## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 99-30916

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### S TEVEN 

### W. A RNOLD



### ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

_________________________

June 6, 2000

Before POLITZ, SMITH, and DENNIS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Th is appeal requires us to interpret

U.S.S.G. § 4A1.2(e)(2) to answer the

following qu e stion: For purposes of

determining a defendant’s history of previous

criminal conduct during the ten-year period

before the comm

encement of the offense of

conviction, do we look (1) to the date on which the previous court pronounced sentence

on the prior offense or (2) to the d ate on

which the defenda nt began serving his

sentence 

### SS

at least in cases in which a

suspended sentence was subsequently

revoked? We adopt the former position and

therefore vacate and remand for resentencing.

I.

Steven Arnold pleaded guilty to a federal

offense committed in February 1999. He had

been convicted in a city court of driving while2

intoxicated (“DWI”) in October 1988, beyond

th e t en-year period before commission of the

instant offense. In No vember 1988, the city

court gave him a suspended sentence of ninety

days and placed him on

act ive probation for

two years. Probation was subsequently

revoked, however, and Arnold began serving

his suspen ded sentence i n Septem ber

1989 

### SS within ten years of the instant, federal

offense.

The probation office issu ed a presentence

report that included the city court conviction

in i t s calculation of Arnold’s criminal history

score for purposes of the sentenc ing

guidelines. Arnold o bjected on the ground

that his city court conviction and sentence

pronouncement had occurred more than ten

years before the federal offe nse and that,

therefor e, the conviction was excluded under

U.S.S.G. § 4A1.2(e)(3). 1

The district court overruled the objection

and sente nced Arnold to the maximum

guideline sentence of 27 months’

imprisonment. The effect of including the

DWI conviction

was to upgrade Arnold’s

classification from Criminal History Category

V (triggeri ng a sentencing range of 18 to 24

months) to Category VI (a range of 2 1 to 27

months), thereby increasing his imprisonment

by at least three months.

II.

Under the sentencing guidelines, federal

courts consider a defendant’s criminal history

as part of their determination of the applicable

sentencing range: (e) Applicable Time Period

(1) Any prior sentence of imprisonment

exceeding one year and one month

that w as imposed within fifteen

years o f t he defendant’s

commencement of the instant

offense is counted. Also count any

prior sen t ence of imprisonment

exceeding one year and one month,

whenever imposed, that resulted in

t he defendant being incarcerated

during any part of such fifteen-year

period.

(2) Any othe r prior sentence that w as imposed within ten years of the defendant’s commencement of the instant offense is counted.

(3) Any pr io r sentence not within the

time periods specified above is not

counted.

U.S.S.G. § 4A1.2(e) (emphasis added).

For his 1988 DWI conviction, Arno ld received a suspended sentence of ninety days, a

term of imprisonment he subsequently served

when t he court revoked his probation.

Because that sentence did not exceed thirteen

months, see § 4A1.2(e)(1), the governing rule

is § 4A1.2(e)(2). The text of § 4A1.2(e)(1) is

nevertheless before us, for § 4A1.2( e)(1)

and (2) ought to be read in pari materia

. We

therefore construe both provisions together to

determine what it means for a “prior sentence”

to be “imposed.”

The text of subsections (1) and (2) of

§ 4A1.2(e ) track one another closely. Under

subsection (1), “[a]ny prior sentenc e of

im prisonment exceeding one year and one 1 See § 4A1.2(e)(3) (“Any prior senten ce not

w i thin the time periods specified above is not

counted.”).3

month that was imposed within fifteen years of

the defendant’s commencement of the instant

offense is counted.” § 4A1.2(e)(1). Similarly,

subsection (2) provides that “[a]ny other prior

sentence that was imposed within ten years of

the defendant’s commencement of the instant

offense is counted.” § 4A1.2(e)(2).

Although the guidelines do not define when

a senten ce is “imposed” for purposes of

§ 4A1.2(e), they do define “prior sentence” as

“ any sentence p reviously imposed upon adjudication of guilt , whether by guilty plea,

trial, or plea of nolo contendere, for conduct

not part of the instant offense.” § 4A1.2(a)(1)

(emphasis added). “Adjudication of guilt can

only occur when the court pronounces the defendant’s guilt.” U

nited States v. Cain

, 10 F.3d 261, 262 (5th Cir. 1993) . This

definition thus tends to support Arnold’s view

that a sentence is “imposed ” when it is first

pronounced by the court, and not when the

term of imprisonment begins, as urged by the

government. This definition is applicable to

§ 4A1.2(e)(1) and (2) alike.

Moreover, unlike subs e ction (2), subsection (1) additionally states: “Also count any

prior sentence of imprisonment exceeding one

year a n d one month, whenever imposed

, that

r esulted in the defendant being incarcera ted

during any part of such fifteen-year period .”

§ 4A1.2(e)(1) (emphasis added). This second

prong of § 4A1.2(e)(1), applicab le o nly to

prior sentences exceeding thirteen months’

imprisonment, does not rely on when the sentence is “imposed.” So long as the defendant

was incarcerated wit hin the statutory time

period, the prior sentence will be counted in

the criminal history score 

### SS regardless of when

the sentence was “imposed.”

This second prong of § 4A1.2(e)(1) would cover situations such as Arnold’s (that is, had

his city court DWI sentence includ ed more

than thirteen months’ incarceration), s i tuations

in which a suspended sentence is pronounced

prior to the statutory period, but where

probation is revoked and incarceration begins

within the relevant time period. In other

words, had Arnold’s prior sentence exceeded

thirteen months, he would h ave no argument

for attacking the sente n ce. 2 E xpressio unius

est exclusio alterius ; the fact that

§ 4A1.2(e)(1) e xplicitly covers these

circumstances is strong in dication that

§ 4A1.2(e)(2) does not.

The government fails to persuade us why

expressio unius 

### SS

a linguistic canon of

statutory construction 

### SS

ought not apply here.

Moreover, unambiguous language in § 4A1.2-

(k)(2)(B) supports our approach to § 4A1.2-

(e)(1) and (2). That provision explicitly

addresses the problem of revocation of parole:

Revocation of

probation, parole,

supervised release, special parole, or

mandatory rel ease may affect the time

period under which certain sentences are

co unted as provided in § 4A1.2(d)(2)

and (e). For the purposes of determining

the applicable time period, use the

following: (i) in the case of a n adult

term of imprison m ent totaling more

than one year and o n e month, the date

of l ast release from incarceration on

such sentence (see § 4A1.2(e)(1) ); (ii) in

the case of any other confi nement

sentence for an offense committed prior

t o the defendant’s eighteenth birthday,

2 Of course, had the city cou rt sentence

exceeded 13 months, a 15-year period would have

app l ied, thereby providing a far simpler grounds

for affirming. See § 4A1.2(e)(1).4

the date of the defendant’s last release

from confinement on such sentence (see

§ 4A1.2(d)(2)(A)); and (iii) in any other

case, the date of the orig inal sentence

(see § 4A1.2(d)(2)(B) and (e)(2) ).

§ 4A1.2(k)(2)(B) (emphasis added). Under

the approach we now adopt, prongs (i) and

(iii) of § 4A1.2(k)(2)(B) fit onto § 4A1.2(e)(1)

and (2) perfectly.

This reas o ning is consistent with C ain

. There, the defendant had been convicted and

sentenced on a previous offense within the tenyear period before the offense of conviction.

He served no prison

t ime on that sentence,

h owever, because he enjoyed credit for time

served before the ten-year period leading up to

the off ense of conviction. The district court

counted that prio r conviction in the criminal

history score, and we affirmed, s tati ng that a

sentence is imposed for purposes of § 4A1.2-

(e) “when the court pronounces the

defendant’s guilt,” Cain , 10 F.3d at 262, regardless of any accumulation of credit for previous time served.

This case is the mirror image of Cain

, which involved a pe r iod of incarceration

outsi de the statutory peri od and a

pronouncemen t o f sentence within. By

contrast, the instant case i

nvol ves incarceration

within the peri od but a sentence prior to it.

Because senten ce pronouncement is the sole,

relevant event for purposes of § 4A1.2(e)(2),

we count Cain’ s prior sentence but not

Arnold’s.

III.

In summary, reading the sentencing guidelines in pari materia

, we conclude that, under

§ 4A1.2(e)(2), prior sentences that do not exceed thirteen months are counted for purposes of determining a criminal hist ory score, but

only if the sentencing court pronoun ced the

term of incarce rat ion within ten years of the

co m mencement of the instant offense.

Therefor e, we VACATE and REMAND for

resentencing. 3

3 We reject the government’s invitation to speculate that, without the city court conviction, the

district court simply would have utilized an upward

departure to achieve the same sentence.