United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM AND ORDER
JORDAN UNITED STATES DISTRICT JUDGE
defendant has pled guilty to conspiring to conspiring to
distribute and possess with the intent to distribute
methamphetamine, and to possessing a firearm in furtherance
of a drug trafficking crime. He will be sentenced on November
United States Probation Office has prepared and disclosed a
Presentence Investigation Report (“PSR”) [doc.
1236] to which the defendant has filed two objections to the
calculation of his criminal history score. [Docs. 1280,
1327]. The probation office has also filed its PSR Addendum.
. For the reasons that follow, the defendant's
first objection will be sustained and his second objection
will be overruled.
paragraph 47, the PSR assigns one criminal history point for
a 2016 Reckless Conduct conviction in the Chattooga County
General Sessions Court, for which the defendant received a
sentence of 12 months' probation. According to the PSR,
“[t]he defendant was initially charged with Driving
Under the Influence but pled to the reduced charge of
defendant objects, citing United States Sentencing Commission
Guidelines Manual (“U.S.S.G.”) §
4A1.2(c)(1). That guideline provides in relevant part that
sentences for careless or reckless driving, “and
offenses similar to them, by whatever name they are known,
” are not counted in a defendant's criminal history
score unless the conviction resulted in a prison sentence of
at least 30 days or a probation term of more than
one year. U.S.S.G. § 4A1.2(c)(1) (2018).
Court has reviewed the available state court records and
finds that the defendant's objection should be sustained.
The defendant was initially charged with “D.U.I.
Alcohol” but pled to the reduced charge of Reckless
Conduct. It is true, as pointed out by the probation office,
that “[c]onvictions for driving while intoxicated or
under the influence (and similar offenses by whatever name
they are known) are always counted, without regard to how the
offense is classified.” U.S.S.G. § 4A1.2 cmt. n.5.
But while the defendant was indeed initially charged with
D.U.I., he was not ultimately convicted of an offense similar
to that crime. He was instead convicted of Reckless Conduct,
which on the limited record before the Court is far more akin
to “careless or reckless driving.”
sentences for careless or reckless driving (or similar
offenses by whatever name they are known) are not tallied in
a defendant's criminal history score unless the
probationary sentence exceeded one year. U.S.S.G. §
4A1.2(c)(1). The instant defendant's challenged
probationary sentence was only 12 months. Thus, it did not
exceed one year. No criminal history points should be
assigned for the conviction at PSR paragraph 47. The
defendant's first objection will be sustained, and his
criminal history point total will be reduced by one.
the defendant objects to paragraph 46 of his PSR. There, he
is assigned two criminal history points for a 2008 Chattooga
County sentence of 90 days' imprisonment for Driving
Under the Influence and Leaving the Scene of an Accident. The
defendant alleges “that he did not serve the 90 day
sentence imposed in this case but worked with drug task force
officers in place of incarceration. It appears that Mr.
Sholtz would receive one criminal history point for these
convictions under 4A1.1(c).” [Doc. 1327].
4A1.1(b) assigns two criminal history points for a
“prior sentence of imprisonment” of at least 60
days. Conversely, Guideline 4A1.1(c) adds only one criminal
history point for a “prior sentence” not counted
in subsection (a) or (b). If a prior sentence of imprisonment
was suspended, the term “‘sentence of
imprisonment' refers only to the portion that was not
suspended.” U.S.S.G. § 4A1.2(b)(2). Thus, the
defendant's second objection would be successful if more
than 30 days of his 2008 sentence was indeed suspended.
Court has again reviewed the available state court records.
Those records direct in part that “Defendant shall
serve 90 days county jail, day for day, at the direction of
the probation officer, but not to interfere with
Defendant's work schedule.” The state court records
make no mention of any part of that sentence having been
suspended for any reason. The defendant cannot meet his
burden in this case merely by ...