EMILIO M. GARZA, Circuit Judge:
Edward Fernandez ("Fernandez") was convicted of methamphetamine-related 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.
Fernandez was charged with Possession with Intent to Distribute Five or More Grams of Actual Methamphetamine in violation of 21 U.S.C. §§ 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.
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
The district court overruled this objection and adopted the RPSR's recommended range. The district court's reasoning hinged on the 254-day credit:
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.
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).
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":
Id. § 4A1.2(b)(1), (2).
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 Fed. Appx. 336 (10th Cir.2011) (unpublished). In connection with a prior state court conviction, Minton had served 229 days in presentence 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 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.
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)(l); 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 non-suspended 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).
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.
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.
Lastly, we note that the Government misunderstands this case. The Government's
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).
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.
Id. § 4A1.2 cmt. n. 2 (citations omitted).