FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE YOBANI MADRID-BECERRA,

AKA Jose Jobane Madrid Becerra,

AKA Jose Madrid-Mesena,

Defendant-Appellant.

No. 19-10458

D.C. No.

2:19-cr-01067-

DJH-1

OPINION

Appeal from the United States District Court

for the District of Arizona

Diane J. Humetewa, District Judge, Presiding

Argued and Submitted May 13, 2021

Pasadena, California

Filed October 1, 2021

Before: Jay S. Bybee and Daniel A. Bress, Circuit Judges,

and Kathleen Cardone,* District Judge.

Opinion by Judge Bybee;

Dissent by Judge Cardone

* The Honorable Kathleen Cardone, United States District Judge for

the Western District of Texas, sitting by designation.
2 UNITED STATES V. MADRID-BECERRA

SUMMARY**

Criminal Law

The panel affirmed a sentence in a case in which the

defendant, who was convicted of illegal re-entry under

8 U.S.C. § 1326(a), argued that the district court erred by

applying U.S.S.G. § 4A1.1(d), which assigns two criminal

history points “if the defendant committed the instant offense

while under any criminal justice sentence, including

probation, parole, supervised release, imprisonment, work

release, or escape status.” 

After serving a portion of a 2013 Arizona state sentence

in prison, the defendant was granted early conditional release

under Ariz. Rev. Stat. § 41-1604.14 (repealed Aug. 6, 2016),

known as the “half-term to deport” program. The crux of the

defendant’s argument was that he did not commit his illegal

re-entry offense “while under any criminal justice sentence.”

The panel rejected the defendant’s argument that his early

release did not provide for supervision of, or place

restrictions or conditions on, his subsequent actions. The

panel wrote that there is no question that the Arizona sentence

was imposed and that as a condition of his early release from

prison, Arizona required that the defendant not illegally

reenter the United States. If he did so and was discovered, his

release was to be revoked and he was to be returned to

custody to serve the remainder of his initial sentence. This

condition was mandatory, part and parcel of the terms of his

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. MADRID-BECERRA 3

original sentence under Arizona law, and reflects a “custodial

or supervisory component” akin to probation (U.S.S.G.

§ 4A1.1 cmt. n.4).

The panel rejected the defendant’s argument that, at the

time he was discovered in the United States, he was no longer

under a criminal justice sentence because the statute

authorizing revocation of his release had been repealed. The

panel explained that Arizona’s general savings statutes

require that, for aliens like the defendant who were convicted

when § 41-1604.14 was in force, that provision continues to

govern their sentences, and that the Arizona Department of

Corrections maintained the authority to revoke his release

because of his illegal re-entry. 

The panel held that even if the district court erred in

assuming that the defendant had received formal notice of the

condition that he not return illegally from the state court

during sentencing, the defendant did not demonstrate that this

alleged error affected his substantial rights. The panel held

that the district court did not clearly err in finding that the

defendant’s early release was in fact revoked, but noted that

neither the Sentencing Guidelines nor its Commentary

requires that any parole or release actually be revoked, or that

an escapee be apprehended, for § 4A1.1(d) to apply.

Dissenting, District Judge Cardone wrote that § 4A1.1(d)

does not apply to a scheme such as Arizona’s half-term to

deportation program under which each day the defendant

spent on his “conditional release” brought him no closer to

the termination of his sentence.
4 UNITED STATES V. MADRID-BECERRA

COUNSEL

Michael L. Burke (argued), Assistant Federal Public

Defender; Jon M. Sands, Federal Public Defender; Office of

the Federal Public Defender, Phoenix, Arizona; for

Defendant-Appellant.

Seth T. Goertz (argued), Assistant United States Attorney;

Krissa M. Lanham, Appellate Division Chief; Michael

Bailey, United States Attorney; United States Attorney’s

Office, Phoenix, California; for Plaintiff-Appellee.

OPINION

BYBEE, Circuit Judge:

Defendant Jose Madrid-Becerra appeals fromhis sentence

for a conviction of illegal re-entry under 8 U.S.C. § 1326(a). 

He argues that the district court erred by applying United

States Sentencing Guidelines (U.S.S.G. or Guidelines)

§ 4A1.1(d) to raise his criminal history score and,

consequently, his Guidelines range. The crux of MadridBecerra’s argument is that he did not commit his illegal reentry offense “while under any criminal justice sentence,” as

required by § 4A1.1(d).

Because the district court correctly applied § 4A1.1(d),

we affirm Madrid-Becerra’s sentence.

I. BACKGROUND

In June 2013, Madrid-Becerra was convicted of

solicitation to commit transportation of marijuana for sale
UNITED STATES V. MADRID-BECERRA 5

under Arizona law and sentenced to two and a half years. 

After serving a portion of his sentence in prison, he was

granted early conditional release under Ariz. Rev. Stat. § 41-

1604.14 (repealed Aug. 6, 2016), known as the “half-term to

deport” program. That statute permitted the Arizona

Department of Corrections (ADOC) to “release a prisoner to

the custody and control of the United States immigration and

customs enforcement” if ADOC receives an order of

deportation, the prisoner has served at least one-half of the

sentence imposed, and the offense meets certain other

requirements. See Ariz. Rev. Stat. § 41-1604.14(A). It also

provided that “[i]f a prisoner who is released pursuant to this

section returns illegally to the United States, on notification

from any federal or state law enforcement agency that the

prisoner is in custody, [ADOC] shall revoke the prisoner’s

release.” Id. § 41-1604.14(B). Shortly after ADOC released

Madrid-Becerra in 2014 to the custody of the United States

pursuant to § 41-1604.14, he was removed to Mexico.

Madrid-Becerra re-entered the United States without

inspection in June 2016. In December 2017, Madrid-Becerra

was arrested by local Arizona police on assault charges. He

was later convicted of attempted aggravated assault and

sentenced to eighteen months imprisonment. The Maricopa

County Superior Court ordered his sentence to run concurrent

with the remainder of his sentence from his 2013 offense.

In July 2019, Arizona released Madrid-Becerra to U.S.

Immigration and Customs Enforcement(ICE) custody, which

detained him on a felony complaint. He was later indicted for

illegal re-entry and pleaded guilty to the offense. At

sentencing, the Pre-Sentence Report (PSR) prepared by the

United States Probation Office assessed a criminal history

score of eight, two points of which were due to the PSR’s
6 UNITED STATES V. MADRID-BECERRA

conclusion that Madrid-Becerra “committed the instant

offense while under a criminal justice sentence for [his 2013

conviction for] solicitation to commit transportation of

marijuana for sale.” U.S.S.G. § 4A1.1(d). His criminal

history score placed his Guidelines range for custody at 46 to

57 months, though the PSR recommended a downward

departure to 27 months.

Madrid-Becerra objected to the PSR’s assessment of the

“two-level enhancement for committing the instant offense

while under a criminal justice sentence” because Arizona’s

“half-term to deport” program “does not have any custodial

or supervisory component.” He argued that without the extra

two points, his Guidelines range would have been 37 to

46 months. The district court heard argument on this

objection at sentencing but found that the enhancement was

applicable. The court thereafter sentenced Madrid-Becerra to

27-months imprisonment with credit for time served,

followed by three years of supervised release. His projected

release date is August 3, 2021.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to reviewMadrid-Becerra’s sentence

under 28 U.S.C. § 1291. “We review de novo the district

court’s interpretation of the Sentencing Guidelines,”

including the calculation of the criminal history score. 

United States v. Gonzalez, 739 F.3d 420, 422 n.1 (9th Cir.

2013) (citing United States v. Lichtenberg, 631 F.3d 1021,

1024 (9th Cir. 2011)). We review “the district court’s

application of the Sentencing Guidelines to the facts of this

case for abuse of discretion, and the district court’s factual

findings for clear error. United States v. Stoterau, 524 F.3d

988, 997 (9th Cir. 2008) (citation omitted).
UNITED STATES V. MADRID-BECERRA 7

III. ANALYSIS

Madrid-Becerra argues that the district court improperly

applied U.S.S.G. § 4A1.1(d) because he was not “under any

criminal justice sentence” when he committed his illegal reentry offense. First, Madrid-Becerra argues that his early

release did not provide for supervision of, or place

restrictions or conditions on, his subsequent actions. Second,

he argues that because Arizona repealed its “half-term to

deport” program in 2016, ADOC lacked authority to reinstate

his sentence in 2017. Third, he asserts that the district court

clearly erred in determining that he had notice that his return

to the United States would result in reinstatement of his

sentence and that his sentence was actually reinstated. We

disagree on all counts.

A. Custodial or Supervisory Component

U.S.S.G. § 4A1.1(d) provides that two points should be

added to the defendant’s criminal history score “if the

defendant committed the instant offense while under any

criminal justice sentence, including probation, parole,

supervised release, imprisonment, work release, or escape

status.” The commentary states that “a ‘criminal justice

sentence’ means a sentence countable under § 4A1.2 . . .

having a custodial or supervisory component, although active

supervision is not required for this subsection to apply.” 

U.S.S.G. § 4A1.1, cmt. n.4 (emphasis added). The

commentary specifically notes that “a term of unsupervised

probation would be included, but a sentence to pay a fine, by

itself, would not be included.” Id.

Madrid-Becerra asserts that there were no restrictions or

conditions placed on his subsequent actions after his release. 
8 UNITED STATES V. MADRID-BECERRA

This is plainly incorrect. Ariz. Rev. Stat. § 41-1604.14(B)

provided that early release “shall” be revoked if the defendant

“returns illegally to the United States” and the ADOC

receives notification from “any federal or state law

enforcement agency” that the defendant is in custody. This

is both a restriction and a condition. The benefit of Arizona’s

early release could only be enjoyed so long as MadridBecerra did not re-enter the United States illegally. If he reentered illegally, his early release was subject to revocation

by ADOC, and he would have to serve the remainder of his

sentence. This condition is sufficient to supply the

“supervisory component” required by U.S.S.G. § 4A1.1(d). 

See United States v. Franco-Flores, 558 F.3d 978, 981–82

(9th Cir. 2009).

Madrid-Becerra argues that there must be some active

form of supervision to trigger the application of § 4A1.1(d). 

The comment to § 4A1.1 is quite clear on this point: “active

supervision is not required for this subsection to apply.” 

U.S.S.G. § 4A1.1, cmt. n.4. Our decision in United States v.

Ramirez-Sanchez, 338 F.3d 977 (9th Cir. 2003), is on point. 

In that case, upon his release from custody for having

committed an unspecified crime, Ramirez-Sanchez was

deported without having gone into active probation

supervision. Id. at 979. Like Madrid-Becerra, RamirezSanchez argued that U.S.S.G. § 4A1.1(d) did not apply to him

because he was not supervised in any way following his

deportation. Id. We explained that “a term of supervised

release remains intact after a defendant’s deportation.” Id.

at 980. We noted that Congress, in a section entitled

“Inclusion of a term of supervised release after

imprisonment,” has provided:
UNITED STATES V. MADRID-BECERRA 9

If an alien defendant is subject to deportation,

the court may provide, as a condition of

supervised release, that he be deported and

remain outside the United States, and may

order that he be delivered to a duly authorized

immigration official for such deportation.

18 U.S.C. § 3583(d). We thus concluded that despite the lack

of active supervision, “deportation does not terminate

supervised release . . . [or] probation.” Ramirez-Sanchez,

338 F.3d at 981; see also United States v. Gonzalez, 739 F.3d

420, 423–24 (9th Cir. 2013) (holding that deportation did not

terminate the defendant’s parole and that unsupervised parole

was sufficient for § 4A1.1(d)); United States v. McCrudden,

894 F.2d 338, 339 (9th Cir. 1990) (per curiam) (“Even if

unsupervised, probation can be revoked and replaced by a

sentence of greater punishment if further offenses are

committed during the probationary period. The nonsupervisory status of a sentence of probation does not exempt

it from section 4A1.1(d).”).

Madrid-Becerra argues that nothing “in the record

suggests that . . . he was under any form of supervision by

any probation officer or ADOC employee.” But even

assuming Madrid-Becerra was not subject to court-ordered

conditions of release, that is not the issue. Rather, the

question is whether Madrid-Becerra was subject to any

condition that related to a “custodial or supervisory

component” of his sentence. He was. Madrid-Becerra was

released subject to the statutory condition that he not illegally

re-enter the United States. Otherwise his release would be

subject to revocation, and he would have to serve the

remainder of his sentence. It was a clear rule, with a clear

consequence related to a “custodial or supervisory”
10 UNITED STATES V. MADRID-BECERRA

component, and he was subject to ADOC supervision on the

basis of this condition.

Madrid-Becerra also contends that ADOC could not be

supervising him because, under § 14-1604.14, revocation of

his release was triggered by notification from “some other

law enforcement agency.” But this is also immaterial. That

one law enforcement agency would learn about information

from another agency is neither surprising nor novel. It is

quite common for parole or probation to be revoked based on

a notification from another law enforcement agency. An

offender out on federal supervised release may be subject to

revocation because a state law enforcement agency has

notified the federal probation officer of a violation. A state

or federal law enforcement agency notifying the ADOC of a

violation is no different. What matters is that ADOC retained

the ability to “supervise” Madrid-Becerra’s behavior, even if

it did not do so directly.

United States v. Kipp, 10 F.3d 1463 (9th Cir. 1993), and

United States v. Gonzalez Vazquez, 719 F.3d 1086 (9th Cir.

2013), do not govern here. In Kipp, the defendant had a

suspended sentence for a traffic offense. We first found that

“[b]y definition, a suspended sentence has no ‘custodial

component.’” 10 F.3d at 1467. In Kipp’s case, “[s]ince [a]

sentence has not been imposed, the defendant cannot be

‘under’ a sentence” for the purposes of § 4A1.1(d). Id.

(footnote omitted). Thus, unless a suspended sentence had

“an accompanying term of probation,” it is “not a ‘criminal

justice sentence,’ as that term is used in § 4A1.1(d).” Id.; see

also Franco-Flores, 558 F.3d at 982 (recognizing that in

Kipp, there was no supervisory component because “no

conditions whatsoever were imposed on the defendant,

including any probation-like components.”).
UNITED STATES V. MADRID-BECERRA 11

Gonzalez Vazquez is also inapposite. That case was

concerned not with the relevant section of the Guidelines at

issue here, but with § 4A1.2(c)(1)(A), which makes certain

misdemeanor offenses “countable” for purposes of the

criminal history computation if they were accompanied by a

term of “probation.” See 719 F.3d at 1089 & n.8. In contrast,

“criminal justice sentence” in § 4A1.1(d) includes, but is not

limited to, probation. See U.S.S.G. § 4A1.1 cmt. n.4 (noting

that “any criminal justice sentence” “include[s] probation,

parole, supervised release, imprisonment, work release, or

escape status”); see also Franco-Flores, 558 F.3d at 982

(“[A] suspended sentence with a supervisory or custodial

component can constitute a ‘criminal justice sentence’ under

section 4A1.1(d).”). Moreover, as in Kipp, it was unclear

from the state statute “whether a court that suspends all or

part of a sentence merely may, or must, direct any supervision

of misdemeanants.” Id. at 1092. We concluded that in the

absence of any express imposition of probation, “the better

inference is that Gonzalez Vazquez was not sentenced to

probation,” and his suspended sentence therefore did not

count for the purposes of his Guidelines calculation. Id.

at 1092.

Here, there is no question that Madrid-Becerra’s sentence

was imposed and that as a condition of his early release from

prison, Arizona required that Madrid-Becerra not illegally

reenter the United States. If he did so and was discovered, his

release was to be revoked and he was to be returned to

custody to serve the remainder of his initial sentence. This

condition was mandatory, part and parcel of the terms of his

original sentence under Arizona law, and reflects a “custodial

or supervisory component” akin to probation. U.S.S.G.

§ 4A1.1 cmt. n.4. We hold that Madrid-Becerra was “under
12 UNITED STATES V. MADRID-BECERRA

any criminal justice sentence” when he illegally reentered the

United States within the meaning of U.S.S.G. § 4A1.1(d).

B. Repeal of the Arizona Statute

Madrid-Becerra also argues that, at the time he was

discovered in the United States, he was no longer under a

criminal justice sentence because the statute authorizing

revocation of his release had been repealed. In 2016, the

Arizona legislature repealed the half-term to deportation

program. See 2016 Ariz. Sess. Laws, ch. 89, § 1. MadridBecerra argues that absent a savings clause or general saving

statute, the repeal “divests the right to proceed under the

statute.” But Arizona does have a savings statute. In fact, it

has two of them: Ariz. Rev. Stat. §§ 1-246, 1-247.1 These

statutes provide that “the repeal or alteration of any statute

shall not have the effect of exempting from punishment a

person who has offended against the altered or repealed law.” 

1

 A.R.S. § 1-247 provides:

When by the provisions of a repealing statute a new

penalty is substituted for an offense punishable under

the law repealed, such repealing statute shall not

exempt from punishment a person who has offended

against the repealed law while it was in force, but in

such case the rule prescribed in § 1-246 shall govern.

In turn, A.R.S. § 1-246 provides:

When the penalty for an offense is prescribed by one

law and altered by a subsequent law, the penalty of

such second law shall not be inflicted for a breach of

the law committed before the second took effect, but

the offender shall be punished under the law in force

when the offense was committed.
UNITED STATES V. MADRID-BECERRA 13

State v. Vineyard, 392 P.2d 30, 33 (Ariz. 1964). They apply

to laws that “alter the penalty which was attached to any

offense, [] create a new penalty, []or change the sentence

imposed.” Tyree v. Moran, 550 P.2d 1076, 1078 (Ariz.

1976). If the penalty is altered by a subsequent law, these

general savings provisions require that “the offender shall be

punished under the law in force when the offense was

committed.” Ariz. Rev. Stat. § 1-246. “Absent express

language, Arizona statutes are not retroactive.” State v. Stine,

906 P.2d 58, 59 (Ariz. Ct. App. 1995).

Here, applying the repeal to preclude ADOC from

revoking Madrid-Becerra’s sentence would effectively

“change the sentence imposed,” Tyree, 550 P.2d at 1078,

because Madrid-Becerra would not be subject to the full term

of his sentence. And, nothing in the law repealing § 41-

1604.14 expressly made it retroactive. Thus, Arizona’s

general savings statutes require that, for aliens like MadridBecerra who were convicted when Ariz. Rev. Stat. § 41-

1604.14 was in force, that provision continues to govern their

sentences. We conclude that ADOC maintained the authority

to revoke Madrid-Becerra’s release in 2016 and 2017 because

of his illegal re-entry.

C. The District Court Did Not Factually Err

Madrid-Becerra alleges that the district court clearly erred

when it found that he was under a criminal justice sentence at

the time he illegally re-entered the United States. First, he

argues that the district court erred by determining that he had

notice of the condition that he not return illegally. Second, he

argues that the district court erred in determining that he was

returned to ADOC custody to serve the remainder of his 2013

sentence.
14 UNITED STATES V. MADRID-BECERRA

The district court did not clearly err in either factual

determination and there is no plain error of law.2 First, even

if the district court erred in assuming that Madrid-Becerra had

received formal notice fromthe state court during sentencing,

Madrid-Becerra has not demonstrated that this alleged error

“affected [his] substantial rights.” Christensen, 732 F.3d

at 1102. As the district court noted, § 41-1604.14(B) is itself

sufficient to provide notice of the condition on MadridBecerra’s release. Whether or not Madrid-Becerra received

formal notice fromthe state court is thus irrelevant to whether

he was “under any criminal justice sentence.” Because the

alleged error would not have affected his criminal history

score or the applicable guidelines range, Madrid-Becerra has

not demonstrated any prejudice affecting his substantial

rights.

Second, the district court did not clearly err in finding that

Madrid-Becerra’s early release was in fact revoked. As a

preliminary matter, Madrid-Becerra points to no authority

indicating that the § 4A1.1(d) enhancement applies only if a

defendant’s early release was actually revoked. The

Guidelines require simply that a defendant be “under any

criminal justice sentence, including probation, parole,

supervised release, imprisonment, work release, or escape

status.” U.S.S.G. § 4A1.1 cmt. n.4. Neither the Guidelines

nor its Commentary requires that any parole or release

actually be revoked, or that an escapee be apprehended. 

2 Because Madrid-Becerra did not raise these alleged factual errors

until appeal, we review for plain error. See United States v. Rangel,

697 F.3d 795, 800 (9th Cir. 2012). Madrid-Becerra “bears the burden of

showing a reasonable probability that he would have received a different

sentence absent the error.” United States v. Christensen, 732 F.3d 1094,

1102 (9th Cir. 2013).
UNITED STATES V. MADRID-BECERRA 15

Moreover, under Federal Rule of Criminal Procedure

32(i)(3)(A), the district court “may accept any undisputed

portion of the [PSR] as a finding of fact.” Here, the PSR

stated that Madrid-Becerra was “[r]eturned to custody to

serve the remainder of the conditional release.” MadridBecerra concedes that he did not dispute this assertion before

the district court. Not only did he not dispute the statement,

but in his objection in the addendum to the PSR, MadridBecerra admitted that “upon being detected, he was returned

to the [ADOC] to serve the remainder of his term.” 

Moreover, we may take judicial notice that the Superior

Court’s sentencing order for Madrid-Becerra’s 2017

conviction indicates that his 2017 sentence would run

concurrent with the remainder of his 2013 sentence.3 Thus,

because Madrid-Becerra did not challenge the PSR’s

statement that he was returned to custody to serve the

remainder of his 2013 sentence and there is additional

documentation supporting that conclusion—including his

own admission—“the district court correctly accepted the

report’s findings.” United States v. George, 949 F.3d 1181,

1187 (9th Cir.), cert. denied, 141 S. Ct. 605 (2020).

IV. CONCLUSION

The judgment of the district court is AFFIRMED.

3 We GRANT the Government’s unopposed motion for judicial

notice of this document.
16 UNITED STATES V. MADRID-BECERRA

CARDONE, District Judge, dissenting:

This case turns on whether a prisoner who has been

released from serving his two-and-a-half-year sentence

pursuant to Arizona’s half-term to deportation program can

nevertheless remain “under [a] criminal justice sentence”

indefinitely. Because the Guidelines suggest the answer is

“no,” I respectfully dissent.

This Court has considered § 4A1.1(d)’s application to

suspended and deferred sentences, United States v. Kipp,

10 F.3d 1463 (9th Cir. 1993); United States v. Franco-Flores,

558 F.3d 978 (9th Cir. 2009), unsupervised probation with

immediate deportation, United States v. Ramirez-Sanchez,

338 F.3d 977 (9th Cir. 2003), and nonrevocable parole,

United States v. Gonzalez, 739 F.3d 420 (9th Cir. 2013),

among other schemes. But it has never considered a “halfterm to deportation program” like Arizona’s, in which a

prisoner begins serving a fixed custodial sentence that a

department of corrections suspends for a “potential lifetime

duration.” As the Government conceded at sentencing, the

“half-term release program doesn’t fall neatly into”

§ 4A1.1(d). Based on the plain language, structure, and

purposes of the Guidelines, I would hold that Appellant was

not “under any criminal justice sentence” at the time of his

federal offense.

Section 4A1.1(d) applies to a defendant “under any

criminal justice sentence, including . . . parole.” The PSR and

the majority refer to Arizona’s program as “early conditional

release,” which is a form of parole. See CONDITIONAL

RELEASE, Black’s Law Dictionary (11th ed. 2019). But the

two are materially distinguishable. Compare Kipp, 10 F.3d

at 1467 (holding that defendant’s suspended sentence was not
UNITED STATES V. MADRID-BECERRA 17

a “criminal justice sentence” because it was distinguishable

from the punishments listed in § 4A1.1(d)), with Gonzalez,

739 F.3d at 424 (holding that § 4A1.1(d) applied to

nonrevocable parole because it was not distinguishable from

unsupervised probation).

Where, as here, “a criminal defendant has been committed

to the custody of the prison authorities, any period served . . .

on parole or conditional release is deemed service of [their]

term of confinement, and such inmate is entitled to credit on

[their] prison sentence for [that] period.” 24 C.J.S. Criminal

Procedure and Rights of Accused § 2394 (August 2021

Update). As the Supreme Court has repeatedly observed,

“[t]he essence of parole is release from prison . . . on the

condition that the prisoner abide by certain rules during the

balance of the sentence.” Samson v. California, 547 U.S.

843, 850 (2006) (emphasis added) (quoting Morrissey v.

Brewer, 408 U.S. 471, 477 (1972)). Rather than indefinitely

suspending the prisoner’s term of incarceration, as was done

here, a “paroled prisoner continues to serve his or her

sentence while on parole until . . . the maximum term of the

sentence expires.” 59 Am. Jur. 2d Pardon and Parole § 117

(August 2021 Update). And that makes sense since a parolee

“remain[s] in the legal custody and under the control of

prison authorities,” making parole a “punishment” that “is in

legal effect imprisonment.” Id. By necessity, then, a

parolee’s sentence continues to run.

The majoritymaintainsthat Appellant somehowremained

subject to ADOC’s legal custody or supervisory control like

any other parolee. But if that were true, then Appellant

would have remained under a “punishment” that is “in legal

effect imprisonment,” see id., he would have continued to

serve his sentence, and that sentence would have expired
18 UNITED STATES V. MADRID-BECERRA

prior to his illegal reentry. That did not happen here. Instead,

his custodial sentence stopped running entirely and his

service was suspended indefinitely. That is neither parole nor

conditional release.

Indeed, Arizona’s scheme is distinguishable from every

“criminal justice sentence” contemplated by § 4A1.1(d). 

Section 4A1.1(d) provides that a “criminal justice sentence”

includes “probation, parole, supervised release,

imprisonment, work release, [and] escape status.” Under

each of those schemes, a defendant continues to serve their

sentence or remains obligated to do so. And for all but

“escape status” (discussed below), punishment lasts for a

fixed period or range of time, allowing for continued service

until the sentence expires.1 Each day on probation or

supervised release, for example, is one day closer to absolute

discharge. But not under Arizona’s program. Instead, each

day Appellant spent on his “conditional release” brought him

no closer to the termination of his sentence. There is no

1 For example, Black’s Law defines “probation” as “usually on

condition . . . over a specified period of time.” See PROBATION, Black’s

Law Dictionary (11th ed. 2019) (emphasis added). And the Second

Circuit has observed that the “practice of imposing indeterminate

probationary terms is relatively unique,” making it unsurprising that “the

Guidelines do not address this situation.” United States v. Rich, 900 F.2d

582, 584–85 (2d Cir. 1990) (discussing § 4A1.2(c)(1)). Similarly,

“supervised release” is defined as “1. A period of probation that is

imposed in addition to a sentence of imprisonment rather than as a

substitute for part or all of that sentence.” SUPERVISED RELEASE,

Black’s Law Dictionary (11th ed. 2019) (emphasis added).
UNITED STATES V. MADRID-BECERRA 19

indication in the Guidelines or case law that § 4A1.1(d)

applies to such a scheme.2

That conclusion is bolstered by § 4A1.1(d)’s requirement

that the defendant have been “under” a criminal justice

sentence. Although the Guidelines do not define that term,

this Court and other courts have long suggested that to be

“under sentence” for the purposes of § 4A1.1(d), a defendant

“need be serving [that] sentence,” United States v. Wright,

891 F.2d 209, 211 (9th Cir. 1989), or “under a requirement to

serve [that] sentence,” United States v. Damon, 127 F.3d 139,

147 (1st Cir. 1997), at the time of their federal offense.3 And

that is consistent with common usage. See United States v.

Leal-Felix, 665 F.3d 1037, 1041 (9th Cir. 2011). A prisoner

“under . . . supervised release” or “under . . . probation” is

generally serving their sentence of supervised release or

probation, just like a defendant “under . . . parole” is

2

Indeed, the Commentary explains that “a term of unsupervised

probation would be included; but a sentence to pay a fine” would not. 

U.S.S.G. § 4A1.1(d), cmt. n.4 (emphasis added). A “term,” of course,

means “[a] fixed period of time.” TERM, Black’s Law Dictionary (11th

ed. 2019). By contrast, a sentence to pay a fine involves no similar

temporal quality—there is no term for a defendant to serve.

3

See also United States v. Alba-Flores, 577 F.3d 1104, 1111 (9th Cir.

2009) (holding that defendant was “‘under a criminal justice sentence’ . . .

because he was then serving an actual term of probation” (emphasis

added)); United States v. Lizarraga-Carrizales, 757 F.3d 995, 1000 (9th

Cir. 2014) (holding that § 4A1.1(d) applied to defendant “serving a

criminal justice sentence”); United States v. Yepez, 704 F.3d 1087, 1099

(9th Cir. 2012) (Wardlaw, J., dissenting) (explaining that § 4A1.1(d)

requires judges to “determine whether a defendant is serving a sentence”);

Beverly G. Dyer, Revising Criminal History: Model Sentencing

Guidelines §§4.1-4.2, 18 FED. SENT. R. 373, 375 n.7 (June 2006)

(explaining that § 4A1.1(d) applies to “any criminal justice sentence that

the defendant is still serving” (emphasis added)).
20 UNITED STATES V. MADRID-BECERRA

generally serving his sentence of incarceration. Yet, here,

Appellant was neither serving nor required to serve his

sentence at all. Rather, “affirmative conduct by the state

reliev[ed] [Appellant] of his penal obligation.” See United

States v. Thompson, 925 F.2d 234, 235–36 (8th Cir. 1991).

That § 4A1.1(d) applies to a defendant on “escape status”

clarifies the point. Although an escapee ceases to serve his

sentence—which is tolled until recapture—he remains “under

a requirement to serve [that] sentence.” See Damon, 127 F.3d

at 147. Thus, the Guidelines make clear that although an

escapee is no longer “under” his sentence in the usual

sense—that is, by being subject to the punishment

imposed—he is still “under” that punishment because he has

not been excused from serving it. Cf. United States v. Phipps,

68 F.3d 159, 163 (7th Cir. 1995) (explaining in the context of

a related guideline that “work release, furlough, and escape

status all are periods of freedom that are supposed to be

followed by time behind bars, with a guard outside the

door”); United States v. Buchanan, 638 F.3d 448, 453 (4th

Cir. 2011) (explaining the “strong federal policy disfavoring

fugitives” that “arises from the ‘deeply rooted’ maxim ‘that

no man may take advantage of his own wrong.’” (quoting

Glus v. Brooklyn East. Dist. Term., 359 U.S. 231, 232

(1959)).

And that observation points to a broader structural truth

about the Guidelines: in general, where § 4A1.1(d) is

supposed to apply to a defendant who is not currently serving

his sentence, the Guidelines expressly say so. See United

States v. Herrera, 974 F.3d 1040, 1048 (9th Cir. 2020)

(interpreting the Guidelines by applying the “well-accepted”

rule “that ‘a negative inference may be drawn from the

exclusion of language from one statutory provision that is
UNITED STATES V. MADRID-BECERRA 21

included in other provisions of the same statute’” (quoting

Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006)). In addition

to identifying “escape status” as a “criminal justice sentence,”

for example, § 4A1.1(d) also expressly applies to sentences

stayed pending appeal, U.S.S.G § 4A1.2(l), outstanding

violation warrants “even if [the] sentence would have expired

absent such warrant,” id. § 4A1.2(m), and to defendants who

fail to report for service of a sentence, id. § 4A1.2(n). Those

provisions support a “negative inference” that unless stated

otherwise, § 4A1.1(d) does not apply to a defendant who is

not serving or under an obligation to serve his sentence. See

Herrera, 974 F.3d at 1048. And since the Guidelines

nowhere mention circumstances remotely analogous to those

at issue here, that inference ought to apply.

Finally, the purposes served by § 4A1.1(d) do not support

its application here. See, e.g., Franco-Flores, 558 F.3d at 981

(applying § 4A1.1(d) in part because doing so “comport[ed]

with the U.S. Sentencing Guidelines’ expressed purpose[s]”). 

This Court has explained that “Sections 4A1.1(a)–(c)

correlate to the seriousness of a prior offense, while section

4A1.1(d) addresses, in part, the recency of the crime.” United

States v. McCrudden, 894 F.2d 338, 339 (9th Cir. 1990); see

also United States v. Pearson, 312 F.3d 1287, 1291 (9th Cir.

2002) (Berzon, J., dissenting) (explaining that § 4A1.1(d)

provides a “measure of recency”). In other words, the

provision punishes “an offender who again violates the law

before fully serving his prior punishment.” McCrudden,

894 F.2d at 339. But here, the Arizona statute did not allow

Appellant to fully serve his prior punishment. As Defendant

points out, by the time he illegally reentered in June 2016, his

sentence of “2.5 years custody” would have been more than

fully served. Indeed, by the majority’s logic, even if

Appellant had illegally reentered decades after his release, he
22 UNITED STATES V. MADRID-BECERRA

would still be subject to the two-point enhancement. That

seems to go well beyond § 4A1.1(d)’s focus on the “recency

of the crime.” See id.

Nor does Appellant’s early release reflect a judgment

about the seriousness of his offense. See U.S.S.G. § 4A1.1,

Background (suggesting that the criminal history categories

measure “past crime seriousness”). In fact, just the opposite:

more serious offenders were precluded fromrelease under the

statute. See Ariz. Rev. Stat. § 41-1604.14 (prohibiting those

convicted of class one and class two felonies from being

eligible) (repealed Aug. 6, 2016). As Appellant explains, at

its core Arizona’s program was a cost-saving measure

designed to avoid “the cost of incarcerating [aliens] for the

entirety of their sentence.” And as the government concedes,

the repeal of that program “was intended to ensure inmates

subject to deportation served more, not less, of their

sentences.” (emphasis added). In short, Appellant’s early

release was no indication of his “past crime seriousness.” See

U.S.S.G. 4A1.1, Background. As the Second Circuit

observed in a related context, “[i]f the duration of an

indefinite probation term were determined by some authority

other than the sentencing court (such as the State’s

department of probation), it might be argued that . . . [it] did

not reflect the severity of the sentence as viewed by the

sentencing court and therefore should not qualify” as a

countable prior sentence. See United States v. Tomasi,

313 F.3d 653, 658 (2d Cir. 2002). That reasoning applies

well here.

The majority argues that Appellant was under a criminal

justice sentence because he was “subject to any condition that

related to a ‘custodial or supervisory component’ of his

sentence.” But it cites no authority for such a rule, which at
UNITED STATES V. MADRID-BECERRA 23

any rate finds no support in the text. A “criminal justice

sentence” is certainly “a sentence . . . having a custodial or

supervisory component,” U.S.S.G. § 4A1.1(d), cmt. 4, but the

Guidelines nowhere suggest that a defendant is “under” such

a sentence if he is “subject to any condition related to” it.

The majority also points to several cases that it claims

support its position, but each involve a defendant who was

either serving or obligated to serve his sentence at the time of

his federal offense. In Ramirez-Sanchez, for example, the

defendant was serving a three-year termof probation when he

illegally reentered the country. 383 F.3d at 979–81 (holding

that Appellant was under a criminal justice sentence because

he had been “sentenced to a term of ‘probation,’” and was

still “on probation when he commit[ed] the instant offense”);

United States v. Ramirez-Sanchez, Defendant-Appellant’s

Opening Brief, 2002 WL 32102836, *4 (May 21, 2002)

(noting that defendant was sentenced to “3 years probation,

83 days custody, credit for time served”). Likewise, in

Gonzalez, the defendant was serving a fixed term of nonrevocable parole at the time of his illegal reentry. 739 F.3d

at 423–24. And in McCrudden, the defendant was serving a

two-year term of unsupervised probation at the time of his

offense. 894 F.2d at 339.4 Those cases are not only

distinguishable, then, but in fact support the very argument

made here.

4 The opinion in Franco-Flores, 558 F.3d at 981–82, on which the

majority also relies, does not state whether the deferred sentence at issue

was for a fixed period. Notably, however, the defendant there was subject

to the express provision regarding violation warrants, discussed above. 

See U.S.S.G. § 4A1.2(m).
24 UNITED STATES V. MADRID-BECERRA

A “criminal justice sentence” is, at its foundation, “a

sentence.” U.S.S.G. § 4A1.1(d), cmt. 4; see also Antonin

Scalia andBryan A. Garner, Reading Law: The Interpretation

of Legal Texts § 36, at 232 (2012) (“[T]he word being defined

is the most significant element of the definition’s context

. . . .”). That is, it is “the punishment imposed on a criminal

wrongdoer” by a “judgment that a court formally

pronounces.” SENTENCE,Black’s LawDictionary (11th ed.

2019). But as in most jurisdictions, Arizona courts are not

authorized to impose indefinite punishments. As relevant

here, a “sentence of imprisonment for a felony shall be a

definite term of years . . . [under] the custody of the state

department of corrections.” Ariz. Rev. Stat. § 13-701

(emphasis added). Appellant’s sentence was “2.5 years

custody,” which was the term required by law for his offense

and status. See id. § 13-702. If Appellant’s early conditional

release was a part of that punishment, it could only last for

“2.5 years” and would have expired well before his illegal

reentry; if it was not a punishment at all, it could not, by

definition, be a “criminal justice sentence.” Either way,

§ 4A1.1(d) would be inapplicable.

I respectfully dissent.