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United States v. Jasso

For purposes of calculating criminal history points under U.S.S.G. �4A1.2, "term of imprisonment" shares the same meaning as "sentence of imprisonment." Sentencing courts are now instructed that in calculating the term issued upon revocation pursuant to �4A1.2(k), they are to include in their calculations only the portion of any sentence issued upon revocation that was not suspended. 5th Circuit Court of Appeals, No. 08-10453, 11-09-2009

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Before KING, DAVIS, and BENAVIDES, Circuit Judges.

The defendant-appellant appeals his sentence, arguing that the district court erred in assigning him two additional criminal history points, pursuant to § 4A1.2(e) and (k) of the United States Sentencing Guidelines (U.S.S.G.), based on his 1995 assault conviction in Texas state court and the subsequent sentence the Texas state court issued when he violated his term of probation.

Although we acknowledge that the district court’s reading of the ambiguous language in § 4A1.2(k) was not unreasonable, our review of § 4A1.2, in its entirety, leads us to conclude that it was error to count the defendant- appellant’s entire sentence issued upon his violation of probation, rather that considering only the portion of the sentence he actually served. This error resulted in the district court’s assessment of the two additional criminal history points. The comprehensive analysis required to resolve the issue raised on appeal, however, preludes the conclusion that the district court’s sentencing error was either clear or obvious.

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