IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 99-30916

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

STEVEN W. ARNOLD,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Louisiana

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June 6, 2000

Before POLITZ, SMITH, and DENNIS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This appeal requires us to interpret

U.S.S.G. § 4A1.2(e)(2) to answer the

following question: For purposes of

determining a defendant’s history of previous

criminal conduct during the ten-year period

before the commencement 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 date on

which the defendant began serving his

sentenceSSat 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 while
2

intoxicated (“DWI”) in October 1988, beyond

the ten-year period before commission of the

instant offense. In November 1988, the city

court gave him a suspended sentence of ninety

days and placed him on active probation for

two years. Probation was subsequently

revoked, however, and Arnold began serving

his suspended sentence in September

1989SSwithin ten years of the instant, federal

offense.

The probation office issued a presentence

report that included the city court conviction

in its calculation of Arnold’s criminal history

score for purposes of the sentencing

guidelines. Arnold objected on the ground

that his city court conviction and sentence

pronouncement had occurred more than ten

years before the federal offense and that,

therefore, the conviction was excluded under

U.S.S.G. § 4A1.2(e)(3).1

The district court overruled the objection

and sentenced 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 (triggering a sentencing range of 18 to 24

months) to Category VI (a range of 21 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) Anypriorsentence ofimprisonment

exceeding one year and one month

that was imposed within fifteen

years of the defendant’s

commencement of the instant

offense is counted. Also count any

prior sentence of imprisonment

exceeding one year and one month,

whenever imposed, that resulted in

the defendant being incarcerated

during any part of such fifteen-year

period.

(2) Any other prior sentence that was

imposed within ten years of the defendant’s commencement of the instant offense is counted.

(3) Any prior 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, Arnold received a suspended sentence of ninety days, a

term of imprisonment he subsequently served

when the 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 provisionstogether to

determine what it meansfor a “priorsentence”

to be “imposed.”

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

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

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

imprisonment exceeding one year and one

1

See § 4A1.2(e)(3) (“Any prior sentence not

within the time periods specified above is not

counted.”).
3

month that wasimposed within fifteen years of

the defendant’s commencement of the instant

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

subsection (2) providesthat “[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 sentence is “imposed” for purposes of

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

“any sentence previously 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.” United 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 subsection (2), subsection (1) additionally states: “Also count any

prior sentence of imprisonment exceeding one

year and one month, whenever imposed, that

resulted in the defendant being incarcerated

during any part of such fifteen-year period.”

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

prong of § 4A1.2(e)(1), applicable only to

prior sentences exceeding thirteen months’

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

was incarcerated within the statutory time

period, the prior sentence will be counted in

the criminal history scoreSSregardless ofwhen

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 included more

thanthirteenmonths’incarceration),situations

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 have no argument

for attacking the sentence.2 Expressio unius

est exclusio alterius; the fact that

§ 4A1.2(e)(1) explicitly covers these

circumstances is strong indication that

§ 4A1.2(e)(2) does not.

The government fails to persuade us why

expressio uniusSSa linguistic canon of

statutory constructionSSought not apply here.

Moreover, unambiguouslanguage in § 4A1.2-

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

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

addressesthe problemofrevocation of parole:

Revocation of probation, parole,

supervised release, special parole, or

mandatory release may affect the time

period under whichcertain sentences are

counted 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 an adult

term of imprisonment totaling more

than one year and one month, the date

of last release from incarceration on

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

the case of any other confinement

sentence for an offense committed prior

to the defendant’s eighteenth birthday,

2 Of course, had the city court sentence

exceeded 13 months, a 15-year period would have

applied, 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 original 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 reasoning is consistent with Cain.

There, the defendant had been convicted and

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

He served no prison time on that sentence,

however, because he enjoyed credit for time

served before the ten-year period leading up to

the offense of conviction. The district court

counted that prior conviction in the criminal

history score, and we affirmed, stating 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 period of incarceration

outside the statutory period and a

pronouncement of sentence within. By

contrast, the instant case involves incarceration

within the period but a sentence prior to it.

Because sentence 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 history score, but

only if the sentencing court pronounced the

term of incarceration within ten years of the

commencement of the instant offense.

Therefore, we VACATE and REMAND for

resentencing.3

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

district courtsimplywould haveutilized an upward

departure to achieve the same sentence.