PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4524

MARLON DEWAYNE DIXON,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-99-50)

Argued: June 8, 2000

Decided: September 19, 2000

Before WILKINSON, Chief Judge, and WIDENER and
TRAXLER, Circuit Judges.

_________________________________________________________________

Vacated and remanded with instructions by published opinion. Judge
Widener wrote the opinion, in which Chief Judge Wilkinson and
Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Edward Henry Weis, Assistant Federal Public Defender,
Charleston, West Virginia, for Appellant. Monica Kaminski Sch-
wartz, Assistant United States Attorney, Charleston, West Virginia,
for Appellee. ON BRIEF: Hunt L. Charach, Federal Public Defender,
Mary Lou Newberger, Assistant Federal Public Defender, Michael W.
Strong, Assistant Federal Public Defender, Charleston, West Virginia,
for Appellant. Rebecca A. Betts, United States Attorney, Charleston,
West Virginia, for Appellee.

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

Marlon Dewayne Dixon appeals the district court's order sentenc-
ing him to 63 months incarceration. For the reasons that follow, we
vacate the sentencing order and remand this case to the district court
for re-sentencing consistent with this opinion.

On March 9, 1999, Dixon was charged with possessing crack
cocaine with intent to distribute it in violation of 21 U.S.C.
§ 841(a)(1). In April 1999, Dixon pleaded guilty to the charge pursu-
ant to a plea agreement. Prior to sentencing, the United States Proba-
tion Office (the Probation Office) prepared a pre-sentence report in
which the Probation Office assigned Dixon two criminal history
points under the United States Sentencing Guidelines (Guidelines),
U.S.S.G. § 4A1.1(b) (1998), for a prior sentence he received in Flor-
ida state court.

Dixon's prior sentence in Florida involved a domestic violence
charge. On April 16, 1996, Dixon was arrested for aggravated battery.
He pleaded guilty and was sentenced to complete a 29-week interven-
tion program, to pay a $150 fine, to refrain from violent contact with
the victim, and to serve 60 days in jail with credit for time served.
Dixon had served 23 days in jail prior to sentencing for the aggra-
vated battery charge. The Florida court also suspended the 60-day jail
sentence and placed Dixon on probation. On January 10, 1997, Dixon
pleaded nolo contendre to a violation of probation, and the Florida
court revoked his probation. The Florida court sentenced Dixon to
time served, which was 35 days. In total, Dixon served 58 days in
prison for the Florida charges.1
_________________________________________________________________
1 Although not a formal part of the record, neither party disputes the
58-day total: 23 days time served for the initial sentence and 35 days
time served imposed upon the revocation of probation.

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The pre-sentence report prepared by the Probation Office states
that Dixon received "sixty days' [sic] Lake County Jail with credit for
time served, suspended upon condition that the defendant successfully
complete one year probation." The pre-sentence report also states that
Dixon received a sentence of time served for the violation of his pro-
bation, and it assigns two criminal history points for these sentences
under § 41A.1(b) of the Guidelines. At the sentencing hearing, Dixon
objected to the two criminal history points for the Florida sentences
and asserted that he should have received only one criminal history
point because the first prior sentence had been suspended. Dixon con-
tended that pursuant to § 4A1.1(c) of the Sentencing Guidelines, any
part of a sentence that is suspended shall not be counted for the "at
least 60 day" threshold in U.S.S.G. § 4A1.1(b). Dixon's counsel
stated:

          It is our position for A1.2b to apply it refers only to the por-
          tion that was not suspended and that in this case only 58
          days were not suspended and, therefore, [Dixon] should
          only get one point assessed for that particular offense.

The district court overruled Dixon's objection and reasoned that the
Florida sentence was, in fact, imposed and that all 60 days should be
counted toward the 60-day threshold in § 4A1.1(b) rather than just the
actual time served. The assignment of two criminal history points
placed Dixon in Criminal History Category II of Chapter 5, Part A of
the Guidelines and gave him a total offense level of 25. See U.S.S.G.
Ch. 5, Pt. A (Sentencing Table). The applicable sentencing range for
Level 25 is 63 to 78 months. See U.S.S.G. Ch. 5, Pt. A (Sentencing
Table). On July 19, 1999, the district court sentenced Dixon to 63
months with credit for the time he was in custody. Dixon filed a
timely notice of appeal on July 21, 1999.

Chapter Four of the United States Sentencing Guidelines instructs
a court to assign criminal history points to a convicted defendant for
certain prior sentences. Criminal history points, ranging from one to
three points, are assessed under U.S.S.G. §§ 4A1.1(a)-(f) according to
the length of each prior sentence. The number of points under each
subsection is added to determine the criminal history category and
applicable sentencing range. See U.S.S.G. Ch. 5, Pt. A (Sentencing
Table). Guideline § 4A1.1(b) provides that two criminal history

                    3
points are added "for each prior sentence of imprisonment of at least
sixty days not counted in (a)." U.S.S.G. § 4A1.1(b). Guideline
§ 4A1.1(c) provides that one criminal history point is added for any
other sentence not counted in subsections (a) or (b), not to exceed
four points. See U.S.S.G. § 4A1.1(c).

A "sentence of imprisonment" is defined under the Guidelines as
a sentence of incarceration and as the maximum sentence imposed
rather than the time actually served. See U.S.S.G.§ 4A1.2(b)(1); see
also U.S.S.G. § 4A1.2, commentary n.2 ("[T]he length of the sentence
of imprisonment is the stated maximum . . . . That is, the criminal his-
tory points are based on the sentence pronounced, not the length of
time actually served."). If, however, part of the sentence of imprison-
ment is suspended, the Guidelines provide that "sentence of imprison-
ment" refers "only to the portion that was not suspended." U.S.S.G.
§ 4A1.2(b)(2).2

The Guidelines also address calculation of terms of imprisonment
upon revocation of probation. Guideline § 4A1.2(k)(1) states, "Add
the original term of imprisonment to any term of imprisonment
imposed upon revocation [of probation]." Application Note 11 states,
"Rather than count the original sentence and the resentence after revo-
cation as separate offenses, the sentence given upon revocation [of
probation] should be added to the original sentence of imprisonment,
if any, and the total should be counted as if it were one sentence."
U.S.S.G. § 4A1.2(k)(1), commentary n.11.

Dixon argues that the district court erred in assigning two criminal
history points because his prior sentences were suspended, and he
served a total of only 58 days, which is two days short of the thresh-
old requirement of 60 days under U.S.S.G. § 4A1.1(b). Dixon also
argues that the assignment of one criminal history point would have
resulted in his placement in Criminal History Category I, instead of
Category II. With only one criminal history point, Dixon argues he
would have met the criteria for sentencing pursuant to what is called
the "safety valve" provision in U.S.S.G. §§ 2D1.1(b)(6) and 5C1.2
(1998). The safety valve combined with Dixon's three-level accep-
_________________________________________________________________
2 In the case at hand, the portion of the sentence not suspended was the
time actually served.

                    4
tance of responsibility reduction would have decreased Dixon's total
offense level to Level 23. This reduction to Level 23 would have
resulted in a Guideline range for sentencing of 46 to 57 months,
instead of the 63 to 78 month range that was referenced for Level 25.

We are of opinion that Dixon's interpretation of the United States
Sentencing Guidelines is correct. Initially, § 4A1.2(k)(1) and Applica-
tion Note 11 instruct that the terms of imprisonment in this case
should be aggregated. An initial sentence imposing probation and a
sentence upon revocation of that probation are treated as one sentence
under the Guidelines. See U.S.S.G. § 4A1.2(k)(1). Application Note
11 states that the sentence given upon revocation should be added to
the original sentence, and the total should be counted as if it were one
sentence. See U.S.S.G. § 4A1.2(k)(1) commentary n.11. Thus, the
time periods of the initial sentence and the sentence imposed upon
revocation of probation must be aggregated.

The dispute in this case involves which terms of imprisonment
should be aggregated. Although the maximum sentence imposed gen-
erally provides the measure for assigning criminal history points
under Chapter 4 of the Guidelines, § 4A1.2(b)(2) limits the applica-
tion of §§ 4A1.1(a)-(c) when a sentence is suspended. See United
States v. Tabaka, 982 F.2d 100, 102-103 (3d Cir. 1992). Although we
have not previously addressed the specific issue presented in this
case, the Court of Appeals for the Third Circuit has set out the proper
procedure for applying § 4A1.2(b)(2) in cases where a defendant has
received a prior suspended sentence. See Tabaka , 982 F.2d at 101-
102. The Third Circuit has stated, "If part of a sentence of imprison-
ment was suspended, then `sentence of imprisonment' refers only to
the portion that was not suspended. If that section[§ 4A1.2(b)(2)]
applies here, then only one point, rather than three points, should have
been counted . . . ." Tabaka, 982 F.2d at 102; see United States v.
Glidden, 77 F.3d 38, 39 (2d Cir. 1996) (aggregating two periods that
totaled 60 days and then assigning two criminal history points as
directed under section 4A1.1(b)).

In Tabaka, the defendant was indicted in federal court for his
involvement in a drug conspiracy. See Tabaka, 982 F.2d at 101. Prior
to his indictment, the defendant was arrested and charged in Pennsyl-
vania state court for driving under the influence of alcohol. See

                    5
Tabaka, 982 F.2d at 101. On March 12, 1991, the state court sen-
tenced him to a term of imprisonment of a minimum of 48 hours to
a maximum of 15 months. See Tabaka, 982 F.2d at 101. On March
14, 1991, the state court entered an order suspending the defendant's
sentence. See Tabaka, 982 F.2d at 101. The Third Circuit held that
the district court erred in assigning three criminal history points
instead of one criminal history point to the defendant because all
except 48 hours of the defendant's sentence was suspended. See
Tabaka, 982 F.2d at 101. Therefore, the 48-hour time served which
was not suspended, rather than the sentence imposed, provided the
measure for reaching the "at least sixty day" minimum when the origi-
nal sentence is suspended under § 4A1.2(b)(2).

Similarly, in this case, Dixon's original Florida sentence and the
sentence he received for violating probation were suspended, and all
of the portion of the sentence not suspended was the time he actually
served for both, a total of 58 days. Dixon's original sentence was sus-
pended with credit for the 23 days he served. His sentence upon revo-
cation of probation was also suspended, except for time served of 35
days. Because § 4A1.2(b)(2) instructs that suspended sentences are
counted by the time not suspended, rather than the time imposed, and
§ 4A1.2(k)(1) instructs that an initial sentence imposing probation and
a sentence resulting from revocation of that probation are treated as
one sentence, the 23-day period and the 35-day period are aggregated.
Because this 58-day total is two days less than the"at least sixty
days" requirement in section 4A1.1(b), Dixon should have received
only one criminal history point.

The sentence of the district court must be vacated and the case
remanded for re-sentencing. Upon re-sentencing, the district court
will award only one point in the criminal history category under
§ 4A1.1 and will proceed with the balance of re-sentencing consistent
with this opinion.

VACATED AND REMANDED WITH INSTRUCTIONS

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