US v. Rengifo — criminal — affirmance — Roth

The Third Circuit on Friday embraced an exceptionally aggressive interpretation of the career-offender sentencing provision, affirming a defendant’s career-offender sentence without oral argument.

Under the US Sentencing Guidelines, a defendant can be sentenced as a career offender only if he has two qualifying prior convictions. One way a conviction can qualify — the way at issue in this case — is if it resulted in a “sentence of imprisonment exceeding one year and one month.”

One of Hector Rengifo’s two prior convictions was possession with intent to distribute marijuana. The sentence he received for this state conviction was “time served to 12 months.” Since 12 months plainly does not exceed one year and one month, the prior conviction doesn’t qualify and Rengifo isn’t a career offender, right? Wrong.

It turns out that Rengifo was released on parole after serving 71 days of the time-served-to-12-months sentence. Then his parole was revoked, he (as the opinion awkwardly puts it) “was sentenced to the remaining 294 days of the original sentence,” and he served another 120 days. He was released on parole again, revoked again, and “sentenced to the remaining 174 days of his sentence.” In the end he served his full original sentence, and nothing more. By “nothing more,” I’m referring to the fact that, in some jurisdictions, defendants who violate parole get additional time tacked onto their sentences for the parole-violating acts — revocation sentences, not just revocations. That’s not what happened here: Rengifo served 365 days. So, still not a sentence “exceeding one year and one month,” right? Wrong.

The government argued that, for career-offender-calculation purposes, Rengifo’s sentence was 365 days (the original max sentence) plus 294 days (the time he served after being released on parole the first time). The court rejected this argument — instead adopting a career-offender-calculation methodology it described as “harsher”:

[T]he correct total of Rengifo’s sentence of imprisonment is 833 days, which consists of the maximum imposed original sentence of 365 days, plus the maximum imposed sentence for the first revocation of 294 days, and plus the maximum imposed sentence for the second revocation of 174 days.

Holy cow!

The court rejected Rengifo’s due-process argument that this triple counting was double counting, and it rejected his rule-of-lenity argument because it found the career-offender guideline and application notes unambiguous. It relied mainly on USSG 4A1.2k n. 11, which says, “[i]f the sentence originally imposed, the sentence imposed upon revocation, or the total of both sentences exceeded one year and one month, the maximum three points would be assigned.”  I don’t see how it’s not at least ambiguous whether “sentence imposed upon revocation” means a new sentence added to the underlying sentence for the parole-violating acts.

Joining Roth were Fuentes and Krause. The case was decided without oral argument.