United States of America, Plaintiff-appellee, v. Andre Scott Wheeler, Defendant-appellant, 330 F.3d 407 (6th Cir. 2003)

U.S.S.G. § 4A1.1(a)-(d).

With respect to prior sentences involving the revocation of probation, parole, supervised release, special parole, or mandatory release, the guidelines direct sentencing courts to "add the original term of imprisonment to any term of imprisonment imposed upon revocation," and to use " [t]he resulting total ... to compute the criminal history points for § 4A1.1(a), (b), or (c), as applicable." U.S.S.G. § 4A1.2(k) (1). Relying on § 4A1.2(k) (1), the Probation Department's pre-sentence report added the period of incarceration imposed upon revocation to Defendant's original community sentence for the 1995 Conviction. The resulting total term of imprisonment of more than thirteen months placed Defendant in the three-point category set forth in U.S.S.G. § 4A1.1(a).

Defendant countered that only one criminal history point was appropriate for the 1995 Conviction under U.S.S.G. § 4A1.1(c).⁴  In making this argument, Defendant relied on the definition of "prior sentence" in the guidelines, which reads:

`Prior sentence' means a sentence imposed prior to sentencing on the instant offense, other than a sentence for conduct that is part of the instant offense.... Conduct that is part of the instant offense means conduct that is relevant conduct to the instant offense under the provisions of § 1B1.3 (Relevant Conduct).

U.S.S.G. § 4A1.2 cmt. n. 1.

More specifically, Defendant argued that the possession of firearms underlying the revocation of his community corrections sentence was conduct relevant to his instant § 922(g) (1) offense. Because only prior sentences are considered in calculating criminal history points, and because the guidelines exclude "relevant conduct" from the definition of "prior sentence," Defendant asserted that the District Court should consider only his original community corrections sentence, and not his post-revocation sanction, as a "prior sentence" in calculating his criminal history points for the 1995 Conviction. In effect, Defendant asked the District Court to treat the 1995 Conviction as if it involved two criminal prosecutions resulting in two distinct sentences.

In response, the Government argued that the post-revocation sanction was simply an extension of the original sentence imposed for the 1995 Conviction. Given that this earlier drug offense was unrelated to the instant firearms charge, the Government contended that the term of imprisonment handed down upon revocation was properly treated as part of the "prior sentence" for purposes of calculating the criminal history points for the 1995 Conviction. Agreeing with the Government, the District Court denied Defendant's objection and sentenced him to seventy months incarceration.

On appeal, Defendant renews his objection to the assessment of three criminal history points for the 1995 Conviction. We review de novo a district court's legal conclusions regarding the application of the guidelines. United States v. Hurst, 228 F.3d 751, 756 (6th Cir. 2000).

The analysis of Defendant's criminal history argument begins with U.S.S.G. § 4A1.2(k) (1), which provides that any term of imprisonment imposed upon revocation is added to the original term of imprisonment for purposes of calculating criminal history points under U.S.S.G. § 4A1.1(a)-(c).⁵  While this relatively straightforward rule would seem to end the inquiry, Defendant contends that when revocation-triggering conduct also serves as the basis for a separate criminal prosecution, the guidelines' exclusion of relevant conduct from the definition of prior sentence trumps § 4A1.2(k) (1).

Although Defendant's argument may hold some surface appeal, it glosses over the threshold question of whether a post-revocation sanction constitutes a separate sentence, or whether it is merely an extension of or replacement for the original sentence for a crime. In Johnson v. United States, 529 U.S. 694, 701, 120 S. Ct. 1795, 1801, 146 L. Ed. 2d 727 (2000), the Supreme Court resolved this question by "attribut [ing] postrevocation penalties to the original conviction." This rule applies even if, as in this case, the acts underlying a revocation are criminal in their own right or the basis for separate prosecution. See id. at 700, 120 S. Ct. at 1800. Indeed, the revocation of probation does not even amount to a stage of criminal prosecution. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1759-1760, 36 L. Ed. 2d 656 (1973). Thus, regardless of the underlying conduct that brings about the revocation of a community corrections sentence, any and all post-revocation sanctions constitute part of the sentence for the original crime of conviction, even where the facts underlying the revocation are precisely the same as those providing the basis for conviction in the instant case.

In light of Johnson, we find no basis in law to support Defendant's criminal history argument. When the State of Tennessee placed Defendant on community corrections for the 1995 Conviction, he was required to conduct himself consistent with the terms of his release. State authorities subsequently determined through a revocation proceeding that he failed to do so and, as a result, effectively annulled his original community sentence and replaced it with a term of imprisonment that logically flowed from, and was an extension of, his original sentence for the 1995 Conviction. Accordingly, the fact that Tennessee authorities revoked Defendant's community corrections sentence for the same firearms possession that led to his § 922(g) (1) conviction does not, for criminal history purposes, sever the conduct from the original state sentence attributable to his 1995 Conviction.

Providing further support for this conclusion is the fact that revocation proceedings and independent criminal prosecutions serve entirely different purposes. As cogently summarized by the Seventh Circuit:

A parole revocation proceeding is an administrative proceeding designed to determine whether a parolee has violated the terms of his parole, not a proceeding designed to punish a criminal defendant for violation of a criminal law. A criminal prosecution is a judicial proceeding that vindicates the community's interests in punishing criminal conduct. Because the two proceedings serve different ends, the finding that the defendant no longer merits parole does not foreclose the criminal justice system from punishing the defendant for that conduct.

[United States v. Hanahan, 798 F.2d 187, 189 (7th Cir. 1986)].

Just as revocation of parole is not intended to serve as punishment for the subsequent misconduct that results in the revocation, revocation of supervised release is similarly designed to meet objectives entirely distinct from punishing the subsequent misconduct. Indeed, the Sentencing Commission expressly views violations of the conditions of supervised release [] as a `breach of trust' and considers `the sentence imposed upon revocation [of supervised release as] intended to sanction the violator for failing to abide by the conditions of the court-ordered supervision, leaving the punishment for any new criminal conduct to the court responsible for imposing the sentence for that offense.' United States Sentencing Commission, Guidelines Manual, Ch. 7 Pt. A § 3(b).

United States v. Wyatt, 102 F.3d 241, 244-45 (7th Cir. 1996).

In short, Defendant's post-revocation sanction was attributable to his 1995 Conviction. Consequently, the District Court properly included the post-revocation sanction in calculating the criminal history points applicable to Defendant's prior sentence for his 1995 Conviction, correctly resulting in the assessment of three points under U.S.S.G. § 4A1.1(a).⁶ 

Defendant further contends that the District Court violated the Double Jeopardy Clause by using the same conduct, possession of firearms, to impose multiple punishments under the sentencing guidelines. As Defendant raises this issue for the first time on appeal, we review for plain error. United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998).

In asserting a double jeopardy violation, Defendant unsuccessfully attempts to transform what constitutes at most a double counting issue under the sentencing guidelines into a constitutional concern. Although the Constitution prohibits multiple criminal punishments for the same offense, double jeopardy principles generally have no application in the sentencing context "because the determinations at issue do not place a defendant in jeopardy for an `offense.'" Monge v. California, 524 U.S. 721, 728, 118 S. Ct. 2246, 2250, 141 L. Ed. 2d 615 (1998). This rule also applies to sentencing enhancements, which constitute increased penalties for the latest crime, rather than "`a new jeopardy or additional penalty for the earlier crimes.'" Id. (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258, 92 L. Ed. 1683 (1948)). Given that double jeopardy concerns are not implicated when, as here, a district court simply applies multiple guidelines to determine the appropriate sentence for an offense of conviction, we find no constitutional violation.⁷ 

Although framed as a double jeopardy violation, Defendant's argument, fairly understood (particularly after oral argument), really raises issues of possible "double counting" under the sentencing guidelines. In the Sixth Circuit, double counting occurs when "precisely the same aspect of a defendant's conduct factors into his sentence in two separate ways." United States v. Farrow, 198 F.3d 179, 193 (6th Cir. 1999) (citing United States v. Perkins, 89 F.3d 303, 310 (6th Cir. 1996)). That being said, not all instances of double counting are impermissible. Indeed, we permit double counting when "it appears that Congress or the Sentencing Commission intended to attach multiple penalties to the same conduct." Id. at 194.⁸ 

Here, Defendant asserts that the District Court improperly used precisely the same conduct — namely, his possession of firearms — first as the basis for sentencing him under U.S.S.G. § 2K2.1, second as an enhancement to his base offense level under U.S.S.G. § 2K2.1(a) (2), third as the basis for two criminal history points under U.S.S.G. § 4 A. 1.1(d), and finally as the basis for three additional criminal history points under U.S.S.G. § 4A1.1(a).

A review of these guideline provisions, however, belies Defendant's assertion. While violations of § 922(g) (1) are sentenced under U.S.S.G. § 2K2.1, an enhancement under subsection 2K2.1(a) (2) focuses on Defendant's history of drug offenses, a different aspect of Defendant's conduct than gun possession. Similarly, U.S.S.G. § 4A1.1(d) focuses not on gun possession alone, but on the fact that Defendant violated § 922(g) (1) while under another criminal justice sentence.⁹  Finally, the prior drug convictions for which Defendant received criminal history points under U.S.S.G. § 4A1.1 obviously included conduct other than gun possession. Although some of these points are based on the same drug convictions as Defendant's enhancement under § 2K2.1(a) (2), the guidelines expressly provide that " [p]rior felony conviction(s) resulting in an increased base offense level under subsections... (a) (2) ... are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History)." U.S.S.G. § 2K2.1 cmt. n. 15. Indeed, each of the guidelines applied by the District Court either emphasizes different aspects of Defendant's conduct than gun possession alone or involves double counting expressly authorized by the Sentencing Commission. As a result, we find no impermissible double counting and no error, much less plain error, in the District Court's application of the guidelines.

For all of the aforementioned reasons, we AFFIRM the sentence imposed by the District Court.