

we will give full consideration to Priester’s claim. See United States v. Alaniz, 75 F. App’x 344,

352–53 (6th Cir. 2003) (vacating sentence and remanding case after prison records discovered by

defendant’s appellate counsel demonstrated PSR’s representations about a prior conviction were not

accurate under “plain error” review).

        The government raised concerns in its response to the motion to remand that Federal Rule

of Criminal Procedure 35(a) precluded review of the Washtenaw County jail records. It may be

correct that Rule 35(a) would have prohibited the district court from reconsidering Priester’s

sentence on these grounds, although that is an issue we need not decide today. See Fed. R. Crim. P.

35 (Notes to 1991 Amendments) (acknowledging that Rule 35(a) “recognize[s] explicitly the ability

of the sentencing court to correct a sentence,” but that such ability is “very narrow”) (emphasis

added); United States v. Dotz, 455 F.3d 644, 646 (6th Cir. 2006) (“Rule 35(a) . . . allows the district

court to correct arithmetical, technical, or other clear sentencing errors.”). But Rule 35(a) does not

prevent this court from considering issues raised by Priester’s jail records. That is not to say there

are no limits on such consideration; assignments of error not presented to the district court are only

reviewed for plain error. Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may

be considered even though it was not brought to the court’s attention.”); United States v. Gardiner,

463 F.3d 445, 459 (6th Cir. 2006) (recognizing that only obvious errors that affect a defendant’s


                                                  -7-
substantial rights and adversely impact the integrity of judicial proceedings may be corrected under

“plain error” review). But “plain error” has been found in cases similar to this one. See, e.g., Alaniz,

75 F. App’x at 352–53. Accordingly, we find that Priester’s failure to raise this issue in a Rule 35(a)

motion does not preclude our consideration of it.

                                                  B.

        During sentencing, the district court “must—for any disputed portion of the pre-sentence

report . . . rule on the dispute or determine that a ruling is unnecessary . . . .” Fed. R. Crim. P.

32(i)(3)(B). We have held that this rule is not satisfied when a district judge relies upon a PSR’s

factual contentions after being asked to resolve a dispute regarding those contentions. United States

v. Tarwater, 308 F.3d 494, 518 (6th Cir. 2002) (“Because the purpose of the rule is to ensure that

sentencing is based on reliable facts found by the court itself after deliberation, a court may not

merely summarily adopt the factual findings in the presentence report or simply declare that the facts

are supported by a preponderance of the evidence.”).

        For instance, in United States v. Darwich, 337 F.3d 645 (6th Cir. 2003), the district court

failed to “make specific factual findings” on a leadership enhancement recommended by a PSR, even

after the defendant objected to the PSR’s factual assertions buttressing the enhancement. 337 F.3d

at 666. We found that the district court’s “exclusive reliance on the PSR . . . cannot be considered

a ruling” on disputed facts in a PSR. Id. at 667. To correct the oversight, we remanded to the district

court to “issue a ruling” on the contested factual issues and determine whether the enhancement was

actually applicable. Id.; see also United States v. Corrado, 227 F.3d 528, 540–41 (6th Cir. 2000)

(remanding for re-sentencing after the district court “did not set out findings” as to leadership

enhancements after defendants “objected to several findings in the presentence report”); United


                                                  -8-
States v. Tackett, 113 F.3d 603, 613–14 (6th Cir. 1997) (remanding for re-sentencing after the

“district court made no independent findings regarding the basis for the obstruction of justice

enhancement,” including the “hotly contested factual question of how much wasted time and effort

defendants’ conduct had caused”).

        The gravamen of Priester’s objection to the scoring of his March 14, 2005, offense is that the

district judge did not resolve the dispute over the facts stated in his PSR. The burden was on the

government to prove the facts supporting the additional criminal history points. See Darwich, 337

F.3d at 665. Nonetheless, the district judge appeared to presume that Priester served the full prison

sentence. Actual resolution of the objection would have required examination of the underlying jail

records mentioned in the PSR to see which party’s assertions about the nature of Priester’s setence

are correct. Accordingly, we must vacate Priester’s sentence and remand this case so the district

court can resolve, in the first instance, whether the underlying facts of the adjudication of his March

14, 2005, offense actually justify the three additional criminal history points he received. On

remand, the district court should consider all evidence relevant to this issue, including the jail

records. We anticipate that if the district judge finds that a new base sentencing range is appropriate,

he will nonetheless continue to apply an adjustment to that range reflecting Priester’s “substantial

assistance” to the government commensurate with the one applied during Priester’s first re-

sentencing.

                                                  III.

        Priester also asks for reconsideration of the scoring of his October 6, 2001, offense on

remand. We find the failure to raise this issue distinguishable from his arguments regarding the

March 14, 2005, offense in at least four ways. First, Priester did not even mention the scoring of this


                                                  -9-
offense in his opening brief. Second, the district judge did engage in the necessary factual inquiry

with respect to this offense by examining the evidence submitted and explaining why he believed

the sentence was actually imposed. Third, the e-mail Priester submitted to prove he did not spend

time in the Oakland County jail is not necessarily inconsistent with the district judge’s finding.

Unlike the Washtenaw County jail records, which show the times and dates on which Priester was

brought into and released from custody, the e-mail merely states that the jail had “no record of this

incarceration” and suggested that Priester’s counsel “check with the court of record” to pursue the

matter further. Fourth, there appears to be no error in the scoring of this offense. Priester received

a suspended sentence, probation, and community service from the state court after entering his guilty

plea, which qualifies as a “prior sentence” under § 4A1.1(c) of the Guidelines. A term of

imprisonment is not required. While not all misdemeanor convictions are scored, “[d]riving without

a license or with a revoked or suspended license” is, regardless of the sentence imposed, if

committed within ten years of the offense for which the defendant is being sentenced. U.S.

Sentencing Guidelines Manual §§ 4A1.2(c)(1) & 4A1.2(e)(2) (2008). The amount of time Priester

spent incarcerated on this offense is therefore irrelevant, and we see no reason to overlook Priester’s

failure to mention this issue at all in his opening brief. See Youghiogheny, 200 F.3d at 955. This

argument is waived.

                                                 IV.

       The motion to vacate is granted, and the motion to expand the appellate record is denied as

moot. Accordingly, we vacate Priester’s sentence and remand for further proceedings consistent

with this opinion.




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