IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50131

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

EDWARD FERNANDEZ,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before STEWART, Chief Judge, and GARZA and SOUTHWICK, Circuit 

Judges.

EMILIO M. GARZA, Circuit Judge: 

Edward Fernandez (“Fernandez”) was convicted of methamphetaminerelated offenses. Under the United States Sentencing Guidelines, the 

sentencing judge assessed two criminal history points for Fernandez’s prior 

sentence of imprisonment. On appeal, Fernandez submits that the district 

court committed reversible error in assessing two points rather than only one, 

because his prior sentence did not involve imprisonment. We affirm the 

district court’s judgment.

I

Fernandez was charged with Possession with Intent to Distribute Five 

or More Grams of Actual Methamphetamine in violation of 21 U.S.C. §§ 

United States Court of Appeals

Fifth Circuit

FILED

February 24, 2014

Lyle W. Cayce

Clerk

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No. 13-50131

841(a)(1), (b)(1)(B) and Aiding and Abetting in the Distribution of a Quantity 

of Methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 18 

U.S.C. § 2. Fernandez pleaded guilty to both counts.

At sentencing, the district court consulted Fernandez’s Revised 

Presentence Investigation Report (“RPSR”). The RPSR assessed two criminal 

history points pursuant to § 4A1.1(b) of the Sentencing Guidelines, based on a 

2007 assault conviction in Colorado. For this assault conviction, Fernandez 

was sentenced to 24 months in jail. However, he received a 254-day credit for 

time served, and the sentence was suspended, under the condition that he paid 

fines and costs.1

Fernandez objected to the two-point assessment for the Colorado 

conviction prior to sentencing, contending that because the sentence was fully 

suspended, he should have been assessed a one-point enhancement under 

§ 4A1.1(c), rather than two points under § 4A1.1(b). The two-point assessment 

brought Fernandez’s criminal history points to a total of four, resulting in a 

Criminal History Category of III. Accordingly, his Guidelines sentencing range 

was 70 to 80 months. A one-point assessment would have reduced his Criminal 

History Category from III to II, and the applicable sentencing range would 

have been 63 to 78 months. 

The district court overruled this objection and adopted the RPSR’s 

recommended range. The district court’s reasoning hinged on the 254-day 

credit:

1 The Colorado judgment reads: 

Credit for Time Served: 254 Days

Jail SUSPENDED: 24 Months

. . . 

Other Conditions of Sentence: JAIL SUSPENDED ON 

CONDITION DEF PAYS ALL FINES AND COSTS BY END OF 

YEAR.

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The Court finds that [Fernandez] sat in jail for 254 

days, according to the judgment. He was—he was 

sentenced to 24 months, and he got credit for 254 days. 

And so the Court declines to grant [Fernandez’s] 

objection.

After explaining that it had considered the § 3553(a) factors, hearing 

testimony, the RPSR contents, and Fernandez’s allocution, the district court 

sentenced Fernandez to a term of 70 months, with five years of supervised 

release, based on a total offense level of 25 and Criminal History Category of

III. Fernandez now appeals his sentence.

II

Where a defendant preserves a Sentencing Guidelines-based objection to 

a sentence, we review a district court’s calculation of the Guidelines range de 

novo, factual findings for clear error, and the ultimate sentence for abuse of 

discretion. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 

2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).

III

On appeal, Fernandez contends that the district court committed

reversible error in assessing two points to his criminal history on the basis of 

his prior Colorado sentence. 

Under the Guidelines, a defendant’s criminal history score is based on 

sentences imposed for prior offenses. Under § 4A1.1(a), three points are added 

to a defendant’s criminal history “for each prior sentence of imprisonment 

exceeding one year and one month,” and under § 4A1.1(b), two points are added 

“for each prior sentence of imprisonment of at least sixty days not counted in 

(a).” § 4A1.1(c) provides that only one point is assessed “for each prior sentence 

not counted in (a) or (b),” up to a total of four points.

§ 4A1.2(b) defines “sentence of imprisonment”:

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(1) The term “sentence of imprisonment” means a 

sentence of incarceration and refers to the maximum 

sentence imposed.

(2) If part of a sentence of imprisonment was suspended, 

“sentence of imprisonment” refers only to the portion 

that was not suspended. 

Id. § 4A1.2(b)(1), (2).2 In other words, “[a]lthough the maximum sentence 

imposed generally provides the measure for assigning criminal history points 

[pursuant to § 4A1.2(b)(1)], § 4A1.2(b)(2) limits the application of §§ 4A1.1(a)-

(c) when a sentence is suspended.” United States v. Dixon, 230 F.3d 109, 112 

(4th Cir. 2000). Additionally, where a prior sentence was “totally suspended 

or stayed,” it is treated as a one-point prior sentence under § 4A1.1(c). U.S.S.G. 

§ 4A1.2(a)(3); see also United States v. Atkinson, 15 F.3d 715, 721 (7th Cir. 

1994) (explaining same provision).

In United States v. Minton, the Tenth Circuit considered whether a 

“credit” for time served qualified for Guidelines purposes as a non-suspended 

portion of an otherwise suspended sentence. 407 F. App’x 336 (10th Cir. 2011)

(unpublished). In connection with a prior state court conviction, Minton had 

served 229 days in pre-sentence confinement. The state court’s sentencing 

order gave him “credit” for this period and articulated his sentence as three to 

five years, with Minton “receiving Two Hundred Twenty Nine (229) days credit 

2 The Commentary to § 4A1.2(b) further clarifies that:

[t]o qualify as a sentence of imprisonment, the defendant must 

have actually served a period of imprisonment on such sentence 

. . . . For the purposes of applying § 4A1.1(a), (b) or (c), the length 

of a sentence of imprisonment is the stated maximum . . . . That 

is, criminal history points are based on the sentence pronounced, 

not the length of time actually served. A sentence of probation 

is to be treated as a sentence under § 4A1.1(c) unless a condition 

of probation requiring imprisonment of at least sixty days was 

imposed.

Id. § 4A1.2 cmt. n.2 (citations omitted).

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of both the minimum and maximum sentence.” Id. at 338. But the court 

ultimately suspended this sentence and mandated four years of supervised 

probation. Id. The Tenth Circuit reasoned that the state court “explicitly took 

the period of pre-sentence confinement into account” in determining the 

sentence; accordingly, the confinement was “part of the punishment ultimately 

imposed” by the state court. Id. at 339. Thus, the period of actual confinement 

was not suspended, despite suspension of the rest of the sentence. And because 

this period exceeded 60 days, the court concluded that Minton was properly 

assessed two criminal history points for a prior sentence of imprisonment 

under § 4A1.1(b). Id. at 340.

A

Fernandez first contends that his prior sentence could not have been a 

“prior sentence of imprisonment of at least sixty days” under § 4A1.1(b) since 

the sentence was suspended in its entirety.

Here, it is undisputed that at least part of Fernandez’s 24-month 

sentence “was suspended.” U.S.S.G. § 4A1.2(b)(2). Thus, the “maximum 

sentence imposed” will not be the basis for assessing Fernandez’s criminal 

history points. Id. § 4A1.2(b)(1); Dixon, 230 F.3d at 112. Rather, the central 

question is whether Fernandez’s 254-day credit was a portion of the sentence 

that “was not suspended,” notwithstanding the fact that the judgment provides 

for a 24-month suspended sentence. Id. § 4A1.2(b)(2). If so, then this nonsuspended portion functions as the “sentence of imprisonment” under § 4A1.1, 

and the two-point assessment was proper because 254 days exceeds 60 days.

Id. Alternatively, if the sentence was “totally suspended,” then Fernandez 

should be assessed only one point under § 4A1.1(c). Id. § 4A1.2(a)(3).3 In the 

3 The statutory maximum for the relevant assault offense (assault in the third degree) 

was two years. Colo. Rev. Stat. §§ 18-3-204, 18-1.3-501(3). Thus, a third logical possibility 

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latter case, we would need to remand for re-sentencing, since the Government 

has not alleged that the district court would have imposed the same sentence 

notwithstanding the error.4

The text of the Guidelines is not dispositive, since its provisions do not 

explicitly contemplate a suspension and time-served credit operating together

as they do in this case. That is, the Guidelines do not explain whether, despite 

a sentencing order’s literal suspension of a prior sentence in its entirety, a 

time-served credit constitutes a non-suspended portion of that sentence for 

Guidelines purposes.

The reasoning of Minton is persuasive, and we adopt it here. We hold 

that because a time-served “credit” noted in a prior sentencing order cannot be 

suspended, the period credited serves as the measure for assessing criminal 

history points in accordance with § 4A1.2(b)(2) of the Sentencing Guidelines

when the prior sentence is otherwise suspended. Like the state court order in 

Minton, the Colorado sentencing order here provided time-served credit for a 

period of confinement while ultimately suspending the sentence. The Colorado 

order’s language “Credit for Time Served” necessarily implies that the court 

accorded a sentence-reducing value to Fernandez’s pretrial confinement—that 

the court “explicitly took the period of pre-sentence confinement into account.” 

Minton, 407 F. App’x at 339. Thus, as in Minton, Fernandez’s sentence was 

not suspended in full, and because the non-suspended portion exceeded 60 

days, the district court correctly assessed two criminal history points under § 

4A1.1(b).5 U.S.S.G. § 4A1.2(b)(2).

is precluded—that the 24-month sentence was suspended in full, but that the credited 254-

day period was an additional, non-suspended punishment. 4 See United States v. Harris, 597 F.3d 242, 261 (5th Cir. 2010).

5 Fernandez’s brief explains quite concisely why the 254-day “credit” was not 

suspended: “[T]he 254 day pretrial credit . . . [was] a credit applied toward the completion 

and satisfaction of the 2 year time period of the suspended sentence. In other words, 

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B

Fernandez’s other theory about his prior sentence is unavailing.

Fernandez characterizes his suspended 24-month sentence as a 

“sentence of probation [that] is to be treated as a sentence under § 4A1.1(c) 

unless a condition of probation requiring imprisonment of at least sixty days 

was imposed.” Id. § 4A1.2 cmt. n.2. Fernandez correctly notes that his pretrial 

incarceration was “not a condition” of his suspended sentence; the Colorado 

sentencing order conditioned his suspended sentence on payment of fines and 

costs and not on incarceration. But his contention rests on the mistaken 

premise that his suspended sentence is equivalent to a “sentence of probation” 

under the commentary to § 4A1.2. Id. As the district court explained, 

Fernandez was given a suspended sentence, not probation. Thus, there is no 

“sentence of probation” meriting only one criminal history point “as a sentence 

under § 4A1.1(c).” Id.

In sum, although Fernandez’s incarceration occurred prior to a 

determination of his guilt, his ultimate sentence was premised on the fact that 

he had served time. In this way, his time-served credit was incorporated into 

his sentence.6

Fernandez was subject to the suspended sentence for 2 years less the 254 days.” We 

acknowledge that the state court here did not recognize the time-served credit as “explicitly” 

as the sentencing court did in Minton; here, the court did not reduce the 24-month sentence 

by 254 days prior to suspending the remaining balance. Minton, 407 F. App’x at 339. But on 

the record before us, we are satisfied that this “credit” was not suspended. 6 Compare this to the Ninth Circuit’s reasoning that “when the reason behind a period 

of incarceration is administrative necessity, rather than an adjudication of guilt, this period 

of incarceration says nothing about the defendant’s culpability . . . [and] may not provide a 

basis for sentence enhancement.” United States v. Latimer, 991 F.2d 1509, 1517 (9th Cir. 

1993) (concluding that detention while awaiting parole revocation hearing was “analogous to

pretrial custody” and could not result in Guidelines points assessment). Here, although 

Fernandez’s pretrial incarceration might have initially grown out of “administrative 

necessity,” his later receiving “credit” for time served linked the incarceration to an 

“adjudication of guilt.” Id.; see also United States v. Cruz-Alcala, 338 F.3d 1194, 1200 (10th 

Cir. 2003) (distinguishing Latimer on same grounds).

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C

Lastly, we note that the Government misunderstands this case. The 

Government’s application of the law to these facts consists of a one-paragraph, 

two-step analysis: (1) Because Fernandez’s pretrial confinement was some 

amount of time “actually served,” (2) the applicable sentence of imprisonment 

is the entire 24-month “sentence pronounced,” which exceeds 60 days for the 

purposes of § 4A1.1(b). 

The Government curiously disregards the critical fact of this case—the 

suspension of Fernandez’s sentence. The Government relies on § 4A1.2(b)(1) 

and its commentary, which provide that the “sentence imposed” is the basis for 

assessing criminal history points, so long as some time is actually served on 

that sentence. Id. § 4A1.2(b)(1).7 But under the Guidelines, this approach is 

inapplicable whenever a prior sentence is suspended. Rather, when a 

suspended prior sentence is at issue, the sentencing court must assess criminal 

history points based only on the non-suspended portion of the sentence. Id. 

§ 4A1.2(b)(2); Dixon, 230 F.3d at 112. The Government’s approach writes 

§ 4A1.2(b)(2) out of the Guidelines and is thus untenable.8 

IV

For the foregoing reasons, we conclude that the district court did not err 

in assessing two criminal history points for Fernandez’s prior Colorado 

sentence, and the judgment of the district court is AFFIRMED.

7 See supra n.2.

8 Cf. United States v. Tabaka, 982 F.2d 100 (3d Cir. 1992) (holding that under 

§ 4A1.2(b)(2), only non-suspended 48 hours of sentence, not original pre-suspension sentence, 

counted toward 60 day minimum under § 4A1.1(b)). Furthermore, the Government 

incorrectly relies on United States v. Staples, 202 F.3d 992 (7th Cir. 2000). Staples explained 

that suspended sentences and time-served credits are distinct and did not consider their 

potential overlap; it is thus unhelpful to resolving this case. See id. at 997–98.

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