Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30998

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SEAN SULLIVAN,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:08-CR-114-2

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Sean Sullivan appeals the 16-month sentence imposed following his guilty

plea conviction of one count of possession of contraband by a prisoner. Sullivan,

who was serving a 480-month sentence when he committed the instant offense,

contends that the district court erred in calculating his criminal history points.

Specifically, Sullivan argues that because being a prisoner was an element of his

offense, the district court engaged in impermissible double counting by assigning

United States Court of Appeals

Fifth Circuit

F I L E D

June 15, 2010

Lyle W. Cayce

Clerk

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No. 09-30998

2

criminal history points under U.S.S.G. § 4A1.1(a), (d), and (e) based on the fact

that he was in prison when he committed the offense.

The Sentencing Guidelines do not forbid all double counting. United

States v. Godfrey, 25 F.3d 263, 264 (5th Cir. 1994). Double counting is prohibited

only if the particular guidelines at issue specifically forbid it. Id. Double

counting is allowed “where a single act is relevant to two dimensions of the

Guideline analysis.” United States v. Franklin, 148 F.3d 451, 461-62 (5th

Cir.1998) (internal quotations and citations omitted). “The offense level

represents a judgment as to the wrongfulness of a particular act. The criminal

history category principally estimates the likelihood of recidivism.” United

States v. Dadi, 235 F.3d 945, 956 n.10 (5th Cir. 2000) (quotation and citation

omitted).

The multiple additions that Sullivan received under § 4A1.1(a), (d), and

(e) are authorized by the Guidelines and are not repetitious: (1) the three points

assigned under § 4A1.1(a) were for a prior conviction with a sentence greater

than one year and one month; (2) the two points added under § 4A1.1(d) were for

committing an offense while currently serving a criminal sentence; and (3) the

point added under § 4A1.1(e) was for committing an offense while he was

imprisoned. The plain language of § 4A1.1(e) envisions a scenario where points

will be added under both § 4A1.1(d) and (e). See § 4A1.1(e) & comment. (n.5).

Sullivan has not pointed to any guideline section that prohibits the addition of

criminal history points that occurred in his case. He has therefore not shown

that the particular guidelines at issue specifically forbid double counting. See

Godfrey, 25 F.3d at 264.

Moreover, in United States v. Vickers, 891 F.2d 86 (5th Cir. 1989), this

court rejected a double counting contention that parallels Sullivan’s argument.

Vickers, who appealed his sentence for escape, asserted that it was

impermissible double counting to add criminal history points under § 4A1.1 for

being in prison when the instant offense was committed given that the base

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No. 09-30998

3

offense level for escape necessarily took into consideration the fact that he was

in custody. This court determined that there was no exception to the application

of the criminal history provisions of Chapter Four of the Guidelines to the

offense of escape. Id. As was the case in Vickers, Sullivan’s criminal history

category score did not result from impermissible double counting. See id. at 87-

88.

The judgment of the district court is AFFIRMED. 

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