United States v. Bruce Loren Latimer

991 F.2d 1509, 93 Daily Journal DAR 5200, 93 Cal. Daily Op. Serv. 3045, 1993 U.S. App. LEXIS 9098, 1993 WL 127191
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 26, 1993
Docket91-50420
StatusPublished
Cited by60 cases

This text of 991 F.2d 1509 (United States v. Bruce Loren Latimer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bruce Loren Latimer, 991 F.2d 1509, 93 Daily Journal DAR 5200, 93 Cal. Daily Op. Serv. 3045, 1993 U.S. App. LEXIS 9098, 1993 WL 127191 (9th Cir. 1993).

Opinions

WILLIAM A. NORRIS, Circuit Judge:

Appellant Bruce Latimer challenges his classification as a career offender under § 4B1.1 of the Sentencing Guidelines following his 1991 conviction for armed bank robbery and for use of a firearm during a crime of violence.1 Because he was designated a career offender by the district court, Latimer was sentenced to a period of 26 years and 10 months in prison, followed by a 5-year term of supervised release. Of Latimer's nearly 27 years in prison, 15 of these years came solely as a result of his being classified as a career offender.

Whether Latimer is to be imprisoned an additional 15 years as a career offender turns, principally, on whether confinement in a community treatment center constitutes incarceration under the meaning of § 4A1.2(e)(1) of the Sentencing Guidelines. Because we hold that confinement in a community treatment center does not fall within the ambit of this provision, we reverse and remand for resentencing.

I

A defendant qualifies as a career offender if the present offense is a crime of violence and if the defendant has two prior convictions for crimes of violence. U.S.S.G. § 4B1.1. A prior conviction may be counted only if the conviction resulted in the defendant's incarceration during any part of the 15 years prior to the commission of the present offense. Id. at § 4A1.2(e)(1).

Latimer does not dispute that his current offense, armed bank robbery, is a crime of violence. Nor does he dispute that he has one prior conviction which may be counted toward career offender status. Latimer's challenge is to the district court's decision to count several bank robberies he committed in 1967 as falling within the 15-year window.

The question now before us is whether Latimer's confinement in a community treatment center for three months in 1979, following the revocation of his parole on his 1967 convictions, constituted incarceration under the meaning of § 4A1.2(e)(1). If it did, then Latimer was properly classified as a career offender; if it did not, then he was sentenced to prison for 15 years longer than he deserves.

The government suggests two possible alternative grounds on which to base a finding that Latimer was incarcerated in connection with his 1979 parole revocation. First, the government argues that Latimer's three-month detention in the Utah Community Improvement Program, a community treatment center, following the revocation of his parole should be counted as incarceration under the Guidelines. In the alternative, the government notes that La-timer was detained for a period of time in a federal prison-first while he was awaiting his parole revocation hearing, and then while awaiting his subsequent transfer to the community treatment center-and argues that this detention should satisfy the meaning of incarceration under [1511]*1511§ 4A1.2(e)(l). We address each of the government’s arguments in turn.

II

Because Latimer challenges the application of the sentencing guidelines to undisputed facts, our review is de novo. United States v. Wilson, 900 F.2d 1350, 1355 (9th Cir.1990).

Section 4A1.2(e)(l) sets forth the time period within which a prior sentence must have been imposed or served to count towards a defendant’s criminal history score. It provides that a district court may count a prior conviction only if the conviction resulted in the defendant’s incarceration or imprisonment — the Commission uses the words interchangeably2 — during any part of the fifteen years prior to the commission of the present offense:

Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen 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 fifteen-year period.

U.S.S.G. § 4A1.2(e)(l).

The Guidelines also state that, when a prison sentence is reinstated upon revocation of parole, the district court should “add the original term of imprisonment to any term of imprisonment imposed upon revocation.” Id. at § 4A1.2(k)(l) (emphasis added). The two periods of imprisonment are counted as a single prison sentence for purposes of criminal history scoring, and for purposes of deciding whether that sentence falls within the applicable 15-year window. Id. at § 4A1.2(k)(2)(B). See United States v. Harrington, 923 F.2d 1371, 1375 (9th Cir.), cert. denied, — U.S.-, 112 S.Ct. 164, 116 L.Ed.2d 128 (1991). Thus, in cases where a defendant’s prison sentence is reinstated after revocation, of parole, the original sentence is counted only if “the date of last release from incarceration on [the post-revocation] sentence” falls within the 15-year period. U.S.S.G. § 4A1.2(k)(2)(B) (emphasis added).

If Latimer’s detention in a community treatment center is properly characterized as incarceration, then the date of his “last release” from the community treatment center brings the 1967 convictions within the 15-year window, and thus brings La-timer within the definition of a career offender. The question of whether community treatment center detention constitutes “incarceration” under the meaning of section 4A1.2(e)(l) is one of first impression in our circuit.3

A

Unfortunately, other than equating a “sentence of incarceration” with a “sentence of imprisonment,” see id. at § 4A1.2(b)(l), the Guidelines do not define incarceration. Nor do they address whether detention in a community treatment center qualifies as incarceration. However, the Commission’s silence on this question does not, and cannot, end the inquiry. In the absence of any clear expression of Commission intent, we must choose the interpretation that best fits the Guidelines’ general structure and purposes.

At the outset of our inquiry, we find it significant that, in numerous provisions of the Guidelines, the Commission differentiates between imprisonment and non-imprisonment sentences (or, alternatively, between incarceration and non-incarceration sentences) based on the nature of the facility in which the confinement is served. In particular, the Commission repeatedly draws a sharp distinction between confinement in a community treatment center or [1512]*1512halfway house and confinement in a conventional prison facility.

For instance, in setting forth the formula for calculating a defendant’s criminal history category, § 4A1.1 and its commentary add a different number of points to a defendant’s criminal history score depending not only on the length of the prior confinement, but also on the location of the prior confinement.4 Sentences of “imprisonment” are classified according to the amount of time the defendant spent in prison, and they are scored accordingly — 3 points if the imprisonment exceeded 1 year and 1 month; 2 points if the imprisonment was for greater than 60 days but less than 1 year and 1 month; and 1 point if the imprisonment was for less than 60 days. See U.S.S.G. § 4Al.l(a)-(c), and comment (Background).

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Bluebook (online)
991 F.2d 1509, 93 Daily Journal DAR 5200, 93 Cal. Daily Op. Serv. 3045, 1993 U.S. App. LEXIS 9098, 1993 WL 127191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bruce-loren-latimer-ca9-1993.