In the

United States Court of Appeals

For the Seventh Circuit

No. 01-2752

United States of America,

Plaintiff-Appellee,

v.

William J. Gajdik,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 00-CR-10061--Michael M. Mihm, Judge.

Argued December 11, 2001--Decided June 4, 2002

 Before Bauer, Ripple, and Rovner, Circuit

Judges.

 Rovner, Circuit Judge. Under some

circumstances, convicted felons in

Illinois may serve their sentences in the

"Impact Incarceration" Program, an

alternative to prison styled after the

familiar military basic training program,

or "boot camp," incorporating physical

labor, military formation and drills,

regimented activities, uniform dress and

appearance, as well as education and

counseling. 730 ILCS 5/5-8-1.1. In 1997,

William Gajdik was convicted of burglary

in Illinois and sentenced to five years

in the state penitentiary. Instead of

serving five years, Gajdik completed boot

camp and was released after just 121

days. In June 2000, however, Gajdik

pleaded guilty in federal court to

seventeen counts of mail and wire fraud,

money laundering, and interstate

transportation of stolen currency.

Because the Illinois court had sentenced

Gajdik to a term of five years, the

district court determined that Gajdik’s

prior sentence exceeded thirteen months,

warranting three criminal history points

under U.S.S.G. sec. 4A1.1(a). The

district court sentenced Gajdik to

concurrent 57-month prison terms, the

maximum under the guideline range. Gajdik

argues that his successful completion of

boot camp and subsequent early release

operated to "suspend" the remainder of
his prior sentence, so that the district

court should have assigned two, not

three, points under U.S.S.G. secs.

4A1.1(b) and 4A1.2(b)(2), and sentenced

him to no more than 46 months. We

conclude that the district court

correctly calculated Gajdik’s criminal

history and affirm.

I.

 Between January and July 2000, Gajdik

operated a fraud scheme over the internet

site eBay, an electronic venue for

private parties to buy and sell goods at

auction. After a stint of legitimate

transactions, Gajdik began selling

designer sunglasses that he

misrepresented as new and under

manufacturer’s warranty. The sunglasses

were in fact broken and discarded glasses

that Gajdik retrieved from a dumpster

outside of a Peoria distribution

warehouse and reassembled. Gajdik quickly

graduated to auctioningexpensive

merchandise such as Rolex, Auderman

Piquet, and Patek Phillipe watches,

diamonds, collectable coins, and

computers. Gajdik neither possessed nor

intended to obtain or deliver any of

these items. Still, Gajdik’s fraudulent

auctions attracted many bidders, and eBay

users from around the world believing

they were purchasing high-end goods sent

him nearly $700,000. Gajdik deposited

most of this money in a savings account

opened for the purpose of accepting wire

transfers and depositing checks from his

eBay customers. Gajdik’s fraudulent

activities soon came to the attention of

the FBI, which obtained and executed a

search warrant for his Peoria home. By

that time Gajdik had fled Illinois with

$44,000 from the savings account. Federal

agents caught up with him later in

Florida. As a result of these misdeeds,

he was charged in an indictment with ten

counts of mail fraud, 18 U.S.C. sec.

1341, eight counts of wire fraud, 18

U.S.C. sec. 1343, two counts of money

laundering, 18 U.S.C. sec. 1957(a), and

one count of interstate transportation of

stolen currency, 18 U.S.C. sec. 2314.

 Gajdik promptly entered a plea agreement

with the government and pleaded guilty to

seventeen of the twenty-one charges. In

the Presentence Investigation Report, the

probation officer recommended grouping

his offenses and a total offense level of
seventeen. Gajdik’s base offense level

was six under U.S.S.G. sec. 2F1.1(a)./1

The probation officer recommended a tenlevel increase under sec. 2F1.1(b)(1) for

causing a total loss of more than

$500,000, a two-level increase under sec.

2F1.1(b)(2) for more than minimal

planning, an additional two-level

increase under sec. 2F1.1(b)(3) for

committing the offenses through mass

marketing, and a three-level decrease

under sec. 3E1.1(b)(2) for acceptance of

responsibility.

 The probation officer next recommended

that the district court assign nine

criminal history points. This total

included two points stemming from

Gajdik’s 1997 burglary conviction and

five-year prison sentence in Illinois. In

the 1997 sentencing order, the Illinois

judge recommended that Gajdik be allowed

to serve his sentence through the Impact

Incarceration Program. The Illinois

Department of Corrections (IDOC) accepted

Gajdik into the program and notified the

state court of its decision. Gajdik

successfully completed the program in 121

days, and on July 1, 1997, the IDOC

certified such to the court, which

entered an order reducing his sentence to

time served. Although a prior five-year

prison sentence normally constitutes

three criminal history points under

U.S.S.G. sec. 4A1.1(a), the probation

officer concluded that Gajdik’s

successful completion of boot camp

"suspended" the remainder of the

sentence. Since Gajdik had served fewer

than thirteen months, the probation

officer recommended assigning only two

criminal history points under sec.

4A1.1(b). With the addition of three

points for a prior theft conviction, and

four points for two prior convictions for

passing bad checks, the probation officer

recommended that the district court

assign a total of nine points, placing

Gajdik in criminal history category IV,

with a corresponding guideline range of

37 to 46 months.

 The government objected to this

calculation, asserting that Gajdik’s

prior sentence for burglary should count

as three, not two, points. The government

argued that Gajdik had received what was

in effect an indeterminate sentence with

a maximum term of five years, and that

the sentencing judge’s recommendation
that he be considered for boot camp was

merely a suggestion how Gajdik could

statutorily serve his term. The district

court agreed. The additional point bumped

Gajdik to criminal history category V,

increasing his guideline range to 46 to

57 months. The district court sentenced

Gajdik to concurrent terms of 57 months.

 Gajdik argues that the Illinois judge’s

recommendation of boot camp, his

successful completion of the program, and

the automatic reduction of his sentence

to time served operated in combination to

transform the remainder of his sentence

into the type of "suspended" sentence

contemplated by U.S.S.G. sec.

4A1.1(b)(2). In the government’s view,

the mandatory reduction of a prison

sentence to time served under the

Illinois statute is a form of prison

incentive program that reduces the time

an inmate serves in prison but does not

suspend the remainder of a sentence. As

such, the government contends that the

district court correctly considered only

the maximum sentence imposed by the state

court in assigning criminal history

points. Whether the district court should

have assigned two or three criminal

history points to Gajdik’s prior state

sentence is a question of law we review

de novo. See United States v. Akinyemi,

108 F.3d 777, 779 (7th Cir. 1997).

II.

 Determination of criminal history is

governed by U.S.S.G. sec. 4A1.1. Prior

sentences of imprisonment exceeding one

year and one month generate three points,

U.S.S.G. sec. 4A1.1(a), and shorter

sentences of imprisonment of at least

sixty days generate two points, U.S.S.G.

sec. 4A1.1(b). The guidelines define a

"prior sentence of imprisonment" as "a

sentence of incarceration and refers to

the maximum sentence imposed." U.S.S.G.

sec. 4A1.1(b)(1). Thus, criminal history

points are based on the sentence

pronounced, not the length of time

actually served. U.S.S.G. sec. 4A1.2,

comment. (n.2); United States v.

DePriest, 6 F.3d 1201, 1215 (7th Cir.

1993). Time served in a boot-camp style

program counts as a form of

"imprisonment" under the sentencing

guidelines. See United States v. Brooks,

166 F.3d 723, 726-27 (5th Cir. 1999); cf.

United States v. Timbrook, No. 01-3646,

2002 WL 1065865, at *2 (7th Cir. May 29,
2002) (work release in county jail is

"sentence of imprisonment").

 If part of a defendant’s prior sentence

of imprisonment was "suspended," however,

"prior sentence of imprisonment" refers

only to the portion of the sentence not

suspended. U.S.S.G. sec. 4A1.2(b)(2);

DePriest, 6 F.3d at 1215. The statutory

authority to suspend a sentence in

federal court was abolished when the

sentencing guidelines were implemented,

U.S.S.G. Ch.7, Pt.A(2)(a), and the

guidelines do not expressly define

"suspended sentence." By common

definition a "suspended sentence" is a

definite sentence postponed so that the

defendant is not required to serve his

time in prison unless he commits another

crime or violates some court-imposed

condition during a probationary period.

See Alabama v. Shelton, 122 S. Ct. 1764

(2002); Roberts v. United States, 320

U.S. 264, 268 (1943). Additionally, under

the now-repealed federal statute

authorizing suspension of a sentence, 18

U.S.C. sec. 3651, only a court, not an

executive agency, could suspend a

sentence. See United States v. Harris,

237 F.3d 585, 589 (6th Cir. 2001).

 With this definition in mind, Gajdik’s

successful participation in the Illinois

Impact Incarceration program did not

operate to "suspend" the remainder of his

five-year sentence for burglary. Rather,

the procedure more closely resembles a

pardon or commutation by the executive.

Although an Illinois inmate’s time in the

program is probationary in the sense that

if he fails to successfully complete the

program, "his term of imprisonment shall

be as set forth by the court in its

sentencing order," 730 ILCS 5/5-8-1.1(a),

the statute does not provide for a

probationary period after the inmate

completes the program and is released.

Moreover, the IDOC, not the court,

ultimately determines whether an inmate

participates in boot camp and is released

early. To participate in the program, the

sentencing judge must first approve the

defendant for placement in the program

after finding that the defendant "may

meet the eligibility requirements of the

[IDOC]," although the statute does not

mandate that the judge actually approve

all prima facie-eligible defendants. Id.

To be eligible, the offender must (1) be

between 17 and 35 years of age; (2) never

have participated in the program before;
(3) not have been convicted of certain

serious felonies such as murder, rape,

kidnapping, and arson; (4) have been

sentenced to a term of imprisonment of

eight years or less; (5) be physically

able to participate in the program; (6)

not have any mental disorder that might

interfere with his participation in the

program; (7) consent in writing to

participation in the program; and (8) be

approved for placement in the court’s

sentencing order. 730 ILCS 5/5-8-1.1(b);

20 Ill. Admin. Code sec. 460.20.

Preliminary approval by the judge does

not guarantee that the defendant will

serve his time in boot camp, however.

Once the IDOC receives custody of an

approved offender, the offender is

transferred, subject to availability of

space, to a reception center for

additional screening for placement in the

program. Ill. Admin. Code sec. 460.30(a).

At that stage the IDOC may consider

additional factors beyond those listed in

the statute. 730 ILCS 5/5-8-1.1(b) para.

2; Ill. Admin. Code sec. 460.30(a). For

instance, the IDOC may decline to place a

prima facie-eligible individual in a boot

camp if it determines that he has

outstanding warrants or a history of

escaping or absconding, if he poses a

safety or security risk, or if space is

not available. 730 ILCS 5/5-8-1.1(b)

para. 2; see also Solorzano-Patlan v.

INS, 207 F.3d 869, 871 & n.4 (7th Cir.

2000) (noting that the IDOC has rejected

offenders recommended for boot camp by

the sentencing court). Additionally, once

approved the offender must maintain his

eligibility for the program and a

positive disciplinary record while

awaiting placement. Ill. Admin. Code sec.

460.30(d). In this respect, the Illinois

procedure is similar to that addressed in

United States v. Schomburg, 929 F.2d 505

(9th Cir. 1991). There, a California

court sentenced the defendant to a 60-day

term of imprisonment, but recommended

that the local Sheriff consider the

defendant for a "weekend work" program.

The Ninth Circuit held that the

defendant’s sentence had not been

"suspended" for purposes of sec. 4A1.2(b)

because whether he served his sentence in

jail or in the work program was at the

sheriff’s, not the court’s, discretion.

Id. at 506-07.

 Gajdik points out, however, that the

Illinois statute requires the sentencing
court to order that an inmate’s sentence

"shall be reduced" once the IDOC

certifies that the offender successfully

completed the program. See 730 ILCS 5/5-

8-1.1(a). This, he contends, demonstrates

sufficient judicial involvement in the

process to place the early-release

decision in the hands of the court rather

than the executive agency. In support,

Gajdik relies on United States v. Murray,

No. 97-3871, 1998 WL 552823 (6th Cir.

Aug. 13, 1998) (unpublished), where the

Sixth Circuit held that successful

completion of Ohio’s "shock

incarceration" program operates to

suspend a sentence for purposes of sec.

4A1.2(b)./2 To participate in the Ohio

program, the offender must independently

apply to the program after sentencing. A

committee then reviews the application

and selects eligible applicants according

to specified criteria. Once an applicant

is accepted, the committee notifies the

applicant’s sentencing judge of its

intention to place the applicant in the

program. If the judge believes the

defendant should not participate in the

program, the judge must indicate his

disapproval within 10 days. If the judge

disapproves, the applicant may not

participate in the program and must serve

his sentence. See Ohio Admin. Code sec.

5120-11-03(I). In determining that the

Ohio program operated as a suspension,

the Sixth Circuit concluded that the

sentencing judge’s approval of Murray’s

acceptance into the program reflected the

judge’s assessment that his previous

crime was not so serious as to require a

two-year term in the penitentiary. 1998

WL 552823, at *2. But the Ohio program

differs from the Illinois program in that

Ohio’s program is a "means of early

release on parole." Ohio Admin. Code sec.

5120-11-03(A). Because the Illinois

statute makes no such provision, Murray

provides little assistance in this case.

 Our conclusion that the Illinois program

operates as a pardon or commutation

rather than a suspension is also

consistent with the purpose underlying

the criminal history calculation of the

sentencing guidelines. Criminal history

is scored to assess a defendant’s

likelihood of recidivism by taking into

account the seriousness of the

defendant’s past criminal conduct. See

U.S.S.G. Ch.4, Pt.A, intro. comment.;

U.S.S.G. sec. 4A1.1, comment. (backg’d);
U.S.S.G. sec. 4A1.3. None of the

eligibility factors listed in the Impact

Incarceration statute reflect on the

judge’s assessment of the seriousness of

the crime or likelihood of recidivism.

Certainly, a judge confronting an

undeserving offender may in his

discretion decline to recommend boot camp

for myriad reasons, including his belief

that the defendant’s crime was serious

enough to require that the defendant

serve his sentence in a prison. But the

judge is not required to take the

seriousness of the crime into account--

Illinois has determined that, putting

aside factors reflecting the offender’s

physical and mental abilities, any

offender convicted of a felony (except

for very serious crimes such as murder,

rape, kidnapping, or arson, where the

offender is absolutely barred) and

sentenced to eight years of imprisonment

or less may participate in the program.

Considering that the sentencing judge

makes only a preliminary finding of

eligibility for boot camp, the range of

offenders that could fit into this

category, and the lack of contrary

information in the record, we think that

the Illinois judge’s approval of Gajdik

for the boot-camp program did not reflect

an assessment of the seriousness (or lack

thereof) of his crime.

III.

 We hold that the legal effect on a

sentence of successfully completing the

Illinois boot-camp program more closely

resembles a commutation or pardon by the

executive. The commentary to the

sentencing guidelines instructs that

pardons for reasons unrelated to

innocence or errors of law are counted

towards criminal history. U.S.S.G. sec.

4A1.2, comment. (n.10); United States v.

Stowe, 989 F.2d 261, 263 (7th Cir. 1993);

United States v. Shazier, 179 F.3d 1317,

1319-20 (11th Cir. 1999). Since Gajdik’s

early release was not based on innocence

or mistake of law, the district court

correctly determined that his 1997

Illinois sentence was a prior sentence of

imprisonment exceeding one year and one

month, and assigned three criminal

history points. Accordingly, we AFFIRM the

judgment of the district court.

FOOTNOTES
/1 Gajdik was sentenced under the guidelines manual

effective November 1, 2000. On November 1, 2001,

the Sentencing Commission deleted U.S.S.G. sec.

2F1.1 and consolidated its provisions as amended

with sec. 2B1.1. U.S.S.G. App. C, amendment 617.

/2 Unpublished decisions generally have no precedential value in this court. Circuit Rule 53(b)(2)(iv), (e)