AMENDMENT 795

Amendment: The Commentary to §2L1.2 captioned “Application Notes” is amended in Note 4(B) by striking “not counted as a single sentence” and inserting “not treated as a single sentence”.

Section 4A1.1(e) is amended by striking “such sentence was counted as a single sentence” and inserting “such sentence was treated as a single sentence”.

The Commentary to §4A1.1 captioned “Application Notes” is amended in Note 5 by striking “are counted as a single sentence” and inserting “are treated as a single sentence”; and by striking “are counted as a single prior sentence” and inserting “are treated as a single prior sentence”.

Section 4A1.2(a)(2) is amended by striking “those sentences are counted separately or as a single sentence” and inserting “those sentences are counted separately or treated as a single sentence”; by striking “Count any prior sentence” and inserting “Treat any prior sentence”; and by striking “if prior sentences are counted as a single sentence” and inserting “if prior sentences are treated as a single sentence”.

The Commentary to §4A1.2 captioned “Application Notes” is amended in Note 3 by redesignating Note 3 as Note 3(B), and by inserting at the beginning the following:

“ Application of ‘Single Sentence’ Rule (Subsection (a)(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.”;

and in Note 3(B) (as so redesignated) by striking “Counting multiple prior sentences as a single sentence” and inserting “Treating multiple prior sentences as a single sentence”; and by striking “and the resulting sentences were counted as a single sentence” and inserting “and the resulting sentences were treated as a single sentence”.

The Commentary to §4B1.2 captioned “Application Notes” is amended in Note 1 by striking “the sentences for the two prior convictions will be counted as a single sentence” and inserting “the sentences for the two prior convictions will be treated as a single sentence”.

Reason for Amendment: This amendment responds to a circuit conflict regarding the meaning of the “single sentence” rule, set forth in subsection (a)(2) of §4A1.2 (Definitions and Instructions for Computing Criminal History), and its implications for the career offender guideline and other guidelines that provide sentencing enhancements for predicate offenses.

When the defendant’s criminal history includes two or more prior sentences that meet certain criteria specified in §4A1.2(a)(2), those prior sentences are counted as a “single sentence” rather than separately. Generally, this operates to reduce the cumulative impact of prior sentences in determining a defendant’s criminal history score. Courts, however, are divided over whether this “single sentence” rule also causes certain prior convictions that ordinarily would qualify as predicate offenses under the career offender guideline to be disqualified from serving as predicate offenses. See §4B1.2 (Definitions of Terms Used in Section 4B1.1), comment. (n.3).

In 2010, in King v. United States, the Eighth Circuit held that when two or more prior sentences are treated as a single sentence under the guidelines, all the criminal history points attributable to the single sentence are assigned to only one of the prior sentences — specifically, the one that was the longest. King, 595 F.3d 844, 852 (8th Cir. 2010). Accordingly, only that prior sentence may be considered a predicate offense for purposes of the career offender guideline. Id. at 849, 852.

In 2014, in United States v. Williams, a panel of the Sixth Circuit considered and rejected King, because it permitted the defendant to “evade career offender status because he committed more crimes.” Williams, 753 F.3d 626, 639 (6th Cir. 2014) (emphasis in original). See also United States v. Cornog, 945 F.2d 1504, 1506 n.3 (11th Cir. 1991) (“It would be illogical . . . to ignore a conviction for a violent felony just because it happened to be coupled with a nonviolent felony conviction having a longer sentence.”).

After the Williams decision, a different panel of the Eighth Circuit agreed with the Sixth Circuit’s analysis but was not in a position to overrule the earlier panel’s decision in King. See Donnell v. United States, 765 F.3d 817, 820 (8th Cir. 2014). The Eighth Circuit has applied the analysis from King to a case involving the firearms guideline and to a case in which the prior sentences were consecutive rather than concurrent. See, e.g., Pierce v. United States, 686 F.3d 529, 533 n.3 (8th Cir. 2012) (firearms); United States v. Parker, 762 F.3d 801, 808 (8th Cir. 2014) (consecutive sentences). This issue has also been addressed by other courts, some which have followed the Sixth Circuit’s approach in Williams. See, e.g., United States v. Carr, 2013 WL 4855341 (N.D. Ga. 2013); United States v. Agurs, 2014 WL 3735584 (W.D. Pa., July 28, 2014). Other decisions have been consistent with the Eighth Circuit’s approach in King. See, e.g., United States v. Santiago, 387 F. App’x 223 (3d Cir. 2010); United States v. McQueen, 2014 WL 3749215 (E.D. Wash., July 28, 2014).

The amendment generally follows the Sixth Circuit’s approach in Williams. It amends the commentary to §4A1.2 to provide that, for purposes of determining predicate offenses, a prior sentence included in a single sentence should be treated as if it received criminal history points if it independently would have received criminal history points. It also provides examples, including an example to illustrate the potential impact of the applicable time periods prescribed in §4A1.2(e). Finally, §§4A1.1 (Criminal History Category) and 4A1.2 are revised stylistically so that sentences “counted” as a single sentence are referred to instead as sentences “treated” as a single sentence.

The amendment ensures that those defendants who have committed more crimes, in addition to a predicate offense, remain subject to enhanced penalties under certain guidelines such as the career offender guideline. Conversely, by clarifying how the single sentence rule interacts with the time limits set forth in §4A1.2(e), the amendment provides that when a prior sentence was so remote in time that it does not independently receive criminal history points, it cannot serve as a predicate offense.

Effective Date: The effective date of this amendment is November 1, 2015.