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Hello, and welcome to our program.
I am Rachel Pierce, and I'm joined today by my colleague
Krista Rubin.
And we're here today for the very first time on our brand new set here at the FJTN, so
we're excited about that.
Today's broadcast, Advanced Guideline Issues, continues our series of interactive broadcasts
that deals with advanced guideline topics.
And today we're going to focus on criminal history.
Primarily we are going to be focusing on Guidelines 4A1.1
and 4A1.2,
as there it is you will find your directions for computing your defendant's criminal history
category as well as the necessary
instructions and guideline application issues that you need to be aware of.
Now our goal today, of course, is to provide you with a greater understanding of how these
guidelines work
and how to calculate your defendant's criminal history score.
And we're going to do that today through discussion between Krista and I,
as well as using fact patterns to illustrate
particular subsections of both 4A1.1
and 4A1.2
and the impact that those guidelines have on determining the defendant's criminal
history category.
First, we're going to provide you with a basic overview of the criminal history guidelines,
paying particular attention to the time frames that are relevant when scoring prior convictions.
Then, of course, we're going to move on to some more advanced issues, as our
title of our show would suggest.
We're going to talk about the treatment of multiple prior sentences
as well as how revocations play into
the treatment of multiple prior convictions.
And then, of course,
we are going to address some of the questions that we have from you, our audience. We've already
gotten some questions prior to our broadcast, so we're looking forward to addressing those
with you.
However, before we get started with the meat of our program today, Krista, if you would just
run us through some of our housekeeping items that our viewers need to be aware of today.
Sure. Well, I would like to let you know, of course, that the slides that we're going to be using
throughout the broadcast which contain our fact patterns that we're going to be relying
on
are up on the FJC's DCN site.
And you can see that Web address at the bottom of your screen right now.
Also, as Rachel mentioned, we did get some faxes in advance of the broadcast that
we are going to be addressing later today.
But we certainly would encourage you
to continue to fax in your questions to us
throughout the broadcast, and there are two ways that you can do so.
You can see the fax number at the bottom of your screen, and we'll be showing that
to you throughout the program,
but also you can e-mail us your questions directly
to the studio at
fjtn@fjc.gov,
and again, we will be showing that
throughout the broadcast. You can use your desktop computer or even your BlackBerry
if
you have a burning issue you'd like us to address later on.
We understand, of course, that our audience has a wide variety of experience.
Some of you have been working with the Sentencing Guidelines for a very long time.
Others of you are relatively new to the system.
And so we're going to do our best today
to ensure that everyone
comes away from the program with a working knowledge
of the criminal history guidelines
and, of course, as the title states, the advanced issues that we're going to get into
a little bit later on in the broadcast.
Before we get into our topics directly, I want to remind you, of course, of
the Sentencing Commission's Help Line.
And that is available for those of you that have more basic questions that you'd
like to discuss with us
or those of you that have more advanced issues that you'd like
for us to address later on.
The Commission's Help Line operates Monday through Friday from 8:30 a.m. until
5:00 p.m.
Eastern Time. And you can see that number
on the bottom of your screen.
Thanks, Krista. I appreciate that.
We will go ahead and begin our discussion today with a brief overview of criminal history.
As most of you are aware,
the guidelines take into consideration not only the seriousness of the instant offense of
conviction,
but also the severity of the defendant's prior criminal record.
As you can see
from the sentencing table here,
guideline application involves the calculation of two scores.
First, based on the severity of the offense,
the guidelines will assign 1 to 43 of the 43 offense levels
to that offense.
These offense levels are on the vertical axis of the table.
Secondly, each defendant is also assigned
to 1 of 6 criminal history categories,
which are, of course, found across the top, or the horizontal,
axis of the sentencing table.
The criminal history category is based upon the extent and recency of the defendant's
prior record.
The point at which the offense level
and the criminal history category
intersect on the table
provides the guidelines range for that defendant for the court.
Now the criminal history score is
primarily determined by looking at Guidelines 4A1.1 and 4A1.2,
as I mentioned at the beginning of our broadcast, and the majority on this broadcast will focus
on those two guidelines.
These guidelines work in tandem
to provide the basic instructions necessary for computing a defendant's criminal history.
4A1.1 provides
basic criteria that the court is to look at when determining a defendent's criminal history
category and focuses primarily on three specific factors:
number one--prior sentences,
number two--status,
and number three--recency. And we will go into a little more depth about each of these
as the show goes on.
4A1.2
provides a list of instructions and definitions that are necessary in determining
what your prior convictions are going to score,
and ultimately the criminal history category of the defendant.
Now, our fact patterns are going to address the various definitions and analysis that you find both
at 4A1.1 and 4A1.2
specifically related to determining
the defendant's criminal history category.
Now, Rachel, let me just pause here for a moment and address criminal history overrides.
Now, as we've been mentioning so far in the beginning of our broadcast, we are going
to focus on the guideline
provisions at Chapter 4, Part A,
but please keep in mind that proper calculation of the criminal history score
would also require the court
to look to Chapter
4, Part B of the Guidelines Manual,
which contains other guidelines addressing defendants
with particular types of criminal history
and provides increased penalties for those particular types of defendants.
So, on your screen you can see these overrides. And even though we will not be addressing
the provisions of career offender,
armed career criminal, or repeat and dangerous sex offender against minors today
(those are topics for another broadcast),
be aware that the criminal history calculations that Rachel and I are discussing
today under 4A1.1
and 4A1.2
may very well be impacted
by those criminal history overrides.
Thanks, Krista, for pointing that out. That's a good point there.
Each qualifying prior sentence, as you can see from our next slide,
that is accountable under the provisions of 4A1.2
is going to receive either 1,
2, or 3 criminal history points.
Additionally,
there's a 2 point increase at 4A1.1(d)
for the defendant's status
during the instant offense
of conviction--
that is, if he or she was under a criminal justice sentence at the time the offense was committed.
Finally, the defendant may receive an additional point or two, possibly,
for recency, if the defendant commits the instant offense less than 2 years after release
from imprisonment on a prior sentence.
So let's look first at how the guidelines address prior sentences at 4A1.1(a),
(b), and (c).
In order to receive
points
for a prior sentence, the court must consider two factors:
first, the length of the prior sentence,
and second,
the time frame within which that prior sentence was imposed.
Now let's take a look at how 4A1.1 applies to prior offenses
committed at the age of 18 or older.
A prior sentence of imprisonment exceeding 13 months will receive 3 criminal
history points
if the imposition of the prior sentence
or the release date of that prior sentence
is within 15 years of the instant offense of conviction.
A prior sentence of imprisonment of at least 60 days
but 13 months or less
will receive 2 criminal history points
if the imposition of that sentences is within
10 years
of the instant offense of conviction.
Finally, all other countable prior sentences will receive 1 criminal history point, with
a maximum of 4 points.
So the court will be capped at 4 for the 4A1.1(c)
offenses--those 1 point offenses. And again,
the time frame there is a 10 year window.
Now let's take a look at offenses committed before the age of 18.
In contrast, you will see that the only difference is for 2 and
and 1 point offenses. At the bottom right of this chart, you can see that that 10 year
window
that would normally apply for offenses committed
at the age of 18 and older
has been reduced to a 5 year window.
Again, in addition to the criminal history points assigned pursuant to the length of the
sentence,
the defendant may also receive additional criminal history points for status and recency.
So if that defendant
is under a criminal justice sentence
at the time the instant offense is committed,
meaning a criminal justice sentence, probation, parole, supervised release,
imprisonment, work release, or even escape status--
if any of those
criminal justice sentences apply, if the defendant is under any of those--
he or she will receive an additional 2 points for the status of being under a criminal justice
sentence, and that's pursuant to 4A1.1(d).
Now, it's important to know that that this increase for status is only applied
one time.
Now, when you're
calculating your defendant's criminal history, you are obviously scoring
oftentimes multiple prior convictions, and so each one of them--
if they're countable--will score 1, 2, or 3 points.
However, when you're giving status points, that
is only applied one time based on the defendant's
status.
Similarly, under 4A1.1(e),
the defendant will receive an additional 2 point increase
if that defendant committed the instant offense less than 2 years
after release from imprisonment on a 2 or 3 point sentence, that is, a sentence that
has already been counted
for 2 or 3 points.
However,
it's also important to note here that if the defendant gets those 2 points for status,
he's only going to get 1 point
under recency at 4A1.1(e).
Well thanks, Rachel. I think we've got a good
basic outline for how
criminal history points are assigned
under Guideline 4A1.1.
We're going to turn our attention now to Guideline 4A1.2,
which is the guideline that contains the definitions and instructions
that are necessary to calculate the criminal history score.
Now, Guideline 4A1.2 provides the rules
for whether a prior sentence is
"countable,"
meaning
whether the prior sentence will receive
criminal history points under 4A1.1.
Now, let me just comment generally on the rules of 4A1.2.
One the issues regarding the calculation of the criminal history score
is that when we're looking at Chapter 4,
Chapter 4 in the Guidelines Manual
must contain information and
contemplate
all of the different ways that sentencing
can occur,
not only in the federal system
but also in
the U.S. territories
in all of the 50 states
as well as
local jurisdictions and other municipalities.
So there may be times where
a particular sentence isn't
contemplated fully
by a particular rule at 4A1.2.
And in those instances
you must look at
your pertinent case log of your circuit.
Sometimes your district or your particular office
has a method for ways to consider particular types of sentences that
you've come across over a period of time.
So, just please keep that in mind for recurring issues.
You definitely will need to look at your case law as well as precedent that has been
established
in your district.
Now, having said that,
the first issue the court must face in the calculation of the criminal history score
is the determination of the length of a prior sentence.
So the length of the prior sentence
is the basis for the number of points
that will be assigned
to a particular prior sentence under 4A1.1.
Now, according to 4A1.2
and Application Note 2,
the length of a prior sentence is set by the maximum sentence imposed.
However,
if the sentence or any portion of that sentence is suspended,
the maximum is established by the unsuspended portion.
So, for example, if a defendant is sentenced to 5 years of imprisonment,
suspended upon service of 1 year of imprisonment, with 2 years of probation to follow,
for purposes of 4A1.1,
the length of that prior sentence is 1 year of imprisonment,
which would
result
in 2 criminal history points under 4A1.1(b).
Now, additionally, regarding the length of a prior sentence,
it is unaffected by release--
that is, the length of a prior sentence
is based upon the sentence pronounced,
but not the time that was actually served.
So those are two things to keep in mind for determining the length of a prior sentence.
But there's another consideration that must be established
besides the length that the court must consider early on in the determination of
criminal history points.
And from Rachel's brief overview of 4A1.1, it is
evident that the appropriate calculation of the criminal history score
involves a comparison
of the defendant's prior sentence
to the instant offense,
especially for the purpose
of establishing the time frame
for counting that prior sentence.
But there's a question
of whether the prior sentence is part of relevant conduct.
So the "bright line rule"
is
conduct that is part
of the relevant conduct of the instant offense
will not
be a "prior sentence"
for the purpose of criminal history.
Now, what that
means is that if the conduct involving the prior conviction
is relevant conduct to the instant offense,
that prior conviction
cannot receive
criminal history points under Chapter 4.
However, as the old saying goes,
there are exceptions to the rule,
and there are exceptions to this rule as well.
The exceptions to this rule
can be found in the Chapter 2 guidelines addressing
felon in possession under 2K2.1
and illegal reentry under 2L1.2.
These Chapter 2 guidelines specifically state,
in their application notes, that for the purpose of calculating the offense level, again under
2K2.1 and 2L1.2,
any prior sentence
that is considered in the Chapter 2 calculation may also be used for the purpose of calculating
the criminal history score
if that prior sentence is otherwise countable,
meaning that it meets the definitions and instructions as provided in
4A1.2.
Krista, you've talked with us about how relevant conduct
impacts criminal history, and it does, and this, of course, is
a criminal history broadcast, but relevant conduct, as Krista has already shown us,
does impact criminal history and interplay with criminal history
and it also becomes crucial
in helping us determine our time frames, because for criminal history purposes
we're always counting back from the earliest date of relevant conduct. So again,
relevant conduct is going to impact our criminal history determinations.
As you can see from this chart--
on the left-hand side of this chart are the relevant time frames, and we've already talked
about these--the windows, if you will--5, 10, and 15 years that we're counting back for prior
convictions.
Along the bottom of the chart
are four dates that are relevant to the instant offense:
that's when the offense is committed,
the date of plea--the date the defendant enters his plea,
the date the defendant goes to sentencing,
and the earliest date of relevant conduct.
And again, for criminal history
purposes, the court will count back from the earliest date of relevant conduct
to determine if a prior sentence falls within the applicable time frames
in order to assign the required or necessary criminal history points.
So to help further illustrate this concept, let's take a look at our first fact pattern.
We have a defendant here whose offense of conviction is 21 U.S.C. 846;
it's a drug conspiracy offense.
This particular drug conspiracy lasted from July 2004
through March 2007.
As you can see, the defendant put his plea
in in July of 2007 and went to sentencing in January 2008.
Now, the defendant has a prior conviction for robbery
for which the defendant was sentenced to 4 years of imprisonment at the state level
in June of 1998.
Now, the defendant was released on that robbery conviction in March 2001
and placed on parole
for a year.
Now, the presentence report in this case
includes drug sales the defendant made in furtherance of this conspiracy that he's convicted
of
prior
to the dates of the
indictment--
that is, July 2004
dating back all the way to July 2001.
So, of course, the question now is
how many criminal history
points is this defendant going to receive in this scenario?
Well, the prior sentence for robbery will receive initially 3 points based on
the fact that the the state imposed a 4 year sentence of imprisonment.
However, because we count back from the earliest date of relevant conduct, which in this case is
2001,
this defendant will also receive points
for status--that is, being under a criminal justice sentence--because the defendant
was still on parole
when he made this
sale
in July of 2001--again, that being the earliest date of relevant conduct.
In addition,
the defendant's going to get points for recency because he committed that instant offense
less than two years from release of imprisonment on that robbery conviction. Again,
focusing on that earliest date of relevant conduct.
You can see the impact that it has, because if we didn't look at the earliest date of relevant conduct in this particular
scenario,
the defendant would not receive additional points for status and recency--
only the
3
points that the robbery conviction would score
on its own for that 4 year sentence of imprisonment.
So I think that
we have a good foundation for how the criminal history guidelines work.
We've walked through an example of basic calculations, we've added points for status and
recency
and how that
plays into determining the defendant's prior criminal record.
But let's go ahead now and move on to some more advanced issues, as we promised you at the beginning
of our broadcast.
Alright. So let's move on now and start to discuss the treatment of multiple prior sentences.
Now where a defendant
has multiple prior sentences, the court will need to make a determination
as to whether these prior sentences
should be counted separately
or whether they should be treated as a single sentence.
So, for example,
if a defendant has two prior convictions resulting in sentences--one from October 2005,
one from December of
2005,let's say--
the court must decide whether to assign criminal history points
to each separate sentence
or whether to treat these two priors as a single sentence
and therefore assign
one set of criminal history points
to the group
of two prior sentences.
Now, prior to 2007,
this analysis was known as "the related cases rule."
However, effective November 1, 2007,
the Commission amended this guideline and removed the term "related cases"
and its particular analysis from 4A1.2.
So the required analysis, then, as of November 1, 2007,
is whether multiple prior sentences are to be treated separately
or as a single sentence. So that's the new vocabulary that
we're dealing with
now.
Now, fortunately, there's a threshold determination
that must be made
in order to determine how multiple prior sentences are to be treated.
And it is based upon the arrest dates for the prior offenses.
Multiple prior sentences for offenses separated by an intervening arrest
are counted separately.
There is no additional analysis needed.
Each prior sentence will receive its own criminal history points.
Again, based upon the length as established in 4A1.1,
if there is an intervening arrest, each prior sentence will receive either 1, 2,
or 3 criminal history points.
So, for example,
if in the past
a defendant committed an offense
and then was arrested for that offense,
then committed another offense
and was arrested,
those are offenses that were separated by an intervening arrest.
Each of the resulting prior sentences from those offenses will receive
criminal history points.
In contrast, however,
where a defendant committed
three offenses
and then was arrested,
or where a defendant
committed three offenses
and then was arrested on three separate occasions
for all of those offenses,
those offenses are not
separated by an intervening arrest.
So, at this point, then, the court will need to move on and look to the
other criteria in order to determine
whether those offenses should receive separate
criminal history points
or should be treated as a single sentence.
So let's move on now and look at the additional single sentence criteria.
So, again, we are talking about offenses
not separated by an intervening arrest. As you can see
on your screen right now, that is the first
consideration that must be made. So
for offenses not separated
by an intervening arrest
and
for those prior sentences that were either
named in the same charging document
or
resulted in sentences imposed on the same day,
those multiple prior offenses
will receive
one set of criminal history points
as a group
instead of
separate criminal history points
for each prior sentence.
Now, once the court establishes,
based upon the criteria that we just reviewed,
that multiple prior sentences are to be treated as a single sentence,
we need now to determine
the length of that single
sentence.
So remember, because we're not adding criminal history points for each individual
prior sentence,
we're going to have to figure out what the length is for this group
of prior sentences
that are to be treated as a single sentence.
So, how do we determine the length? Well,
it is based upon whether the sentences were imposed to run concurrently
or consecutively.
So to determine the length of a single sentence
if concurrent sentences were imposed,
the longest sentence imposed will be used to calculate the criminal history points.
However, if consecutive sentences were imposed,
the aggregate length of the sentences will be used to determine the criminal history
points.
So, let's take a look at some examples.
In this first example, you can see the three prior sentences:
a one-month sentence of imprisonment,
a concurrent sentence of four months of imprisonment,
and another concurrent sentence of nine months of imprisonment.
Now, the guidelines instruct that for concurrent sentences
we are to look at the longest sentence imposed, which in this case is nine months,
and under Guideline 4A1.1(b),
that would result
in the assignment of 2 criminal history points
for this group of prior sentences.
Now, in contrast,
if we take those same prior sentences
of those same lengths, one month of imprisonment, but now we're going to look at consecutive
sentences--we have an additional sentence of four months consecutive
and an additional sentence of nine months consecutive--
the rule changes now. The length of the prior sentence is going to be determined on the
aggregate amount of time that was imposed.
So when we add up all of that time,
that results in the length of the sentence being fourteen months,
which would result
in the application of 3 criminal history points
for that group of
prior sentences.
Now, Krista, let's go ahead and look at Fact Pattern number 2
to further examine this analysis of multiple prior sentences.
In this fact pattern, we have a defendant who has committed two prior robbery offenses, both armed
bank robbery,
one in January of 2003 and the second in February of 2003.
Now, the defendant is arrested for both of these robberies
on April 29.
The defendant is charged in two separate indictments
but sentenced on the same day--on May 2.
The court imposes five years on the first robbery
and five years to run concurrently on the second robbery.
So, when we're at sentencing and we are examining the defendant's
prior criminal record, we're looking at these two prior offenses and trying to determine
if we're going to score them as a single sentence.
And, of course, the threshold determination--or decision that has to made--is whether
or not these offenses are separated by an intervening arrest.
Well, given the fact that the defendant was arrested on April 29 for both of
these robberies, in this case we have no intervening arrest.
So then we need to move on to the criteria at 4A1.2(a)(2)
to help us determine if, since there is no intervening arrest, can we then treat these
two prior sentences as a single sentence and assign them one set of criminal history points?
Well, they were not
in the same indictment. They were in two separate charging
instruments,
but they were, however, sentenced on the same day,
and the criteria only requires that one of those apply--that they either be in the
same charging
document
or be sentenced on the same day.
So, in this case, even though they're not in the same charging document,
we do have the two robberies sentenced on the same day. Therefore, they will be treated as
a single sentence.
Since the court imposed
five years on each robbery to run concurrently,
we'll look at that five-year sentence to determine that these two prior robberies will be scored
as a single sentence
and given three criminal history points.
Now, Rachel, we haven't yet discussed this particular provision of
4A1.1, and that's 4A1.1(f).
But this particular fact pattern would implicate
the application, so
let's just take a minute and talk about
that provision under 4A1.1(f).
Absolutely. 4A1.1(f)
states that when multiple prior sentences are treated as a single sentence, as we have in
the fact pattern that we just discussed,
1 additional point is added for each crime of violence that did not result in additional
points under 4A1.1
(a), (b), or (c).
So, again, looking at Fact Pattern number 2,
we have the robbery of bank 1
and the robbery of bank 2, again sentenced on the same day not separated by an intervening
arrest, a
5 year sentence on each of them.
A single sentence, as we have already determined, for 3 points, but because of
4A1.1(f),
the guidelines would have us add an additional point to these
two prior sentences
treated as a single sentence.
So, the impact would be that at the end of the day the defendant now
has 4 criminal history points
as opposed
to 3. And, of course, that has consequences-- or implications, if you will--
because 3 criminal history points
would put the defendant in a criminal history
category 2,
and when you add that extra point under 4A1.1(f),
that defendant now moves to a criminal history category 3.
So, you can see in some instances, particularly obviously with the crimes of
violence at 4A1.1(f),
the defendant may be getting additional criminal history points in
the treatment of multiple prior sentences.
Now that's not the general rule. For the most part, it's
fair to say
that when you treat multiple prior sentences as a single sentence, it will typically
result in fewer criminal history
points being assigned
for prior convictions.
Now this, of course, has implications as well when it comes to career offender.
4A1.2
requires that
prior
convictions or prior convictions that are treated as predicates for purposes
of career offenders
are to be scored
separately.
So, in this case, because we had two prior bank robberies that were treated as a single
sentence,
that would only qualify as one predicate for a
career offender. So you can see the impact that
the scoring of multiple prior sentences
and treating them as a single sentences might have on the application of career offender
further down the line.
Well it's time to move on to our next advanced issue of this broadcast, and,
of course, an advanced guideline issue broadcast on criminal history would not be complete
without a discussion of prior convictions that involve a revocation of some type.
So, we're turning our attention now to Guideline 4A1.2(k)
as well as Application Note 11,
and
both of those sections of 4A1.2
will inform us
about prior revocations when we are looking at
prior sentences.
Now the guideline at 4A1.2(k) and Application Note 11
provide us instruction regarding prior revocations of probation,
parole,
supervised release,
or mandatory release.
And we're going to take some time now and review those rules and, of course, use
some fact patterns to
go on through the analysis.
So, the general rule regarding prior revocations
is that a prior revocation along with the original sentence
taken as a whole,
or aggregated,
will receive one set of criminal history points.
So to achieve
this result,
the imprisonment time at the original sentencing, if any,
will be added to the imprisonment time imposed upon the revocation.
So one set of criminal history points will be given to this aggregate amount of
imprisonment time.
The original term, as I said,
combined with the term imposed upon revocation.
Now, additionally,
Application Note 11 states
that where revocation applies to multiple separate sentences,
the time imposed upon revocation
will be added to the one prior
that results in the greatest number of criminal history points. And we'll get to that
analysis in
just a few moments.
So, let's look at our first fact pattern
regarding the application of 4A1.2(k).
Now Fact Pattern 3 looks at the issue of adding the time imposed at the original
sentencing
with the time imposed upon revocation.
This fact pattern involves the defendant who was originally sentenced
to 3 years of imprisonment
suspended upon service of 1 year,
with 5 years of probation to follow.
The probation was revoked,
and the court imposed 6 months
for that revocation.
So, when we are looking at the length of
time in order to determine the criminal history points, we know we are not
counting suspended portions of prior sentences.
So we are looking at the original sentence of
1 year imprisonment, and
we are going to add to that
the 6 months
that were imposed by the court upon revocation,
for a
total sentence of 1 year and 6 months,
which would result in
3 criminal history points.
So, as a result of 4A1.2(k) and its general rule,
the total number of points, again, will be 3.
And, in fact, the rule at 4A1.2(k)
ensures that no prior sentence individually
would ever receive
more than 3 criminal history points
because
that rule requires
the court to look to adding the original term
to the term imposed upon revocation.
So, there will never be more than 3 criminal history points
added for a particular
prior
sentence.
But let's move on now to another piece of of this analysis,
and that is a revocation that applies
to multiple separate sentences, as described in Application Note 11
under 4A1.2.
So let's look now at Fact Pattern 4,
which involves three prior original sentences.
You can see there was an original sentence of 2 months with 3 years of probation--
that would be a 2 point sentence under 4A1.1(b).
The other sentence is 6 months' imprisonment with 4 years of probation--again a 2 point
sentence under 4A1.1(b).
And then the final
prior sentence that we're going to be talking about in this fact pattern was a sentence of
3 years of probation, which, of course, would warrant
1 point
under 4A1.1(c).
Now, in this instance,
all the probations were revoked.
So we have
what is described in Application Note 11. The court in this instance imposed
6 months.
Now, Application Note 11 would direct
us to add
the imprisonment time to the
prior sentence that would result in the greatest increase of criminal history points.
Well, when we go through them step by step,
the 2 month sentence, when you add the 6 months to that,
it results in an 8 month sentence, which remains a 2 point conviction.
The 6 month sentence, when you add the 6 months imposed upon revocation for that particular
offense,
that's a 12 month sentence; that also remains a 2 point conviction.
But when we look at the original sentence of probation, which, of course, would be zero
months of imprisonment,
and you add the 6 months imposed upon revocation
to that particular sentence,
that becomes a 6 month
sentence, which would increase the criminal history points assigned to that prior sentence
from 1
to 2.
So, in this fact pattern,
the court should add
the 6 months imposed upon revocation
to that probation sentence, as that would result in the greatest increase
of criminal history points.
Now, another point I'd like to make
regarding revocation
is that sometimes a revocation hearing
may also involve a new criminal conviction
for the conduct that sort of underlies the revocation,
and in that case
please be sure that sentences
for new criminal convictions
imposed at the time of the revocation
are to be counted
separately.
So, the rule at 4A1.2(k)
contemplates adding the revocation time
to the original sentence,
but it is not discussing aggregating that time with any new criminal convictions
that resulted from that
revocation conduct.
Now, there are also additional consequences to adding on
revocation time
to the original term of imprisonment,
and one of them being that when that happens, sometimes the time period under which certain
sentences are counted
may be affected.
And there are two particular cases in which the date, the last date of imprisonment, controls,
one being adult sentences greater than 13 months,
and the other being any sentence imposed for offenses committed prior to the defendant's
eighteenth birthday.
Now, what this
means is
that some prior sentences that would otherwise be too old to count
are now going to become countable
because of the adding of that time--adding of that revocation time.
Now it's important to remember that those are the two instances in which the time periods
are affected, that is,
an adult sentence exceeding 13 months
or
a sentence committed prior to the defendant's eighteenth birthday.
In any other case,
the date of the original release from imprisonment is what controls in those cases.
So, as always, it is best to
illustrate what we're talking about
through an example.
So, let's look at Fact Pattern 5 to better understand this particular analysis.
Twenty five years ago
the defendant was sentenced to a sentence of imprisonment of
12 years.
Now, ordinarily a 12 year sentence would receive 3 criminal history points, but again
remembering our time frame's
15 year window, this 25-year-old conviction would be too old to be counted for
purposes of criminal history.
So the defendant serves 8 years
of those 12 years that he is sentenced to, and he's paroled 17 years ago.
Okay, again, not within the 15 year time frame. However,
13 years ago
that defendant has his parole revoked
and he's imprisoned for 90 days.
So it's the revocation of this parole
that is allowing us to bring this prior sentence that initially would have been too
old to score
into the time frames and, therefore, countable for purposes of criminal history.
The initial sentence was an adult sentence exceeding 13 months--that's one of those
two
exceptions, if you will--
and that revocation within the time frame brings it in to make it a
countable sentence.
But let's look at another example where the situation might be a little bit different.
Twelve years ago
we have a defendant who was sentenced to a
sentence of imprisonment for 10 months with probation to follow.
Normally, this particular sentence would score as a 2 pointer within a 10 year
window.
So, 12 years ago would make that
particular
sentence too old to count,
but is the revocation going to impact
at all
in any way
because 9 years ago the defendant's
probation was revoked and he was imprisoned
for 2 months and then released from custody.
So the question, again, is the same as it was in the first fact pattern: Is this going
to at all impact
the time period in which certain sentences can be counted?
In other words,
is the revocation going to allow this particular sentence
to be brought in
and counted?
Well, remember, again, we're looking at adult sentences that exceed 13 months. So this
initial sentence was only 10 months.
Adding that revocation time on, which is two months in this case,
still does not get us to an adult sentence exceeding 13 months. So in this particular
case
the revocation time is not going to affect the counting of the prior sentence. It is not going to
bring it into the time frame, if you will,
and it's going to be too old
to count. The final point
that I'd like to make regarding the revocation rule is that there may be times in which the revocation
time
added to the original sentence
may result in the applicable time frame increasing from 10 to 15 years
because the addition of the revocation time
increases the sentence length
to greater than 13 months.
Again, let's take a look at a fact pattern, which is the best way to illustrate
these complex concepts for guideline application.
Fact Pattern number 7
has an adult sentence of 1 year
of imprisonment with 5 years of probation
to follow that was imposed 14 years ago.
The defendant served his 1 year of imprisonment and was
released to probation 13 years ago.
Now, 12 years ago that defendant's probation was revoked, and the defendant was sentenced
to 90 days.
So initially,
this sentence would have been a 2 point sentence and would have been too old
to score
for purposes of criminal history, but because of that revocation
and adding that revocation time on to the initial sentence,
we now have what is essentially a 15 month sentence.
And you may recall from earlier in our broadcast that any
sentence exceeding 13 months has a 15 year window that you're looking
at.
So, you can see how the adding on of revocation time in this particular fact pattern
increases that window that the court is looking at from what was initially 10 years to 15
years
and again impacts the counting of
that prior conviction.
Alright, we've talked about a lot of information today. We've talked and we've
given you a basic overview of the criminal history guidelines.
We did some basic calculations, adding some points for recency and status.
We moved on to talk about the treatment of multiple prior sentences. Again,
the most important thing you have to remember with the treatment of multiple prior sentences
is
if there is an intervening arrest.
If there's an intervening arrest between prior sentences,
those sentences are
always counted separately. They will never be treated as a single sentence.
If, however, there is not
an intervening arrest,
there are two criteria--one of two criteria--that has to be met in order to treat those multiple
priors
as a single sentence.
And again, to remind you, those
prior offenses either have to be in the same charging document
or they have to be sentenced on the same day.
So there are important things to remember when you're dealing with the treatment of multiple prior
sentences.
And then, of course, we moved on and just finished up talking about how revocation affects
the treatment of prior sentences--
not only adding time on to the original sentence but also how that affects potentially the
time frames that you're looking at
for counting prior sentences.
So, having kind of recapped for us, let's go ahead now, Krista, and get to some of those
questions that we got
before we were even on the air today. We received a couple of questions that we would like to
address now.
Yes, and thank you so much again for sending them to us in advance.
We do have some faxes that we received
from
a number of you now out in our audience
today.
And just before we get started on the faxes,
I just want to point out that
what these faxes may illustrate for some of you is
when we look at 4A1.2, just how differently sentences are imposed
in different
jurisdictions.
So, again, we are going to answer these questions and address these particular issues.
The first one actually comes to us from the Middle District of Georgia. So, hello,
Georgia Middle.
Thank you to Mr. Jeffrey Ross for sending me this question.
And just to give you an outline of the facts that we have,
the defendant has three prior sentences
for reckless driving,
driving with a suspended license, and false information to a police officer.
All three of these prior sentences received a sentence of 12 months
of probation,
the court imposed them to run
consecutively,
and there was no intervening arrest.
Now, what is interesting about these prior sentences is that they are in a particular
list in 4A1.2,
and that is 4A1.2(c).
So we're going to pull up the slide right now and just review briefly what 4A1.2(c)
contemplates.
And basically what 4A1.2(c) addresses are prior offenses
that are misdemeanors and petty offenses that are only counted under particular circumstances.
This subsection of the guideline says that all felony offenses are counted,
and misdemeanor and petty offenses are counted
only when
the sentence
was probation of more than 1 year,
the sentence was imprisonment of at least 30 days,
or the prior offense was similar
to an instant offense.
So the
three convictions
that we have in this fact pattern--
reckless driving, suspended license, and the false information to a police officer--
all are listed
under 4A1.2(c)(1),
so they have to meet a particular criteria in order to be counted for the purpose of
criminal history.
Now we have some instruction under 4A1.2(a)(2)
regarding the calculation of criminal history points under
4A1.1(a), (b), and (c).
And what 4A1.2(a)(2) states
is that where you have
sentences of
imprisonment time,
those would be
aggregated in order to determine the amount of criminal history points under
4A1.1.
The guideline, however, does not give us any specific instruction
about aggregating terms of probation.
So when we look, then, at the list
at 4A1.2(c), all of these prior sentences--
individually, those sentences
do not meet
the criteria at 4A1.2(c)
because they are sentences of probation of 12 months. They don't exceed 12 months,
so they would not be eligible
for points under
4A1.2(c).
And, you know, the rule at 4A1.2(a)(2)
that talks about aggregating imprisonment time--
it makes sense that we've said you can aggregate imprisonment time, but
we didn't address
probation sentences.
And when you think about 4A1.1,
the length of a term of probation would never increase criminal history points.
So regardless of whether the term of probation is 1 year
or 100 years,
that still would only result in
1 point under 4A1.1(c).
So that is
our general rule. We have the specific rule at 4A1.2(c)(1)
about sentences excluded or counted.
We have no direction to aggregate
probation time.
So I think in this case,
the sentences would be too short to be included.
O.K. We got actually
two questions from Cheryl in the Middle District of Florida.
The first one that we're going to deal with is
two prior convictions, one being a battery conviction
and the second being a driving while license suspended conviction.
Now, for both of these convictions, there is no intervening arrest, so we're not talking
about treating these as a single sentence. We're looking at these as separate sentences,
so that is
just kind of a threshold
determination that I wanted everyone to be aware of here.
So, for both of these two prior sentences, the court imposes 12 months of probation.
So, initially when you're doing your scoring of your prior sentences,
that battery conviction would get 1 point under 4A1.1(c).
However, and Krista has already
talked about this, that driving while license suspended would not receive any points under
4A1.1 at all because
it's one of those minor offenses for which it doesn't meet that criteria--
that criteria being that
the court has to impose over a year of probation. So, since the court initially
only placed this defendant on 12 months' probation,
this prior sentence would not count.
However,
throw a wrinkle into it.
The defendant
violates
his probation and is revoked.
And he is revoked for
both of the sentences at the same time
based on the same violation conduct, and the court imposes on that revocation
180 days
of jail.
Now 4A1.2 Application Note 11 states that when you have a revocation that
applies to multiple sentences,
you are to add the revocation time onto the sentence that would give the greatest
increase in criminal history points. Krista talked about
that earlier
in our broadcast today.
So with these two prior convictions, if we were to add the revocation time on to
the battery conviction (remember that initially scored as a 1 pointer),
that would bring that prior conviction up to, now,
2 points, but it would only be a 1 point increase in the scoring of that prior conviction.
If, however, we were to
add it to the driving while license suspended,
that would take a conviction that initially scored as a zero
to now a 2 point conviction. So in this case,
you would add the revocation time
on to that second sentence, which is the driving while licensed suspended,
and score that as 2 points and leave the battery at a 1 point, which is what it initially
scored as.
And I think originally the question kind of came in because it seemed odd that 0:52:31.679,0:52:34.150 you couldn't
originally score that driving on a suspended license because it didn't meet the criteria.
So would you now score it, then, as a result of the revocation? I think it's safe to say
that yes,
that's exactly why you would score it--as a result of that revocation. If the defendant
is out committing
any sort of conduct that would
require his probation to be revoked,
there should be no benefit, if you will, to that defendent based on that revocation
conduct, and so that
time would then be added
and that prior sentence would become countable, whereas before it was not.
It's a violation of the trust. Right.
Exactly.
Alright, we are quickly coming to a close for our broadcast, but we do want to get to
the other question--the one that Cheryl sent us from Middle Florida.
The second question is contemplating the treatment of multiple prior sentences,
which, of course, we discussed at length earlier in the broadcast.
So we have no intervening arrests here. We have offenses that are treated as a single
sentence,
and we have
credit card fraud,
forgery,
and aggravated battery.
So, they all receive as a whole one set of criminal history points. They were sentenced
on the same day, so they were weren't separated by an intervening arrest.
They were all sentenced on the same day.
They were sentenced to 5 years on each count
to run
concurrently with each other,
so that is a 3 point
calculation under
4A1.1(a).
And so the question now is, where we have
multiple prior sentences that are treated as a single sentence,
there's only one set of criminal history points assigned.
And in this case, that's 3.
Now
the credit card fraud, the forgery,
and the aggravated battery. Now what Cheryl is asking us here is that,
you know, normally you would put the 3 points at the
top--at the first--
of the list in the presentence report.
Rachel and I are not going to talk about presentence format
today,
but the point we would like to make is that even though offenses--multiple offenses--
are treated as a single sentence,
they all are counted.
They all are countable. It's that group of sentences
results in the application of just 3 criminal history points.
One is, it's not that we're counting the credit card over the forgery or the forgery
over the aggravated battery.
They all are counted.
It's just,
you know, some
issue about where those points are assigned, but
the bottom line is they all are counted.
That aggravated battery certainly could be used
as a predicate
for career offender.
And in that same sort of logic
is the issue that comes up with 4A1.1(c)
offenses. Now those are capped at 4. So, even if you had 10 prior sentences that would score 1 point
under 4A1.1(c),
you would only use 4,
if you would, to contribute to the criminal history category of the defendant,
but we're still counting all 10 of those prior
4A1.1(c) offenses, so it may be that one of those other offenses that didn't
actually contribute to
the criminal history score could also be a predicate
for career offender. It's the same sort of issue.
And we get that question quite often on the Help Line.
Alright, well there's one last question that we have time to address. And
that came in from the District of New Jersey. And it deals specifically--
even though we didn't talk about career offender today, per se, we mentioned it a little bit--
it deals with an issue that comes up with career offender.
And there's an application note at 4B1.2, Application Note 3,
that talks about how the provisions of 4A1.2 apply for the purposes of 4B1.2, career offender.
So, in other words, all of the rules we
talked about--how a prior sentence scores,
the time frames that are relevant--
those all apply to the counting of
predicates for purposes of a career offender.
So to break it down plain and simple,
if a prior conviction is too old
to be scored at 4A1.1 and 4A1.2,
that prior conviction is also too old to be used as a predicate for career offender.
So hopefully that clarifies some of the issues that you all have out there.
And as always you can send in additional questions on the caller Help Line at any time
with those additional questions, and you can see that number at the bottom of your screen now.
And thanks again for sending us your questions. We're happy to address the issues that are
pertinent to you.
Please don't forget to send in your evaluation forms, and if there are any additional topics
you might like us to cover in a future broadcast,
please remember to note that as well.
And we would also like to invite you to join us later this year
for our next broadcast on our new FJTN set.
We're going to be discussing 2009 amendments
that will take effect on November 1, 2009
absent any congressional action to the contrary.
So thank you so much again for joining us today,
and we look forward to seeing you next time.
Have a good day.