In this appeal, defendant-appellant Manuel Carrasco-Mateo challenges a sentence imposed by the district court in consequence of his guilty plea to a charge of illegal reentry into the United States following an earlier deportation. See 8 *242 U.S.C. § 1326(a). The appellant asseverates that the sentencing court erred in (i) boosting his base offense level by sixteen on account of a prior felony conviction; (ii) adding three points to his criminal history score on account of the same conviction; and (iii) increasing his criminal history score by two more points because he illegally reentered the country while on parole. These asseverations require us to deal with questions of first impression in this circuit as to the meaning and operation of certain provisions of the federal sentencing guidelines. Despite the ingenious nature of the appellant’s challenges, we discern no error. Consequently, we affirm the sentence.
I.
Background
Because this appeal follows a guilty plea, we derive the facts from the ehange-of-plea colloquy, the uncontested portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing.
United States v. Brewster,
The origins of this appeal can be traced to the appellant’s felony drug conviction in a New York state court, for which he received an indeterminate prison sentence of one to three years on March 15, 2000. The appellant, a Dominican national, served less than a year of that sentence before being paroled into the custody of the Immigration and Naturalization Service (INS) to await deportation. See 8 U.S.C. § 1227(a)(2)(B)(i). The INS deported him to the Dominican Republic on April 25, 2001, notwithstanding that his parole term was to last until January 25, 2003.
We fast-forward to July 18, 2002. On that date, a Coast Guard search of a merchant vessel docked in San Juan uncovered twelve stowaways (including the appellant). After records revealed the previous deportation order, a federal grand jury indicted the appellant on a charge of violating 8 U.S.C. § 1326(a), a statute that makes it unlawful for a previously deported alien to reenter the United States without the express permission of the Attorney General.
The appellant eventually pleaded guilty to the charge. The offense of conviction carried a base offense level of eight. See USSG § 2L1.2(a). 1 The PSI Report recommended a sixteen-level enhancement because the appellant had previously been deported following a drug-trafficking conviction for which the sentence imposed exceeded thirteen months. See 8 U.S.C. § 1326(b)(2); USSG § 2L1.2(b)(l)(A)(i). This brought the appellant’s adjusted offense level to 24. After a two-level discount for acceptance of responsibility, USSG § 3El.l(a), the PSI Report settled upon a total offense level of 22.
Moving to the other furculum of the sentencing grid, the PSI Report recommended the assignment of three criminal history points on account of the appellant’s prior conviction, id. § 4Al.l(a), and two additional points for illegal reentry while on parole, id. § 4Al.l(d). These recommendations produced a criminal history category (CHC) of III. Consequently, the PSI Report suggested that the district court employ a guideline sentencing range *243 (GSR) of 51-63 months. See id. Ch.5, Pt.A (sentencing table).
The district court convened the disposition hearing on March 21, 2003. The appellant argued that he was entitled to a three-level reduction for acceptance of responsibility, see id. § 3El.l(b), instead of the two-level reduction recommended in the PSI Report. The appellant also sought a downward departure, see id. § 5K2.0, based on a claim that he had committed the offense of conviction out of impoverished desperation.
The sentencing court agreed with the appellant that he had timely accepted responsibility (and that, therefore, a three-level reduction was in order). This reduction in the offense level yielded a GSR of 46-57 months, based on a total offense level of 21 and a CHC of III. See id. Ch.5, Pt.A (sentencing table). The court refused to depart downward and sentenced the appellant to a forty-six month incarcera-tive term. This appeal ensued.
II.
Discussion
We review a district court’s interpretation of the sentencing guidelines de novo and its factual findings for clear error.
United States v. Mateo,
Against this backdrop, we turn to the appellant’s three assignments of error.
A.
Offense Level Enhancement
The sentencing guidelines set a base offense level of 8 for the crime of unlawfully entering or remaining in the United States. USSG § 2L1.2(a). The trial court is, however, directed to impose a sixteen-level enhancement “[i]f the defendant previously was deported ... after a conviction for a felony that is a drug trafficking offense for which the sentence imposed exceeded 13 months.” Id. § 2L1.2(b)(l)(A)(i). A felony drug-trafficking conviction carrying a lesser sentence triggers only a twelve-level enhancement. Id. § 2L1.2(b)(l)(B).
In the case at hand, there is no dispute that the appellant’s prior New York conviction was a drug-trafficking felony within the meaning of the applicable guidelines. The appellant argues, however, that the district court erred in treating it as a predicate for a sixteen-level enhancement. His first, and most loudly bruited, claim is that because the appellant served less than thirteen months on the prior conviction, he should have received only a twelve-level enhancement.
This claim relies heavily on Application Note 1 of the interpretive commentary to the sentencing guidelines. That note provides that “[i]f all or any part of a sentence of imprisonment was probated, suspended, deferred, or stayed, ‘sentence imposed’ refers only to the portion that was not pro *244 bated, suspended, deferred, or stayed.” USSG § 2L1.2, emt. n. l(A)(iv). The appellant reasons that when New York paroled him into the custody of the INS less than one year into his incareerative term, it simultaneously delivered him into this comment’s welcoming embrace. He thus reads the phrase “sentence imposed” as referring only to the time actually spent in immurement. This reading does not withstand scrutiny.
Our quarrel is not with the text of Application Note 1. The Sentencing Commission’s commentary, including the application notes, is binding on the courts as long as it does not conflict either with the sentencing guidelines themselves or with some statutory provision.
See Stinson v. United States,
The phrase “sentence imposed” traditionally has meant exactly what the words imply: the punishment meted out by the sentencing court. An offender’s early release cannot change the contours of the original sentence imposed after the fact.
See Rodrigues v. INS,
Application Note 1 is perfectly consistent with this reasoning. The enumerated caveats contained in the note — probation, suspension, deferral, and stay — are all judicial options available
at the moment of sentencing. See generally
18 U.S.C. § 3553. Parole is a different animal entirely, heavily influenced by post-sentencing events and administered by the executive rather than the judicial branch.
See United States v. Frias,
We add, moreover, that this reading of the phrase “sentence imposed” reinforces an easily discernible goal of the sentencing guidelines: to punish more severely those offenders who previously have received lengthy sentences. The appellant’s reading would instead reserve the most severe punishment for those who — because of poor behavior, ill fortune, or the inconsistent operation of parole in the several states — happen to serve more time. There is no reason to believe that the Sentencing Commission had that result in mind.
See Rodriguez-Arreola,
*245
To cinch matters, the Commission made its intentions plain elsewhere in the guidelines. Although courts should proceed cautiously in drawing comparisons between guideline chapters,
see
USSG § 1B1.1, cmt. n. 2, Chapter Four is particularly instructive as to the interpretive question at issue here. Like section 2L1.2(b), Chapter Four reflects the principle that recidivist offenders should receive sterner punishment. We therefore agree with the Third Circuit,
Frias,
Chapter Four states in pertinent part that, in the context of adjustments to a defendant’s criminal history score, a prior “sentence of imprisonment” means “the sentence pronounced, not the length of time actually served.” USSG § 4A1.2, cmt. n. 2. Given the similarity of purpose between section 4A1.1 and section 2L1.2(b), we think that it is logical to impute the same meaning to “sentence imposed.”
See Frias,
If more were needed — and we do not think that it is — the Sentencing Commission recently amended section 2L1.2 to affirm this precise congruity.
See
USSG § 2L1.2, cmt. n. l(B)(vii) (2003) (explaining that the term “sentence imposed” has the same meaning when used in section 2L1.2 as the term “sentence of imprisonment” when used in section 4A1.2). Even though this amendment post-dates the appellant’s offense and conviction, it is relevant here because the Commission characterized this amendment as clarifying rather than substantive. USSG Manual app. C, amend. 658 (2003). Clarifying amendments are considered “purely expository” and, thus, “may be applied retroactively.”
United States v. Cabrera-Polo,
Although the appellant does not make it squarely, his argument contains the seeds of a possible second ground for challenging the offense level enhancement. The New York sentence was indeterminate-one to three years — and one might posit that the sentence imposed does not unequivocally exceed the thirteen — month minimum described in section 2L1.2(b)(l)(A)(i). If this were so, the sentence could not support a sixteen-level enhancement. In the last analysis, however, this argument is not convincing.
Chapter Four of the Guidelines Manual once again serves as a useful point of reference. It counsels that “the length of a sentence of imprisonment is the stated maximum.” USSG § 4A1.2, cmt. n. 2. The same note then offers the following example: “in the case of an indeterminate sentence of one to five years, the stated maximum is five years.” Id. That is precisely the situation here.
The case law tracks this approach. Where indeterminate sentences are involved, the term “sentence imposed” uniformly has been held, for purposes of section 2L1.2, to mean the high end of the indeterminate range.
See, e.g., Frias,
*246 That ends this aspect of the matter. 2 We conclude, without serious question, that the court below did not err in applying a sixteen-level enhancement pursuant to section 2L1.2(b)(l)(A)(i).
B.
Criminal History Calculation
We turn now to the calculation of the appellant’s criminal history score. The nature of the appellant’s second and third arguments allows us to address them under one heading.
The appellant’s second plaint is essentially an echo of the first. He contends that the district court erroneously applied USSG § 4Al.l(a), which requires the addition of three criminal history points for “each prior sentence of imprisonment exceeding one year and one month.” The appellant reiterates that his actual period of incarceration on the New York drug-trafficking conviction fell short of this mark and maintains that his criminal history category should be recalculated accordingly. As explained above, the Sentencing Commission’s commentary explicitly rejects this proposed interpretation of section 4A1.1.
See
USSG § 4A1.2, cmt. n. 2;
see also United States v. Lewis,
This brings us to the appellant’s final assignment of error, in which he challenges the awarding of two additional criminal history points. The guidelines call for such an increment “if the defendant committed the instant offense while under any criminal justice sentence, in-eluding ... parole.” USSG § 4Al.l(d). Applying this directive, the lower court awarded the additional points because the appellant illegally reentered the United States while his New York parole term was still in effect. The appellant challenges this ruling.
For purposes of this guideline, a criminal justice sentence is one “having a custodial or supervisory component, although active supervision is not required for this item to apply.” Id. § 4A1.1, cmt. n. 4. Seizing on the first clause of this statement, the appellant asserts that he was not on parole within the meaning of section 4Al.l(d) when he illegally reentered the country. This assertion rests upon two assumptions: first, that New York law governs the meaning of the word “parole” in this context; and second, that New York relinquished any custodial or supervisory relationship with him when it paroled him into the custody of the INS. Neither assumption holds water.
The definition of a term appearing in the sentencing guidelines is a matter governed by federal law.
See United States v. Aymelek,
In urging a contrary view, the appellant cites a cluster of cases in which courts have delved into state law to resolve questions arising in the section 4Al.l(d) context. Those cases are readily distinguishable. Each of them involved a defendant laboring under an idiosyncratic state
*247
scheme that conferred a status not mentioned in section 4Al.l(d).
See, e.g., United States v. Kipp,
The district court unhesitatingly answered this query in the affirmative, and we agree. The appellant suggests that his term of parole ended when he was deported because New York, by definition, could not exercise custodial or supervisory authority over a parolee living abroad. The appellant cites no authority for this proposition, and immigration law suggests that parole survives deportation. For instance, Congress directed the Attorney General that a deportation action should proceed apace notwithstanding an alien’s parole status “or possibility of arrest or further imprisonment.” 8 U.S.C. § 1231(a)(4)(A). Implicit in this directive is the understanding that an alien may be deported and later face incarceration for violating his parole.
See United States v. Cuero-Flores,
We find these authorities persuasive here. Although the appellant is correct that he may not have been subject to the customary level of parole supervision after his deportation, the Sentencing Commission has specified that “active supervision is not required for this [guideline provision] to apply.” USSG § 4A1.1, cmt. n. 4. For purposes of section 4A1.1, a term of parole is a term of parole, with or without active supervision.
Ramirez-Sanchez,
We add,
moreover,
that New York law, insofar as it bears on this discussion, lends no support to the appellant’s position. The appellant asserts that when
*248
New York paroles an inmate into the custody of the INS, it has washed its hands of the.inmate and effectively relinquished its custodial and supervisory authority. New York, however, unequivocally reserves to itself “legal custody” of all parolees until the expiration of their parole terms.
See
N.Y. Exec. Law § 259-i(2)(b) (2004). Thus, if a deported alien returns to New York at any time during the announced term of his parole, the state is free to revoke his parole for cause shown and reinstate the unexpired portion of the violator’s incarcerative sentence.
People ex rel. Calderon v. Russi,
There is nothing odd about this configuration. It is well-accepted that “legal custody” may be present when a person is “subject to state-imposed restraints not shared by the public generally.”
Gonzalez v. Justices of the Mun. Ct.,
III.
Conclusion
We need go no further. We hold that, with respect to offense level calculations under USSG § 2L1.2, the phrase “sentence imposed” refers to the sentence pronounced, not the time actually served; and in the case of an indeterminate sentence, that phrase signifies the maximum term of incarceration under the sentence pronounced. We also hold that deportation does not automatically terminate an alien’s existing parole term or status for purposes of calculating his criminal history score. Consequently, we find no error, plain or otherwise, in the district court’s sentencing determinations.
Affirmed.
Notes
. A sentencing court must use the guidelines in effect at the time of sentencing unless doing so would present ex post facto problems.
United States v. Harotunian,
. The district court had all the information it needed to apply section 2L1.2(b)(1) because the PSI Report accurately recorded the details of the appellant's prior criminal history. We therefore regard as misdirected the appellant’s admonition that the district court may not base its sentencing decision on information not properly before it.