P UBLISHED
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 , 201 9 Decided: March 26, 2019

Before WYNN , DIAZ, and RICHARDSON , Circuit Judges.

Affirmed by p ublished opinion. Judge Wynn wrote the opinion , in which Judge Diaz joined . Judge Richardson wrote a n 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 O F 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.2 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

. T he district court sentenced him to fifty

- seven months ’ imprisonment, in part because his crimina l 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 Caroli na 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 hearin g . 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, c onsidering Defendant’s prior offenses, the Probation Office determined that Defendant had a criminal history score of 10, and thus Defendant had a criminal history c ategory of V. As3 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 s eatbelt. Defendant did not dispute

— and therefore concede d 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 offen se level of 19 and a criminal history category of V, the Guidelines’ advis ory 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 preclude d the district court from adding a poin t for that offens e . 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 senten ces 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’ advis ory 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

. T he court reasoned that the Guidelines require d it to count the offense of providing false information to a4 police officer because Defendant wa s sentenced to a term of imprisonment of at least thirty days. See U.S.S.G. § 4A1.2(c)(1). And t hough the background comm entary explicitly contemplates counting prior uncounseled misdemeanors for which “imprisonment was not imposed,” th is 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, b ecause Defendant was imprisoned for thirty days after pleading guilty to providing false information to a police officer, the court add ed one point for th at offe nse . The reafter, the court concurrently sentenced Defendant on all four count s to fifty

- seven months ’ imprisonment

— the bottom of the Guidelines’ advis ory range . Defendant timely appealed.
II. Before th is 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 argue d 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 enteri ng 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 constitute s 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 Argumen t at 8:50

– 9:00.5 “On a challenge to a district court’s application of the Guidelines, we review questions of la w 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, 29 3

– 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. 20 13) ( citation omitted) . We consider not only the G uidelines ’ 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 whe n 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 coun t 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 police6 officer. Thus , un der the plain language of Guideline 4A1.2(c)(1), Defendant’s offense should be count ed in calculating Defendant’s prior criminal history. See id.
N evertheless, 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).
A ppealing 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 whe n , as here, a defendant validly waive s 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 b e an instructive tool for discerning legislative intent , the “force of any negative implication . . . depends on
context.” Id. (citation omitted). Th erefore , the “ expressio unius canon app lies only when

c ircumstances support a sensible inference that the term left out must have been meant to be excluded.” Id. (citation and alterations omitted). The Guideline s do not support such

a n inference in this case.7 Here, t he 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 uncou nseled 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 ill ustrative 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 “intro ductory 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 non

exhaustive 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 not e that the regulatory history of the Sentencing Commission supports our determination of this issue. In February 1990, when t he Sentencing Commission first proposed including background commentary to the relevant g uideline, it explained that its inten t ion was to make clear that “all sentences resulting from8 constitutionally valid convictions . . . are counted.” Sentencing Guidelines for United States Courts, 55 Fed. Reg. 5718, 5741 ( proposed Feb. 16, 1990) (emphasis added)

. Additionally , exclud ing “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 , s ee 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 G uideline s’ advisory range. Defendant ’s voluntary waiver of his rig ht to counsel in the prior proceeding also sets this case apart from the princip al decision upon which Defendant relies

— the Second9 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 sente nces, 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 77 0

– 7 1 (emphas e s 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). U nlike Ortega , Defendant does not c ontest the constitutional validity of his waiver o f 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, t his case does
not invoke the “constitutional problems” that the Second Circuit confronted in Ortega

. Put simply, O rtega 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 )

.10 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

. AFFIRMED11 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

comme nts, 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 C ongress). 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.