*

 After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1. 

The case is therefore ordered submitted without oral argument. Dozier did not

request oral argument “in order to avoid any delay attributable to scheduling oral

argument.” (Appellant’s Opening Br. at 9.) Dozier is scheduled to be released

from custody in May 2009.

FILED

United States Court of Appeals

Tenth Circuit

February 11, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RAPHAEL DOZIER,

Defendant - Appellant.

No. 08-4086

Appeal from the United States District Court

for the District of Utah

(D.C. No. 2:07-CR-00860-DAK-1)

Submitted on the briefs:

Steven B. Killpack, Federal Public Defender, and Scott Keith Wilson, Assistant

Federal Public Defender, Salt Lake City, Utah, for Defendant-Appellant.

Brett L. Tolman, United States Attorney, District of Utah, and Elizabethanne C.

Stevens, Assistant United States Attorney, for Plaintiff-Appellee.

Before O’BRIEN, McKAY and GORSUCH, Circuit Judges.*
-2-

O’BRIEN, Circuit Judge.

Raphael Dozier was sentenced to 18 months imprisonment after pleading

guilty to possession of a firearm by a convicted felon. He contends the district

court erred by including in his criminal history computation the period of

incarceration imposed by a state court upon revocation of a suspended sentence

when the revocation resulted from the same conduct that is the basis of the instant

offense. We affirm.

I. BACKGROUND

On July 23, 2007, the Salt Lake City Police Department sent a confidential

source (CS) to Dozier’s residence for the purpose of purchasing illegal narcotics. 

Dozier invited the CS into his home. The CS told Dozier he had $60 to purchase

methamphetamine and gave the money to Dozier. Dozier asked his girlfriend to

“go get me that thing I got today” and she returned with a revolver. (R. Vol. II,

Doc. 24 at 3.) Dozier pointed the weapon at the CS and told him to leave. The

CS grabbed his money from Dozier and left. Upon arriving at Dozier’s residence,

police officers located a loaded revolver in a bedroom. Dozier stated the gun

belonged to his girlfriend but admitted he had handled it and his fingerprints

would be on it. He also admitted he had used methamphetamine earlier in the

day.
1

 All references to the United States Sentencing Guidelines are to the 2007

version.

-3-

On November 28, 2007, Dozier was indicted with one count of being a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The United

States Probation Office prepared a presentence report (PSR) which determined the

total offense level to be 12 after applying a two-level downward adjustment for

acceptance of responsibility. See USSG §§2K2.1(a)(6), 3E1.1.1

 The PSR

concluded Dozier had seven criminal history points: one point for a 1998

conviction for possession of a controlled substance, three points for a 2006

conviction for possession of a controlled substance (the Controlled Substance

Conviction), one point for a 2006 conviction for theft, and two points because he

was on probation for the Controlled Substance Conviction when he committed the

instant offense. See USSG §4A1.1(d). Dozier’s criminal history placed him in

Criminal History Category IV, resulting in an advisory guideline range of 21 to

27 months imprisonment.

In determining three criminal history points were warranted for the

Controlled Substance Conviction, the PSR followed USSG §4A1.2(k)(1) which

instructs: “In the case of a prior revocation of probation . . . add the original term

of imprisonment to any term of imprisonment imposed upon revocation. The

resulting total is used to compute the criminal history points for USSG §4A1.1(a),

(b), or (c), as applicable.” Dozier was originally sentenced to 0 to 5 years for the
2

 The term “sentence of imprisonment” “refers to the maximum sentence

imposed.” USSG §4A1.2(b)(1). Thus, an indeterminate 0 to 5 year sentence is

considered a 5-year sentence. See id., comment. (n.2); see also United States v.

Chavez-Diaz, 444 F.3d 1223, 1226-27 (10th Cir. 2006).

3

 The PSR did not specifically set forth this calculation but we presume

this was the approach it followed.

-4-

Controlled Substance Conviction, but the sentence was suspended and Dozier was

placed on probation for 36 months after serving 20 days in jail. On August 24,

2007, the state court revoked Dozier’s probation for the Controlled Substance

Conviction because he failed to comply with the terms of probation and imposed

the original sentence of 0 to 5 years. 

USSG §4A1.1 provides in pertinent part:

(a) Add 3 points for each prior sentence of imprisonment

exceeding one year and one month.

(b) Add 2 points for each prior sentence of imprisonment of at

least sixty days not counted in (a).

(c) Add 1 point for each prior sentence not counted in (a) or (b),

up to a total of 4 points for this item.

Consistent with USSG §4A1.2(k)(1), the PSR used 5 years and 20 days as

the total incarceration time for purposes of calculating the criminal history points

to be afforded to the Controlled Substance Conviction.2

 Consequently, it assigned

three criminal history points to the Controlled Substance Conviction under USSG

§4A1.1(a) because the sentence exceeded one year and one month.3

 

Dozier objected to the assessment of three criminal history points for the
4

 The guidelines instruct that for purposes of calculating criminal history

points under §4A1.1, “[i]f part of a sentence of imprisonment was suspended, [the

term] ‘sentence of imprisonment’ refers only to the portion that was not

suspended.” USSG §4A1.2(b)(2).

5

 The government has not appealed from the gratuitous reduction.

-5-

Controlled Substance Conviction, arguing he should have received only one

criminal history point. He would have received only one criminal history point if

the original sentence was calculated as either a 20-day sentence of imprisonment,

see USSG §4A1.1(c),4

 or a sentence of 36 months probation, see USSG §4A1.2

comment. (n.2). The two-point difference is significant. Had Dozier received

five instead of seven total criminal history points, he would have been in Criminal

History Category III instead of IV and his advisory guideline range would have

been 15 to 21 months instead of 21 to 27 months. 

The court overruled Dozier’s objection and adopted the PSR’s calculation

of Dozier’s criminal history, resulting in a guideline range of 21 to 27 months. It

sentenced Dozier to 18 months. The reduction came from granting a three-month

credit (over the government’s objection) for the five months Dozier served in

state custody for violating his probation. Dozier appeals, asserting the court erred

in overruling his objection.5

II. DISCUSSION

Dozier contends the district court erred in holding the sentence imposed

following the revocation of his probation on the Controlled Substance Conviction
6

 The government points out that the record does not indicate the specific

conduct that led to the revocation of Dozier’s probation on the Controlled

Substance Conviction. Indeed, the PSR indicates only that Dozier’s probation

was revoked because “he failed to obey all laws and, therefore, failed to comply

with the State Court’s order.” (R. Vol. II, Doc. 24 at Addendum.) The

government appears to be raising a factual issue. Because it did not raise this

issue with the district court, we will not consider it here and will assume Dozier’s

probation was revoked based on the same conduct underlying the instant offense.

-6-

was a “prior sentence” within the meaning of USSG §4A1.1, which is defined as

“any sentence previously imposed upon adjudication of guilt . . . for conduct not

part of the instant offense.” USSG §4A1.2(a)(1). He argues the conduct resulting

in the revocation of his probation is the same conduct that forms the basis of the

instant offense; it is thus “part of the instant offense” and by definition cannot be

a “prior sentence.”6

 This is a question of law, which we review de novo. See

United States v. Munoz-Tello, 531 F.3d 1174, 1181 (10th Cir. 2008) (“When

evaluating the district court’s interpretation and application of the Sentencing

Guidelines, we review legal questions de novo and factual findings for clear error

. . . .”).

“Generally speaking, we interpret the Sentencing Guidelines according to

accepted rules of statutory construction.” United States v. Cornelio-Pena, 435

F.3d 1279, 1282 (10th Cir. 2006) (quotations omitted). “As with all statutory

interpretation, we begin our analysis with the language of [the guideline at issue],

giving the words used their ordinary meaning.” United States v. Plotts, 347 F.3d

873, 876 (10th Cir. 2003) (quotations omitted). This process is straightforward. 
7

 Dozier seems to concede, as we think he must, that the original sentence

he received for the Controlled Substance Conviction-20 days imprisonment and

36 months probation-qualifies as a “prior sentence” within the meaning of the

guidelines, meriting one criminal history point. See USSG §§4A1.1(c), 4A1.2

comment. (n.2). His argument thus treats the original sentence and the postrevocation 0 to 5 year sentence as disparate sentences. But USSG §4A1.2(k)(1)

expressly provides that a sentence imposed following the revocation of probation

is not to be calculated separately from the original sentence imposed but is to be

combined therewith. See USSG §4A1.2, comment. (n.11) (“Rather than count the

original sentence and the resentence after revocation as separate sentences, the

sentence given upon revocation should be added to the original sentence of

imprisonment, if any, and the total should be counted as if it were one

sentence.”). This more specific guideline controls. See NISH v. Rumsfeld, 348

F.3d 1263, 1272 (10th Cir. 2003) (“It is a general maxim of statutory

interpretation that a statute of specific intention takes precedence over one of

general intention.”).

-7-

We begin with USSG §4A1.2(k)(1) because this guideline specifically addresses

the calculation of criminal history points for a sentence arising from a revocation

of probation. This guideline plainly and simply instructs the sentencing court to

“add the original term of imprisonment to any term of imprisonment imposed

upon revocation.” USSG §4A1.2(k)(1). This is exactly what the district court

did, resulting in the addition of three criminal history points under USSG

§4A1.1(a).

Dozier’s argument focuses on USSG §4A1.2(a)(1), which he believes

excludes the sentence imposed following the revocation of his probation from the

definition of “prior sentence.”7

 His argument ignores the relation-back aspect of

the law-incarceration resulting from a probation revocation is punishment for the
8

 It is not double jeopardy when a defendant is sentenced for a criminal act

and his probation in another case is revoked as a consequence of that same

criminal act. See Johnson v. United States, 529 U.S. 694, 700 (2000).

9

 See also United States v. Madrigal-Rodriguez, 60 Fed. Appx. 5, 6 (9th

Cir. 2003) (unpublished) (holding the district court correctly applied §4A1.2(k)(1)

“[e]ven assuming the probation revocation was triggered by the same conduct that

constitutes the current offense” because defendant’s original conviction had

nothing to do with the acts underlying the new charge and “thus has nothing to do

with section 4A1.2(a)(1)’s limitation on counting ‘conduct . . . part of the instant

offense’”); United States v. Barroso, 972 F.2d 1343, No. 91-10553, 1992 WL

185461, at *1 (9th Cir. 1992) (unpublished) (rejecting defendant’s argument that

the district court should not have assessed an additional criminal history point

following the revocation of his probation for the same conduct underlying the

instant offense because the sentence imposed following the revocation “was based

on the prior offense”).

-8-

original offense.8 It is imposed as a consequence of the defendant’s breach of

probation terms but is not punishment for the breach. See Alabama v. Shelton,

535 U.S. 654, 662 (2002) (“A suspended sentence is a prison term imposed for

the offense of conviction. Once the prison term is triggered, the defendant is

incarcerated not for the probation violation, but for the underlying offense.”);

Johnson, 529 U.S. at 701 (“We . . . attribute postrevocation penalties to the

original conviction.”). The sentence imposed following the revocation of

Dozier’s probation was for the crime for which he was convicted in 2006,

possession of a controlled substance, which is not part of the instant offense,

possession of a firearm.

This is an issue of first impression in this Circuit, but our holding is

consistent with Wheeler v. United States, 330 F.3d 407 (6th Cir. 2003).9

 In
10 Pursuant to this guideline, a court can depart upward “[i]f reliable

information indicates that the defendant’s criminal history category substantially

under-represents the seriousness of the defendant’s criminal history or the

likelihood that the defendant will commit other crimes.” USSG §4A1.3(a)(1).

-9-

Wheeler, the Sixth Circuit concluded the district court properly considered the

sentence imposed following the revocation of the defendant’s state court

community corrections sentence despite the fact the revocation resulted from the

same conduct underlying the federal offense. Relying in part on Johnson, the

court explained “the fact that Tennessee authorities revoked Defendant’s

community corrections sentence for the same firearms possession that led to his

[federal] conviction does not, for criminal history purposes, sever the conduct

from the original state sentence attributable to his [earlier state court

conviction].” Id. at 412. 

Dozier calls our attention to United States v. Loudon, wherein the Second

Circuit held the district court did not err in departing upward under USSG

§4A1.3(a)10 after concluding a sentence imposed upon a probation revocation

could not be considered for purposes of calculating defendant’s criminal history

because the sentence was imposed for conduct which formed the basis of the

subsequent federal conviction. 385 F.3d 795, 799 (2d Cir. 2004). While this

presents a possible alternative approach, the Loudon court was not called upon to

consider whether the district court erred in failing to include the sentence imposed

following the revocation of the defendant’s supervised release in calculating his
11 The same timing problem exists in other circumstances and can work in

a defendant’s favor. Where, for example, a federal defendant has been convicted

but not yet sentenced in state court, the state conviction is only assigned one

criminal history point, even though the sentence ultimately imposed may exceed

one year and one month and therefore warrant three criminal history points. See

USSG §§4A1.1(a), 4A1.2(a)(4). On the other hand, if the state sentencing

precedes federal sentencing, the defendant will receive three criminal history

points for a sentence exceeding one year and one month. USSG §4A1.1(a). 

-10-

criminal history points. The court considered only whether the district court erred

in departing upward. We do not read Loudon to support Dozier’s arguments since

it offers no analysis of the pertinent issue. 

Dozier points out, correctly, that the timing of state and federal court

proceedings might lead to anomalous results. Additional criminal history points

will be included when, as here, the state court probation revocation precedes the

federal sentencing, but not when the federal sentencing precedes the state court

revocation. While it may seem somewhat arbitrary, the problem is more

theoretical than real because probation revocation proceedings tend to be handled

more expeditiously than federal criminal proceedings due to, inter alia, the lesser

burden of proof and the absence of a jury in revocation proceedings. In any

event, the possibility of anomalous results is not reason to rewrite the

guidelines.11

Where probation is revoked based on the same conduct forming the basis of

a federal offense, the imposition of the original sentence is attributable to the

original act of conviction, not the act underlying the revocation. The 0 to 5 year
-11-

sentence imposed on Dozier following the revocation of his probation was not

part of the “instant offense” and the court properly considered it in determining

Dozier’s criminal history.

AFFIRMED.