UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CLEDALE CALDWELL, Defendant - Appellant.
No. 24-3134
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
February 19, 2025
PUBLISH
Submitted on the briefs:*
Melody Brannon, Federal Public Defender and Kayla Gassmann, Assistant Federal Public Defender, Kansas City, Kansas, for Defendant - Appellant.
Kate E. Brubacher, United States Attorney, and James A. Brown, Appellate Chief, Kansas City, Kansas, for Plaintiff - Appellee.
Before TYMKOVICH, MATHESON, and BACHARACH, Circuit Judges.
MATHESON, Circuit Judge.
Cledale Caldwell pled guilty for failing to register as a sex offender, a federal offense that spanned 13 months. During that time, he was convicted of and sentenced for two Oklahoma offenses. At sentencing on the failure-to-register offense, the district court assessed criminal history points for the Oklahoma offenses. Mr. Caldwell objected, arguing those offenses should have counted instead as relevant conduct, which would have produced a lower United States Sentencing Guidelines (“Guidelines“) range. The district court disagreed. This dispute is now before us on appeal. Exercising jurisdiction under
A. District Court Proceedings
In April 2024, Mr. Caldwell pled guilty to one count of failing to update his sex offender registration in violation of the Sex Offender Registration and Notification Act (“SORNA“),
During this time period, Mr. Caldwell also committed two state crimes in Oklahoma:
- On May 22, 2020, he was arrested for obstructing an officer and unlawful possession of drug paraphernalia. He was convicted and sentenced on August 11, 2020, to 12 months in jail, with a suspended sentence.
- On March 18, 2021, he was arrested for obstructing an officer and unlawful possession of a controlled dangerous substance. He was convicted and sentenced on March 19, 2021, to six months in jail.
Mr. Caldwell‘s presentence investigation report (“PSR“) on the SORNA offense recommended treating each Oklahoma sentence as part of his criminal history. It assessed one criminal history point for his 2020 sentence, two points for his 2021 sentence, and one more point because Mr. Caldwell committed the SORNA offense while subject to the 2020 sentence and had seven or more points. See
Mr. Caldwell objected to counting his Oklahoma sentences as criminal history, arguing they should instead have been considered as relevant conduct that occurred during the commission of his SORNA offense. Doing so, he argued, would have left him with seven criminal history points, a category IV criminal history, and a Guidelines range of 15 to 21 months.
The district court denied this objection. It said, “I think the offenses are completely unrelated, they just happen[ed] to occur while your client was on release.” ROA, Vol. 3 at 70. Relying on Guidelines language and Tenth Circuit cases, the court rejected Mr. Caldwell‘s position that the Oklahoma offenses should be counted as relevant conduct if they occurred “during” the commission of the SORNA offense (between May 4, 2020, and June 6, 2021), regardless of whether the conduct was “related to” that offense.
The district court adopted the PSR‘s Guidelines calculation and sentenced Mr. Caldwell to 21 months in prison. This appeal followed.
B. Sentencing Under § 1B1.1 Instructions
To provide context for our discussion of the issue presented in this appeal, we briefly summarize the Sentencing Guidelines’ step-by-step instructions in § 1B1.1 used to calculate the Guidelines range in Mr. Caldwell‘s case:
- “Determine . . . the offense guideline section . . . applicable to the offense of conviction.”
Section 2A3.5 applies to Mr. Caldwell‘s SORNA offense.
- “Determine the base offense level and apply any appropriate specific offense characteristics, cross references,
and special instructions . . . .” Section 2A3.5(a) sets forth three base offense levels tied to the type of the defendant‘s sex offense listed in SORNA. Mr. Caldwell, a Tier I offender, received a base offense level of 12.
Section 2A3.5(b) sets forth specific offense characteristics that (1) increase the offense level if the defendant, while in “failure to register status,” committed a sex offense against an adult, a sex offense against a minor, or a non-sex felony offense against a minor, and (2) decrease the offense level if the defendant voluntarily corrected the failure to register or “uncontrollable circumstances” prevented registration. Mr. Caldwell received no adjustments under § 2A3.5(b).
- “Apply the adjustments as appropriate related to victim, role, and obstruction of justice from . . . Chapter Three.”
Mr. Caldwell received no Chapter Three adjustments except acceptance of responsibility (see below).
- “If there are multiple counts of conviction . . . .”
Not applicable here.
- “Apply the adjustment . . . for the defendant‘s acceptance of responsibility . . . .”
Mr. Caldwell received a two-level downward adjustment for acceptance of responsibility under
§ 3E1.1(a) . - “Determine the defendants’ criminal history category as specified in Part A of Chapter Four.”
Each qualifying prior sentence adds criminal history points under
§ 4A1.1 . Mr. Caldwell received 4 criminal history points based on his Oklahoma sentences for a total of 11 points and a criminal history category of V. - “Determine the guideline range . . . that corresponds to the offense level and criminal history category . . . .”
The adjusted offense level of 10 and criminal history category of V yielded a Guidelines range of 21 to 27 months in prison.
- “[D]etermine . . . sentencing requirements and options related to probation, imprisonment, supervision conditions, fines, and restitution.”
The district court sentenced Mr. Caldwell to 21 months in prison, to be followed by a five-year term of supervised release.
II. DISCUSSION
This appeal concerns whether the Guidelines should treat Mr. Caldwell‘s sentences for the Oklahoma offenses he committed during his SORNA offense as criminal history or relevant conduct.2 Under the Guidelines, “a conviction will not be treated as a prior sentence (and no criminal history points can be added) so long as the underlying conduct meets the definition of relevant conduct.” United States v. Keifer, 198 F.3d 798, 801 (10th Cir. 1999). Because Mr. Caldwell‘s state offenses do not relate to his SORNA offense, they are not relevant conduct and were properly considered as criminal history.
A. Standard of Review
We review the district court‘s legal interpretation of the Guidelines de
B. Guidelines Interpretation
“The guidelines are interpreted as though they were a statute or court rule, with ordinary rules of statutory construction.” United States v. Thompson, 281 F.3d 1088, 1090 (10th Cir. 2002). We recently summarized the applicable interpretive principles:
Ultimately, our task in interpreting the Guidelines is to determine the intent of the Sentencing Commission. As with general statutory interpretation, our analysis must begin with the language of the guidelines in question. In addition to the language of the relevant Guideline itself, we also look to the interpretative and explanatory commentary to the guideline, because the intent of the Sentencing Commission is demonstrated in part through its commentary. Guidelines commentary governs unless it runs afoul of the Constitution or a federal statute or is plainly erroneous or inconsistent with the guideline provision it interprets. And we construe the guideline and its commentary together and seek to harmonize them. If a harmonizing interpretation is possible, that is the proper one (so long as it does not violate the Constitution or a federal statute).
Tony, 121 F.4th at 62 (quotations and citations omitted).
The task is a “holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme.” United Sav. Ass‘n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988). Thus, “[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); see King v. St. Vincent‘s Hosp., 502 U.S. 215, 221 (1991) (restating “cardinal rule that a statute is to be read as a whole, since the meaning of statutory language, plain or not, depends on context” (citation omitted)); Wyodak Res. Dev. Corp. v. United States, 637 F.3d 1127, 1131 (10th Cir. 2011).3
C. Analysis
The Guidelines’ text and commentary, the purposes for relevant conduct and criminal history guidelines, and cases from this and other circuits show that relevant conduct consists of acts or omissions that occurred not only during the offense of conviction but also relate to that offense. We therefore affirm the district court‘s determination that Mr. Caldwell‘s Oklahoma offenses were not relevant conduct and should be assigned criminal history points under the Guidelines.
1. Text, Commentary, and Structure
We “begin with the language of the guidelines in question.” Tony, 121 F.4th at 61 (quotations omitted). It is useful in reviewing this language to keep in
a. Criminal history
When the district court included the Oklahoma offenses in calculating Mr. Caldwell‘s criminal history category, it relied on
Although the Oklahoma offenses appear to fit squarely in this definition of “prior sentence,” the commentary to
b. Relevant conduct
Section 1B1.3(a) states:
Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others that were-
(i) within the scope of the jointly undertaken criminal activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that criminal activity;
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;
(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction;
(3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and
(4) any other information specified in the applicable guideline.
Mr. Caldwell argues that “acts or omissions” which happen “during the commission of the offense” are relevant conduct whether or not they relate to the offense. Aplt. Br. at 11. He argues that the district court‘s understanding of relevant conduct would be valid only if
Mr. Caldwell focuses too narrowly on the words “during the commission of the offense of conviction” and then interprets “relevant conduct” too broadly. In doing so, he fails to recognize that the timing of when the conduct occurred may be necessary but is not sufficient for the conduct to be relevant. The proper interpretation requires more than when conduct happened to make the conduct relevant. “Interpreting the Guidelines with a nod towards common sense,” United States v. Brereton, 196 F. App‘x 688, 693 (10th Cir. 2006) (unpublished) (cited for persuasive value under
Section 1B1.3(a)(1)(A) sets a before, during, and after temporal boundary for relevant conduct. But within that boundary, it states that the “acts or omissions” must have “occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” Conduct that occurs “in preparation for that offense” and “in attempting to avoid detection or responsibility for that offense” is conduct that relates to the offense in more than simply a temporal sense. Without language to the contrary, it follows that conduct which “occurred during the commission of the offense” should be read as conduct that relates to the offense. And although “or” separates “during,” “preparation,” and “avoid[ing],” they all concern “the offense of conviction.” The common sense reading of
ii. Relevant conduct, offense levels and characteristics, and adjustments
Section 1B1.3(a) says that relevant conduct determines “(i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three.” Relevant conduct cannot be understood without accounting for these pervasive cross-references7 and the Guidelines’ structure.8 Examples from Chapter Two support our common-sense interpretation of
Throughout Chapter Two—Offense Conduct—the offense level and specific offense characteristics for each offense turn on conduct related to the offense, not on unrelated conduct that occurred during the offense.9 For example, § 2A2.3(a) sets the base offense level for assault at “7, if the offense involved physical contact, or if a dangerous weapon (including a firearm) was possessed and its use was threatened“; or “4, otherwise.” Similarly, under § 2A2.3(b), the specific offense characteristics for assault turn on conduct related to the offense: “If (A) the victim sustained bodily injury, increase by 2 levels; or (B) the offense resulted in substantial bodily injury to a spouse, intimate partner, or dating partner, or an individual under the age of sixteen years, increase by 4 levels.” As these provisions make clear, the choice of offense levels turns on conduct that is relevant to the offense.10
Even more telling is § 2A3.5, the offense section for Mr. Caldwell‘s SORNA offense. As set forth above, the offense levels stemming from the defendant‘s specific offense characteristics turn exclusively on conduct related to the offense “or any other information specified in the applicable guideline.”
As for Chapter Three, adjustments rely on
iii. Individual and joint criminal activity
Section 1B1.3(a)(1)(B) confines relevant conduct in the context of joint criminal
iv. Expanded relevant conduct
Section 1B1.3(2) sheds further light on
v. Definition of “offense”
The Guidelines define “offense” to mean “the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct).”
vi. Harmonizing criminal history and relevant conduct
Read in harmony, criminal history includes each “sentence previously imposed” for “conduct not part of the instant offense,”
The Supreme Court drew this distinction between “[criminal history] referring simply to a defendant‘s past criminal conduct (as evidenced by convictions and prison terms), see
2. Purpose of Relevant Conduct and Criminal History
“Ultimately, our task in interpreting the Guidelines is to determine the intent of the Sentencing Commission,” Tony, 121 F.4th at 62 (quotations omitted), which includes consideration of “the purpose of the Guideline,” United States v. Robertson, 350 F.3d 1109, 1118 (10th Cir. 2003); see also McCreary County v. ACLU, 545 U.S. 844, 861 (2005) (“Examination of purpose is a staple of statutory interpretation that makes up
The purpose of relevant conduct is to enable the sentencing court to consider all “offense characteristics“—that is, the Guidelines seek to identify “the real conduct that underlines the crime of conviction,” United States v. Booker, 543 U.S. 220, 250 (2005), so the defendant may “be held accountable” for those acts,
The purpose of the criminal history provisions is to enable the sentencing court to consider the defendant‘s “offender characteristics.” Id. at 1254. As a general rule, “[a] defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment.”
3. Cases
Although this court has not addressed the specific issue presented, our cases support the interpretation of
In Torres, a drug conspiracy case, we said, “To determine whether a prior offense is conduct related to the instant offense, courts generally examine several factors, including the similarity, temporal proximity, and regularity of the instant offense and the prior offense.” 182 F.3d at 1160. We identified—in addition to “time frame“—“geographic scope” and “similar[ity]” as germane to relevant conduct. Id. at 1161-62; see also United States v. Finnesy, 953 F.3d 675, 694 (10th Cir. 2020) (generally agreeing that “not every crime committed” during the commission of the continuing offense of escape from custody is relevant conduct); United States v. Anderson, 15 F.3d 979, 981 (10th Cir. 1994) (holding “possession and throwing away of [a] shank” were relevant conduct to the offense of “knowingly resisting, opposing, impeding and interfering” with an officer performing his official duties because the acts occurred “during the commission of the offense; they were part of the process of disobeying the officer“).
In United States v. Wilson, 416 F.3d 1164 (10th Cir. 2005), the defendant pled guilty to mail fraud. Id. at 1167. During that 14-month offense, he was convicted and given a deferred one-year sentence for a state firearm offense. Id. The district court assessed criminal history points for the state offense under
Other circuits support our interpretation. As the Second Circuit put it, “The words ‘relevant conduct’ suggest [that] more is required than mere temporal proximity, as the other conduct must be ‘relevant’ and it must occur ‘during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.‘” United States v. Ahders, 622 F.3d 115, 122 (2d Cir. 2010). And it further explained, “One criminal act does not become ‘relevant’ to a second act under the Guidelines by the bare fact of temporal overlap.” United States v. Wernick, 691 F.3d 108, 115 (2d Cir. 2012).16
The Seventh Circuit has explained, “Despite its broad scope, [
In the Ninth Circuit‘s Cruz-Gramajo case, the defendants challenged their sentences for illegal reentry, arguing the sentencing court should have considered the offenses they committed during the illegal reentry continuing offense—burglary, driving under the influence, and evading police—as relevant conduct rather than criminal history. 570 F.3d at 1164, 1168. They argued that because these offenses occurred “during” their illegal reentries “as a temporal matter,” “this temporal relationship is sufficient to deem the state offenses ‘relevant conduct’ rather than ‘criminal history.‘” Id. at 1168-69. The court rejected this argument: “Defendants’ reliance on a mere temporal link to require the district court to consider the state law sentences relevant conduct, and therefore not prior criminal history, is insufficient.” Id. at 1172.17 See also United States v. Vizcaino, 202 F.3d 345, 347 (D.C. Cir. 2000) (referring to relevant conduct as “conduct different from but related to an offense of conviction“).
Mr. Caldwell relies on United States v. Ressam, 553 U.S. 272 (2008). There, the defendant was convicted of (1) making a false statement to a customs official under
Although Ressam interprets the phrase “during the commission of,” any similarity with this case ends there. The object of that phrase in
* * * *
In summary, based on the text, commentary, structure, and purpose of the pertinent Guidelines, and also the weight of relevant case law, we hold that the district court properly considered as criminal history Mr. Caldwell‘s sentences for the two Oklahoma offenses he committed during the time he failed to register as a sex offender under SORNA.
III. CONCLUSION
We affirm Mr. Caldwell‘s sentence.20
Notes
691 F.3d at 115.But if a bank executive is engaged in embezzling money from her company from February to September, and she assaults a coworker at an office party in July, this does not become “relevant” to raise the offense level of the embezzlement merely because it occurred “during” the same period of time as the embezzlement. Without proof of a connection between the acts, the second event is literally a coincidence.
We disagreed because “[t]he Guidelines commentary defines ‘use’ as the ‘active employment in a manner to protect the [defendant] from gunfire,’ which does not suggest an implicit limitation that the body armor must be used in connection with the drug trafficking offense.” Id. (quoting
Chambers thus interpreted § 3B1.5(2)(B) and its commentary regarding the word “used.” The court did not interpret