REVISED NOVEMBER 10, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10453

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MAXIMILIANO JASSO,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before KING, DAVIS, and BENAVIDES, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

The defendant-appellant appeals his sentence, arguing that the district

court erred in assigning him two additional criminal history points, pursuant to

§ 4A1.2(e) and (k) of the United States Sentencing Guidelines (U.S.S.G.), based

on his 1995 assault conviction in Texas state court and the subsequent sentence

the Texas state court issued when he violated his term of probation. 

Although we acknowledge that the district court’s reading of the

ambiguous language in § 4A1.2(k) was not unreasonable, our review of § 4A1.2,

United States Court of Appeals

Fifth Circuit

F I L E D

November 9, 2009

Charles R. Fulbruge III

Clerk
No. 08-10453

2

in its entirety, leads us to conclude that it was error to count the defendantappellant’s entire sentence issued upon his violation of probation, rather that

considering only the portion of the sentence he actually served. This error

resulted in the district court’s assessment of the two additional criminal history

points. The comprehensive analysis required to resolve the issue raised on

appeal, however, precludes the conclusion that the district court’s sentencing

error was either clear or obvious. 

Further, we conclude that the addition of these two points did not affect

the defendant’s substantial rights. As a result, we write principally to clarify

this error–an error that prior to our defining it as such, constituted nothing more

than an inconsistent ambiguity buried within one section of the Sentencing

Guidelines. 

I.

Maximiliano Jasso was charged in a single-count indictment with

illegal reentry following removal, in violation of 18 U.S.C. § 1326(a) and

(b)(2). He pled guilty to the offense without the benefit of a written plea

agreement. 

The Presentence Report (PSR) assigned Jasso a base offense level of

eight. See U.S.S.G. § 2L1.2(a). The probation officer recommended the

imposition of a sixteen-level enhancement on the ground that Jasso

previously was deported following the commission of a crime of violence. See

U.S.S.G. § 2L1.2(b)(1)(A)(ii). Following the application of a three-level

adjustment for acceptance of responsibility, Jasso was assigned a total offense

level of twenty-one. See U.S.S.G. § 3E1.1.

The district court assigned two criminal history points based upon

Jasso’s 1995 guilty-plea conviction in Texas state court for an aggravated

assault causing serious bodily injury. The probation officer’s narrative for the

conviction stated that Jasso was sentenced to a ten-year term of felony
No. 08-10453

1 The statute defining “shock probation,” TEX. CODE CRIM. PRO. ART. 42.12, § 6,

provides, in part:

[T]he jurisdiction of a court in which a sentence requiring imprisonment . . . is

imposed by the judge of the court shall continue for 180 days from the date the

execution of the sentence actually begins. Before the expiration of 180 days

from the date the execution of the sentence actually begins, the judge of the

court that imposed such sentence may . . . suspend further execution of the

sentence and place the defendant on community supervision under the terms

and conditions of this article[.]

3

probation in October1995, but that he violated his probation in August 1999. 

Jasso’s probation was consequently revoked in November 2005, and he was

sentenced to ten years of imprisonment. After serving nearly six months of

this prison term, Jasso returned to Texas state court in May 2006, at which

time he was released from prison and sentenced to serve a six-year “shock

probation” term.1 As a result, he never served more than six months in

prison for his probation violation. 

Additionally, in calculating his criminal history points, the probation

officer also applied (a) two criminal history points on the ground that Jasso

committed the instant reentry offense while he was under a criminal justice

sentence of probation for the aggravated assault conviction, and (b) one

criminal history point because Jasso committed the instant offense less than

two years after his release from imprisonment on a sentence that was counted

pursuant to U.S.S.G. § 4A1.1(b). See U.S.S.G. § 4A1.1(e). Jasso was assigned

a total criminal history score of five, which resulted in a criminal history

category of III. This criminal history category, combined with a total offense

level of twenty-one, yielded a guideline range of imprisonment of forty-six to

fifty-seven months. 
No. 08-10453

2 Prior to sentencing, Jasso filed a sentencing memorandum in which he argued that

he was entitled to a downward variance/departure based upon the PSR’s over-representation

of his criminal history. Jasso asserted that the probation officer erred in assessing five

criminal history points based upon a single prior conviction; Jasso argued that “[t]he

over-representation stems from the additional three points assessed . . . for committing the

instant offense while under a criminal justice sentence and for committing the instant offense

within two years of his release from imprisonment.” Jasso also contended that he was entitled

to leniency in light of the following mitigating factors: the instant offense was his first

appearance in federal court, he did not comprehend the consequences of a reentry offense, the

sixteen-level enhancement was based upon a remote conviction, andhis reentry was motivated

by his desire to work and to remain in contact with his children. Although Jasso argued in the

sentencing memorandum that his criminal history score was erroneously calculated, he did not

raise the specific issue that he now asserts on appeal. Thus, as discussed in greater detail

below, we review his claim on appeal under our plain error standard of review. Indeed, Jasso

concedes that his claim presented now on appeal is properly reviewed under plain error.

3 Jasso also argues on appeal that the district court erred in ordering his federal

sentence to run consecutively to any sentence that the Texas state court may impose with

respect to a pending assault charge. He acknowledges that there is a circuit split on this issue.

Cf. United States v. Quintero, 157 F.3d 1038, 1039-40 (6th Cir. 1998); with United States v.

Clayton, 927 F.2d 491, 492-93 (9th Cir. 1991)). However, Jasso also concedes that his

argument is foreclosed by this Court’s precedent in United States v. Brown, 920 F.2d 1212,

1216-17 (5th Cir. 1991), abrogated on other grounds, United States v. Candia, 454 F.3d 468,

4

Jasso filed no objections to the PSR.2 At sentencing, the defendantappellant reiterated that he had no objections to the PSR. He did make a

request for a downward departure/variance based on the PSR’s overrepresentation of his criminal history and the presence of mitigating

circumstances. The district court denied Jasso’s request. The court then

sentenced Jasso to forty-six months of imprisonment and a two-year term of

supervised release. 

Jasso filed a timely notice of appeal.

II.

This case requires this Court to decide whether the district court erred

in assigning the defendant-appellant two additional criminal history points,

pursuant to U.S.S.G. § 4A1.2(e) and (k), for his prior assault conviction in

Texas state court, for which he received an additional term of imprisonment

as a result of his violation of the original term of probation.3“[W]e review the
No. 08-10453

472-73 (5th Cir. 2006) (holding that a federal court may impose a federal sentence to run

consecutively to a state sentence not yet imposed). Jasso notes that he “accepts this holding

as the law of the Circuit,” but asserts that he seeks to preserve the matter for further review.

One panel of this Court may not overrule the decision of a prior panel in the absence of en

banc consideration or a superseding Supreme Court decision. United States v. Lipscomb, 299

F.3d 303, 313 n.34 (5th Cir. 2002). Accordingly, the appellant’s argument is foreclosed by this

Court’s holding in Brown, and this memo will not address the appellant’s argument in this

regard any further. 

4 We do not address the fourth prong of the plain error review here since all three of the

first prongs are not met in this instance. See United States v. Ellis, 564 F.3d 370, 377 (5th Cir.

2009) (“If all three conditions are met an appellate court may then exercise its discretion to

5

district court’s application of the sentencing guidelines de novo.” United

States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). 

In the present case, however, the defendant-appellant failed to make

any objection to the district court’s addition of these two criminal history

points at the time the court actually sentenced him. Consequently, this

argument has not been raised “to such a degree that the district court ha[d]

an opportunity to rule on it.” Keelan v. Majesco Software, Inc., 407 F. 3d 332,

340 (5th Cir. 2005) (quotations and citation omitted). To preserve an

argument for appeal, the party must “must press and not merely intimate the

argument during the proceedings before the district court.” Id. (quotations

and citation omitted).

Because Jasso failed to preserve this assertion of error in the district

court below, “this court’s review is for plain error” only. United States v.

Villegas, 404 F.3d 355, 258 (5th Cir. 2005). “This court finds plain error

when: (1) there was an error; (2) the error was clear and obvious; and (3) the

error affected the defendant’s substantial rights.” Id. at 358-359 (citing

United States v. Olano, 507 U.S. 725, 732-737 (1993)); see also United States

v. Gonzales, 484 F.3d 712, 715 (5th Cir. 2007) (“Under plain-error review, we

first inquire whether the district court’s imposition of the enhancement was

erroneous and, if so, whether the error was plain (i.e., clear or obvious).”).4
No. 08-10453

notice a forfeited error but only if (4)the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.”).

5 For a more thorough discussion highlighting the significance ofthe second prong ofthe

plain error analysis, see Ellis, 564 F.3d at 378 (“This emphasis on the second prong of plain

error analysis is particularly important given the development of this court’s case law on the

third and fourth prongs of the plain error test in the sentencing context, where the court has

been generous with remand, often finding that errors leading to substantial increases in

sentences, even those errors not raised until appeal and thus subject to plain error review,

merited remand, although we are not convinced that the case law on this point is settled or as

categorical as language in some cases might make it seem. To our eyes, the lack of any clear

error here means that [the defendant-appellant’s] sentence should stand.”).

6

Our decision to affirm the defendant-appellant’s sentence hinges on our

analysis under the second prong of the plain error analysis.5 That is, we

conclude that the two contested criminal history points were assigned in

error. This error, however, was neither clear nor obvious, and, as we will also

discuss below, it did not affect the defendant-appellant’s substantial rights. 

Accordingly, we respectfully observe that because “[t]he doctrine of plain

error serves powerful institutional interests, including securing the role of the

United States District Court as the court of first instance, as opposed to a

body charged to make recommendations to appellate courts” United States v.

Ellis, 564 F.3d 370, 378 (5th Cir. 2009), we must affirm the district court in

instances such as those presented in this case, where there is no clear error. 

A. The Error in the Criminal History Category Assessment

This case requires us to address the question of whether “term of

imprisonment,” as it appears in § 4A1.2(k), refers only to the portion of the

term of imprisonment that was not suspended–or, whether it refers to the

entirety of the term of imprisonment issued upon revocation, regardless of

any subsequent suspension of that term. We conclude that “term of

imprisonment,” as it appears in § 4A1.2 as a whole, is synonymous with

“sentence of imprisonment” and therefore “refers only to the portion that was
No. 08-10453

6

In pertinent part, § 4A1.2(b)(2) states as follows: “If a part of a sentence of

imprisonment was suspended, ‘sentence of imprisonment’ refers only t the portion that was not

suspended.” Consequently, our conclusion that “term of imprisonment” and “sentence of

imprisonment” share the same meaning requires us to also conclude that “term of

imprisonment” “refers only to the portion that was not suspended.”

7

not suspended.” § 4A1.2(b)(2).6 We recognize that the Commission’s

supplanting of § 4A1.2(e)’s “sentence of imprisonment” with a different, undefined term (“term of imprisonment”) in § 4A1.2(k) could reasonably lead to

the conclusion that the two terms share different meanings. Our review of §

4A1.2, however, leads us to conclude that attaching disparate meanings to

these two terms results in irreconcilable inconsistencies in § 4A1.2 as a whole. 

As a result, we write to clarify this error. 

Section 4A1.2(e) governs whether Jasso’s prior conviction in Texas state

court counts for current criminal history purposes. Under § 4A1.2(e)(1), “[a]ny

prior sentence of imprisonment exceeding one year and one month that was

imposed within fifteen years of the defendant’s commencement of the instant

offense is counted.” Under § 4A1.2(e)(2), “[a]ny other prior sentence that was

imposed within ten years of the defendant’s commencement of the instant

offense is counted.” Under § 4A1.2(e)(3), however, “[a]ny prior sentence not

within the time periods specified above is not counted.” Thus, for a district

court to properly assess criminal history points for a prior conviction

pursuant to § 4A1.1, the prior conviction must fit into either of § 4A1.2(e)’s

first two categories. United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir.

2006) (holding that where a defendant’s “conviction does not fall within the

time periods specified in § 4A1.2(e)(1) or (2), it should not [b]e counted.”). 

Jasso’s 1995 state court sentence to felony probation, alone, cannot contribute

any criminal history points since it was well-over the ten year limitation
No. 08-10453

7 As noted above, for his assault conviction in Texas state court, Jasso was sentenced

to a term of ten years of probation, which for criminal history purposes, amounts to a sentence

of imprisonment of“zero” years. See, e.g., United States v. Arviso-Mata, 442 F.3d 382, 385 (5th

Cir. 2006) (calculating a term of probation as “zero” years under § 4A1.2(e)).

8

found in (e)(2) and because as a term of probation, it fails to meet the thirteen

month minimum established in (e)(1).7

Thus, the only possible way his 1995 conviction could count for criminal

history purposes would be if the “term of imprisonment” issued upon his

revocation of probation affected the quantification of his “original term of

imprisonment” in § 4A1.2(e), pursuant to § 4A1.2(k). Section 4A1.2(k)

governs the implications of a probation violation— as it relates to the

calculation of criminal history points. Arviso-Mata, 442 F.3d 382, 385 (5th

Cir. 2006) (“Section 4A1.2(k)(2)(B) explains how the new term of

imprisonment affects the counting of criminal history points under §

4A1.2(e).”); accord United States v. Arnold, 213 F.3d 894, 896 (5th Cir. 2000)

(“That provision explicitly addresses the problem of revocation of parole.”). 

Specifically, § 4A1.2(k) states that: “[i]n the case of a prior revocation of

probation, parole, or mandatory release, 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.” (emphasis added). This seemingly simplistic

phraseology instructs district courts to add the term issued upon revocation

to the original term of imprisonment. The government’s position is that the

original term (zero years) should be added to the term imposed upon

revocation (ten years) for a resulting total of ten–placing Jasso’s 1995

conviction well-within § 4A1.2(e)(1)’s thirteen month minimum. Such an

interpretation of “term of imprisonment” as it appears in § 4A1.2(k) ,

however, offers only a cramped reading that does not comport with the term’s

appearance in § 4A1.2 as a whole.
No. 08-10453

9

The error in the district court’s addition of the two contested criminal

history points in the present case, however, is made evident when two terms,

“sentence of imprisonment” and “term of imprisonment,” found in sections (b),

(e), (k) and the notes accompanying § 4A1.2, are read in accordance with the

canon of statutory construction noscitur a sociis. “Under the familiar canon of

statutory construction noscitur a sociis, ‘a word is known by the company it

keeps.’” In re Hickman, 260 F.3d 400, 403 (5th Cir. 2001). Our review of §

4A1.2 contained herein reveals that “sentence of imprisonment” and “term of

imprisonment” keep quite close company. Given their undeniable close

quarters, coupled with their interchangeable use, we conclude that “sentence

of imprisonment” and “term of imprisonment” should be read synonymously. 

It then follows that the district court’s assessment of the two additional

criminal history points was in error, albeit it far from obvious. 

A review of the Application Notes in the Sentencing Guidelines

provides ample support for our interpretation. In Application Note No. 11,

the Commission evinced its intent that pursuant to § 4A1.2(k), “[r]ather than

count the original sentence and the resentence after revocation as separate

sentences, the sentence given upon revocation should be added to the original

sentence of imprisonment, if any, and the total should be counted as if it were

one sentence.” (emphasis added). Thus, the Commission refers to the original

sentence as “the original term of imprisonment” in § 4A1.2(k)(1), yet in

Application Note No. 11 exchanges “original term of imprisonment” for

“original sentence of imprisonment.” Given that Application Note No. 11 is

the note designed to provide district courts with better insight to the true

meaning of § 4A1.2(k), the note’s replacement of “term of imprisonment” with
No. 08-10453

8 Application Note No. 11 is not the only comment that substantiates our reading ofthe

two terms as synonymous. In Application Note No. 2 following § 4A1.1, the Commission again

uses the two terms interchangeably, stating that “[w]here a prior sentence of imprisonment

resulted from a revocation of probation, parole, or a similar form of release, see § 4A1.2(k).”

(emphasis added). Because § 4A1.2(k) itself refers only to “term of imprisonment” and does not

containthewords “sentence ofimprisonment,” as referencedinthe aforementionedApplication

Note to § 4A1.1, this interchangeable use presents strong evidence that the Commission

considers the two terms to be synonymous. 

10

“sentence of imprisonment” leads us to conclude the two terms cannot have

disparate meanings.8

Application Note No. 11 also explains that § 4A1.2(k) is designed to

benefit the defendant by limiting the number of criminal history points that

may be assigned to a single conviction (three), even if the defendant served

multiple prison sentences on that conviction due to violations of his probation. 

That is, it does not seem that a disproportionately harsher punishment for

having violated probation was the true intent of the Commission, for in

Comment No. 11 following § 4A1.2(k), the Commission states that the

purpose of § 4A1.2(k) is to ensure that “no more than three points will be

assessed for a single conviction, even if probation or conditional release was

subsequently revoked.” If this Court were to conclude that § 4A1.2(k)(1)’s

“original term of imprisonment” does not refer to the calculated “sentence of

imprisonment” as found in § 4A1.2(e) and defined in § 4A1.2(b)— this Court

would be interpreting § 4A1.2(k)(1) as requiring the sentencing court to add

the original term of a sentence (without the benefit of subtracting any

suspended portion of the original sentence pursuant to in § 4A1.2(b)(2)), to

the new sentence issued upon revocation. That is, under such an

interpretation, anytime a defendant violated probation on a prior conviction,

the sentencing court would be required to consider portions of the defendant’s

original sentence that the sentencing court would not have otherwise

considered. Such a conclusion would violate the Supreme Court’s “rule of
No. 08-10453

9 A review ofthe law in other Circuits also supports this conclusion. The Second Circuit

has stated that it interprets “§ 4A1.2(k)(1) and Application Note 11 to § 4A1.2(k) as requiring

the district court to aggregate the period(s) that the defendant served in prison upon any

partial revocation(s) of his probation with the period served upon any final revocation.” United

States v. Glidden, 77 F.3d 38, 40 (2nd Cir. 1996) (emphasis added). The Second Circuit’s

reference to “period served” (as opposed to “sentence given”) indicates that the Second Circuit

shares Jasso’s interpretation that in calculating the total sentence pursuant to § 4A1.2(k), the

sentencing court considers § 4A1.2(b)(2)’s definitionas synonymouswiththe definitionof“term

of imprisonment,” since the Court would only add the portion ofthe sentence “served in prison,”

and not the total sentence given upon revocation. See id. 

11

lenity,” a policy the Supreme Court has adopted in statutory construction.

Bifulco v. United States, 447 U.S. 381, 387 (1980) (“This policy of lenity means

that the Court will not interpret a federal criminal statute so as to increase

the penalty that it places on an individual when such an interpretation can be

based on no more than a guess as to what Congress intended.”).9

For the aforementioned reasons, we hold that for purposes of

calculating criminal history points under U.S.S.G. § 4A1.2, “term of

imprisonment” shares the same meaning as “sentence of imprisonment.” 

Because until now the error in assigning any other meaning to “term of

imprisonment” has been anything but obvious, and because we review the

district court’s error under the plain error standard of review, we affirm the

district court’s sentencing of the defendant-appellant. Sentencing courts are

now instructed that in calculating the term issued upon revocation pursuant

to § 4A1.2(k), they are to include in their calculations “only . . . the portion [of

any sentence issued upon revocation] that was not suspended.” § 4A1.2(b)(2). 

B. The Defendant-Appellant’s Substantial Rights

We also note that even if were to conclude that this error had been clear

and obvious prior to our declaring it so, we would still refrain from reversing

the district court’s sentencing of Jasso since the error, in its specific

application to Jasso’s case, did not substantially affect his substantial rights. 

In inquiring whether the defendant-appellant’s substantial rights have been
No. 08-10453

10 In cases where this Court has found plain error, the gap between the correct and

erroneous sentences has been sufficient enough such that there was an apparent, reasonable

probability that the defendant would have received a lesser sentence butfor the district court’s

error. See, e.g., United States v. Munoz-Ortenza, 563 F.3d 112, 116 (5th Cir. 2009) (“There is

little doubt also that the error affects [the defendant’s] substantial rights: the range of

imprisonment is forty-one to fifty-one months as determined with the enhancement and six to

twelve months without it.”); United States v. Gonzalez-Terrazas, 529 F.3d 293, 298-299 (5th

Cir. 2008) (“With the erroneous enhancement, [the defendant] faced a guideline range of 57

to 71 months imprisonment.Withoutthe enhancement, [the defendant] faced a guideline range

of 24 to 30 months. This significant disparity in guideline ranges based on the erroneous

enhancementis sufficientto establishthat[the defendant’s] substantial rightswere affected.”);

United States v. Sanchez, 527 F.3d 463, 466 (5th Cir. 2008) (finding plain error where the

erroneous sentence the defendant “received is more than twice that provided for in the

guidelines range.”); United States v. Dentler, 492 F.3d 306, 314 (5th Cir. 2007) (finding plain

error where the district court’s error “resulted in a sentencing range where the lowest possible

sentence is 65 months higher than the top ofthe range [the defendant] should have received.”);

United States v. Brazell, 489 F.3d 666, 669 (5th Cir. 2007) (finding plain error where the

erroneous calculation “resulted in a guidelines sentence of 21 months, but the relevant

guideline range without the § 4A1.1 enhancement would have been 12-18 months.”); United

States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005) (finding plain error where the

“sentencing range would have been at most thirty-three to forty-one months, far less than the

seventy-seven month sentence [the defendant] received.”). 

12

affected, the “proper question here is whether the defendant can show a

reasonable probability that, but for the district court’s misapplication of the

Guidelines, he would have received a lesser sentence.” United States v.

Villegas, 404 F.3d 355, 364 (5th Cir. 2005). 

Jasso cannot satisfy this burden. Including the incorrectly assigned

two criminal history points for his 1995 prior conviction, the district court

assigned him five criminal history points in total. With an offense level of

twenty-one, the district court found that the applicable advisory guidelines

range was forty-six to fifty-seven months in prison. The district court then

sentenced him to forty-six months. If this Court were to subtract the two

criminal history points that the district assigned in error, that would put

Jasso at a criminal history category II, with a corresponding advisory range of

forty-one to fifty-one months in prison. His current sentence of forty-six

months, therefore, falls squarely in the middle of his corrected sentence. 10
No. 08-10453

11 Jasso asserts that he has demonstrated a “reasonable probability” because at the

time of sentencing, the district court stated on record that “the defendant should be placed at

the bottom of the advisory Guideline Range.” Given that his current sentence sits squarely in

the middle of the correct range, we cannot conclude–based on this statement alone–that the

district court would likely sentence him to a lower sentence if it had correctly computed the

criminal history points. The above quoted statement only demonstrates that the district court,

when faced with a Guideline Range of forty-six to fifty-seven months, concluded it would be

reasonable to place the defendant at the bottom of that range. Without any additional

evidence, we cannot ascertain the likelihood that the district court would consider the lowest

end of any range to be appropriate. As a result, Jasso has not demonstrated a “reasonable

probability.”

13

Given this set of circumstances, we conclude that Jasso cannot

demonstrate a “reasonable probability, but for the district court’s

misapplication of the Guidelines, he would have received a lesser sentence.”11

Id.

For the aforementioned reasons, the judgment of the district court is

AFFIRMED.