United States v. Parsons
United States v. Parsons
Opinion of the Court
ORDER
This matter is before the court for resolution of sentencing issues raised by Defendant Christopher Lee at his sentencing hearing held on September 18, 1997. Lee’s counsel raised two objections to the Presentence Investigation Report. The court ordered the parties to brief the issues. Lee submitted a brief on September 30 and the Government filed a response on October 9. No reply brief was filed by Lee.
As a preliminary matter, one of Lee’s objections is now moot. Lee had requested a departure pursuant to U.S.S.G. § 5K2.13, which provides for a departure based on diminished capacity. However, Lee pleaded guilty to armed bank robbery. Section 5K2.13 provides that diminished capacity may be grounds for a departure only where “the defendant committed a nonviolent offense ...” In his brief, Lee conceded that he “could not find any authority in support of a position that this particular offense should be considered a non-violent offense and would, accordingly, withdraw that contention.” Defendant’s Brief, p. 3. Therefore, Lee’s request for a departure pursuant to § 5K2.13 is moot.
Lee maintains that he should not be assessed an additional two points pursuant to U.S.S.G. 4Al.l(b), the Guideline section pertaining to the calculation of a defendant’s criminal history category. That section provides, in relevant part, as follows:
The total points from items (a) through (f) determine the criminal history category in the Sentencing Table in Chapter Five, Part A.
(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).
The commentary to § 4Al.l(b) states, in relevant part, as follows:
Two points are added for each prior sentence of imprisonment of at least sixty days not counted in § 4Al.l(a).
Certain prior sentences are not counted or are counted only under certain conditions:
An adult or juvenile sentence imposed for an offense committed prior to the defendant’s eighteenth birthday is counted only if confinement resulting from such sentence extended into the five-year period preceding the defendant’s commencement of the instant offense. See § 4A1.2(d).
Thus, § 4A1.1 must be read in conjunction with § 4A1.2.
(d) Offenses Committed Prior to Age Eighteen
(A) add 2 points under § 4Al.l(b) for each, adult or juvenile sentence to confinement of at least sixty days if the defendant was released from such confinement within five years of his commencement of the instant offense.
In the present case, Lee’s criminal history category was increased pursuant to these sections “as a result of his having been com
Notwithstanding the foregoing, Lee argues that the two Guideline sections are mutually exclusive, at least as they apply to the facts of this case. He claims that he “should only be assessed under one of these sections.” Defendant’s Brief, p. 3. Lee points to the fact that the language in § 4Al.l(e) specifically refers to “release from imprisonment,” whereas the wording in § 4A1.2(d)(2)(A) refers to release from confinement. Lee states that he “believes it is an important consideration that under [ § 4A1.2(d)(2)(A)] the two points are assessed for a juvenile sentence of confinement rather than a term of imprisonment under § 4Al.l(b).” Id., p. 1. In the present case, Lee “was adjudicated a delinquent under the provisions of the juvenile code and committed to the Indiana Boys School.” Id., p. 2. Therefore, Lee argues, “[i]t is the Defendant’s position that he was not imprisoned as an adult but was rather confined or committed based upon a juvenile adjudication of delinquency.” Id. Lee claims that this distinction between “imprisonment” and “confinement” is important in understanding how these two Guideline sections' operate. As Lee explains it:
[T]he sentencing guidelines themselves draw a distinction between imprisonment on an adult offense and confinement as the result of a juvenile adjudication. This distinction is found at subsection 4A1.2(d). Subsection (1) refers to a situation where a juvenile has been “convicted” as an adult and has received a “sentence of imprisonment.” This would be a situation where a juvenile has been waived to adult Court, tried as an adult, found guilty and convicted as an adult and has received a sentence of imprisonment to an adult facility at the Department of Corrections. Subsection (2) refers to a sentence of confinement (as opposed to imprisonment) which would incorporate the March 1996 case where Defendant was adjudicated a delinquent ...
The fact that the language of subsection (d) refers to an instance in which a juvenile would have been convicted as an adult and received a sentence of imprisonment and then makes a different provision for a juvenile who has not gone through the adult system but has been retained in the juvenile system clearly shows that the Commission recognized the distinction and considered them to be different situations.*1192 and imprisonment.... None of those eases, however, present the same fact scenario as is present in this case.” Id.
*1192 It is the position of the government that “there is no distinction between imprisonment and confinement under § 4 of the United States Sentencing Guidelines.” The government argues that:
Section 4A1.2(b)(l) states “[t]he term ‘sentence of imprisonment’ means a sentence of incarceration and refers to the maximum sentence imposed.” This section makes no exception for the term “confinement.” In addition, Commentary note number 4 [to] § 4Al.l(e) states, “[t]wo points are added if the defendant committed any part of the instant offense (i.e. any relevant conduct) less than two years following release from confinement on a sentence counted under § 4Al.l(a) or (b).”
Government’s Brief, p. 2. The government contends that the language quoted above supports its conclusion that the Guidelines make no distinction between imprisonment and confinement for purposes of applying the provisions of § 4. Consequently, argues the government, “the Presentence Investigation Report is correct and the defendant should receive 2 points for the commission of his last juvenile offense and an additional 2 points because the instant offense occurred within 2 years following release from juvenile confinement.” Id., pp. 2-3.
The court disagrees with Lee’s assertion that there are no eases addressing this issue. The Sixth Circuit dealt with this issue in United States v. Hanley, 906 F.2d 1116 (6th Cir. 1990). Defendant’s Brief, p. 2. The situation in Hanley was virtually identical to the issue in the present case.
Finally, it is instructive to note that § 4A1.2 contains several provisions detailing types of sentences that are not to be counted in calculating a defendant’s criminal history category, including diversionary dispositions, certain military sentences, foreign sentences, and tribal court sentences. § 4A1.2(f), (g), (h), and (i). Juvenile adjudications are not listed among these exceptions.
Based on the discussion above, the court holds that a defendant’s juvenile commitment
CONCLUSION
For the foregoing reasons, Defendant Christopher Lee’s objection to the Presen-tence Report is DENIED.
. In fact, the commentary to § 4A1.1 specifically states that "[t]he definitions and instructions in § 4A1.2 govern the computation of the criminal histoiy points. Therefore, §§ 4A1.1 and 4A1.2 must be read together.”
. Lee claims that the Hanley case does not "present the same fact scenario as is present in this case.” While it is true that Hanley challenged his Guideline calculation on different grounds than Lee, his challenge was nonetheless a challenge to a two-point enhancement based on a juvenile adjudication, and the holding in the case is quite clear that such an enhancement is proper.
Reference
- Full Case Name
- United States v. Donald PARSONS and Christopher Lee
- Status
- Published