UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ISMAIL ALKAN DUZYURT, Defendant - Appellant. No. 18-1039 (D.C. No. 1:17-CR -251-MSK-GPG-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , BALDOCK , and PHILLIPS , Circuit Judges.

________________ _________________ In 2017, Defendant Ismail Alkan Duzyurt, a citizen of Turkey, p led guilty to illegally re-entering the United St ates following removal and a fter an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a), (b)(2). When calculating Duzyurt’s criminal history score under section 4A1.1(a) of the United States Sentencing Guidelines (USSG), t he Presentence Report (PSR) assi gned Duzyurt three criminal history points for a Ha rris County, Texas felony theft conviction. The PSR reported that Duzyurt’s total crim inal history score was 9, whi ch resulted in a criminal history category of IV. Based up on Duzyurt’s total offense lev el of 21 and criminal

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicat a, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 1 0th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 28, 2019
Elisabeth A. Shumaker Clerk of Court2 history category of IV, his advi sory guideline imprisonment ran ge was 57 to 71 months. At the sentencing hearing, the d istrict court adopted the crimi nal history category of IV but concluded the correct offense level was 18 i nstead of 21, yielding a guideline range of 41 to 51 months. The court noted, however, that the guideline calculation increased significan tly from 2015 to 2016. In the plea agreement, the parties used the 2015 Guidelines but the PSR used the 2016 Guid elines. Duzyurt objected to use of the 2016 Guide lines but the district court o verruled his objection. Duzyurt does not appeal that deci sion. After considering the 1 8 U.S.C. § 3553(a) factors, the district court indi cated it was “inclined to turn the clock back a little” and sentence leniently. The court c oncluded an offense level of 10 with a criminal history category of IV was appropriate, resulting in a variant guidelin e range of 15 to 20 months’ imprisonment. After no ting Duzyurt’s circumstances, in cluding his criminal history and absence of remorse, the court imposed a variant sen tence of 20 months’ imprisonment. Importantly, Duz yurt never objected to the court ’s calculation of his criminal history score. Duzyurt timely appealed his sentence. Our jurisdiction to review Duzyurt’s sentence arises under 18 U.S.C. § 3742(a). On appeal, Duzyurt argues the district court erred in calculati ng his criminal history score because his prior sentence for felony theft was n ot a “sentence of imprisonment” under USSG § 4A1.1(a). Under the Sentencing Guid elines, a defendant’s criminal history scor e is based on sentences impose d for prior offenses. Section 4A1.1(a) requires a cour t to add three points to a defe ndant’s criminal history3 “for each prior sentence of imp risonment exceeding one year and one month.” USSG § 4A1.1(a). Section 4A1.2(b) def ines “sentence of imprisonment ” as “a sentence of incarceration and refers to the maximum sentence imposed.” Id . at USSG § 4A1.2(b). According to the USSG § 4A1.2 commentary, “[t]o qualify as a se ntence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence.” Id . at § 4A1.2(b) cmt. 2 (emphasis added). In April 2005—long before Duzyurt pled guilty to illegal re-ent ry—Duzyurt pled guilty to felony theft in Harris County, Texas and was sen tenced to “2 years prison, sentence to begin Septemb er 16, 2002.” According to Du zyurt, the nunc pro

tunc sentence issued in Texas state court refers to time he spent i n federal prison for a different sentence. Therefore, D efendant argues he never “actu ally served” a term of imprisonment for the felony theft offense. The Government argu es the district court properly counted the felony theft sentence because that sentenc e constituted time “actually served” under USSG § 4A1.2 cmt. 2. According to the G overnment, since the state court retroactively credited Defendant with time serv ed on another sentence, the sentence qualified as a “prio r sentence of imprisonment.” Both parties agree plain-error review applies because Duzyurt f ailed to object in the district court to the ass essment of three criminal histo ry points for his felony theft conviction. United States v. Salas , 889 F.3d 681, 684 (10th Cir. 2018). To prevail, Duzyurt must show: “(1) error, (2) that is plain, and (3) that affects substantial rights.” Johnson v. United States , 520 U.S. 461, 467 (1997) ( quotations omitted). “If all three conditions are met, an appellate court may then exerc ise its discretion to notice4 a forfeited error, but only if ( 4) the error seriously affect[s ] the fairness, integrity, or public reputation of j udicial proceedings.” Id . (quotations omitted). Assuming without deciding the district court erred in adding th ree points to Duzyurt’s criminal history score , Duzyurt has not established t he district court’s error was plain, that is, clear or obvious. Under plain-error review , we can reverse only if an error took place that was “clear or obvious under current la w.” United States v. Valdez-Aguirre , 861 F.3d 1164, 1166 (10th Cir. 2 017). An error is “clear and obvious when it is contrary to well-settled law.” Salas , 889 F.3d at 687 (quoting United States v. Whitney , 229 F.3d 1296, 1309 (10th Cir. 2000)). “In general, for an e rror to be contrary to well-settled law, eit her the Supreme Court or this court must have addressed the issue.” Id . (citation and quotation omitte d). In the absence of Supreme Court or circuit precedent directly addres sing a particular issue, “a ci rcuit split on that issue weighs against a finding of plain error.” Salas , 889 F.3d at 687 (quoting United States v. Wolfname , 835 F.3d 1214, 1221 (10th Cir. 2016)). Neither the Supreme C ourt nor this Court has addressed whethe r a time-served sentence on a se parate offense constitutes a “sentence of impri sonment” for assigning criminal history points under the sentencing guidelines. Four o f our sister circuits that ha ve addressed the issue reached different conclusions.
In United States v. Staples , the Seventh Circuit addr essed the meaning of USSG § 4A1.2(c)(1) which does not cou nt driving with a suspended lic ense as an offense for purposes of a criminal history ca lculation unless the defendant was sentenced to a year5 of probation or impris onment of thirty days. 1 In that case, defendant received a twopoint increase related to his 1997 conviction for driving on a suspended license. In 1998, Staples was serving a 250- day sentence for a probation vi olation related to domestic battery. After his rel ease from jail, he pled guilty to the suspended license charge and was sentenced to 250 days in jail with credit for ti me served on the probation violation charge. Rel ying on USSG § 4A1.2 applicatio n note 2, the defendant argued his second 250-day senten ce should not count b ecause he was sentenced to “time previously s erved” and did not “actually ser ve[]” any of his sentence for driving on a suspended license. 202 F.3d 992, 997 (7th Cir . 2000). The Seventh Circuit concluded the defendant’s 250-day jail sentence with cr edit for time served on a separate charge could be counted as a “sentence of imprisonme nt” under USSG § 4A1.2 cmt. 2. Id . The court explained, “[t]he simple meaning of the Guidelines language is to count any sentence ‘of at least 30 days,’ and th is section is unconcerned with how or when the sentence ‘of at least 30 days’ is served s o long as it is a ‘term of imprisonment.’” Id . (citing USSG § 4A1.2(c)(1)). In contrast to the Seventh Circui t’s approach, three other circ uits have determined sentences that credit ed a defendant for time served on a separate offense

1 We note the defendants in Staples and Hall (a case mentioned later) challenged their criminal history scores under U SSG § 4A1.2(c)(1) whereas Duzyur t challenges his score under USSG 4A1.1(a). Despite this difference, Staples and Hall are instructive because the second application note following § 4A1.2 provides commentary on both § 4A1.1 and § 4A1.2. See, e.g ., United States v. Hall , 531 F.3d 414, 419 (explaining that even though United States v. Buter “deal[t] with a different subsection of U.S.S.G. § 4A1, the case is squarely on point by analogy.”).6 cannot be counted as a “sentence of imprisonment” under the gui delines. In United
States v. Buter , where a defendant challenged hi s criminal history calculation under USSG §§ 4A1.1(a), the Eleventh Circuit held a defendant’s state court sentences, imposed to run concurrently with a previously completed federal sentence, did not constitute “imprisonment” under th e guidelines. 229 F.3d 1077, 1078 (11th Cir. 2000). The court reasoned, “[defendant] walked into and out of the sta te courtroom a free man. He did not spend one moment in custody or confinement forthe sentences imposed by the state court.” Id. at 1079. Accordingly, the Ele venth Circuit determined a defendant’s time-served senten ce on a prior, unrelated case c ould not count toward the defendant’s criminal histor y score under USSG § 4A1.1(a). Id. Next, the Sixth Circuit conclude d “the proper analysis is exact ly the opposite of [ Staples ]” and, instead, determined the Eleventh Circuit’s opinion in Buter “to be more persuasive.” United States v. Hall , 531 F.3d 414, 419 (6t h Cir. 2008). In Hall , the defendant pled guilty to driving with a suspended license and w as sentenced to 30 days’ imprisonment. A court, how ever, gave the defendant credi t for time served on an unrelated offense. Two years later, defendant pled guilty t o hindering a police officer and was sentenced to 35 days in jail. A court, again h owever, gave him credit for time served on an unrelated offense. The defendant’s PSR a dded one criminal history point under USSG § 4A1.2(c)(1) for each prior time-serv ed sentence. According to the Sixth Circuit, a time-served sentence could no t be counted under USSG § 4A1.2 because “a defenda nt who receives full credit for time served on an7 entirely separate conviction does not in fact ‘actually serve’ any time for the offense in question.” Id

. Finally and importantly, in United States v. Carlile , the Fifth Circuit sided with the Sixth and Eleventh Circuits and determined a district court erred in counting a timeserved sentence under USSG § 4A1 .1(b). 884 F.3d 554, 558 (5th Cir. 2018). In Carlile , the defendant argued that he never “actually served” a term o f imprisonment for a DWI offense so he should ha ve received only one rather th an two criminal history points under the applicable provisions of USSG § 4A1.1. Defend ant had been sentenced to 365 days in prison “with credit given for 365 days already served.” Id . at 557. The days already served ref erred to time defendant spent in prison for a 21-month criminal mischief sentence. The Fifth Circuit agreed that defe ndant had never “actually served” a term of impri sonment for his DWI offense. Nevertheless, on plain error review, the Fifth Circuit decided the error was not plain : “[A]bsent direction from our court or a timely objection from the defendant, the distric t court could have reasonably interpreted section 4A 1.1’s time served requirement to make no distinction between the conviction at hand and a different conviction.” Id

. Despite the divergent opinions among our sister circuits on how to interpret the meaning of “sentence of impris onment” and without citing a case from the Supreme Court or our circuit that addres ses the issue, Duzyurt argues t he district court committed plain error when it counted his time-served sentence in calculating his criminal history score under USSG § 4A1.1(a). According to Duz yurt, the court’s assessment of three points for the felony theft sentence was pl ain error because the8 guideline language of “applicati on note 2 does itself show the [felony theft] sentence was not a sentence of imprisonment.” Recall that, in general, for an er ror to be plain, either the S upreme Court or this court must have addressed the issue. Salas , 889 F.3d at 687. “The absence of such precedent will not, however, preven t a finding of plain error i f the district court’s interpretation was clearly erroneous.” Id . (citation and quotation omitted). This Court has determined a court’s error was plain in the absence of Supr eme Court or Tenth Circuit precedent “when [a] gui deline ‘clearly and obviously’ w as limited to a single interpretation.” United States v. Ruiz-Gea , 340 F.3d 1181, 1187 ( 10th Cir. 2003) (citing
United States v. Brown , 316 F.3d 1151, 1158 (10th Cir. 2003)). Contrary to Duzyurt’s claim, our sister circuits’ conflicting i nterpretations of a “sentence of imprisonment” indi cate the definition set forth in the second commentary note accompanying USSG § 4A1.2 is not limited to a single inter pretation and that reasonable minds may d iffer on how to construe it. For instanc e, the Eleventh Circuit acknowledged the language was not clear or obvious when the cou rt stated, “[t]he language of the sentencing guidelines occasions a cause for pause in the proper calculation to be made in an ins tance as is here presented.” Buter , 229 F.3d at 1078 (emphasis added). In addition, w hen the Sixth Circuit reviewed the issue, the court addressed the reasoning in both Staples and Buterand ultimately determined Buterwas “more persuasive,” suggesting th e language was open to interpre tation and the court preferred the latter. Hall , 531 F.3d at 419. Most recently, the Fifth Circuit directly stated the error was not plain because “the district court could have reasonably9 interpreted section 4A1.1’s time served requirement to make no distinction between the conviction at hand and a different conviction.” Carlile , 884 F.3d at 558 (emphasis added). Given neither the Supreme Court nor the Tenth Circuit has spoken on the issue, a circuit split exists, and the guideline language is no t limited to a single interpretation, any district cour t error in calculating Duzyurt ’s sentence was not plain

error. Because Duzyurt failed to show any error was plain, we do not r each the questions whether the alleged sen tencing error could have affec ted his substantial rights or whether the alleged sen tencing error could have affec ted the integrity, fairness, or public reputation of the judicial proceedings. Ba sed on the foregoing, Duzyurt failed to demonstr ate reversible error.
AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit JudgeNo. 18-1039, United States v. Duzyurt
PHILLIPS , J., concurring. This appeal presents an opport unity to clear up an issue of fi rst impression, one that will likely recur. Rather than leave another defendant, an d another panel, grappling with the same question later, we should decide no w, in a publis hed opinion, whether the district court erred in adding tw o criminal-history points for Duzyurt’s 2005 Texas statecourt felony theft conviction . I would hold that the district c ourt did err. The majority sets the stage well . Whether Duzyurt has a crimina l-history category of III or, instead, IV, depends on wh ether he gets two criminal -history points for his 2005 Texas state sentence for theft, w hich was pronounced as “2 year s prison, sentence to begin September 16, 2002.” See U.S. Guidelines Manual (U .S.S.G.) § 4A1 .1(b) (U.S. Sentencing Commission 2016). That inturn depends on whether th e Texas theft conviction qualifies as a senten ce of imprisonment, meaning a s entence of incarceration. § 4A1.2(b)(1). The guideline comme ntary defines a sentence of i mprisonment as follows:

“ Sentence of Imprisonment.—To qualify as a sentence of imprisonment, the defendant must have actually served a period of impris onment on such sentence (or if the defendant escaped, would have served time). See § 4A1.2(a)(3) and (b)(2). ” 1 U.S.S.G. § 4 A1.2, cmt.
n. 2.

1 The reference to § 4 A1.2(a)(3) and (b)(2) s erves as a reminder that fully suspended sentences, however le ngthy, are not sen tences of impr isonment. A defendant with a fully suspended sentence has not actually served prison time. It is worth noting that a fully suspended sentence is closer to a sentence of impr isonment than is Duzyurt’s Texas state two-year sentence . After all, a defendant with a fu lly suspended sentence2 Usually this analysis is routine . But here we must contend withan oddball prior sentence—one that in truth imposes no incarceration. For one th ing, by the time Duzyurt received his two-year sentence , the earlier Texas federal sente nce—to which the state court tied the theft sentence—had already expired. Duzyurt neve r stepped foot in a jail or prison on his two-year state sen tence for theft. Perhaps, strai ning, one could say that Duzyurt theoreticallyserved a two-year sentence; but one could never rationally say that he actually served any incarceration on that sentence. For its own reasons, the Texas cou rt convicted Duzyurt but impo sed no actual incarceration. Instead, the Texas court imposed an impossible-t o-actually-serve two-year sentence. By the plain langua ge of the guidelines, I would hold that Duzyurt did not actually serve a single day of imp risonment on this Texas two-y ear sentence. Under § 4A1.1(a)–(c), the gui delines do not assess additional criminal- history points for phantom incarceration, that is, time never actually served.

might later have his probation re voked and actually serve time. I see no scenario in which Duzyurt could actually serve tim e for his Texas state theft con viction.