Filed: Dec. 16, 2008
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0448p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 07-2334 v. , > - Defendant-Appellant. - STEVEN SHOR, - N Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 06-20531-002—Lawrence P. Zatkoff, District Judge. Submitted: December 11, 2008 Decided and Filed: December 16, 2008 * Before: MARTIN a
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0448p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 07-2334 v. , > - Defendant-Appellant. - STEVEN SHOR, - N Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 06-20531-002—Lawrence P. Zatkoff, District Judge. Submitted: December 11, 2008 Decided and Filed: December 16, 2008 * Before: MARTIN an..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0448p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 07-2334
v.
,
>
-
Defendant-Appellant. -
STEVEN SHOR,
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-20531-002—Lawrence P. Zatkoff, District Judge.
Submitted: December 11, 2008
Decided and Filed: December 16, 2008
*
Before: MARTIN and GILMAN, Circuit Judges; CARR, Chief District Judge.
_________________
COUNSEL
ON BRIEF: James R. Gerometta, FEDERAL DEFENDER’S OFFICE, Detroit,
Michigan, for Appellant. Wayne F. Pratt, ASSISTANT UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Steven Shor challenges the sentence
imposed by the district court on the grounds that the presentence report improperly
*
The Honorable James G. Carr, Chief United States District Judge for the Northern District of
Ohio, sitting by designation.
1
No. 07-2334 United States v. Shor Page 2
calculated his criminal history. Because we find that the district court properly calculated
his sentence, we AFFIRM.
I.
Steven Shor pled guilty to a charge of conspiracy to distribute ecstasy pursuant
to Fed. R. Crim. Pro. 11. His plea agreement calculated a criminal history category of
I and an offense level of 21, yielding a guidelines range of 37-46 months. However, the
presentence report uncovered additional criminal history–an assault with a dangerous
weapon that resulted in a two-year probationary sentence imposed under Michigan’s
Holmes Youthful Trainee Act. Mich. Comp. Laws §§ 762.11-.15. Shor argued that this
was not a conviction under state law and thus should not be counted for criminal history
purposes under U.S. Sentencing Guidelines Manual § 4A1.1(c) (2008 supp.), but the
district court rejected this argument and assigned an additional criminal history point for
this offense under § 4A1.1(c). This had the effect of raising Shor’s criminal history
category to II. As a result, he was not eligible for the two-level “safety valve” reduction
and received a sentencing guideline range of 51-63 months. The district court sentenced
Shor to 60 months. He now appeals.
II.
As the Supreme Court explained in Gall v. United States, 128 S. Ct. 586 (2007),
we review district courts’ decisions under the advisory sentencing guidelines for abuse
of discretion:
In Booker we invalidated both the statutory provision which made the
Sentencing Guidelines mandatory, and [the provision] which directed
appellate courts to apply a de novo standard of review to departures from
the Guidelines. As a result of our decision, the Guidelines are now
advisory, and appellate review of sentencing decisions is limited to
determining whether they are “reasonable.” Our explanation of
“reasonableness” review in the Booker opinion made it pellucidly clear
that the familiar abuse-of-discretion standard of review now applies to
appellate review of sentencing decisions.
Id. at 594. This review has two components: procedural reasonableness and substantive
reasonableness.
Id. at 597. Whether the district court calculated a defendant’s criminal
No. 07-2334 United States v. Shor Page 3
history properly is an issue of procedural reasonableness, and, as the criminal history
calculation is “the starting point” of the sentencing process,
id. at 596, an improper
calculation is the sort of “significant procedural error” that constitutes an abuse of
discretion and thus requires reversal.1
Id. at 597, 598.
III.
The district court added one criminal history point pursuant to § 4A1.1(c), which
provides: “Add 1 point for each prior sentence not counted in (a) or (b), up to a total of
4 points.”2 The Sentencing Guidelines define “prior sentence” as it is used in calculating
criminal history under § 4A1.1 in § 4A1.2(a)(1): “The term ‘prior sentence’ means any
sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or
plea of nolo contendere, for conduct not part of the instant offense.” Id. (emphasis
added). As this provision makes clear, the Guidelines are concerned with the
“adjudication of guilt,” not how the resulting “sentence” is served. Thus, § 4A1.2(f)
provides:
Diversion from the judicial process without a finding of guilt is not
counted. A diversionary disposition resulting from a finding or admission
of guilt, or a plea of nolo contendere, in a judicial proceeding is counted
as a sentence under § 4A1.1(c) even if a conviction is not formally
entered.
Again, whether within the judicial process or not, the key consideration under the
Sentencing Guidelines is whether the defendant’s guilt was adjudicated. Consistent with
this, § 4A1.2(j) provides that “expunged” convictions are not “counted” for criminal
history purposes, because “expunged” means that the adjudication of guilt itself was
1
Both parties cite pre-Booker cases for the proposition that our review of the district court’s
interpretation of the Guidelines is de novo. This is incorrect: the Guidelines are advisory and thus a district
court’s interpretation of the Guidelines is only one factor in our holistic review for procedural
reasonableness. The Supreme Court was quite explicit on this point in Gall. Here, however, this
difference is immaterial, for the Supreme Court was also quite explicit in Gall that miscalculating the
Guidelines range is a “significant procedural error” that requires reversal. See Gall, 128 S. Ct. at 597, 598.
It is unclear in the wake of Gall when a procedural error is not “significant.”
2
Shor’s assault offense was not counted in (a) or (b) because those provisions only apply to
sentences involving prison time. “Sentence of imprisonment” is defined in § 4A1.2(b).
No. 07-2334 United States v. Shor Page 4
vacated because of demonstrable innocence or legal error.3 See U.S.S.G. § 4A1.2 note
10 (providing that sentences set aside “for reasons unrelated to innocence or errors of
law . . . are to be counted”); United States v. Hines, 133 F.3d 1360, 1367 (10th Cir.
1998) (holding that a conviction “expunged” under state law “for reasons not related to
constitutional invalidity, innocence, or errors of law” was not “expunged” within the
meaning of the sentencing guidelines); cf. Black’s Law Dictionary (8th ed. 2004)
(defining “expunge” as “[t]o erase or destroy”).
A guilty plea is a precondition of eligibility for the Michigan youthful trainee
program. Mich. Comp. Laws § 762.11 (“[I]f an individual pleads guilty to a criminal
offense, committed on or after the individual’s seventeenth birthday but before his or her
twenty-first birthday, the court . . . may, without entering a judgment of conviction and
with the consent of that individual, consider and assign that individual to the status of
youthful trainee.”). And, the record shows that Shor pled guilty in the 16th Circuit
Court, Mt. Clemens, MI, on October 31, 1997.4 Thus, his guilt was adjudicated and his
“sentence” is counted under the Sentencing Guidelines unless it was subsequently
“expunged.”
Shor’s sentence was not expunged within the meaning of § 4A1.2(j). While
Mich. Comp. Laws § 762.14(2) provides that “the individual assigned to the status of
youthful trainee shall not suffer a civil disability or loss of right or privilege following
his or her release from that status because of his or her assignment as a youthful trainee,”
this provision has no bearing upon the legal basis for the adjudication of his guilt. Thus,
it must be counted. Guidelines § 4A1.2 note 10 is quite clear on this point:
A number of jurisdictions have various procedures pursuant to which
previous convictions may be set aside or the defendant may be pardoned
for reasons unrelated to innocence or errors of law, e.g., in order to
restore civil rights or to remove the stigma attached with a criminal
3
Shor cites one case to the contrary, United States v. Hidalgo, 932 F.2d 805 (9th Cir. 1991). In
light of the clear terms of the sentencing guidelines and the fact that Hidalgo has been discredited even
in the Ninth Circuit, see United States v. Hayden,
255 F.3d 768, 773 (9th Cir. 2001), we decline to follow
it.
4
Shor was not in juvenile court, so the exception to § 4A1.2(f) does not apply.
No. 07-2334 United States v. Shor Page 5
conviction. Sentences resulting from such convictions are to be counted.
However, expunged convictions are not counted (emphasis added).
The Guidelines clearly distinguish between convictions of the sort at issue in this case
and those that have been “expunged.” This is consistent with the Guidelines’ definition
of a “sentence” as an “adjudication of guilt,” and with the Guidelines’ underlying policy
to promote nationwide uniformity in sentencing. Hines, 133 F.3d at 1364.
The district court properly counted Shor’s prior sentence for assault under
§ 4A1.1(c). Because Shor alleges no further error, we find his sentence to be
procedurally reasonable.
IV.
We AFFIRM the judgment of the district court.
