* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 19 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. BOBBY LEON JACKSON,

Defendant-Appellant. No. 97-6423 (W. Dist. Oklahoma) (D.C. No. 97-CR-78)

ORDER AND JUDGMENT *

BeforeBALDOCK , EBEL, and MURPHY , Circuit Judges.

BACKGROUND After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ourt therefore honors the parties’ requests and orders the case submitted without oral argument.-2-

Bobby Leon Jackson entered a guilty plea to a one-c ount indictment charging Jackson with possessing a firearm followin g a previous felony conviction in violation of 18 U.S.C. § 922(g)(1). The United States Probation Office prepared a presentence report (“PSR”) which concluded that Jackson had seven criminal history points and a resultant criminal history category of IV. See
U.S.S.G. § 4A1.1 (assigning criminal history points to past convictions); id . Ch. 5 pt. A Sentencing Table (setting forth criminal hist ory categories). Three of the seven criminal history points resulted from a 1995 Oklahoma conviction for driving under the influence (“DUI”) after a former DUI conviction. See Okla. Stat. Ann. tit. 47, § 11-902 (West 1988. Jackson r eceived the following sentence for the 1995 Oklahoma conviction: “Sentenced to a t erm of Three (3) Years imprisonment, satisfied by 90 Nights incarceration pursuant to 22 O.S. § 991a-2.” Jackson objected to the assessment of three crimina l history points for the conviction, asserting that he should receive only two points for that conviction because all but ninety days of the sentence had been suspended. See U.S.S.G. § 4A1.1(a), (b) (providing for three criminal historypoints for each sentence of imprisonment exceeding one year and one month and two points for sentences of at least sixty days but not more than one year and one month); id. § 4A1.2(b)(2) (“If part of a sentence of imprisonment was suspend ed, ‘sentence of imprisonment’ refers only to the portion that was n ot suspended.”). The district1 Jackson further notes that when properly calculated , he has six criminal

history points, a criminal history category of III, and a proper sentencing range of fifteen to twenty-one months. See U.S.S.G. § 4A1.1 & Ch. 5 pt. A Sentencing Table. -3- court held a sentencing hearing, overruled Jackson’ s objections, utilized the criminal history category set out in the PSR, and s entenced Jackson to a term of twenty-four months. Jackson appeals, asserting that the district court erred in adopting the criminal history calculations set out in the PSR. 1 Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a), this court reverses and remands to the district court for resentencing in accordance w ith this opinion.

ANALYSIS There are no facts in dispute on appeal. Instead, the parties’ contentions center around the proper meaning and application of the terms “suspended sentence” and “sentence of imprisonment” in section4A1.2(b) of the Sentencing Guidelines to Jackson’s conviction for driving unde r the influence. This court reviews the district court’s interpretation and application of the Guidelines de

novo . See United States v. Pettit , 938 F.2d 175, 178 (10 thCir. 1991). The number of criminal history points assigned to acriminal conviction is determined by the sentence imposed and can vary fro m one to three points depending on the length of sentence. A sentence of imprisonment of less than-4-

sixty days earns one criminal history point. See U.S.S.G. § 4A1.1(c). A sentence of imprisonment of at least sixty days up to and in cluding one year and one month earns two criminal history points. See id. § 4A1.1(b). Finally, any sentence of imprisonment for more than one year andone month earns three criminal history points. See id. § 4A1.1(a). “Sentence of imprisonment” is defined in Guideline section 4A1.2, which provides in pertinent part as follows: § 4A1.2 Definition and Instructions for Computing Criminal History

. . . . (b) Sentence of Imprisonment Defined (1) The term “sentence of imprisonment” means a sentence of incarceration and refers to the maximum sentence imposed. (2) If part of a sentence of imprisonment was suspended, “sentence of imprisonment” refers only t o the portion that was not suspended. The application notes to Guideline section 4A1.2 fu rther clarify it is the sentence imposed or “pronounced,” rather than the sentence a ctually served, that determines the number of criminal history points as signed to the conviction. Id. § 4A1.2 application note 2. With this background in mind, we note that Jackson’ s appeal raises a single question: Was the state court judgment and s entence ordering Jackson to-5-

serve “Three (3) Years imprisonment, satisfied by 9 0 Nights incarceration pursuant to 22 O.S. § 991a-2,” a sentence of impris onment for ninety days or three years? If for ninety days, the sentence woul d count as two criminal history points. See id. § 4A1.1(b). If for three years, on the other hand , the sentence would count as three criminal history points. See id. § 4A1.1(a). In overruling Jackson’s objection to the PSR and co ncluding that the sentence in question was for a term of three years, the district court stated as follows: I have studied the issue, and the response of the p robation officer, I think, is a good summary of, not only th e position of the government, but what I think; and my conclusion, having studied the issue as a matter of law under these facts, is corr ect. . . . The response by the probation officer is that: “Theprobation officer believes that the assessment of three crimi nal history points for this conviction is appropriate. Criminal histo ry points are assessed based on the sentence imposed, not on the amount of time served.” Now, that is the crux of the issue and that is the legal conclusion that I have reached, as well, which answ ers this objection and on which my decision is based. Continuing with his response: “If a portion of the term of imprisonment is suspended, then criminal history po ints are assessed based on the portion that is not suspended. In thi s case, the threeyear sentence was imposed and the Court ordered that the sentence could be satisfied by the defendant serving 90 cons ecutive nights in the county jail. No portion of the sentence impose d was suspended, therefore, the [total] of the criminal history points for this conviction is three as presented in this paragraph.” And I think that’s exactly correct as a matter of l aw and that is the basis for my overruling of that particular obje ction.-6-

On appeal, Jackson argues that the district court’s decision is flawed in two important respects. First, Jackson asserts that th e district court interpreted his objection as being based on the amount of time he a ctually served on the relevant conviction rather than the sentence pronounced. Ja ckson notes for the benefit of this court that he is not arguing the conviction earns two points because he only served ninety days. Instead, he asserts that it on ly earns two points because the state court pronounced a sentence of three years, s uspending all of it but ninety days. The second, and more profound, error identified by Jackson is that the district court gave talismanic effect to the absenc e of the words “suspended sentence” from the state court judgment of convicti on. Although the state court did not say it was suspending all but ninety days o f the sentence, Jackson argues that is the only reading of the judgment that makes sense. This court agrees that although sometimes instructive, the presence or abs ence of the term “suspended sentence” in a state court judgment of conviction i s not always determinative of whether a portion of that sentence has been suspend ed. In the case at hand, the judgment of conviction spe cifically indicates that Jackson is required to serve only ninety days of th e three-year sentence, and that those ninety days can be served in the county jail. The specific statutory provision giving the state court the power to impos e confinement in the county2 The state court judgment of conviction further prov ides that Jackson is

only required to spend the night in the county jail during the ninety-day term. The state trial court imposed night incarceration p ursuant to Okla. Stat. Ann. tit. 22, § 991a-2 (West 1986), a provision of law also l ocated in the section of the Oklahoma code titled “Suspension of Judgment and Se ntence.”

3 The provisions dealing with the sentencing powers o f Oklahoma trial courts were substantially revised in 1997, well aft er Jackson was sentenced for driving under the influence. See Okla. Stat. Ann. tit. 22, §§ 991a to 991a-4 (West Supp. 1998). -7- jail in lieu of custody with the department of corr ections is in a subsection of the Oklahoma code entitled “Suspension of Judgment and Sentence.” 2In particular, section 991a of title 22 provides Oklahoma trial co urts with three sentencing options: (1) suspend the sentence in whole or in part; (2) impose a fine with or without commitment; or (3) confine the person as provided by law. See Okla. Stat. Ann. tit. 22, § 991a (West 1986). 3 That portion of section 991a dealing with suspended sentences specifically provides as f ollows: A. When a defendant is convicted of a crime and no death sentence is imposed, the court [has the option to]: 1. suspend the execution of sentence in whole or i n part, with or without probation. The court, in add ition, may order the convicted defendant at the time of sentencing or at any time during the suspended sent ence to do one or more of the following:

. . . . e. To confinement in the county jail for a period not to exceed ninety (90) days.4 The United States asserts that “The state court cou ld have simply ordered

‘90 nights incarceration,’ if it had meant to prono unce a sentence for 90 nights rather than a sentence of three years imprisonment. ” Unfortunately, the United States does not identify under what authority the s tate court could have imposed such a sentence. This court can find no authority except section 991a of title 22, the Oklahoma provisions dealing with suspended sent ences. -8- It must be noted that the conviction at issue here is for driving under the influence after a former DUI conviction. See Okla. Stat. Ann. tit. 47, § 11-902 (West 1988). The relevant portions of section 11-9 02 of title 47 provide for a term of one to five years in the custody of the Okl ahoma Department of Corrections. See id. § 11-902(C). The only reasonable interpretation o f the judgment of conviction here is that the Oklahoma co urt imposed a three-year term pursuant to section 11-902 but suspended the s entence and ordered him to serve ninety days in the county jail pursuant to se ction 991a(A)(1)(e) of title 22 of the Oklahoma code. Section 991a(A), the specifi c provision of the Oklahoma code dealing with the trial court’s power to suspen d sentences, appears to be the only provision of the Oklahoma code giving the stat e court the power to impose the ninety-day jail term for the crime at issue here. 4 In support of the district court’s ruling that the state court did not intend to suspend any portion of Jackson’s sentence, the Unit ed States notes that the section dealing with suspended sentences on the Uni form Plea of Guilty Form Exhibit “A” to Summary of Facts and Judgment and Se ntence is crossed out.5As an alternative argument, Jackson argues that if there is doubt as to

whether the state court suspended part of his sente nce, the rule of lenity should determine the issue in his favor. See United States v. Tabaka , 982 F.2d 100, 103 (3d Cir. 1992) (applying rule of lenity where it wa s unclear whether portion of state sentence of imprisonment had been suspended). In light of this court’s conclusion that the state court did indeed suspend all of Jackson’s sentence except ninety days, we need not address the applicability of the rule of lenity here. -9- This fact is of minimal probative value. The secti on crossed out on Exhibit A appears to relate solely to individuals sentenced t o the supervision of the Oklahoma Department of Corrections. In the instantcase, the state court never sentenced Jackson to the custody of the Department of Corrections. Instead, the state court judgment provides that Jackson’s senten ce could be fully satisfied by confinement in the county jail. More importantly, as noted above, the United States has not identified under what authority, exc ept Oklahoma’s suspended sentence statute, the state court could have ordere d Jackson to serve ninety-days in the county jail for driving under the influence after a prior DUI conviction. Accordingly, the crossed out section on Exhibit A d oes not alter this court’s conclusion that the state trial court suspended all of Jackson’s sentence except for ninety days. 5

CONCLUSION In light of section 991a of title 22 of the Oklahom a code, we conclude that the district court erred in holding that Jackson ha d been sentenced to a three year-10-

term of imprisonment, rather than a three year termof imprisonment with all but ninety days of the term suspended. Accordingly, th e district court’s assessment of three criminal history points for the convictionwas also in error. This court therefore REVERSES the district court and REMANDS the case for resentencing in accordance with this opinion.
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge