Criminal History Scoring Considerations

By November 12, 2015 January 5th, 2018 News

In order to clarify certain new Federal provisions related to criminal history scoring considerations, Willey Chamberlain criminal attorney Britt Cobb recently presented at a training of federal criminal defense lawyers in West Michigan — focusing on criminal history scoring considerations under the federal sentencing guidelines, specifically as it applies to application of the Career Offender guideline.

Moving forward, all criminals will be scored under these guidelines:

  • § 4B1.2(c): The sentences for the two prior felony convictions are counted separately under § 4A1.1 (a), (b) or (c).
  • § 4B1.2, note 3: The provisions of § 4A1.2 (Definitions and Instructions for Computing Criminal History) are applicable to the counting of convictions under § 4B1.1.

The following provisions do not exist in the ACCA guideline:

  • 4B1.2, Note 1: “Prior felony conviction” means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen or older is an adult conviction. A conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).”

Look Back Periods

  • 4A1.2(e)(1) : For sentences exceeding one year and one month that was imposed within 15 years of the defendant’s commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such 15 year period.
  • 4A1.2(e)(2): Any other prior sentence that was imposed within 10 years of the defendant’s commencement of the instant offense is counted.

4A1.2(d): Offenses committed prior to the age of 18 the look back period is 5 years (if they are not adult convictions:

  1. For adult or juvenile sentences of at least 60 days, if the defendant was released from confinement within 5 years of commencement of the instant offense.
  2. For any adult or juvenile sentence imposed within 5 years of the defendant’s commencement of the instant offense not covered above.

Adult convictions and sentences of more than 13 months, even if committed when the defendant is under 18, use the 15-year look back provisions of § 4A1.2(e)(1).

  • 4A1.2, Note 8: “Commencement of the instant offense” includes relevant conduct. The term “prior sentence” means any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense.
  • 4A1.1(a), (b) and (c): What is a “sentence of imprisonment” or “prior sentence” for purposes of points under.

Sentences To Imprisonment

  • Prior sentence is any sentence, fines, costs included
  • The length is the stated maximum § 4A1.2(b)(1) and Note 2
  • Sentence pronounced, not the length of time actually served § 4A1.2, Note 2
  • The suspended portion does not count § 4A1.2(b)(2)
  • Credit for time served does not affect length, it is what is announced regardless of credit

United States v. Rameriz-Perez, 643 F.3d 173 (6th Cir. 2011).

  • Unless it is complete credit, then it is not considered a “sentence to imprisonment” for 3 or 2 points, just a “prior sentence” for 1 point. United States v. Tutt, 432 Fed. Appx. 469 (6th 2011).
  • “Sentence of imprisonment” means a sentence of incarceration – only on the original sentence. Home detention, etc. do not count.
  • Home detention, community treatment centers, half way house, etc. will not be considered imprisonment as part of the original sentence, but will if supervision is revoked. United States v. Jones, 107 F.3d 1147 (6th 1997); United States v. Rasco, 963 132 (6th Cir. 1992).
  • United States v. Chatmon, 565 Fed. Appx. 345 (6th 2014).

Single Statements

  • 4A1.2(a)(2): If the defendant has multiple prior sentences, determine whether those sentences are counted separately or as a single sentence. Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence.

For purposes of applying § 4A1.1(a), (b), and (c), if prior sentences are counted as a single sentence, use the longest sentence of imprisonment if concurrent sentences were imposed. If consecutive sentences were imposed, use the aggregate sentence of imprisonment.

Amendment Note 3 to § 4A1.2:

(A) Predicate Offenses: In some cases, multiple prior sentences are treated as a single sentence for purposes of calculating the criminal history score under §4A1.1(a), (b), and (c). However, for purposes of determining predicate offenses, a prior sentence included in the single sentence should be treated as if it received criminal history points, if it independently would have received criminal history points. Therefore, an individual prior sentence may serve as a predicate under the career offender guideline (see §4B1.2(c)) or other guidelines with predicate offenses, if it independently would have received criminal history points. However, because predicate offenses may be used only if they are counted “separately” from each other (see §4B1.2(c)), no more than one prior sentence in a given single sentence may be used as a predicate offense.

For example, a defendant’s criminal history includes one robbery conviction and one theft conviction. The sentences for these offenses were imposed on the same day, eight years ago, and are treated as a single sentence under §4A1.2(a)(2). If the defendant received a one-year sentence of imprisonment for the robbery and a two-year sentence of imprisonment for the theft, to be served concurrently, a total of 3 points is added under §4A1.1(a). Because this particular robbery met the definition of a felony crime of violence and independently would have received 2 criminal history points under §4A1.1(b), it may serve as a predicate under the career offender guideline.

Note, however, that if the sentences in the example above were imposed thirteen years ago, the robbery independently would have received no criminal history points under §4A1.1(b), because it was not imposed within ten years of the defendant’s commencement of the instant offense. See §4A1.2(e)(2). Accordingly, it may not serve as a predicate under the career offender guideline.

Revocations of Supervision

  • 4A1.2(k): Revocations of Probation, Parole, Mandatory Release or Supervised Release

(1) In the case of a prior revocation of probation, parole, supervised release, special parole, or mandatory release, 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 for § 4A1.1(a), (b), or (c), as applicable.

(2) Revocation of probation, parole, supervised release, special parole, or mandatory release may affect the time period under which certain sentences are counted as provided in § 4A1.2(d)(2) and (e). For the purposes of determining the applicable time period, use the following: (A) in the case of an adult term of imprisonment totaling more than one year and one month, the date of last release from incarceration on such sentence (see § 4A1.2(e)(1)); (B) in the case of any other confinement sentence for an offense committed prior to the defendant’s eighteenth birthday, the date of the defendant’s last release from confinement on such sentence (see § 4A1.2(d)(2)(A)); and (C) in any other case, the date of the original sentence (see § 4A1.2(d)(2)(B) and (e)(2)).

Special Scenarios

Supervision need not ever be revoked in order for violation terms to be added to the original term for purposes of criminal history points and the applicable time limits United States v. Rand, 536 Fed. Appx. 571 (6th Cir. 2013); United States v. Galvan, 453 F.3d 738 (6th Cir. 2006).

Time spent in custody pending a determination of a violation – if no violation is found – does not count for purposes of finding imprisonment “as a result of” during the look back period

United States v. Galaviz, 645 F.3d 347 (6th Cir. 2011).

  • Probation revocations cannot exceed the Michigan statutory maximum
  • Michigan parole revocations cannot be concurrent
  • Look for the “that resulted in the defendant being incarcerated” language in § 4A1.2(e)(1)

Discharged from probation on April 21, 2000.

Offense conduct September 2011.

Original sentence: 120 days jail
First violation: violation found but probation continued with 10 months jail/152 days credit
Second violation: violation found but probation continued with 60 days jail
Discharged from probation.

Special Scenarios

Supervision need not ever be revoked in order for violation terms to be added to the original term for purposes of criminal history points and the applicable time limits United States v. Rand, 536 Fed. Appx. 571 (6th Cir. 2013); United States v. Galvan, 453 F.3d 738 (6th Cir. 2006).

Time spent in custody pending a determination of a violation – if no violation is found – does not count for purposes of finding imprisonment “as a result of” during the look back period

United States v. Galaviz, 645 F.3d 347 (6th Cir. 2011).

  • Probation revocations cannot exceed the Michigan statutory maximum
  • Michigan parole revocations cannot be concurrent
  • Look for the “that resulted in the defendant being incarcerated” language in § 4A1.2(e)(1)

Originally scored by probation as 3 points; 350 plus 36; could not be predicate because not “felony”. When a probation order is revoked, Michigan law allows the defendant to be sentenced only to the same extent he could have been sentenced without the probation order and the defendant is entitled to credit for time already served in jail as a condition of probation. MCL 771.4; People v. Sturdivant, 412 Mich. 92; 312 N.W.2d 622 (1981)

Special Scenarios

Supervision need not ever be revoked in order for violation terms to be added to the original term for purposes of criminal history points and the applicable time limits United States v. Rand, 536 Fed. Appx. 571 (6th Cir. 2013); United States v. Galvan, 453 F.3d 738 (6th Cir. 2006).

Time spent in custody pending a determination of a violation – if no violation is found – does not count for purposes of finding imprisonment “as a result of” during the look back period. United States v. Galaviz, 645 F.3d 347 (6th Cir. 2011).

  • Probation revocations cannot exceed the Michigan statutory maximum
  • Michigan parole revocations cannot be concurrent
  • Look for the “that resulted in the defendant being incarcerated” language in § 4A1.2(e)(1)

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For more information about Michigan criminal history scoring, or if you have additional questions for the criminal attorneys at Willey Chamberlain, please contact us here or call us directly at 888.888.8888.