United States v. John F. Tabaka, JR., Mary R. Tabaka Phillip S. Lucchese, and Gerald C. Munsch, Phillip S. Lucchese, 982 F.2d 100, 3rd Cir. (1992)
982 F.
2d 100
UNITED STATES of America, Appellee,
v.
John F. TABAKA, Jr., Mary R. Tabaka; Phillip S. Lucchese,
and Gerald C. Munsch,
Phillip S. Lucchese, Appellant.
No. 91-3882.
United States Court of Appeals,
Third Circuit.
Submitted Pursuant to Third Circuit Rule 12(6) Dec. 3, 1992.
Decided Dec. 28, 1992.
Elliot J. Segel, Erie, PA, for appellant.
Thomas W. Corbett, Jr., U.S. Atty., Paul J. Brysh, Bonnie R. Schlueter,
Asst. U.S. Attys., Pittsburgh, PA, for appellee.
Before: SCIRICA, ALITO, and WEIS, Circuit Judges.
WEIS, Circuit Judge.
In this appeal from a sentence, we conclude that an offense that occurs after the
conduct that is the basis of an indictment must be considered in calculating the
defendant's criminal history. However, when a previous sentence for an
unrelated offense is "suspended," the court must only consider the time served
before suspension when determining the appropriate level of enhancement.
Because the district court did not limit its calculation to the non-suspended
portion of the previous sentence, we will remand for resentencing.
The defendant pleaded guilty to one count of conspiracy to distribute cocaine
and marijuana as well as to one count of filing false tax returns. The district
court, after granting the government's motion for downward departure, imposed
concurrent sentences of 84 and 60 months. Defendant has appealed alleging
error in the calculation of the criminal history score adopted by the district
court.
The federal indictment alleges that the defendant engaged in a drug conspiracy
that began in 1977 and ended in June 1989. On May 24, 1990, before the
federal indictment had issued, the defendant was arrested by local police for
driving under the influence of alcohol in Erie County, Pennsylvania. After he
pleaded guilty, the state court sentenced him on March 12, 1991 to a term of
imprisonment for a minimum of 48 hours to a maximum of 15 months. Two
days later, on March 14, 1991, the state judge entered an order stating that "the
sentence as to imprisonment as above set forth be suspended during good
behavior and the Defendant is placed on Parole for the unexpired portion of the
maximum term."
The defendant pleaded guilty to the federal indictment on September 20, 1991,
and was sentenced on December 2, 1991. The district court rejected defendant's
contention that the state judgment was not a "prior sentence" under the
Guidelines for purposes of calculating criminal history. The court also rejected
the argument that, because the state sentence had been "suspended," the
criminal history score should have been one, rather than enhanced to three
based on the state's maximum term of 15 months.
I.
5
Under the Federal Sentencing Guidelines, criminal history points are assessed
according to the length of each prior sentence of imprisonment. U.S.S.G.
4A1.1(a)-(c). "Prior sentence" is defined as "any sentence previously imposed
upon adjudication of guilt, whether by guilty plea ..., for conduct not part of the
instant offense." U.S.S.G. 4A1.2(a)(1). As applicable to the facts here, the
Guideline commentary provides that the "[state] sentence imposed after the
defendant's commencement of the [federal] offense, but prior to sentencing on
the [federal] offense, is a prior sentence if it was for conduct other than conduct
that was part of the [federal] offense." U.S.S.G. 4A1.2(a)(1), comment. (n.1).
Defendant argues that the Guidelines should not enhance punishment for
anything other than an offense that occurred before the conduct that is the
subject of his federal indictment. The Court of Appeals for the Eleventh Circuit
rejected a similar argument, pointing out that a post-plea offense involves
additional criminal activity that makes the defendant more culpable and
suggests the likelihood of recidivism and future criminal conduct. United States
v. Walker, 912 F.2d 1365, 1366-67 (11th Cir.1990).
Essentially, the result in the case at hand is dictated by the plain wording of the
Guideline which focuses on whether the sentence was "previously imposed."
U.S.S.G. 4A1.2(a)(1). The Guideline does not discuss when the offense
occurred but, instead, looks to the timing of the federal sentencing hearing and
the earlier conviction. See United States v. Walling, 936 F.2d 469, 471 (10th
Cir.1991) ("the chronology of sentencing rather than the commission of the
crimes" is controlling); see also United States v. Lara, 975 F.2d 1120, 1129 (5th
Cir.1992); United States v. Hoy, 932 F.2d 1343, 1345 (9th Cir.1991); United
States v. Walker, 912 F.2d 1365, 1366 (11th Cir.1990); United States v. Smith,
900 F.2d 1442, 1448 (10th Cir.1990).
8
We conclude that the district court properly decided that the sentence for
driving under the influence of alcohol was a "prior sentence" for purposes of
calculating the criminal history score.
II.
9
Although we decline to adopt the defendant's argument that the state sentence
should not have been considered in the criminal history computation, we do
find merit to his contention that the district court added excessive points on the
basis of that offense.
10
A conviction for drunk driving is specifically designated as one of the
violations that should be factored into the total criminal history level under the
Guidelines. U.S.S.G. 4A1.2, comment. (n.5). The number of points assessed,
however, depends upon the level of punishment imposed for that offense.
11
Section 4A1.1(a) requires that three points be added for "each prior sentence of
imprisonment exceeding one year and one month." The federal presentence
report cited that provision in recommending the addition of three points to
defendant's score.
12
The commentary to section 4A1.2 states: "[t]he 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."
U.S.S.G. 4A1.2, comment. (n.2). Similarly, section 4A1.2(b)(1) defines
"sentence of imprisonment" as "a sentence of incarceration and refers to the
maximum sentence imposed."
13
The defendant, however, relies on section 4A1.2(b)(2) which reads: "If part of a
sentence of imprisonment was suspended, 'sentence of imprisonment' refers
only to the portion that was not suspended." If that section applies here, then
only one point, rather than three points, should have counted because only 48
hours of the drunk driving sentence was not suspended. See U.S.S.G. 4A1.1(c)
(one point for sentences under 60 days).
14
The government cites a number of cases that hold that the length of sentence
imposed and not actual time served is the test. See United States v. Pettit, 938
F.2d 175, 178 (10th Cir.1991); United States v. Davis, 929 F.2d 930, 932-33
(3d Cir.1991); United States v. Altman, 901 F.2d 1161, 1166 (2d Cir.1990);
United States v. Shinners, 892 F.2d 742, 743-44 (8th Cir.1989). In none of
those cases, however, was the sentence suspended and, consequently, the courts
did not consider the application of section 4A1.2(b)(2).
15
The state court's order could not be more explicit in stating that its sentence was
"suspended." Just as we looked to the plain wording of the Guidelines in
rejecting defendant's objection to the use of the state conviction, we use the
same standard in reading section 4A1.2(b)(2). We hold that subsection (b)(2)
applies and allows the addition of only one point because most of the sentence
was suspended.
16
The government did not attack the state sentence and it is unlikely that a
collateral attack could be mounted in the circumstances. In any event, we note
that Pennsylvania Common Pleas judges have the discretion to suspend
sentences in connection with the imposition of probation. See Commonwealth
v. Raynes, 349 Pa.Super. 314, 503 A.2d 17, 17-19 (1986). Moreover, a
sentencing judge in Pennsylvania has the authority to modify a sentence within
thirty days after the date it was imposed. See 42 Pa. Cons. Stat. 5505.
17
That discretion is expressly limited, however, by the mandatory penalty
provisions of 75 Pa. Cons. Stat. 3731, the statute that makes drunk driving a
crime. Under the language of section 3731(e)(1)(i), the Pennsylvania courts
may not suspend a sentence of imprisonment for drunk driving and place a
defendant on probation until after a "mandatory sentence" of 48 hours is served.
Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898, 900 (1991);
Commonwealth v. Waters, 361 Pa.Super. 154, 522 A.2d 60, 62-63 (1987);
Commonwealth v. Filius, 346 Pa.Super. 434, 499 A.2d 1078, 1079-80 (1985).
Here, after the defendant had served 48 hours, the Court of Common Pleas had
the authority to suspend the remainder of the sentence and grant probation or
parole.
18
It is apparent to us that the defendant comes within the provisions of Guideline
section 4A1.2(b)(2). However, even if there is doubt about that issue in light of
section 4A1.2(b)(1), the rule of lenity comes into operation. We have explained
that "[w]here there is ambiguity in a criminal statute, doubts are resolved in
favor of defendant" United States v. Mobley, 956 F.2d 450, 452 (3d Cir.1992)
(citing United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 522, 30 L.Ed.2d
488 (1971)). The rule applies to criminal prohibitions as well as penalties.
Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d
205 (1980).
19
Because of the error in computation, the defendant must be resentenced. We
note, however, that our decision to remand does not suggest any view on the
sentence that the district judge should impose. The district court granted the
government's motion for a downward departure based on the defendant's
cooperation and, consequently, the sentencing judge has substantial discretion
in determining punishment appropriate to the circumstances.
20
Our disposition of this case is compelled by the necessity to interpret a
Guideline provision that was previously unresolved in this Circuit. Indeed, the
district court noted its desire that appellate guidance be furnished on the issue
of assessing points for suspended sentences.
21
