from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:15-cr-20372-JLK-1
WILSON and ROSENBAUM, Circuit Judges, and TITUS, [*] District Judge.
ROSENBAUM, CIRCUIT JUDGE.
Seuss Geisel (perhaps better known as Dr. Seuss) is said to
have observed, "Sometimes the questions are complicated
and the answers are simple."This is one of those times.
direct appeal of Defendant-Appellant Edriss Baptiste's
sentence for access-device fraud and aggravated identity
theft requires us to determine how to account in
Baptiste's criminal-history calculation for
Baptiste's ostensible sentence from a prior state case.
More specifically, a state court purported to sentence
Baptiste for a marijuana-possession conviction to "198
days time served, " referring to time he spent in U.S.
Immigration and Customs Enforcement detention. Based on this
disposition, the district court scored Baptiste two
criminal-history points and therefore concluded his
criminal-history category was II.
parties debate whether time in Immigration custody can ever
qualify as "imprisonment" for purposes of
determining criminal history under the Guidelines. While the
parties raise interesting arguments, we instead resolve this
case by concluding that where, as here, a defendant has pled
guilty to a prior crime and adjudication has been withheld,
that disposition must be counted for a single
criminal-history point under § 4A1.1(c) of the
Guidelines, regardless of whether the sentencing court
purported to impose-or even actually imposed-198 days or no
days of imprisonment. For this reason, we vacate the sentence
imposed by the district court and remand for resentencing,
using a criminal-history category of I.
Edriss Baptiste pled guilty to two federal crimes: possessing
at least fifteen unauthorized access devices, in violation of
18 U.S.C. § 1029(a)(3), and aggravated identity theft,
in violation of 18 U.S.C. § 1028A(a)(1). In preparation
for sentencing, a U.S. Probation officer prepared a
Presentence Investigation Report ("PSR") that
ultimately recommended Baptiste's total offense level as
21 and his criminal-history category as II, with a
corresponding guideline range of 41 to 51 months'
imprisonment, plus a consecutive 24-month period of
imprisonment on the aggravated-identity theft
conviction. The district court adopted these
recommendations and sentenced Baptiste to 41 months on the
unauthorized-access-device count and another 24 months on the
aggravated-identity-theft conviction, for a total of 65
appeal, Baptiste takes issue with the district court's
conclusion that his criminal-history category was II. To
arrive at that conclusion, the district court relied on a
single prior criminal disposition in Florida for possession
of marijuana and possession of paraphernalia. The PSR
described the resolution of these charges in the following
way: "Adjudication withheld, 198 days time served."
Citing U.S. Sentencing Guideline Manual
("U.S.S.G.") § 4A1.1(b), the PSR applied two
criminal-history points for this disposition. And because the
Sentencing Table at Chapter 5, Part A, of the Guidelines
shows that two criminal-history points translate to a
Category II criminal-history level, the PSR calculated
Baptiste's criminal-history category as a II.
objected to the PSR's Category II designation. As it
turns out, Baptiste's criminal disposition was a bit more
complicated than the PSR revealed. Originally, he pled
nolo contendere in Florida court to the felony
offense of possession with intent to distribute marijuana.
For that, he was convicted and sentenced to forty-five days
in a jail work camp, two years of drug-offender probation,
and twelve months of regular probation. Baptiste actually
served a total of only two days in jail in connection with
Baptiste was serving his state probation on this felony
conviction, U.S. Immigration and Customs Enforcement detained
him. And based on this same conviction, Immigration scheduled
Baptiste for removal proceedings. But before he could be
removed, Baptiste filed a motion under Rule 3.850, Fla. R.
Crim. P., to vacate his earlier plea to the Florida felony
offense, asserting that he had not been advised before
entering his plea that his conviction could result in
deportation. The Florida court granted Baptiste's motion,
vacated the prior conviction, and returned the charges to
pending status. By the time Baptiste was released from
Immigration custody on the news of the vacatur of his felony
conviction, he had been detained there from August 24, 2009,
through March 16, 2010.
Baptiste once again had to deal with the newly revived
Florida marijuana-related charges. This time, though,
Baptiste bargained with the state and pled to the misdemeanor
offenses of possession of marijuana and possession of
paraphernalia,  which were not deportable offenses. The
state court withheld adjudication and purported to sentence
Baptiste to 198 days of time served, referring to, at least
in substantial part, the time Baptiste spent in Immigration
custody. For convenience, in this opinion, we refer
to this disposition as the "Florida Case."
brings us back to Baptiste's sentencing in federal court
for the unauthorized-access-devices and
aggravated-identity-theft convictions. In the district court,
Baptiste contended that his time in Immigration custody could
not be counted as a "prior sentence of
imprisonment" under U.S.S.G. § 4A1.1, and, as a
result, his criminal-history category was I. As we have
noted, the district ...