United States District Court, E.D. Tennessee
MEMORANDUM AND ORDER
Jordan United States District Judge
defendant has pled guilty to a methamphetamine conspiracy
offense and will be sentenced on June 12, 2018. The United
States Probation Office has prepared and disclosed the
Presentence Investigation Report (“PSR”) [doc.
232], to which the defendant has filed three objections. The
court will now address those objections in turn.
first objection, the defendant argues that her offense level
should be lowered by two to four levels due to her allegedly
lesser culpability as compared to her codefendants.
See U.S. Sentencing Guidelines Manual § 3B1.2
(2016). In response, the probation office and the prosecution
have agreed that the defendant should receive a two-level
minor participant reduction pursuant to guideline 3B1.2(b).
The total offense level has accordingly been reduced from 29
to 27. [Doc. 142].
unclear whether the defendant will continue to argue for a
greater role reduction. The court will address the matter
further if necessary at sentencing, although the issue would
at this time appear to have been mooted by the interplay
between the defendant's 120-month mandatory minimum
sentence and the United States' motion filed under United
States Sentencing Guideline (“U.S.S.G.”) §
paragraphs 34 and 35, the PSR assigns two criminal history
points for each of two prior Greene County, Tennessee,
convictions. In each of those cases, the defendant initially
received a prison sentence of less than sixty days. Thus, as
originally sentenced, each conviction would have been
assigned no more than one criminal history point under the
federal guidelines. See U.S.S.G. § 4A1.1(c).
the defendant's Greene County probation was revoked four
times in the first of these cases and three times in the
second. The PSR accordingly assigns two points to each
conviction pursuant to U.S.S.G. §§ 4A1.1(b) and
4A1.2(k)(1) because these original and revocation sentences,
when added together, exceed 60 days in each case.
See U.S.S.G. § 4A1.1(b) (“Add 2 points
for each prior sentence of imprisonment of at least sixty
days not counted in (a).”). The defendant objects that
this assignment of four criminal history points is unfair
because three of the revocations were sought “by the
same probation officer, on the same dates, during the same
term of supervision, and based upon the same conduct.”
4A1.2(k) instructs that “[i]n the case of a prior
revocation of probation . . ., add the original term of
imprisonment to any term of imprisonment imposed upon
revocation. The resulting total is used to compute the
criminal history points . . . .” U.S.S.G. §
4A1.2(k)(1). Further, “[w]here a revocation applies to
multiple sentences, and such sentences are counted separately
under § 4A1.2(a)(2), add the term of imprisonment
imposed upon revocation to the sentence that will result in
the greatest increase in criminal history points.”
U.S.S.G. § 4A1.2 cmt. n.11. The court must therefore
apply application note 11 to determine whether the prior
convictions at PSR paragraphs 34 and 35 each indeed resulted
in a prior sentence of imprisonment of at least 60 days.
defendant's probation was simultaneously revoked in these
Greene County cases on November 12, 2008, December 27, 2011,
and April 27, 2012. Prior to the first of these dual
revocations, the defendant had served 12 days'
imprisonment for the conviction at paragraph 34, consisting
of an initial two days plus a probation revocation of 10 days
imprisonment which applied only to that case. As to the
conviction at paragraph 35, prior to November 12, 2008, the
defendant had spent only 45 days in jail.
November 12, 2008 probation revocation resulted in an
additional 30-day term of imprisonment in each of the Greene
County cases (which the court presumes was served
concurrently). Pursuant to application note 11, that 30-day
imprisonment is added to the original sentence at PSR
paragraph 35-rather than paragraph 34-because doing so
“result[s] in the greatest increase in criminal history
points.” That is so because adding 30 days to the
original 45-day sentence at paragraph 35 produces a total of
75 days' imprisonment-which, obviously, exceeds 60 days
and thus increases the criminal history points from one to
two pursuant to U.S.S.G. § 4A1.1(b).
comes the December 27, 2011 revocation which resulted in an
additional 60 days' imprisonment for the two Greene
County cases (which, again, the court presumes was served
concurrently). For federal guideline purposes, adding 60 days
to the 75 days already served for the conviction listed at
PSR paragraph 35 would not result in any increase in criminal
history points because the total term of imprisonment at that
point was still less than 13 months. See U.S.S.G.
§ 4A1.1(a). The conviction at PSR paragraph 34 is a
different story. Sixty days added to the 12 days'
imprisonment already served equals 72 days, and 72 is greater
than 60. Therefore, adding the December 27, 2011 revocation
sentence to PSR paragraph 34-rather than paragraph