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United States v. Baptiste

United States Court of Appeals, Eleventh Circuit

November 28, 2017

EDRISS BAPTISTE, Defendant-Appellant.

         Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:15-cr-20372-JLK-1

          Before WILSON and ROSENBAUM, Circuit Judges, and TITUS, [*] District Judge.


         Theodor Seuss Geisel (perhaps better known as Dr. Seuss) is said to have observed, "Sometimes the questions are complicated and the answers are simple."[1]This is one of those times.

         This 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.

         The 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.


         Defendant-Appellant 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.[2] 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 months' imprisonment.

         On 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.[3] 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.

         Baptiste 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 this sentence.

         While 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.[4]

         Then 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, [5] 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.[6] For convenience, in this opinion, we refer to this disposition as the "Florida Case."

         That 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 ...

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