FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

U N I T E D S TA T E S O F A ME R I C A , Plaintiff-Appellee
,

v

.

J O S E Y O B A

N I M AD R

I D -B E C E R

R A , 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 f or the District of Arizona D iane J. Hum etewa, District Judge, Presiding

Argued and Subm itted 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

* T he Honorable Kathleen Cardone, United States District Judge f o r the W estern District of Texas, sitting by designation.U N I T E D S TAT E S V

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SUMMARY * *

Criminal Law

The panel a ffi rme d a sentence in a case in which the defendant, who was convicted of illegal re-entry un d er 8 U.S.C. § 1326(a), argued that the district c o urt erred by applying U.S.S.G. § 4A1.1(d), which assigns two crim inal history points “if the defendant comm itted the instant o ffense while under any c r i m inal justice sentence, including probation, parole, supervised release, im prisonm ent, work release, or escape status.”

After servin g 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 § 41-1604.14 (repealed Aug. 6, 2016), known as the “half-term to deport” p rogram

. The crux of the defendant’s argum ent was that he did not com m it his illegal re-entry offense “while under any crim inal justice sentence.”

The panel rejected the defendant’s argum ent that his early release did not prov i d e for supervision of, or place restricti on s or conditions on, his subsequent actions. The panel wrote that there is no question that the Arizona sentence

was im posed and that as a condition of his early release from prison, Arizona required that the defendant not i llegally reenter the United States. If h e did so and was discovered, his release was to be revoked and he wa s to be returned to custody to serve the rem ainde r o f h is initial sentence. This condition was m andatory, part and p arcel of the term s of his

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.U N I T E D S TAT E S V

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original sentence under Arizona law, and reflects a “custodial

or supervisory com

ponent” akin to probation (U.S.S.G. § 4A1.1 cmt. n.4).

The panel rejected the defendant’s argum ent that, a t the tim e h e was discovered in the United States, he was n o longer

under a crim inal justice sentence b ecause the statu te authorizing revocation of his release had been repealed. The panel explained that Arizona’s general savings statutes require that, for aliens like the d efendant who were convicted when § 41-1604.14 was in force, that provision continues to govern their sentences, and that th e Arizona Departm ent o f Corrections m aintained the auth o r i ty to revoke his release because of his illegal re-entry.

Th e panel held that even if the district court erred i n
assum ing that the defendant had received form al notice o f the condition that he not return i llegally from the state court during sentencing, the defendant did n ot dem onstrate that this alleged error affected h is substantial rights

. The panel held that the d istrict court did not clearly err i n finding that the defendant’s early release was in fact revoked, but noted that neith e r the S entencing Guidelines nor its Comm entary requires that any p arole 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 schem e such as Ar i z ona’s half-term to deportation progr am under which each day the defendant spent on his “con d i t io n al release” brought him no closer to the term ination of his sentence.U N I T E D S TAT E S V

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C OUNSEL

Michael L

. Burke (argued), Assistant Fe d eral Public Defender; Jon M. Sands, Federal Public Defender; Office o f the Federal Public Defender, Phoenix, Arizona; for Defendant-Appellant.

Seth T. Goertz (argued), Assistant United States Attorney; Krissa M. Lanham
, Appellate Division Chi ef; Michael Bailey, United States At torney; United States Attorney’s Office, Phoenix, California; for Plaintiff-Appellee.

OPINION
BYBEE, Circuit Judge:

D ef e n d a nt Jo se Mad

rid -B ecerra ap p e a ls f

r o m h is sent e n ce for a conviction o f illegal re-entry under 8 U.S.C. § 1326(a). He argues that the district court e rred by applying United St a tes Sentencing Guidelines (U.S.S.G. or Guidelines ) § 4A1.1(d) to raise his crim inal his tory score and,

cons e qu e n tly, his Guidelines range. The crux of MadridBecerra’s argum ent is that he did not comm it his illegal r e

entry o ffense “while under any crim inal justice sentence,” as required by § 4A1.1(d).

Because the district court correct ly applied § 4A1.1(d), we affirm Madrid-Becerra’s sentence.

I. BACKGROUND

In June 2013, Madrid-Becerra was convicted of solicitation to comm it transportation o f m arijuana for saleU N I T E D S TAT E S V

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under Arizona law and sen t e n ced to two and a half years. After serving a portion of h is sentence i n prison, he was granted early conditional release under Ariz. Rev. S tat. § 41- 1604.14 (repealed Aug. 6, 2 016), known as the “half-term to deport” program

. That statute p erm itted the Arizona Departm ent of Corrections (ADOC) to “release a prisoner to the custody and control of the United S tates imm igration and custom s enforcem ent” if ADOC receives an order o f dep o rt a tion, the prisoner has served at least one-half of the

s entence im

posed, and the o ffense m eets certain oth e r requirem ents. 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 t o the United S tates, on notification from any federal or state law enforcem ent 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 rem oved to Mexico.

Madrid-Becerra re-en tered the United States without inspection in June 2016. In D ecem ber 2017, Madrid-Becerra

was arrested b y local Arizona police on assault charges. He

was later con v i c t ed of attem pted aggravated assault and sentenced to eighteen m onths im prisonm ent. The Maricopa County Superior Court ordered his sentence to run concurrent with the rem ainder of his sentence from his 2013 offense.

In July 2019, Arizona released Madrid-Becerra to U.S. Imm igration and Custom s E n f o rcem e nt ( IC E ) custody, which detained him on a f

elony com

plaint. He was later indicted for illegal re-entry and pleaded guilty to the offense. At sentencing, the P re-Sentence Report (PSR) pr e p ar ed by the United S tates Probation O ffice assessed a crim ina l h i story

s core o f eight, two p oints of which were due to th e PSR’ sU N I T E D S TAT E S V

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conclusion that Madrid-Becerra “comm itted the in s t ant offense while under a crim inal justice sentence for [his 2013 conviction for] solicitation to comm it transportation o f

m arijuana for sale.” U.S.S.G. § 4A1.1(d). His crim inal history score placed his Guidelines range for custody at 46 to 57 m onths, though the PSR recomm ended a downward departure to 27 m onths.

Madrid-Becerra objected to the PSR’s assessm ent of the

“ two -level enhancem ent for comm itting the instant o ffense while under a crim inal justice sent e n ce” because Arizona’s “half-term to deport” program “do e s no t have any custodial

or supervisory com

ponent.” He argued that without the extra two points, his Guidelines range would have been 37 to 46 m onths. The district court hear d argum ent on this objection at sentencing bu t f o und that the enhancem ent was applicable. T he court thereafter sentenced Madrid-Becerra to 27-m onths im

prisonme n t with credit for tim e served, followed by three years of supervised release. His p rojected release date is August 3, 2021.

II. JURISDICTION AND STANDARD OF REVIEW

W e h av e j u

r i sd ictio n to rev iew Mad

rid -B ecerra’s sen

t e n c e

und er 28 U.S.C. § 1291. “W e review de n ovo the district court’s interpretatio n o f the Sentencing Guidelines,” including the c a l culation of the crim inal history score. Un ited States v. Gonzalez
, 739 F.3d 420, 422 n.1 (9th Cir. 2 01 3) (citing United States v. Lichtenberg
, 631 F.3d 1021
, 1024 (9th Cir. 2011)). W e r e v i e w “ the district court’s application of the Sentencing Guidelines to the facts o f this

case for abuse o f d is cretion, and the d istrict court’s factual fi n d i n gs for clear error. United States v. Stoterau
, 524 F. 3 d 988, 997 (9th Cir. 2008) (citation om itted).U N I T E D S TAT E S V

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III. ANALYSIS

Madrid-Becerra argues that the district court im properly applied U.S.S.G. § 4A1.1(d) because he was not “under any crim inal justice sentence” when he comm itted his illegal reentry offense. First, Madrid-Becerra argue s that his early release did not p r o v ide for supervision of, or place restrictions or conditions on, his subsequent actions. Second, he argues that because Arizona repealed its “half-term t o deport” program in 2016, ADOC lacked authority to reinstate his sentence in 2017. Third, he asserts that the district court clearly erred in determ ining that he had notice that his return to the United States would result in reinstatem ent of his sentence and that his sentence w as actually reinstated

. W e disagree on all counts.

A. Custodial or Supervisory Component

U.S.S.G. § 4A1.1(d) provides that two p o ints should be added to the defendant’s crim inal h ist o ry score “if the defendant comm itted the instant o ffense while un d e r any cri mi nal justice sentence, including probation, parole, supervised release, im

pris onm ent, work release, or escape status.” The comm entary states that “a ‘crim inal justice

s en t e nce’ m eans a sentence countable under § 4A1.2

. . . having a custodial or supervisory com ponent, although active sup e rv is ion is not required for this subsection to apply

. ” U.S.S.G. § 4A1.1, c mt. n.4 (em phasis added). The

c omm entary specifically notes that “a term of unsupervise d 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 o r conditions placed on his subsequent actions after his release.U N I T E D S TAT E S V

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This is plainly incorrect. Ariz. Re v. Stat. § 41-1604.14(B) provided that early release “shall” be revoked if the defendant “returns illegally to the Unite d States” and the ADOC

rec e i ves notification from “any federal or state law enforcem ent agency” that the defendant is in cust o dy. This is both a restriction and a condition. The benefit o f Arizona’s early release could only b e enjoy e d so long as MadridBecerra did not re-enter the United States illegally. If he reentered illegally, his early release was subject to revoc a ti o n by ADOC, and he would have to serve the rem ainder of his sentence. This c ondition is sufficient to supply the “supervisory com

ponent” required by U.S.S.G. § 4A1.1(d). See United States v. Franco-Flores
, 558 F. 3 d 97 8
, 981–82 (9th Cir. 2009).

Madrid-Becerra argues that there m ust be som e active form of supervision to trigger the application of § 4A1.1(d). The comm ent to § 4A1.1 is quite clear on this point: “active supervision is not r e qu ired for this subsection to apply.” U.S.S.G. § 4A1.1, cmt. n.4. Our decision in United S tates v. Ramirez-Sanchez
, 338 F.3d 977 (9th Cir. 2003), is on point. In that case, upon his rele a s e from custody for having

comm itted an unspecified crim e, R am irez-Sanchez was deported without having go ne into active probation

s u pervision. Id. at 979. L ike Madrid-Becerra, Ram irezSanchez argued that U.S.S.G. § 4A1.1(d) did not apply to him because he was not supervised in any way fo l l owi n g his d ep o rt a tion. Id. W e explained that “a term of supervised release rem ains intact after a defendant’s deportation.” Id. at 980. W e noted that Congress
, in a section entitled “Inclusion o f a term o f supervised release after im prisonm ent,” has provided:U N I T E D S TAT E S V

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If an alien defendant is subject to deportation, the court m ay provide, a s a condition o f supervised r el ease, that he be deported and

rem ain outside the United States, an d m ay order that he be delivered to a duly authorized imm igration official for such d eportation.

18 U.S.C. § 3583(d). W e thus concluded that despite the lack of acti v e supervision, “deportation d oes not term inate supervised release

. . . [or] probation.” Ramirez-Sanchez
, 338 F.3d at 981; see also U nited States v. Gonzalez, 7 39 F.3d 420, 423–24 (9th Cir. 2013) (holding that deportation did not term inate the defendant’s parole and that unsupervised parole

was sufficient for § 4A1.1(d)); United States v. McCrudden
, 8 94 F. 2d 338, 339 (9th Cir. 1990) (per curiam ) (“Even i f

uns up e rvised, probation can b e revoked and replaced by a sentence of g reater punishm ent if further offenses are
comm itted during th e p robationary period. The nonsupervisory status of a sentence o f probation does not exem pt it from section 4A1.1(d).”).

Madrid-Bece rra argues that nothing “in the record

s ug gests that

. . . he was under any form o f supervision by any probation officer o r ADOC em ployee.” But even
a s s uming Madrid-Becerra was not subject to court-ordered condi ti o n s of release, that is not the issue. Rather, the question is whether Madrid-Becerra was s ubject to a ny condition that related to a “custodial or supervisory

com ponent” o f his sentenc e

. He was. Madrid-Becerra was released subject to the statutory condition that he not illegally re-enter th e Un ited States. Otherwise his release would be subject to revocation, and h e w ould have to serve the

rem ainder of his sentence. It wa s a c l ear rule, with a clear consequence related to a “c u s t odial or supervisory”U N I T E D S TAT E S V

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com ponent, and he was subject to ADOC supervision on the basis of this condition.

Madrid-Becer r a also contends that ADOC could not be supervising him because, under § 14-1604.14, revocation o f his release was triggered by notification fro m “som e other law enforcem ent agency.” But this is also imm aterial. That

one law enfo rcem ent agency w ould learn about inform ation from another agency is ne i ther surprising nor novel. It is quite comm on for parole or p robation to b e revoked based on
a n otification from another law enforcem ent agency. An offender out on f

ederal supervised release m ay be subject to

r e v oc ation because a state law enforcem ent agency h a s notifi e d the federal p robation officer of a violation. A state

or federal law enforcem ent agency notifying the A DOC of a violation is no different. What m atters is that ADOC retained the ability to “supervise” Madrid-Becerra’s behavior, even if it did not do so directly.

United States v. K

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

. Go n z a lez Vazquez
, 719 F.3d 1086 (9th Cir. 2013), do not govern here. In Kipp
, the defendant had a suspended sentence for a traffic o ffense. W e first f o und that “[b]y definition, a suspended sentence has no ‘custodial

com ponent.’” 10 F.3d at 1467. I n Ki p p’s case, “[s]ince [ a] sentence has not been im posed
, the defendant cannot be ‘under’ a sen tence” for the purposes of § 4A1.1(d). Id. ( fo o tnote om itted). Thus, unless a suspended sentence h ad “an accom

panying term o f p r ob a tion,” it is “not a ‘crim inal justice sentence,’ as that term is used in § 4A1.1(d).” Id. ; see also Franco-Flores
, 5 58 F.3d at 982 ( r e c o gnizing that in Kipp
, there was no supervisory com ponent becaus e “no conditions whatso ever were im posed on the defendant, including any probation-like com ponents.”).U N I T E D S TAT E S V

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Gonzalez Vazquez is also inapposite. Th a t case was concerned not with the r e l e vant section of the Guidelines at issue here, but with § 4A1.2(c)(1)(A), which m akes ce rtain

m is dem eanor offenses “countable” for purposes of the crim inal history com

putation if they were accom p anied by a term of “probation.” See 719 F.3d at 1089 & n.8. In contrast, “crim inal justice sentence” in § 4A1.1(d) includes, but is not lim ited to, probation. See U.S.S.G. § 4A1.1 cmt. n.4 (noting that “any crim inal justice sentence” “include[s] probation, parole, supervised release, im prisonme nt, work release, o r escape status”); see also F ranco-Flores
, 558 F.3d at 982 (“[A] suspended sentence with a sup e rv i s ory or custodial

com ponent can constitute a ‘crim inal justice sentence’ under section 4A1.1(d).”). Moreove r , as in K ipp , it was unclear from the stat e s t a tu t e “whether a court that suspends all o r part of a sentence m erely m ay, or m ust, direct any supervision of m isdem eanants.” Id. at 1092. W e concluded that in the absence of any express im posit i o n o f probation, “the better inference is that Gonzalez Va z quez was n o t sentenced to probation,” and his suspend e d sentence therefore did not count f o r the p ur

p oses of his Guidelines calculation. Id

. at 1092.

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

was im posed and that as a condition of his early release from priso n , Arizona required that Madrid-Becerra not illegally reenter the United States. If he d id so and was discovered, his rel e as e was to be revoked and he w as to be returned to custody to serve the rem aind er of his initial sentence. This condition was m andatory, part and parcel of the term s of his original sentence under Arizona law, and reflects a “custodial

or su pe rv i sory com

ponent” akin to probation. U.S.S.G. § 4A1.1 cmt. n.4. W e hold that Madrid-Becerra was “underU N I T E D S TAT E S V

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any crim inal justice sentence” when he illegally reentered the United States within the m eaning of U.S.S.G. § 4A1.1(d).

B. Repeal of the Arizona Statute

Madrid-Becerr a also argues that, at the tim e h e was discovered in the United States, he was no longer un der a crim inal justice sentence b ecause the statute authori z i ng revocation of his release had been repe a l e d

. I n 2016, the Arizona legislature repealed the half-term to d eportation program

. See 2016 Ariz. Sess. Laws
, c h

. 8 9
, § 1. MadridBecerra argues that absent a savings clause or general saving

s tatute, the repeal “divests the right to proceed under the statute.” But Arizona does have a savings statute. In fact, it has two of th e m: Ar iz. Rev. Stat. §§ 1 -246, 1-247. 1 These

s tatutes p rovide that “the repeal or alteration of any s t a tu te shall n ot have the effect of exem pting from punishm ent a person who has offended against the altered or repealed law.”

1 A.R.S. § 1-247 provides:

W h en by t

he provisions of a repealing statute a new penalty is substituted for an offense p unishable under the law repealed, such re p ealing statute shall not

exem pt from punishm ent a p e rs on who has o ffended against t he 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:

W h en th e p enalty for an offense i s prescribed by o ne law a nd altered by a subsequent law, the penalty o f such second law shall not be inflicted fo r a b re ach o f the law comm itted before the second t ook effect, but the offender shall be punis he d under the l aw in f orce when the offense was com m itted.U N I T E D S TAT E S V

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State v. Vineyard
, 392 P.2d 30, 3 3 (Ariz. 1964). They apply to laws that “alter the p enalty which was attached to any offense, [] create a n ew penalty, [ ]or change the s en t ence im posed.” Tyree v. Moran
, 550 P.2d 1076, 1078 (Ariz. 1976). If the penalty is altered b y a subsequent law, these general savings provisions require that “the offender shall be punished under th e l aw in force when the offense was
comm itted.” 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 effe ctively “change the sentence im posed,” Ty r e e , 5 50 P.2d at 1078, because Madrid-Becerra would not b e subject to the full term of his sente n c e

. And, nothing in the law repealing § 41- 1604.14 expressly m ade it retroactive. T hus, Arizona’s general savings sta tu te s require that, for aliens like MadridBecerra who were convicted when Ariz. Re v

. S tat. § 41- 1604.14 was in force, that p rovision continues to govern their sentences. W e conclude that ADOC m aintained the authority to rev o k e Madrid-Becerra’s release in 2016 and 2 0 17 because of his illegal re-entry.

C. The District Court Did Not Factually Err

Madrid-Becerra alleg e s th at th e d istrict court clearly erred when it found that he was under a crim inal justice sentence at the time h e illegally re-entered the United States. First, he argues that the district court erred by determ ining that he h ad notice of the condition that he not return illegally. Second, he argues that the district court erred in d eterm ining that he was returned to A DOC custody to serve the rem ainder of his 2013 sentence.U N I T E D S TAT E S V

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The district court d id n o t c l e arly err in either factual determ ination and there is no plain error of law. 2 First, even if the d istrict court erred in assum ing that Madrid-Becerra h ad received form al notice from the state court during sentencing, Madrid-Becerra has not d em onstrated that this all e ged error “affected [his] substantial rights.” Chris te n s en , 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. Wh ether or not Madrid-Becerra received form al n otice from the state court is thus irrelevant to whether he was “under any crim inal justice se ntence.” Because the alleged error would not have affe c t ed his crim inal history

score or the applicable guidelines range, Madrid-Becerra has not dem onstrated any prejudice affecting his sub s t antial rights.

Second, the district court did not clearly err in finding that Madrid-Becerra’s e ar ly release was in fact revoked. As a prelim inary m atter , M a drid-Becerra p o ints to no authority indicating that the § 4A1.1(d) enhancem ent applies o nly if a defendant’s e ar ly release was actually revoked. The Guidelines require sim

ply that a defend ant be “under any crim inal just i c e sentence, including probation, parole, supervised release, im

prison m ent, work release, or escape status.” U.S.S.G. § 4 A1.1 cmt. n .4

. Neither the Guidelines

nor its Comm entary requires that any parole or release

a ctually be revoked, or that an escapee be apprehende d

.

2 Because Madrid-Becerra did no t raise these alleged factual errors until appeal, w e revi e w fo r p l ain error. See United States v. Rangel
, 697 F.3d 795, 800 (9th Cir. 2012). Madrid-Becerra “bears the burden o f showing a reasonable probability that he would have received a different sentence absent the error.” U nited S tates v. Christensen
, 732 F.3d 1094, 1102 (9th Cir. 2013).U N I T E D S TAT E S V

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Moreover, under Federal Rule of Cr im inal Procedure 32(i)(3)(A), the district court “m ay accept any undis pu ted portion of the [PSR] as a f inding of fact.” Here, the PSR stated that Madrid-Becerra w as “[r]eturned to custody to

serve the rem ainder of the conditional release. ” M a dridBecerra concedes that he did not dispute this assertion before the district court. Not only did he not dispute the statem ent, but in his o bjection in the addendum to the PSR, MadridBecerra adm itted that “upon b eing detected, he was returned to the [ADOC] to serve the rem ainder of h is term

. ” Mor e over, we m ay take judicial n otice that the S uperior Court’s sente ncing order for Madrid-Becerra’s 2017

c onviction indicates that his 2 017 sentence w ould run concurrent with the rem ainder o f his 2013 sentence. 3 Th us, bec ause Madrid-Becerra did not challenge the PSR’s

s ta t em ent that he was returned to custody to serve th e
rem ainder o f his 2 013 sentence and there is additional docum entation supporting that conclusion—including his

own adm ission—“the di s trict 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 judgm ent of the district court is AFFIRMED

.

3 W e GRANT the G overnm ent’s unopposed m otion f or judicial notice of this docum ent.U N I T E D S TAT E S V

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CARDONE, District Judge, dissenting:

This case turns on whether a prisoner who h a s b e e n released from serving his two-and-a-half-year sentence pursuant to Arizona’s half-term to deportation p ro gram can nevertheless rem ain “under [a] crim inal justice s e ntence” indefinitely. Because the Guidelines s uggest the answer is “no,” I respectfully dissent.

This C o urt has considered § 4A1.1(d)’s application to suspended and deferred senten ces, United States v. K ipp , 10 F.3d 1463 (9th Cir. 1993); United States v. Franco-Flores
, 558 F .3d 978 (9th Cir. 2009), unsupervised probation with imm ediate deportation, United States v. Ramirez -Sanchez
, 338 F.3d 977 (9th Cir. 2003), and non r ev o c able parole, Uni te d States v. Gonzalez
, 739 F.3d 420 (9th Cir. 2013),

am ong o ther schem es. But it has never considered a “halfterm to deportatio n p rogram ” like Arizona’s, in which a prisoner begins se rv i ng a fixed custodial sentence that a departm ent of corrections suspends for a “potential lifetim e duration.” As the Gov e rnm ent conceded at sentencing, the “half-term release program doesn’t fall neatly into” § 4A1.1(d). B ased on the plain language, stru c tur e, and purposes of the Guidelines, I would hold that Appellant was not “under any crim inal justice s en t ence” at the tim e of his federal offense.

Section 4A1.1(d) applies to a defendant “under any crim inal justice sentence, including

. . . parole.” The PSR and the m ajority refer to Arizona’s program as “early conditional relea s e , ” which is a f

orm of parole. S

ee CONDITIONAL RELEASE, B lack’s L aw Dictionary (11th ed. 2019). But the two are m aterially distinguishable. Compare Kipp
, 1 0 F.3d at 1467 (holding that defendant’s suspended sentence was notU N I T E D S TAT E S V

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a “crim inal justice sentence” b ec au se it was d istinguishable from the punishm ents listed in § 4A1.1(d)), with Gonz alez
, 739 F.3d at 424 (holding that § 4A1.1 ( d ) applied to nonrevocable parole b ecause it was n o t d istinguishable from unsupervised probation).

Where, as h ere, “a c rimin al defendant has been comm itted to the custody of the prison authorities, any period served

. . . on p ar o l e o r conditional release is deem ed service o f [their] term of confinem ent, and such inm ate is entitled to credit on [their] prison sentence for [ that] period.” 24 C.J.S. Crim inal Procedure and Rights of Accused § 2394 (August 2021 Update). As the Supreme Co urt h as repeatedly observed, “[t]he essence of parol e i s release f rom prison

. . . on the condition that the prisoner abide b y cert a i n rules during the balance of th e s entence .” Samson v. California
, 547 U.S. 843, 8 50 (2 0 0 6 ) (em

phasis 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 whil e o nparole until

. . . the m aximum termof the sentence expi r e s

. ” 5 9 Am

. Jur. 2d Pardon and P arole § 117 (August 2 021 Update). And that m akes sense since a p arolee

“ r em ain[s] in the legal custody and under the contr o l of prison authorities,” m aking parole a “punishm ent” that “is in legal effect im

prisonm ent.” Id

. By necess i ty , then, a parolee’s sentence continues to run.

T h e m ajo rity m aintain s th at Ap p e l lant so m eh o w rem ain ed subject to ADOC’s legal custody or supervisory control like any other parolee. But if that w ere true, then Appellant would have rem ained under a “punishm ent” that is “in legal effect im prisonm ent,” see id.
, he would have c o n tinued to

s erve his sentence, and that sentence would have expire dU N I T E D S TAT E S V

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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 schem e is distinguishable f rom every “crim inal justice s e ntence” contem p lated by § 4A1.1(d). Section 4A1.1(d) provides that a “crim inal justice sentence” i n c l u d e s “ p r o b a t i o n , p a r o l e , s u p e r v i s e d r e l e a s e , im prisonm ent, work rele a s e, [and] escape status.” Under each of those schem es, a d efendant continues to serve their sentence or rem ains obligated to do so. And for all but “escap e s tatus” (discussed below), punishm ent lasts for a fixed period or range of tim e, allowing for continued service until the sentence expires. 1 Each day on probation o r supervised release, for exam ple, 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 te rmi n a t i o n of his sentence. There is no

1 F o r exam

ple, Black’s Law defines “probation” as “usually o n condition

. . . over a specified period o f tim e.” See PROBATION, Black’s La w Dictionary (11th ed. 2019) (em phasis added). And t

he Sec o nd Circuit has observed that the “practice of im posing i ndeterm inate probationary term s is relatively unique,” m aking it unsurprising that “the Guidelines do not address this situation.” United States v. R ich
, 900 F.2d 582, 584–85 (2d Cir. 1990) (d i scussing § 4A1.2(c)(1)). Sim i larly, “sup e rv i s e d release” is defined as “1. A period of probation t h at is im posed in addi tion to a sentence of i m prisonm ent rather than as a substitu t e fo r p art or all of that sentence.” SUPERVISED RELEASE, Black’s Law Dictionary (11th ed. 2019) (emphasis added).U N I T E D S TAT E S V

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indication in the Guideli n e s o r case law that § 4A1.1(d) applies to such a schem e. 2

That conclusion is bolstered by § 4A1.1(d)’s requirem ent that the defendant have been “under” a crim inal justi c e sentence. Although the Guidelines do not d e fi n e that term , this C ourt and other courts have long sugge s t ed that to be “under sentence” for the purposes of § 4A1.1(d), a defendant “need be serving [that] s e ntence,” United States v. Wright
, 891 F.2d 209, 2 11 (9th Cir. 1989), or “under a requirem ent to

serve [that] sentence,” United States v. Damon
, 127 F.3d 139, 147 (1st Cir. 1997), at the tim e of their federal offense. 3 And th a t is consistent with comm o n usage. See United States v. Leal-Felix
, 665 F.3d 1037, 1041 (9th C ir. 2011). A prisoner “under

. . . s up ervised release” or “under

. . . probation” is generally se rving their sentence of supervised release o r probation
, j ust like a d efendant “under

. . . parole” is

2 In deed, the Comm entary explains that “a term of unsupervis e d probation w ou l d b e included; but a sentence t o pay a fine” would not. U .S.S.G. § 4A1.1(d), cmt. n.4 (em phasis added). A “term ,” of c o urs e , m eans “[a] fixed period of tim e.” TERM, Black’s Law Dictionary (11th ed. 2019). By contrast, a sen t e nce to p ay a fine involves n o sim i lar tem poral quality—there is no termfor a defendant to serve.

3 See also United States v. Alba-Flores
, 577 F.3d 1 104, 1111 (9th Cir. 2009) (holding that defendant was “ ‘under a crim inal justice sentence’

. . . b e c ause he was then serving an actual term o f probation” (em p has i s added)); United States v. Lizarraga-Carrizales , 757 F.3d 995, 1000 (9th Cir. 2014) (holding that § 4A1.1(d) applied to defe n dant “serving a crim inal justice sentence”); United States v. Yepez , 704 F.3d 1087, 1099 (9th Cir. 2 012) (W ardlaw, J., dis s e nting) (explaining that § 4A1.1(d) requires judges to “determ ine whether a defendant is serving a sentence”); Beverly G. Dyer, Revising Criminal History: Model Se n t e n cing Guidelines §§4.1-4

. 2
, 18 F ED

. S EN T

. R. 373, 375 n.7 (June 2006) (explaining that § 4A1.1(d) applies to “any crim inal justice sentence t hat the defendant is still serving ” (em phasis added)).U N I T E D S TAT E S V

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generally serving his sentence o f in c ar ceration. Yet, here, Appellant was neither s e rv ing nor required to serve his

se n t e nce at all. Rather, “affirm ative conduct by the state rel i e v[ed] [Appellant] of his penal o bligation.” 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 poi n t

. A lthough an escapee ceases to serve his

senten ce—

wh ich is tolled until recapture— h e rem a in s “ un d er
a requirem ent to serve [that] sentence.” See Damon
, 127 F.3d at 1 4 7

. Thus, the Guidelines m ake clear that although an escapee is no longer “under” his sentence in the u s u al sense—that is, by b eing subject to the punishm ent im posed—he is still “under” that punishm ent because he has not been excused f

rom serving it. Cf. United S tates v. Phipps
, 68 F.3d 159, 163 (7th Cir. 1995) (explaining in the context o f

a related guideline that “work release, furlough, and escape status all are periods o f freedom that are supposed to be followed by tim e behind bars, with a gu ard o utside the door”); United State s v. Buchanan
, 638 F.3d 448, 453 (4th Cir. 2011) (explaining the “strong f ederal policy disfavoring fug i t i v e s” that “arises f

rom the ‘deeply rooted’ m axim ‘that

no m an m ay take advantage of his own wron g

. ’ ” ( quoting Glus v. Brooklyn East. Dist. T erm. , 35 9 U. S. 231, 232 (1959)).

And that o bservation points to a b r o a der structural truth abou t the Guidelines: in general, where § 4A1.1(d) is supposed to apply to a d efendant who is n ot currently serving h is sentence, the Guidelines expressly say so. S ee Uni t e d States v. Herrera
, 974 F.3d 1040, 1048 (9th Ci r

. 2 020) (interpreting the Guidelines by applying the “well-accepted” rule “that ‘a n egat i v e in ference m ay be drawn from the exclusion of language from one statutory p rovis i o n that isU N I T E D S TAT E S V

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included in o the r p r ovisions of the sam e statute’” (quoting Hamdan v. Rumsfeld
, 5 48 U.S. 557, 578 (2006)). In addition to identifyin g “escap e status” as a “crim inal justice sentence,” for exam ple, § 4A1.1(d) also expressly applies to sentences staye d p e nding appeal, U.S.S.G § 4A1.2(l), outstanding violation w arrants “even if [the] sentence would have expired absent such warrant,” id. § 4A1.2(m ), and to defendants who fail to report f

or service of a sentence, id. § 4A1.2(n). Those provisions sup p o rt a “negative inference” that unless stated otherwise, § 4A1.1(d) does not apply t o a defendant who is not serving or under an obligation to serve his sentence. See Herrera
, 974 F.3d at 10 4 8. And since the Guidelines nowhere m ention circum stances rem otely 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 d oing so “com p ort[ed] with the U.S. S entencing Guidelin es’ expressed purpose[s]”). This Court has explained that “Sections 4A1

. 1 ( a )–(c) correlate to the seriousnes s of a prior offense, while section 4A1.1(d) addresses, in part, the recency of the crim e.” United States v. McCrudden
, 894 F .2d 338, 339 (9th Cir. 1990); see also United S

tates v. Pearson
, 312 F .3d 1287, 1291 (9th Cir. 2002) ( Be r zo n, J., dissenting) (explaining that § 4A1.1(d) provides a “m easure of recenc y ” )

. I n other words, the pro v ision punishes “an offender who again violates the law before fu l ly serving his p rior punishm ent.” McCrudden
, 894 F.2d at 339. But here, the Arizona statute did not allow Appellant to f

ully serve his prior punishm ent. As Defendant points out, by the tim e he illegally reentered in June 2016, his sentence of “2.5 years custody” would have been m ore than fully served. Indeed, by the m ajority’s logic, even if Appellant h ad illegally reentered d ecades after his release, heU N I T E D S TAT E S V

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would still be subject to the two-point enhancem ent. Th at

seem s to go well beyond § 4 A1.1(d)’s focus on the “recency of the crim e.” See id.

Nor does Appel l an t ’ s early release reflect a judgm ent about the seriousness of his offense. S ee U. S. S. G. § 4A1.1, Background (suggesting that the crim i n al history categories

m easure “past crim e seriousness”). In fact, just the opposite:

m ore serious offenders were p recluded from release under the statute. See Ariz. Rev. Stat. § 41-1604.14 (prohibiting those convicted of class one and cl a ss two felonies f rom being eligible) (repealed Aug. 6, 2016). As Appellant explains, at its core Arizona’s program was a cost-saving m easure d esigned to avoid “the cost of incarcerating [aliens] fo r th e entirety of their sentence.” And as the governm ent concedes, the repeal of that progra m “ wa s intended to ensure inm ates subject to de p o rtation served more, not less
, o f their sentences.” (em

phasis added). I n short, Appellant’s early release was no indication of his “past crim e 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 determ ined by som e authority other than the sentencing court (such as the State’s departm ent of probation), it m ight be argued that

. . . [ it] did not reflect the severity of th e sentence as viewed by the sentencing court and therefore should not qu alify” as a
c ountable prior sentence. See United States v. Tomas i , 313 F.3d 653, 658 (2d C ir. 2002). Th a t reasoning applies well here.

The m ajority argues that Appellant was under a crim inal justice sentence b ecause he was “subject to any condition that related to a ‘custodial or supervisory com ponent’ of his sentence.” But it cites no authority for such a rule, which atU N I T E D S TAT E S V

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any rate finds n o s up port in the text. A “crim inal justice

s entence” is certainly “a sentence

. . . having a custodial o r supervisory com

ponent,” U.S.S.G. § 4A1.1(d), cmt. 4, but the Guidelines nowhere suggest that a d efendant is “under” such a sentence if he is “subject to any condition related to” it.

The ma j o rity also points to several cases that it claim s support its position, but each involve a d e fe n d ant who was either serving or obligated to serve his sentence at the tim e o f his federal offense. In Ramirez-Sanchez
, for exam ple, the defendant w as serving a three-year term of probation when he illegally reentered the country. 383 F .3d at 979–81 (holding that Appellant was under a crim inal justice sentence because he had b e e n “s entenced to a term of ‘probation,’” and was still “on p robation when he comm it[ed] the instant offense”); United States v. Ramirez-Sanchez
, Defendant-Appellant ’s Opening Brief, 2 002 WL 32102836, *4 (May 21, 2 002) (noting that d efendant was sen t e n ced to “3 years probation, 83 days custody, credit for tim e served”). Likewise, in Gonzalez
, the defendant was s e rving a fixed term of nonrevocable p arole at the tim e of his illegal reentry. 739 F.3d at 423–24. And in McCrudden
, the defendant was serving a two-year te rm of unsupervised probation at the tim e o f his offense. 894 F.2d at 3 39. 4 T hose cases are n ot only distinguishable, then, but in fact support the very argum ent

m ade here.

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

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

was for a f

ixed period. Notably, h owever, the defendant there was subject to the express p rovision regarding violation warrants, discussed above. See U.S.S.G. § 4A1.2(m ).U N I T E D S TAT E S V

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A “crim inal j u s tice sentence” is, at its foundation, “a sentence.” U .S.S.G. § 4A1.1(d), cmt. 4; s ee also Antonin Scalia an d B ry an A. Garner, Reading Law: The Interpretation of L egal Texts § 36, at 232 (2012) (“[T]he word being defined is the m ost significant elem ent of the definition ’ s c ontext

. . . .”). That is, it is “the punishm ent im posed on a crim inal wrongd o e r” b y a “judgm ent that a court form ally pronounces. ” S EN T EN C E
, B lack ’s L aw D ictio n ary (11th ed. 2019). But a s i n m ost jurisdictions, Arizona courts are not

au th o rized to im

pose indefinite punishm ents. As relevant he re , a “ s entence of im

prisonm ent for a felony shall b e a definite term of years

. . . [under] the custody of the state departm en t of corrections.” Ariz. R ev. Stat. § 13-701 (em phasis added). Appe l l ant’s sentence was “2.5 years custody,” which was the term required by law f or his o ffense and status. See id. § 13-702. If Appellant’s early conditional release was a p art of that punishm ent, it could only last for “2.5 years” and would h ave expired well before his illegal reentry; if it was not a punishm e n t a t all, it could not, by definition, be a “ c r i mi nal justice sentence .” Either way, § 4A1.1(d) would be inapplicable.

I respectfully dissent.