NOT RECOMMENDED FOR PUBLICATION File Name: 20a0473n.06
Case No. 19-5616
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Aug 10, 2020 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF JOSE JAVIER GOMEZ-COLIN, ) TENNESSEE ) Defendant-Appellant. ) ) )
BEFORE: GILMAN, DONALD, and LARSEN, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. The district court imposed two sentencing
enhancements on Jose Javier Gomez-Colin (Gomez-Colin), which had the combined effect of
raising his sentencing guidelines range from 70 to 87 months to 130 to 162 months. The sentencing
guidelines apply the enhancements at issue based on the “sentence imposed” for a defendant’s
prior felony convictions. In Gomez-Colin’s case, the enhancements were based on a 2009
conviction for child molestation in Georgia, but Gomez-Colin’s 2009 conviction and sentence have
an odd history. Initially, the Georgia court sentenced Gomez-Colin to 10 years’ probation for the
child-molestation conviction. However, after Gomez-Colin illegally reentered the country and
violated his probation, the Georgia court sentenced him to 5 years in prison. After Gomez-Colin
was sentenced in federal court for illegal reentry, however, the Georgia court “set aside” its 5-year
sentence. Case No. 19-5616, United States v. Gomez-Colin
On appeal, Gomez-Colin argues, as he did below, that his “set aside” sentence should be
treated like a suspended sentence and thus the enhancements should be less severe under the
guidelines. Because the guidelines and the Georgia court treat “set aside” and suspended sentences
differently, however, we AFFIRM the district court in its interpretation of the guidelines at issue.
Next, Gomez-Colin argues for the first time on appeal that he never served any time on the child
molestation conviction and thus is entitled to a remand based on our precedent. On this ground,
we also AFFIRM the district court because the evidence shows that Gomez-Colin did serve time
for the child-molestation conviction.
I. BACKGROUND
A. Statement of Facts
Jose Javier Gomez-Colin (Gomez-Colin) is a native citizen of Mexico. At some point prior
to May 2008, he entered the United States and became a lawful permanent resident. In 2009,
Gomez-Colin was convicted of child molestation in Georgia and sentenced to probation for 10
years. The government ordered him removed and deported him from the United States in July
2010. He returned to the United States illegally, and police in Alabama arrested him in March
2011. Alabama transferred custody of Gomez-Colin to Georgia, where, in July 2011, he admitted
to violating the conditions of his probation on the child-molestation conviction. The Georgia court
then sentenced Gomez-Colin to 5 years’ imprisonment, suspended the rest of his probation, and
then “remanded [Gomez-Colin] back into the custody of the sheriff’s department.” In January
2012, Gomez-Colin pleaded guilty to illegal reentry in the United States District Court for the
Middle District of Alabama, and the court sentenced him to 57 months’ imprisonment with 36
months’ supervised release to follow.
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After receiving the federal sentence, Gomez-Colin petitioned the Georgia court to
reconsider his sentence for the probation violation. The Georgia court ordered “that the judgment
entered on July 7, 2011 be set aside and [Gomez-Colin] be remanded to the custody” of the United
States. After Gomez-Colin served his sentence on the illegal reentry charge, the government again
deported him back to Mexico.
While still on supervised release for illegal reentry, Gomez-Colin returned to the United
States again, and, in March 2018, he pleaded guilty in Tennessee state court to engaging in sexual
activity with the intent to have a minor view his conduct. At the same time, the federal government
indicted Gomez-Colin for illegal reentry in the United States District Court for the Eastern District
of Tennessee, and the government issued a warrant for Gomez-Colin’s violation of his conditions
of supervised release for the initial illegal-reentry charge. Gomez-Colin subsequently pleaded
guilty to the latest illegal-reentry charge.
B. The Sentencing Guidelines
Under the sentencing guidelines for illegal-reentry offenses, there are a number of
enhancements for prior felony convictions and sentences imposed. Relevant here, U.S.S.G.
§ 2L1.2(b)(2) provides as follows:
(Apply the Greatest) If, before the defendant was ordered deported or ordered removed from the United States for the first time, the defendant engaged in criminal conduct that, at any time, resulted in—
(A) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was five years or more, increase by 10 levels; . . .
(D) a conviction for any other felony offense (other than an illegal reentry offense), increase by 4 levels . . . .
The notes explain that “‘[s]entence imposed’ has the meaning given the term ‘sentence of
imprisonment’ in Application Note 2 and subsection (b) of § 4A1.2. The length of the sentence
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imposed includes any term of imprisonment given upon revocation of probation . . . .” U.S.S.G.
§ 2L1.2(b)(2) cmt. n.2.
In addition, § 4A1.1 provides for additional points to someone’s criminal-history category
when that person has a prior “sentence of imprisonment,” with the number of points depending on
the length of the sentence. U.S.S.G. § 4A1.1. Sentencing courts “[a]dd 3 points for each prior
sentence of imprisonment exceeding one year and one month” but only “1 point for each prior
sentence” that did not last “at least sixty days.” Id. The notes explain that “[t]he term ‘sentence
of imprisonment’ is defined at § 4A1.2(b).” Id. at cmt. n.1. Thus, both “sentence imposed” in
§ 2L1.2(b)(2) and “sentence of imprisonment” in § 4A1.1 have the same meaning, and that
meaning is given in § 4A1.2(b).
Section 4A1.2(b) says that “[t]he term ‘sentence of imprisonment’ means a sentence of
incarceration and refers to the maximum sentence imposed.” U.S.S.G. § 4A1.2(b)(1). However,
“[i]f part of a sentence of imprisonment was suspended, ‘sentence of imprisonment’ refers only to
the portion that was not suspended.” U.S.S.G. § 4A1.2(b)(2). The notes also give us some
guidance: “To qualify as a sentence of imprisonment, the defendant must have actually served a
period of imprisonment on such sentence. . . . [C]riminal history points are based on the sentence
pronounced, not the length of time actually served. See § 4A1.2(b) (1) and (2).” U.S.S.G. § 4A1.2
cmt. n.2.
There are several other notes that do not address our direct issue but may be helpful
nonetheless. Note 6 explains that “[s]entences resulting from convictions that (A) have been
reversed or vacated because of errors of law or because of subsequently discovered evidence
exonerating the defendant, or (B) have been ruled constitutionally invalid in a prior case are not to
be counted.” Id. at cmt. n.6. Note 10 explains that “[a] number of jurisdictions have various
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procedures pursuant to which previous convictions may be set aside or the defendant may be
pardoned for reasons unrelated to innocence or errors of law . . . . Sentences resulting from such
convictions are to be counted.” Id. at cmt. n.10.
C. Sentencing
At the sentencing hearing, the district court handled sentencing for the illegal-reentry
conviction and the violation of supervised release at the same time. The court sentenced Gomez-
Colin to 18 months’ imprisonment for the violation of supervised release. Gomez-Colin is not
appealing that sentence. For the illegal-reentry conviction, the parties disagreed on the proper
guidelines range based on how the court should treat Gomez-Colin’s sentence for child
molestation, including the 5 years’ imprisonment (later “set aside”), which the Georgia court
imposed on Gomez-Colin for violating his probation. The government calculated a guidelines
range of 130 to 162 months based on a Criminal History Category VI, which was calculated by
including three criminal-history points for the child-molestation conviction, and a ten-level
enhancement to his total offense level for the same conviction. Gomez-Colin argued that his 5-
year sentence should not count because it was set aside, and, as a result, his criminal-history
category should have been Category V (based on adding only 1 point under § 4A1.1 rather than
3 points), and his total offense level should have been 6 points lower (based on applying a 4-point
enhancement rather than a 10-point enhancement under § 2L1.2(b)(2)). The parties agree that, if
Mr. Gomez-Colin is correct in his interpretation of how the court should treat the “set aside”
sentence, then his guidelines range would have been 70 to 87 months’ imprisonment.
The district court agreed with the government, finding that the 5-year sentence counts
under the guidelines because the sentence was merely “set aside” and not suspended. Thus, the
court found that the advisory guidelines range is 130 to 162 months. The court then imposed a
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sentence of 144 months. The court ran the sentence concurrent to the supervised-release violation
and the sentence in Tennessee for the charge of engaging in sexual activity with the intent to have
a minor view his conduct.
Gomez-Colin challenges the district court’s interpretation of the guidelines and calculation
of his guidelines range in this appeal.
II. ANALYSIS
On appeal, Gomez-Colin makes two arguments, one he made below and one that he did
not. First, Gomez-Colin argues, as he did below, that because the Georgia sentence was “set aside”
in a unique way, we should treat it like a suspended sentence under the guidelines. See U.S.S.G.
§ 4A1.2(b)(2) (“If part of a sentence of imprisonment was suspended, ‘sentence of imprisonment’
refers only to the portion that was not suspended.”). More specifically, he argues, “The district
court erroneously concluded that it should operate as if Mr. Gomez-Colin had been ordered to
serve a 5-year sentence, merely because the Georgia Superior Court used the phrase ‘set aside’
instead of suspended.’ The guidelines are not susceptible to this degree of formalism.” Gomez-
Colin also argues, for the first time, that he never served a single day of the 5-year sentence, and
thus, under the guidelines, we cannot count his 5-year sentence at all. See U.S.S.G. § 4A1.2 cmt.
n.2. (“To qualify as a sentence of imprisonment, the defendant must have actually served a period
of imprisonment on such sentence.”); United States v. Chatmon, 565 F. App’x 345, 350-51 (6th
Cir. 2014).
A. Standard of Review
The parties dispute the proper standard of review. The government argues that we should
treat this case as a procedural-reasonableness challenge, which is ordinarily subject to an abuse-
of-discretion standard. See Gall v. United States, 552 U.S. 38, 41 (2007). The government,
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however, argues that Gomez-Colin is making a new challenge that was not raised below, so his
claim should be reviewed for plain error. See United States v. Vonner, 516 F.3d 382, 386 (6th Cir.
2008) (en banc). On the other hand, Gomez-Colin argues that we should treat this case as a
challenge to the district court’s interpretation of the sentencing guidelines and thus review de novo.
See United States v. Graham, 275 F.3d 490, 513-14 (6th Cir. 2001). He also replies to the
government’s arguments for plain-error review by noting that he both raised “this precise objection
below” and that, even if his objection was not specific enough, our precedent holds that a broad
objection to the application of the sentencing guidelines would suffice to preserve his claim. See
United States v. Prater, 766 F.3d 501, 506-07 (6th Cir. 2014).
Both parties are partially correct in our view. For Gomez-Colin’s argument that we should
treat his set-aside sentence like a suspended sentence under the guidelines, the Court reviews de
novo. Gomez-Colin made this argument below. Further, he is not making a typical procedural-
reasonableness argument, but instead he is challenging the district court’s interpretation and
application of the guidelines. “We review a district court’s interpretation and application of the
Guidelines de novo, but limit our review of its factual findings to determine whether they were
clearly erroneous.” Graham, 275 F.3d at 513-14. As such, the Court reviews this claim de novo.
For Gomez-Colin’s second argument—that because he allegedly never served any time on
his 5-year sentence, his sentence cannot count under the guidelines—the Court applies plain-error
review. He did not make this claim below despite his current arguments to the contrary. In United
States v. Prater, the Court explained that “[t]o preserve a claim and thus avoid plain-error review,
a party must ‘objec[t] to the court’s action’ and also provide ‘the grounds for that objection.’”
766 F.3d at 506 (quoting Fed. R. Crim. P. 51(b)). “The requirement that the specific ground for
objection be made clear is to afford the trial judge an opportunity to remedy any claimed error and
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to afford the government an opportunity to come forward with evidence relative to the claim.” Id.
(internal quotation marks and citations omitted). Here, Gomez-Colin did not provide the current
ground for his objection to the district court, and the government was not given an opportunity to
rebut his claim with evidence below. The Court, therefore, reviews his second argument under the
plain-error standard.
B. Set-Aside Versus Suspended
Because the Georgia court did not suspend Gomez-Colin’s 5-year sentence, the district
court correctly calculated Gomez-Colin’s enhancement for the 5-year sentence, criminal history
category, and, thus, his guidelines range. We review this claim de novo. Graham, 275 F.3d at
513-14. Under the guidelines, “[i]f part of a sentence of imprisonment was suspended, ‘sentence
of imprisonment’ refers only to the portion that was not suspended.” U.S.S.G. § 4A1.2(b)(2).
Here, the Georgia court “set aside” Gomez-Colin’s 5-year sentence rather than suspending the
sentence. Gomez-Colin asked the district court and now asks this Court to find that the “set aside”
order was really just a misnamed “suspens[ion]” of the sentence.
The guidelines and the Georgia court, however, treat “set aside” and “suspended”
differently. Although Note 10 to § 4A1.2 deals with convictions rather than sentences, the
language is useful because it shows that the guidelines draw a distinction between setting
something aside and suspending something: “A number of jurisdictions have various procedures
pursuant to which previous convictions may be set aside or the defendant may be pardoned for
reasons unrelated to innocence or errors of law . . . . Sentences resulting from such convictions
are to be counted.” U.S.S.G. § 4A1.2 cmt. n.10. Suspended sentences (or at least the portions that
are suspended), on the other hand, do not count as sentences of imprisonment, § 4A1.2(b)(2),
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whereas convictions “set aside . . . for reasons unrelated to innocence or errors of law” still do. Id.
at cmt. n.10. As such, the guidelines treat “set aside” and “suspended” differently.
The Georgia court clearly knew that it could use the term “suspended,” but it chose to use
“set aside” in the order at issue. When the Georgia court initially imposed the 5-year sentence on
July 7, 2011, it also “suspended” the balance of Gomez-Colin’s probation. Despite the recent
suspension of part of Gomez-Colin’s probation, the Georgia court, when revising that decision,
“set aside” the 5-year sentence rather than suspending it. The Court will not go back now and
substitute the language used by the Georgia court.
Because the district court correctly determined that Gomez-Colin’s sentence had not been
suspended, the court correctly imposed a 10-point enhancement to his crime and a 3-point increase
to his criminal-history category.
C. Never Served Any Time
On appeal, Gomez-Colin argues for the first time that he did not serve any time on his
conviction for violating his probation for child molestation in Georgia, and thus the sentence
should not have counted as a “sentence imposed” or “sentence of imprisonment.” Note 2 to
§ 4A1.2 explains that “[t]o qualify as a sentence of imprisonment, the defendant must have actually
served a period of imprisonment on such sentence.” U.S.S.G. § 4A1.2 cmt. n.2. In United States
v. Chatmon, the Court wrote, “This provision is unambiguous. A sentenced imposed—but one for
which the defendant does not serve time, perhaps because of suspension or stay—does not count
as a ‘sentence of imprisonment’ for criminal-history purposes.” 565 F. App’x at 349. In Chatmon,
the Court also explained that the government has the burden of proving that the defendant had
actually served time. See id. at 353. Unlike in this case, in Chatmon, the defendant disputed
whether he actually served any time in prison at the district court level. Id. at 351.
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Based on Note 2 and Chatmon, Gomez-Colin’s argument is simple: he did not serve any
time on his 5-year sentence (or at least the government has not proven that he did) because the
sentence was “set aside,” and thus the enhancements should have been reduced. Gomez-Colin
cobbles together the statements of the district court and the government below to make his case.
Gomez-Colin cites the following statement from the district court to argue that the court found that
he had not served any time: “[The Georgia Court] didn’t wipe the slate clean. He just said, don’t
serve any -- I'm not going to have you serve any time, because you’re facing 57 months [in federal
court].” Meanwhile, before the district court, the government stated, “Your Honor, as you pointed
out, the defendant, his prior five-year sentence was simply -- the judge simply ordered that he did
-- was not required to serve that sentence. That was a sentence imposed on him, but it was, as they
said, set aside.”
The government disputes that Gomez-Colin did not serve any time on his 5-year sentence.
First, the government points us to the Georgia court’s order on July 11, 2011, when the court
announced that Gomez-Colin’s “five years of [] probation is revoked to serve in the state penal
system” and it “remanded [him] back into the custody of the sheriff’s department.” Next, the
government argues that Gomez-Colin must have been in custody serving time on this sentence
from July 2011 until October 2012 because the sentence was not “set aside” until October 3, 2012.
At the same time, the Georgia court also “remanded [Gomez-Colin] to the custody of the United
States.” Finally, the government asks us to take judicial notice of several documents from Gomez-
Colin’s proceedings in the Middle District of Alabama. One shows that Gomez-Colin moved “to
receive credit for the time spent in [the state of Georgia’s] custody as credit towards his federal
sentence.” The other shows the district court denying that motion, noting that “Mr. Gomez-Colin
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requests that this court issue an order directing the Bureau of Prisons to calculate his time spent in
the custody of the State of Georgia as a credit toward his federal sentence.”1
As previously discussed, we should apply plain-error review to this issue. Under plain-
error review, Gomez-Colin must “show (1) error (2) that was obvious or clear, (3) that affected
defendant’s substantial rights and (4) that affected the fairness, integrity, or public reputation of
the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)
(internal quotation marks and citations omitted). Here, Gomez-Colin’s claim fails because he
cannot show that any error “affected [his] substantial rights.” See id. Taking all the evidence,
including the documents that the government submitted for judicial notice, into account, it is clear
that Gomez-Colin did serve some time in Georgia custody for child molestation. Thus, even if the
district court erred by saying that Gomez-Colin had not served any time and assessed the
enhancement any way, that error was not plain because it does not affect Gomez-Colin’s
substantial rights as the evidence shows that he did serve time in Georgia on the child molestation
conviction.
On July 7, 2011, the Georgia court announced Gomez-Colin’s sentence for violating his
probation on his child-molestation conviction from 2009. The Georgia court revoked his probation
and ordered Gomez-Colin to serve “five years of [his] probation . . . in the state penal system.”
The Georgia court then “remanded [Gomez-Colin] back into the custody of the sheriff’s
department.” Nine months later, on March 14, 2012, Gomez-Colin noted, in his motion for the
Georgia court to reconsider his sentence, that “[o]n or about July 7, 2011 [his] probation was
1 We hereby GRANT the motion to take judicial notice of these documents. Although we do not normally consider documents that were not considered below, here, Gomez-Colin did not raise the argument below, so the government was not given “an opportunity to come forward with evidence relative to the claim.” See Prater, 766 F.3d at 506. Further, Gomez-Colin has not objected to our consideration of these documents. As such, we will consider these documents in reaching our decision.
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modified and [he] was ordered to serve five year [sic] in the penitentiary and the balance of
probation was suspended.” On October 3, 2012, the Georgia court set aside its 5-year sentence for
Gomez-Colin, noting that it was just now remanding him “to the custody of the United States.”
Furthermore, the PSR shows that Gomez-Colin was not in custody for some other offense in
Georgia.2 Finally, the evidence from the government’s motion for judicial notice is persuasive.
In December 2013, after Gomez-Colin had been given over to the custody of the United States, he
moved in federal court “to receive credit for the time spent in [the state of Georgia’s] custody as
credit towards his federal sentence.” As such, the evidence shows that Gomez-Colin served time
in prison in Georgia for child molestation.
Because the evidence shows that Gomez-Colin did serve time in prison in Georgia for child
molestation, Chatmon offers no substantive relief to Gomez-Colin. Because he cannot show that
he will receive any relief below for the claimed error, any such error by the district court did not
substantially affect Gomez-Colin’s rights.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s sentence of Gomez-Colin.
2 By July 2011, Gomez-Colin was not on probation or facing charges for any crimes in Georgia except his child- molestation charge. For his December 2009 conviction for public indecency, Gomez-Colin faced 12 months’ probation, which was served concurrently to his 10 years’ probation for child molestation. In July 2011, more than a year after December 2009, Gomez-Colin was off probation for public indecency. Likewise, Gomez-Colin was off probation for his April 2009 DUI conviction. He faced 4 months’ imprisonment and 8 months’ probation for the April 2009 DUI, but, again, more than a year passed between April 2009 and July 2011, so Gomez-Colin was not on probation or imprisoned for any other Georgia charges at the time that he was in Georgia custody from July 2011 to October 2012. Likewise, he has no other arrests during this time period in 2011-2012.
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