919 F.3d 252
4th Cir.2019Background
- Justin Hawley pleaded guilty to two counts of being a felon in possession of a firearm and two counts of distributing heroin; offense level calculated at 19.
- Presentence Report added one criminal-history point for a 2015 misdemeanor conviction (providing false information to an officer and seatbelt violation) that resulted in a 30-day jail term after Hawley validly waived counsel.
- With that point Hawley’s criminal-history category was V (advisory range 57–71 months); without it category IV (46–57 months).
- Hawley objected at sentencing, arguing the Guidelines commentary limits counting uncounseled misdemeanors to those where imprisonment was not imposed, so his uncounseled 30-day sentence should not be counted.
- The district court counted the conviction under U.S.S.G. § 4A1.2(c)(1) (counts prior misdemeanors with probation >1 year or imprisonment ≥30 days) and imposed a concurrent 57-month sentence on each count.
- Fourth Circuit affirmed: because Hawley validly waived counsel and served 30 days, the prior conviction was properly counted; the commentary’s use of “including” was illustrative, not exclusive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior voluntarily uncounseled misdemeanor sentence of 30 days may be counted in Guidelines criminal-history under U.S.S.G. § 4A1.2(c)(1) | The government: the plain text of § 4A1.2(c)(1) requires counting misdemeanors with imprisonment ≥30 days; a valid waiver makes conviction constitutionally valid | Hawley: the background commentary states to count uncounseled misdemeanors only where imprisonment was not imposed; expressio unius implies uncounseled misdemeanors with imprisonment are excluded | Affirmed: the guideline text controls; commentary’s “including” is illustrative; a valid, voluntary uncounseled conviction with ≥30 days imprisonment may be counted |
Key Cases Cited
- United States v. Allen, 909 F.3d 671 (4th Cir.) (standard of review and commentary authority)
- United States v. Strieper, 666 F.3d 288 (4th Cir.) (guideline interpretation principles)
- Stinson v. United States, 508 U.S. 36 (1993) (treating Guidelines commentary as controlling unless invalid)
- N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929 (2017) (limitations on expressio unius canon)
- Argersinger v. Hamlin, 407 U.S. 25 (1972) (right to counsel for imprisonment unless valid waiver)
- Nichols v. United States, 511 U.S. 738 (1994) (discussing prior authority overturning Baldasar)
- Ortega v. United States, 94 F.3d 764 (2d Cir.) (contrasting decision counting uncounseled sentences with imprisonment)
- Custis v. United States, 511 U.S. 485 (1994) (collateral attack on prior convictions at sentencing)