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UNITED STATES OF AMERICA, Plaintiff-Appellee:

v.
LUIS EMILIO GONZALES, Defendant-Appellant. On Appeal lfrom the United States Dismct Court for the Eastern District of Washington D.C. No. CR-03-02059-EFS (Hon. Edward F. Shea, District Judge),
BRIEF FOR THE UIP1'XTED STATES RECOIVP~h73D~G IXEmMlVG EN BANC

JAMES A. McDEVITT United States Attorney Eastem District of Washington

JAMES P. HAGARTY Assistant United States Attorney Eastem District of Washington ELIZABETH A. OLSON Attorney, U.S. Department of Justice Criminal Division, Appellate Section 950 Pennsylvania Avenue NW #I264 NTashington, D.C. 20530 (202) 305-0954

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TPBLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 STATEMENT OF THE ISSUE ST-ATEMENT OF THE FACTS A.
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

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Following A Traffic Stop. Officers Find Marijuana. Metha~n~hetamine, and Firearns in the Defendant's Cw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Defendant Is Indicted and Pleads Guilty To Possession of a Firearm by a Prohibited Person and Possession of a Stolen Fiream. and is Sentenced to 57 Months' Imprisonment . . . . . . . . . . . . . . . . . . . . . 3 The Defendant Appeals the Firearrn Enhancement and Criminal Histor?, Point for His 2002 Conviction for Driving with a Suspended License . . . 5

B.

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C.

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A.

Framework for Computing Criminal History . . . . . . . . . . . . . . . . . . . . . . 9


TT'illianzs Failed to Take Into Account 84A1.2(b) and Related Commentary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 He7.rza7zdez-He7.1zmdez Does Not Conflict with Willici7n~. But the Cases Talcen Together Lead to an Absurd Result . . . . . . . . . . . . . . . . . . . 12

B,
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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CERTIFICATE C 1 F COMPLIANCE CERTIFICATE OF SERVICE

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CASES

Ha741 v. Massanari, 266 F.3d 1155 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . 9


Morton v. De Oliveira, 984 F.2d 289 (9th Cir. 1993)

.....................

U~zited States v. Ellis, 241 F.3d 1096 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . 5 United States v. Henla1zdez-He1-17a1zdez, 43 1 F.3d 1212 (9th Cir. 2005)

. . . passini

Uizited States v. J O ~ T I S O 43 TZ F.3d , 1211 (8th Cir. 1995) . . . . . . . . . . . . . . . . . 11 U?litedStates v. r;Yillia77zs,291 F.3d 1180 (9th Cir. 2002) U~zited States v. You~zg, 420 F.3d 91 5 (9th Cir. 2005)

. . . . . . . . . . . . . . passim

..................... 9

STATETES, RLTIZES A h 3 GLTDEL3131WS 18U.S.C.$922(g)(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 18U.S.C. $924(c)(l)(A)(i) 18U.S.C.922(j)

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Fed. R. App. P. 35(a)(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7


U.S.S.G.$2K2.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 , 3 U.S.S.G. 54Al.l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

U.S.S.G.$4Al.l,cormnentn.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S.S.G. 54A1.2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

U.S.S.G. $ 4A1.2, commentn.2 U.S.S.G. 5 4A1.2(c)(l)

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
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IN

THE U~T.TED STATES C0~;fr.T .O][;.&PEALS FOR THE NNTI-ICIRCUIT

UNITED STATES OF AMERICA,


Plaintiff-Appellee,
V.

LUIS EMILIO GONZALES,


Defendant-Appellant.

On Appeal fi-om the United States District Court for the Eastern District of Washington D.C. No. CR-03-02059-EFS (Hon. Edward F. Shea, District Judge)

BRIEF FOR THE LWITED STATES G EN BMYC


STATEMEYT OF THE ISSLE In calculating the defendant's sentencing guidelines range, the district court
assessed one criminal history point for the defendant's 2002 conviction for driving with a suspended license, a conviction for wllich the defendant received a suspended sentence of 30 days. The defendant appealed, and oral argument was heard on July 24,2006.

On Septeniber 19, 2006, the Court directed the parties to "file simultaneous
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briefs setting forth their respective positions on whether this matter should be reheard en banc." The order further directed the parties to "address U7zifedStates v. ?Villia~?zs,

291 F.3d 1 180 (9th Cir. 2002) @er curiarn) (l~olding that a conzpletei'y suspended sixmonth sentence constitutes a 'term of jmnprisonnient of at least thirty days' under U.S.S.G. 5 4A1.2(c)(l) and hence must be counted in the defendant's criminal history score), and Ulzited States v. Her?za~zdez-_He~7zarzdez, 43 1 F.3d 1212 (9th Cir. 2005) (holding that a partially suspended 90-day sentence does not count toward the defendant's crininal history score)." STA'JfERKE2VT OF FACTS A. Follourhg A Traffic Stop. Officers Find Marijuana. Methamphetamine. and Firealms in the Defendant's Car On March 2 1,2003, following a traffic slop of the defendant's vehicle, officers of tlie Yaltinia Police Department observed marijuana in plain view around the driver's seat. The defendant was arrested and, in a search of the vehicle incident to that an'est, officers discovered a gym bag containing a loaded fiream and niethamplietanline. A further inventory search of the vehcle uncovered two additional firearnls: one of which was determined to be stolen. PSR 7 17, 18. The defendant admitted that the substance found in the vehicle was metllan7phetanline: that the drugs were his, and that he sold drugs. He said another individual had "fi-onted" him 1.5 ounces of methamnphetanline, that he had sold some

of it and used some of it, and that the methamphetamine the officers..foundin the gym bag was what was left of the 1.5 ounces. The defendant said that he was going to meet the person w l ~ o had fronted him the metl~amphetamine to pay him for those drugs and to purchase more. PSR 7 19,20. The defendant also admitted that all the firearms in the vehicles were his, and that he always carried guns. He identified each gun by brand and caliber, and said he had obtained one of the firearnls at a crack house and that he knew it was stolen. PSR

7 19.
13.

The defendant admitted that he was a convicted felon. The Defendant Is Indicted and Pleads Guilty To Possession of a Firearm by a Prohibited Person and Possession of a Stolen Firearm. and is Sentenced to 57 hilon'cfis' In?lsrisonment On March 18,2003: a grand jury returned an indictment charging the defendant

with possession of a fiream by prohibited person, in. ~~iolation of 18 U.S.C. 922(g)(l) (Count 1), possession of a firearm in furtherance of a drug trasclting crime, in violation of 18 U.S.C. $924(c)(l)(A)(i) (Count 2), and possession of a stolen firearm, in violation of 18 U.S.C. 5 9220') (Count 3). CP 1; ER 1-3. On September 10,2003, the defendant pleaded guilty to Counts 1 and 3. CP 42; ER 39-50.

The probation office prepared a presentence investigation report("PSR).


Pursuant to U.S.S.G. 521U.l (a)(b), the PSR began with a base offense level of 14,
and added two levels because the offense involved three firealms (see

2K2,l(b)(l)(A)), two levels because one of the firearms was stolen (see
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52f(Z. 1 (b)(4)), and foar levels because tl2e defendant used or possessed the firearm in co~lnection with another felony offense (see 92K2.l (b)(5)). The PSR subtracted three levels for acceptance of responsibility, resulting ill a total offense level of 19.

The PSR determined that the defendant had 12 criminal hstory points, putting him
in criminal l i s t o ~ y category V: based on several prior convictions: including a 2002 conviction for third degree driving with a suspended license.' The district court (Edward F. Shea, J.) held a sentencing hearing on December 17 , 2003. ER 51-80. At sentencing, the district court overruled the defendant's objections to the application of a 4-level enhancement for possession of a firearm in co~rnectionwith another felony offense, and to the inclusion of a crininal history point for his 2002 conviction for driving with a suspended license. ER 62. The court sustained the defendant's objections to the counting of two other prior con'irictions
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carrying one crirniilal hstory point - on the ground that defendant had not

been represented by counsel in those cases. The court calculated an adjusted offense level of 19 and a crininal history category V based on 10 criminal history points, which produced a guidelines range of 57-71 months. The court imposed a sentence of 57 months. ER 77.

The 12 criminal histoly points include two points assessed because the instant offense was conlinitted less than two years following the defendant's release from imprisonnlent. See PSR 7 115; U.S.S.G. $4Al .l (e).
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The Defendant A ~ u e a slthe Firearm Enl~a~lcenient and Criminal History Point for His 2002 Conviction for Driving with a suspended License The defendant appealed his sentence, arguing that the district court erred 111

concluding that the defendant possessed a firearm "in connection with" another felony offense, and that the court erred in assessing a criminal listory point for the defendant's 30-day suspended sentence for his 2002 conviction for driving with a suspended license.
As to the first issue, the governlent noted that the defendant admitted he

was selling metllan1phetamine, and cited numerous decisions of his Court holding that the presence of a firearm in a car witlin easy reach of a defendant who is engaged in felonious conduct pemkts an inference that tlie fiream bad some potential emboldening role in the felonious conduct. See Gov't Br. 7 (citing, inter

Stales v. Ellis,2 4 1 F.3d 1096, 1099 (9th Cir. 2001)). The govemnent alia, Uni~ed
maintained that- the evidence was tl~erefore sufficient to support the district court's factual finding that the defendant possessed the firearm in connection with another felony. As to the second issue, the gove~mnent argued the that district court had properly relied on this Court's binding circuit precedent in United States v.
MTilliar~zs, 291 F.3d 1180 (9" Cir. 2002). Willia7lzs held that a completely

of imprisonn~ent of at least suspended six-month sentence constitutes a "te~rn

tI~irty days" under UU.S.S.G. 5 4A1.2(c)(l), and is tlzerefore counted in a


defendant's crininal history score even if the offense under-lying that suspended sentence is one of the nisdenleanors listed in 4A1.2(c)(l)). Following oral argument, the Court directed the parties to file simultaneous briefs setting fort11 their respective positions on whether this matter sllould be rehea~d en banc. The order hrther directed the parties to address FEllia7~1s and United States v, Herna7zdez-He17za71dez,43 1 F.3d 1212 (9th Cir. 2005). In

H ~ ~ z ~ I z ~ ~ az panel - Hof ~this ICourt I zconcluded ~ T ~ ~that ~z a partially , suspended


90-day sentence would not halie counted toward the defendant's criminal history listed in score if that offense of convjction was similar to the rnisden~eanors 4A1.2('c)(l)). Id. at 1220. Ultimately, however, the Ne~-~za1zde~-He~1zn71dez C o w held that the defendant's conviction for "threats to do harm" was not similar to the listed offense of "disorderly conduct," and therefore that the district court did not e1-r in assessing a point for the partially suspe~lded sentence. Id, at 1222.

S L W A I R Y OF ARG

NT

Rehearing en banc is appropriate. The precedent on which the district court relied in assessing a crinzinal history point for the defendant's 30-day suspended sentence is flawed because it focuses on only one subsection of the Guidelines, and fails to take into account other provisions of the Guidelines and commentary that indicate a totaIly suspended sentence does not constitute a sentence of a "term
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of in~prjsonnlent"under 54A 1.2(c)[1). Despite the now-advisory status of the Guidelines, en banc rehearing is wall-anted to correct this interpretation of the sentencing provisions because the issue arises with some frequency and can only be corrected by the en banc court.

rn@-rnNT

In assessing a crilizinal history point for Gonzales's 2002 conviction for


driving with a suspended license, the district court - as it was obligated to do followed this Court's binding precedent in Williams. At the sentencing hearing also relied on Willianzs to and in its initial brief to this Court, the gove~nment argue that the criminal history point was properly assessed. Upon closer inspection of the Vrillia77zsdecision, however, the govemnent believes that V7ilEia7~zs was incorrect on this point, and that a sentence for a rnisdenieanor listed in 54A 1.2(c)(l) should count towards a defendant's crin-inal hstory only if the non-suspended portion of the sentence imposed is at least 30 days (or under two otlier circunistances not relevant to this case).2 The analysis in

F$llia7?zs is flawed because it focuses only on

5 4A1.2(a)(3), and fails to account

for other provisions of the Guidelines and commentary that indicate a totally

Under 4A1.2(c)(l)), a sentence for the listed offenses also counts if the sentence was to a tern? of probation of at least one year, or if the prior offense was similar to the instant offense (regardless of the sentence imposed). Those two circun~siances are not at issue in this case.
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sl~spended s.ent.encedoes not. constitute a sentence of a "term of i~nprisonment" under 4A1.2(c)(l). \+%ether this issue nieets the high standards for en banc reconsideration is and Her~za~zdez-Henzandez are not less clear. First, the decisions in 1;1rillia7~zs directly in conflict, and thus en banc rehearing is not "necessary to secure or maintain unifornity of the court's decisions." Fed. R. App. P. 35(a)(l). Second, because the sentencing guidelines are now advisory rather than mandatory, and because the issue only affects a single criminal hstory point, this case may not clearly involve "a question of exceptional inzportance" sufficient to warrant en banc rehearing. Nevertheless, the government believes that Viillia7rzs is incorrect with respect to its treatment of suspended sentences for certain misdemeanors. Although the guidelines are now advisory, they can and should continue to play a central role in sen~encing, and it remains critical that the guidelines range is The governlent believes this issue is of sufficient calculated coi~ectly.~ importance, and arises with sufficient frequency, that the error should be

Without the point for his 2002 conviction, the defendant would be assessed 9 crininal histoly points rather than 10, which would result in a aidelines range of 46-57 months rather than 57-71 months.
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cm-ected. See, e.p, Li?:l!ed S!~!r?!es i i .Young: 4 4 2 0F.?d 915, 918 (9th Cir. 2@05).4

Because tlie error in Willianv can only be col-rected by the en banc Court; rehearing en banc is appropriate. See Hart V. Massa7za;r-i,266 F.3d 1155, 1171 (9th Cir. 2001) (''Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless ovellvled by the court itself sitting en banc, or
by the Supreme Court."); IMo~~to~z v. De Olivei7ea, 984 F.2d 289, 292 (9th Cir.

1993) ("[Olnly the court sitting en banc may overrule a prior decision of the court."). A. Fralneworlc for Computing Crimi~~al History Section 4A1.1 of the Sentencing Guidelines instructs a sentencing court to assess crirninal history points, based on a defendant's prior criminal sentences, including the following:
(a)

Add 3 points for each prior sentence of iniprisonment exceeding one year and one month.
Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a),

(b)

(c)

Add 1 for each prior sentence not counted in (a) or (b), up to a

The issue has also arisen in cases that did not result in published opinions. See, e.g, United States v. Vale~zcia-Espi~zdola: No. 04-30293; U~zited States v. Sa7adoval-Gutierrez, No. 03-30455.
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total of 4 points for this item. Section 4A1.2 defines "prior sentence" and "sentence of imnprisonnlent." As relevant here, subsection (a)(3) notes that "[a] conviction for which the imposition or execution of sentence was totally suspended or stayed shall be counted as a prior sentence under 5 4Al.l(c)." Subsection (b) of 84A1.2 defines "sentence of imprisonment": (1) The telm "sentence of in~prisonment" means a sentence of i~lcarceration and refers to the maximum sentence inlposed. If part of a sentence of imprisonment was suspended, "sentence of impliso~unent" refers only to the portion that was not suspended.

( 2 )

Finally, subsection (c) provides that sentences for certain prior offenses are excluded from the criminal hstory computation. Subsection (c)(l) provides:
(1)

Sentences for the following prior offenses and offenses similar to them, by whatever name they are Icnoum, are counted only if (A) the sentence was a term. of probation of at least one year or a tern of imprisonnient of at least thirty days, or (B) the prior offense was sinxilar to an instant offense:

Disorderly conduct or disturbing the peace Driving without a license or with a revoked or suspended license

B.

Mrilliams Failed to Talte Into Account $4A1.2(b) and Related Commentary

In Willianzs: the defendant challenged the inclusion of his prior conviction

h r . crinlil~al nisc.17ief in his crimkal l~istory score, argu,ing that the offense was
similar to disorderly conduct. 291 F.3d at 1195. The Ninth Circuit held that the exclusion in 3 4A1.2(c)(l) did not apply because the defendant had been for his criminal sentenced to a suspended six-month tern1 of imprisonme~~t mischief conviction. The court reasoned that, "[elven thougl~ the sentence was suspended, the definition of 'prior sentence' in the Guidelines includes suspended sentences for convictions that receive one criminal hstory point each," 291 F.3d at

1 195 (citing 5 4AlV2(a)(3)).


Although the Villianzs court was correct that the defendant's suspended sentence qualified as a "prior sentence," that should not have been the end of the inquiry because, with respect to the misdemeanor offenses listed in 5 4A1.2(c)(l), "[tlhe real issue is not whether [the suspended] sentence is a 'prior sentence,' but rather whether or not it is a 'countable' sentence under the Guidelines." U7zifed States v. Jolznsorz, 43 F.3d 1211, 1214 (8th Cir. 1995) (citing U.S.S.G.

5 4Al.1

for certain specified non-felony offenses are counted comment n.3 ("Se~itences only if they meet certain requirements. See 5 4A1.2(c)(l).")). As 5 4A1.2(c)(l) nukes clear, some prior sente~lces are counted, and some are not. Prior sentences for the nlisdenieanors listed in

5 4Alq2(c)(1)are included

where: inter alia, they resulted in a sentence that was "a tern of impriso~rment of at least 30 days." Section 4A1.2 does not define "term of imprisonment"; however,

does stat^: that ''se.ntence nf in~griLsor~~-errt" means '-'a sentence of Il~carceration


and refers to the maximnun1 sentence iniposed:" and also states that if part of .the sentence is suspended or stayed, "sentence of imprisomiient" refers only to the portion that is not suspended. U.S.S.G.

5 4A1.2@)(2).'

Consistent with

5 4A1.2(b), the conunelllary also states that ''[t]o

qualiQ as a sentence of

iniprisonment, the defendant must have actually served a period of imprisonment on such sentence * * *.': 5 4A1.2, comnent. (n.2). For the purpose of interpreting the exclusion in

5 4A1.2(c)(l), the

govenxllent can discern no reason to distinguish "a sentence [that] was *

**a

tenn of imprisonment" from a "sentence of imprisonment." If a "sentence of illiprisonnlent" requires that a defendant actually serve a period of imprisonment, that requirement surely applies as well to a sentence to a "ten11 of imprisonment."
C.
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Her7za7zdez-He7-7zn7zdez Does Not Conflict with Willia7?zs. But the Cases Talcen Together Lead to an Absurd Result
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In He1-1za7zdez-Her.1zai.zdeq the Ninth Circuit considered the effect of a prior


con~riction for whicl~ a patially suspended sentence was imposed. In that case, the

In addition, 5 4AIq2(a)(3)directs that a totally suspended sentence regardless of the length of time suspended - shall be counted as a prior sentence 1 1contrast, under tj 4Al. l(c), which assesses one point for each "prior sentence." 1 f section $9 4Al. 1(a) and (b) assess points for each "prior sentence o i77zp~~iso7~1~ze7zt)) (emphasis added). This suggests that, wllile a totally suspended sentence of imnprisonment." sentence is a "prior sentence," it is not a '"p~ior
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defendant received a 90-day sentence: 87 days suspended: for the offense of tlxeats to do hanll. 431 F.3d at 1220. The court held that the sentence in~posed "does not count as a prior sentence under $4A1,2(c)(l)(A) [i.e., a term of inlpriso11111entof at least 30 days] because his sentence was for only three days,"
431 F.3d at 1220 (citing 4A1.2@)(2)). In reaching this conclusion, the Court

relied on $ 4A1.2@)(1), which defines "sentence of imprisonment" as "a sentence of incarceration," and 5 4A1.2@)(2), which directs that "[ilf part of the sentence of inlprisoml~ent is suspended, "sentence of imprisonment' refers only to the portion that was not suspended." The Ile1-1zarzdez-He1-7~undez Court acknowledged that its decision might
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"appear to be at odds" with rYillianzs, but distinguished flTillia7zs on the ground that the defendant's sentence in that case was "'totally suspended' and $4A1.2@)(2)did not apply." 431 F.3d at 1220. The court continued: 'Where, as here, the sentence was partially suspended, 8 4A1.2(b)(2) prevents the three-day 'sentence of irnprisonnlent' konl counting" as a term of imprisonment of 30 days or more under 4A1.2(c)(l). Id. I-Iaving co~lcluded that the prior sentence would
be excluded if it was "similar" to the nlisden~eanors listed in 4Al.2(c)(l), tlle

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Court pi-oceeded to co~lsider that question, ulti~nately l~olding that the offense of "threats to do hanxl" was not similar to "disorderly conduct," and therefore that the
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prior sente~lce was not excluded. 431 F.3d at 1220-21.

$ 4 ~ 1 . 2and , tlms are not in direct conflict.

everth he less, tile cases lead to

aspm.et~-ical consequences. Under Tilliai~zs, a defendant convicted of disorderly would receive a conduct 1v11o received an entirely suspended 30-day se~ltence criminal history point. Under Hen7a7zdez-Hei*izarzdez, a defendant convicted of the same offense who received a 30-day sentence with 10 days suspended - and thus was actually ordered to serve 20 days - would lzot receive a crinlinal history point. Because a defendant receiving a totally suspended sentence should generally be considered as less culpable, or as posing a lesser risk of recidivism, than a defendant who receives only a partially suspended sentence and actually serves time, this result is out of balance. The Court should embrace such as~ametry only if the Guidelines' unequivocal language compels it. In this case, it does not. Instead, reading the provisions of $4A1 as a whole supports the opposite a defendant's conclusion, i.e.,that a covered nlisdemeanor should count to~va-d

criminal history points only if the defendant was ordered to serve at least 30 days.

It is appropriate for the Court to rehear this case en banc, overrule l??illiams

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with respect to its treatment of suspended sentences for n~isdemeanors listed in 4A1.2(c)(l), and remand this case for the district court to resentence the

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defendant, talcing into account an advisory guidelines range of 46-57 months.

Respectfully submitted,

JAMES A. McDEVITT United States Attorney Eastern District of Washington JAMES P. I-3VIGARTY Assistant United States Attorney Eastem District of Washington

Attorney, U.S. Department of Justice Crinrillal Division, Appellate Section 950 Pennsylvania Avenue hW #I264 Washington, D.C. 20530 . (202) 305-0954