PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ____________

                     No. 15-1779
                    ____________


          UNITED STATES OF AMERICA

                          v.

                HECTOR RENGIFO,
                              Appellant



    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
       (D. C. Criminal No. 1-13-cr-00131-001)
     District Judge: Honorable Sylvia H. Rambo


      Submitted under Third Circuit LAR 34.1(a)
                on February 12, 2016

Before: FUENTES, KRAUSE and ROTH, Circuit Judges

            (Opinion filed: August 5, 2016)




                          1
Tieffa N. Harper
Daniel I. Siegel
Office of the Federal Public Defender
800 King Street
Suite 200
Wilmington, DE 19801

                    Counsel for Appellant


Stephen R. Cerutti, II
Michael A. Consiglio
Office of the United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

                    Counsel for Appellee




                       OPINION


ROTH, Circuit Judge:

       In this appeal of the sentence imposed by the District
Court, we must determine the definition of “term of
imprisonment” in the U.S. Sentencing Guidelines Section
4A1.2(k). Hector Rengifo challenges the District Court’s
interpretation of “term of imprisonment” as synonymous with
“sentence of imprisonment.” Under the District Court’s




                             2
interpretation, the career offender provisions of the
Guidelines applied to Rengifo and he received an increased
sentence. We conclude that the terms are synonymous. We
will, therefore, affirm the judgment of sentence of the District
Court.

                               I.

       In 2014, Rengifo pled guilty to “distribution and
possession with intent to distribute heroin” in violation of 21
U.S.C. § 841(a)(1). Under the Guidelines, the offense carried
a sentencing range, adjusted for Rengifo’s acceptance of
responsibility, of 15 to 21 months. Because Rengifo had two
prior controlled substance convictions in state court from
1999 and 2007, the government argued for the application of
the career offender provisions of the Guidelines, which would
lead to the addition of criminal history points and increase
Rengifo’s sentencing range to 151 to 188 months. The
District Court agreed with the government but granted a
downward variance and sentenced Rengifo to 120 months of
imprisonment.

       A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time he or she
committed the instant offense of conviction, (2) the instant
offense of conviction is a felony that is either a crime of
violence or a controlled substance offense, and (3) the
defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.1 Rengifo
does not dispute that his 2007 conviction for conspiracy to
distribute cocaine qualifies as a prior felony conviction. He

1
    U.S.S.G. § 4B1.1(a).




                               3
does, however, argue against counting his 1999 conviction for
possession with intent to distribute marijuana as a prior felony
conviction.

       As relevant here, for the purpose of computing an
offender’s criminal history, prior sentences of imprisonment
are counted as follows: (1) “[a]ny prior sentence of
imprisonment exceeding one year and one month that was
imposed within fifteen years of the defendant’s
commencement of the instant offense is counted”; (2) “any
prior sentence of imprisonment exceeding one year and one
month, whenever imposed, that resulted in the defendant
being incarcerated during any part of such fifteen year
period” is counted; and (3) “[a]ny other prior sentence that
was imposed within ten years of the defendant’s
commencement of the instant offense is counted.”2 Given
that Rengifo’s 1999 conviction was more than ten years old
and fewer than fifteen years old at the time of Rengifo’s
instant offense, it is counted as a prior felony conviction if
Rengifo’s sentence of imprisonment for the 1999 conviction
exceeded one year and one month.

       For the 1999 conviction, a Pennsylvania court initially
sentenced Rengifo to “time served to 12 months.” Rengifo
served 71 days and was paroled. His parole was revoked and
he was sentenced to the remaining 294 days of the original
sentence. He served another 120 days, was paroled, and
again his parole was revoked. He then was sentenced to the
remaining 174 days of his sentence. For calculating the
length of the sentence of imprisonment, these revocations
triggered § 4A1.2(k) of the Guidelines, which provides that

2
    

(e)(2).




                                  4
“[i]n the case of a prior revocation of probation, parole,
supervised release, special parole, or mandatory release, add
the original term of imprisonment to any term of
imprisonment imposed upon revocation.” 3         The parties
disagree on the interpretation of “term of imprisonment,” a
term that is not defined in the Guidelines.

       Rengifo argues that his term of imprisonment for the
1999 conviction is 365 days: 71 days served prior to any
parole and 294 days served after his revocations. Under
Rengifo’s interpretation, his 365-day sentence is not a prior
felony conviction under the career offender provisions and
Rengifo should not be subject to the enhancement. The
government maintains that the term of imprisonment for the
1999 conviction is 659 days, consisting of the initial 365-day
maximum sentence imposed plus the 294 days sentenced for
the parole violations. Under the government’s interpretation,
Rengifo’s term of imprisonment is greater than one year and
one month, and thus the career offender guidelines were
properly applied to him.

                             II.4

        Although we have not had occasion to consider the
definition of “term of imprisonment” in § 4A1.2(k), which
directs courts in calculating a prior sentence for the purpose

3
  

(emphasis added).
4
  We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). Our review of the District Court’s interpretation of
the Sentencing Guidelines and constitutional questions is
plenary. United States v. McKoy, 

, 236 (3d Cir.
2006).




                              5
of applying the criminal history enhancement to “add the
original term of imprisonment to any term of imprisonment
imposed upon revocation[,]” the Guidelines provide textual
clues as to the term’s meaning. Application Note 11, which
informs the interpretation of § 4A1.2(k), instructs, “[r]ather
than count the original sentence and the resentence after
revocation as separate sentences, the sentence given upon
revocation should be added to the original sentence of
imprisonment, if any, and the total should be counted as if it
were one sentence.”5 The Note’s reference to “original
sentence of imprisonment” is a strong indication that
“sentence of imprisonment” and “term of imprisonment,” the
latter of which is used in § 4A1.2(k), are interchangeable.6
Also indicative is the fact that these terms are found in close
proximity throughout the career offender guidelines and in
notes accompanying the section.7

       Rengifo argues that the terms are not interchangeable
for three reasons. First, Rengifo invokes the statutory
construction canon that “where sections of a statute do not
include a specific term used elsewhere in the statute, the
drafters did not wish [the not-included term] to apply.”8
According to Rengifo, the use of “term of imprisonment”
rather than “sentence of imprisonment” in § 4A1.2(k) means
that “sentence of imprisonment” does not apply. However,

5
  U.S.S.G. § 4A1.2 n.11 (emphasis added).
6
  United States v. Ramirez-Perez, 

, 177 (6th Cir.
2011); United States v. Jasso, 

, 712 (5th Cir.
2009).
7
  

.
8
  Alaka v. Attorney Gen. of United States, 

, 98 (3d
Cir. 2006) (internal quotations omitted).




                              6
this interpretation would render irrelevant Application Note
11 and violate the general rule that courts interpret
Application Notes to the Guidelines so that no words shall be
discarded as meaningless, redundant, or mere surplusage.9

         Second, Rengifo argues that the interpretation of the
terms as synonymous violates due process for two reasons:
first, it leads to double counting of his sentence, and second,
it would not provide adequate notice to defendants. Neither
argument is persuasive. Regarding double counting, Rengifo
essentially challenges the outcome where, although his
original sentence imposed was “time served to 12 months,”
his sentence of imprisonment was determined to be over one
year and one month. Section 4A1.2(k) “covers revocations of
probation and other conditional sentences where the original
term of imprisonment imposed, if any, did not exceed one
year and one month.”10 Application Note 11 makes clear
that, under § 4A1.2(k), “[i]f the sentence originally imposed,
the sentence imposed upon revocation, or the total of both
sentences exceeded one year and one month, the maximum


9
   Paek v. Attorney Gen. of United States, 

, 337
(3d Cir. 2015); see Stinson v. United States, 

, 38
(1993) (“[C]ommentary in the Guidelines Manual that
interprets or explains a guideline is authoritative unless it
violates the Constitution or a federal statute, or is inconsistent
with, or a plainly erroneous reading of, that guideline.”). We
note that although Rengifo raises several constitutional
arguments, detailed below, he makes no arguments that
would allow us to disregard the interpretation of U.S.S.G. §
4A1.2(k) set forth in the Application Notes.
10
   U.S.S.G. § 4A1.2 n.11.




                                7
three points would be assigned.”11 Therefore, the Guidelines
contemplate the scenario that Rengifo faces, and dictate the
addition of criminal history points. Moreover, Rengifo’s
argument that his original sentence of imprisonment is 71
days—the amount of time served prior to parole—as opposed
to one year—the sentence pronounced—is based on an
incorrect reading of the Guidelines, which state that sentence
of imprisonment “refers to the maximum sentence
imposed.”12 Application Note 2 further explains: “the length
of a sentence of imprisonment is the stated maximum” and
“criminal history points are based on the sentence
pronounced, not the length of time actually served.”13
Therefore, the correct total of Rengifo’s sentence of
imprisonment is 833 days, which consists of the maximum
imposed original sentence of 365 days, plus the maximum
imposed sentence for the first revocation of 294 days, and
plus the maximum imposed sentence for the second
revocation of 174 days.14

       As for notice, due process does not require a defendant
to be warned that his conviction might be used for
enhancement purposes if he is later convicted of another
crime.15 As the Supreme Court explained, a warning to the

11
   

§ 4A1.2(b)(1); United States v. Davis, 

,
932 (3d Cir. 1991).
13
   U.S.S.G. § 4A1.2 n.2.
14
   The sentence computed under § 4A1.2(k) is harsher than
the position of the government on how the sentence should be
computed. However, we conclude that the clear language of
§ 4A1.2(k) and the Application Notes requires this result.
15
   Nichols v. United States, 

, 748 (1994).




                              8
defendant that “if he is brought back into court on another
criminal charge, [he] will be treated more harshly[,] would
merely tell him what he must surely already know.”16

       Finally, Rengifo urges us to apply the rule of lenity
and reject the government’s interpretation. This argument
fails because the rule of lenity applies only if, “after seizing
everything from which aid can be derived, we can make no
more than a guess as to what Congress intended.”17 Because
we conclude § 4A1.2(k) is unambiguous, the rule of lenity
does not apply.

                               III.

       For the foregoing reasons, we will affirm the judgment
of sentence of the District Court.




16
     

v. Koray, 

, 65 (1995).




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