PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-4167

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

JUSTIN TYME HAWLEY,

 Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Raleigh. Malcolm J. Howard, Senior District Judge. (5:17-cr-00219-H-1)

Argued: January 31, 2019 Decided: March 26, 2019

Before WYNN, DIAZ, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Diaz 

joined. Judge Richardson wrote an opinion concurring in part and concurring in the 

judgment.

ARGUED: Jaclyn L. DiLauro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Raleigh, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED 

STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan 

DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, 

Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
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WYNN, Circuit Judge:

Defendant Justin Hawley pleaded guilty to two counts of being a felon in 

possession of a firearm and two counts of distributing heroin. The district court 

sentenced him to fifty-seven months’ imprisonment, in part because his criminal history 

included a prior sentence of thirty days’ imprisonment for an uncounseled misdemeanor 

offense. Defendant argues that the district court contravened the Sentencing Guidelines 

in calculating his criminal history by counting the prior uncounseled misdemeanor that 

resulted in imprisonment. Finding no reversible error, we affirm Defendant’s sentence.

I.

On August 8, 2017, a federal grand jury in the Eastern District of North Carolina

returned a superseding four-count indictment charging Defendant with: (1) two counts of 

possessing a firearm after being convicted of a crime punishable by imprisonment for a 

term exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) & 924; and (2) two 

counts of distributing heroin, a Schedule I controlled substance, in violation of 21 U.S.C. 

§ 841(a)(1). Thereafter, on November 6, 2017, Defendant pleaded guilty to all four 

counts.

On March 7, 2018, the district court conducted a sentencing hearing. Before 

sentencing, the United States Probation Office prepared a presentence report that 

calculated the Defendant’s offense level and criminal history category. The Probation 

Office first determined that Defendant had an offense level of 19. Next, considering 

Defendant’s prior offenses, the Probation Office determined that Defendant had a 

criminal history score of 10, and thus Defendant had a criminal history category of V. As 
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relevant here, the Probation Office added one point to Defendant’s criminal history score 

because Defendant pleaded guilty in April 2015 to the misdemeanor offense of providing 

false information to a police officer and failure to wear a seatbelt. Defendant did not 

dispute—and therefore conceded for purposes of this appeal—that he validly waived his 

right to counsel in the proceedings giving rise to that conviction and that he was 

imprisoned for thirty days. Because Defendant had an offense level of 19 and a criminal 

history category of V, the Guidelines’ advisory sentencing range was fifty-seven to 

seventy-one months’ imprisonment for each of the four counts.

At his sentencing hearing, Defendant objected to adding a criminal history point 

for the misdemeanor offense of providing false information to a police officer. 

Defendant argued that because he was uncounseled—albeit voluntarily—and was 

imprisoned, the Guidelines precluded the district court from adding a point for that 

offense. To support this position, Defendant relied upon the Guidelines background 

commentary, which provides: “[p]rior sentences, not otherwise excluded, are to be 

counted in the criminal history score, including uncounseled misdemeanor sentences 

where imprisonment was not imposed.” U.S.S.G. § 4A1.2 (background) (emphasis 

added). Without this additional point, Defendant would have had a criminal history score 

of 9 and a criminal history category of IV, and the Guidelines’ advisory sentencing range 

would be forty-six to fifty-seven months’ imprisonment.

At sentencing, the district court adopted the Probation Office’s recommendation 

and rejected Defendant’s reading of the background commentary. The court reasoned 

that the Guidelines required it to count the offense of providing false information to a 
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police officer because Defendant was sentenced to a term of imprisonment of at least 

thirty days. See U.S.S.G. § 4A1.2(c)(1). And though the background commentary 

explicitly contemplates counting prior uncounseled misdemeanors for which

“imprisonment was not imposed,” this reference is preceded by the word “including,”

indicating that the Guidelines do not exclude counting other valid convictions, like 

Defendant’s voluntarily uncounseled misdemeanor which resulted in imprisonment. 

Thus, because Defendant was imprisoned for thirty days after pleading guilty to

providing false information to a police officer, the court added one point for that offense. 

Thereafter, the court concurrently sentenced Defendant on all four counts to fifty-seven 

months’ imprisonment—the bottom of the Guidelines’ advisory range. Defendant timely 

appealed.

II.

Before this Court, Defendant solely contends* that the district court misapplied the 

Guidelines in calculating his criminal history by counting his prior uncounseled 

misdemeanor that resulted in 30-days imprisonment.

 * In his brief, Defendant also argued that the district court erred by adding three 

criminal history points for each of Defendant’s prior state convictions of possessing a 

stolen firearm and of breaking or entering and conspiracy to commit breaking or entering 

of a building with intent to commit a felony or larceny. According to Defendant, the 

court erroneously considered the statutory post-supervisory release period in determining 

whether a conviction constitutes a term of imprisonment exceeding one year. U.S.S.G. 

§§ 4A1.1 & 4A1.2. But Defendant recognized that this position was foreclosed by 

United States v. Barlow, 811 F.3d 133 (4th Cir. 2015), and thus withdrew this contention 

at oral argument. Oral Argument at 8:50–9:00.
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“On a challenge to a district court’s application of the Guidelines, we review 

questions of law de novo and findings of fact for clear error.” United States v. Allen, 909 

F.3d 671, 677 (4th Cir. 2018) (citation omitted). In doing so, we discern the Guidelines’

“plain meaning, as determined by examination of its language, structure, and purpose.” 

United States v. Strieper, 666 F.3d 288, 293–94 (4th Cir. 2012) (citations and alterations 

omitted). “As in all cases of statutory interpretation, our inquiry begins with the text of 

the statute.” United States v. Ashford, 718 F.3d 377, 382 (4th Cir. 2013) (citation 

omitted). We consider not only the Guidelines’ text, but also the “commentary [which] 

explains the guidelines and provides concrete guidance as to how even unambiguous 

guidelines are to be applied in practice.” Stinson v. United States, 508 U.S. 36, 44 

(1993). And when the Guidelines provide “commentary [that] interprets a guideline 

provision or explains how a guideline is to be applied, the commentary is controlling . . . 

unless it: [1] violates the Constitution or a federal statute; [2] is inconsistent with the 

Guidelines; or [3] constitutes a plainly erroneous reading of the Guidelines.” Allen, 909 

F.3d at 674 (internal quotation marks omitted) (quoting Stinson, 508 U.S. at 37–38).

When computing a defendant’s criminal history for sentencing, the Guidelines 

require the district court to count certain prior misdemeanor offenses, including 

Defendant’s prior offense of providing false information to a police officer, “only if (A) 

the sentence was a term of probation of more than one year or a term of imprisonment of 

at least thirty days, or (B) the prior offense was similar to an instant offense.” U.S.S.G. 

§ 4A1.2(c)(1). Defendant does not dispute that he was imprisoned for thirty days after 

pleading guilty to the misdemeanor offense of providing false information to a police 
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officer. Thus, under the plain language of Guideline 4A1.2(c)(1), Defendant’s offense 

should be counted in calculating Defendant’s prior criminal history. See id. 

Nevertheless, Defendant argues that the district court erred in counting his 

uncounseled misdemeanor offense resulting in 30-days imprisonment because a 

“background” statement in the Guidelines commentary states that when courts count 

prior offenses, “[p]rior sentences, not otherwise excluded, are to be counted in the 

criminal history score, including uncounseled misdemeanor sentences where 

imprisonment was not imposed.” U.S.S.G. § 4A1.2 (background) (emphases added). 

Appealing to the interpretive canon expressio unius est exclusio alterius, Defendant 

maintains that the negative implication of Guideline 4A1.2’s background commentary

barred the district court from counting prior uncounseled misdemeanor convictions for 

which imprisonment was imposed—even when, as here, a defendant validly waives his 

right to counsel. 

Under the expressio unius canon, “expressing one item of an associated group or 

series excludes another left unmentioned.” N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 940 

(2017) (citation and alterations omitted). Though this canon can be an instructive tool for 

discerning legislative intent, the “force of any negative implication . . . depends on 

context.” Id. (citation omitted). Therefore, the “expressio unius canon applies only when 

circumstances support a sensible inference that the term left out must have been meant to 

be excluded.” Id. (citation and alterations omitted). The Guidelines do not support such 

an inference in this case. 
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Here, the background commentary provides a general rule that prior sentences are 

to be counted if they are “not otherwise excluded.” U.S.S.G. § 4A1.2 (background). 

Although the background commentary identifies a specific application of this general 

rule—that uncounseled misdemeanors for which imprisonment was not imposed are to be 

counted—that specific application is preceded by the word “including.” Id. (emphasis 

added). And “the term ‘including’ is not one of all-embracing definition, but connotes 

simply an illustrative application of the general principle.” Fed. Land Bank of St. Paul v. 

Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (quoting Phelps Dodge Corp. v. N.L.R.B., 

313 U.S. 177, 189 (1941)). In other words, the term “including” as used here is an 

“introductory term for an incomplete list of examples.” Adams v. Dole, 927 F.2d 771, 

776 (4th Cir. 1991) (emphasis added); see Include, Black’s Law Dictionary 880 (10th ed. 

2009) (“The participle including typically indicates a partial list . . . .”). Because the 

background commentary, by its plain language, contemplates that it is providing a nonexhaustive list, an inference of negative implication is inappropriate. See Jones v. Am. 

Postal Workers Union, 192 F.3d 417, 426 (4th Cir. 1999) (“When ‘include’ is utilized in 

a statute, it is generally improper to conclude that entities not specifically enumerated are 

excluded.” (alterations omitted) (quoting 2A Norman J. Singer, Sutherland Stat. Const.

§ 47.23 (5th ed. 1992))).

It is interesting to note that the regulatory history of the Sentencing Commission 

supports our determination of this issue. In February 1990, when the Sentencing 

Commission first proposed including background commentary to the relevant guideline, 

it explained that its intention was to make clear that “all sentences resulting from 
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constitutionally valid convictions . . . are counted.” Sentencing Guidelines for United 

States Courts, 55 Fed. Reg. 5718, 5741 (proposed Feb. 16, 1990) (emphasis added). 

Additionally, excluding “prior sentences resulting from constitutionally valid convictions 

on the basis of whether the convictions were counseled or uncounseled would create wide 

disparity . . . [and] would deprive the court of significant information relevant to the 

purposes of sentencing.” Id. Notably, the Commission provided the specific application

of this general rule relied on by Defendant to make clear that the Commission “d[id] not 

believe the inclusion of sentences resulting from constitutionally valid, uncounseled 

misdemeanor convictions in the criminal history score [wa]s foreclosed by Baldasar v. 

Illinois, 446 U.S. 222 (1980),” id.—a Supreme Court opinion which was subsequently 

overruled, see Nichols v. United States, 511 U.S. 738, 748 (1994). Though the language

of the background commentary was modified before its enactment in November 1990, 

the Commission reemphasized its intention to avoid “considerable disparity in guideline 

application” and to count those misdemeanor convictions “for which counsel 

constitutionally is not required.” U.S. Sentencing Guidelines Manual app. C, amend. 353 

(1990). Accordingly, because Defendant voluntarily proceeded without counsel in the 

prior proceeding—meaning that Defendant’s constitutional right to counsel was not 

abridged and, therefore, that his misdemeanor conviction was “constitutionally valid”—

the district court did not err in counting the prior misdemeanor conviction in determining 

Defendant’s Guidelines’ advisory range.

Defendant’s voluntary waiver of his right to counsel in the prior proceeding also 

sets this case apart from the principal decision upon which Defendant relies—the Second 
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Circuit’s decision in United States v. Ortega, 94 F.3d 764 (2d Cir. 1996). Defendant 

emphasizes that Ortega stated that “[a]lthough the [background commentary] does not 

expressly exclude uncounseled misdemeanor sentences in which imprisonment was 

imposed, the interpretive maxim expressio unius est exclusion alterius, coupled with the 

constitutional problems raised by such sentences, convinces us that [the background 

commentary] excludes from criminal history computations all uncounseled misdemeanor 

sentences of imprisonment, including those imposed after the revocation of a defendant’s 

probation.” Id. at 770–71 (emphases added). But in Ortega the government “d[id] not 

contest” the defendants’ assertions that they were imprisoned and “unavailingly sought”

the assistance of counsel. Id. at 769. Of course, under the Sixth and Fourteenth 

Amendments, “absent a knowing and intelligent waiver, no person may be imprisoned for 

any offense . . . unless he was represented by counsel at his trial.” Argersinger v. 

Hamlin, 407 U.S. 25, 37 (1972). Unlike Ortega, Defendant does not contest the 

constitutional validity of his waiver of the right to counsel in the prior proceeding. See 

Oral Argument at 2:55–3:00, 5:20–5:25. And if Defendant did contest the constitutional 

validity of his prior waiver, he could have collaterally attacked that waiver in the instant 

sentencing proceeding. See United States v. Hondo, 366 F.3d 363, 365 (4th Cir. 2004); 

see also Custis v. United States, 511 U.S. 485, 496 (1994). Accordingly, this case does 

not invoke the “constitutional problems” that the Second Circuit confronted in Ortega. 

Put simply, Ortega is inapposite. Accord United States v. Feliciano, 498 F.3d 661, 666 

(7th Cir. 2007); United States v. Fitch, 39 F. App’x 518, 520 (9th Cir. 2002)

(unpublished).
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III.

In sum, the district court properly counted Defendant’s prior voluntarily 

uncounseled misdemeanor offense of providing false information to a police officer for 

which he was sentenced to thirty days’ imprisonment. Accordingly, we affirm 

Defendant’s sentence.

AFFIRMED
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RICHARDSON, Circuit Judge, concurring in part and concurring in the judgment:

I enthusiastically join my good colleague’s opinion except for the analysis of 

regulatory history. That analysis relies substantially on language in the draft background 

commentary initially proposed by the Commission. Ante at 7–8. After receiving 

comments, the Commission discarded that proposed background commentary and 

adopted different language. Compare 55 Fed. Reg. 5718, 5741 (Feb. 16, 1990) (notice of 

proposed amendments), with 55 Fed. Reg. 19,188, 19,204–05 (May 8, 1990) 

(amendments submitted to Congress). That initial, unadopted background commentary 

provides no reliable interpretative guidance. What is more, the passing paragraph 

discussing it is unnecessary given the rest of my friend’s analysis. So I join only the rest 

of the opinion.