Rаphael Dozier was sentenced to 18 months imprisonment after pleading guilty to possession of a firearm by a convicted felon. He contends the district court erred by including in his criminal history computation the period of incarceration imposed by a state court upon revocation of a suspended sentence when the revocation resulted from the same conduct that is the basis of the instant offense. We affirm.
I. BACKGROUND
On July 23, 2007, the Salt Lake City Police Department sent a confidential source (CS) to Dozier’s residence for the purpose of purchasing illegаl narcotics. Dozier invited the CS into his home. The CS told Dozier he had $60 to purchase methamphetamine and gave the money to Dozier. Dozier asked his girlfriend to “go get me that thing I got today” and she returned with a revolver. (R. Vol. II, Doc. 24 at 3.) Dozier pointed the weapon at the CS and told him to leave. The CS grabbed his money from Dozier and left. Upon arriving at Dozier’s residence, police officers located a loaded revolver in a bedroom. Dozier stated the gun belonged to his girlfriend but admitted he had handled it and his fingerprints would be on it. He also admitted he had used methamphetamine earlier in the day.
On November 28, 2007, Dozier was indicted with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The United States Probation Office prepared a presentence report (PSR) which determined the total offense level to be 12 after applying a two-level downward adjustment for acceptance of responsibility. See USSG §§ 2K2.1(a)(6), 3E1.1. 1 The PSR concluded Dozier had seven criminal history points: one point for a 1998 conviction for possession of a controlled substance, three points *1138 for a 2006 conviction for possession of a controlled substance (the Controlled Substance Conviction), one point for a 2006 conviction for theft, and two points because he was on probation for the Controlled Substance Conviction when he committed the instant offense. See USSG § 4Al.l(d). Dozier’s criminal history placed him in Criminal History Category IV, resulting in an advisory guideline range of 21 to 27 months imprisonment.
In determining three criminal history points were warranted for the Controlled Substance Conviction, the PSR followed USSG § 4A1.2(k)(l) which instructs: “In the case of a prior revocation of probation ... add the original term of imprisonment to any term of imprisonment imposed upon revocation. The resulting total is used to compute the criminal history points for USSG § 4Al.l(a), (b), or (c), as applicable.” Dozier was originally sentenced to 0 to 5 years for the Controlled Substance Conviction, but the sentence was suspended and Dozier was placed on probation for 36 months after serving 20 days in jail. On August 24, 2007, the state court revoked Dozier’s probation for the Controlled Substance Conviction because he failed to comply with the terms of probation and imposed the original sentence of 0 to 5 years.
USSG § 4A1.1 provides in pertinent part:
(a)Add 3 points for each prior sentence of imprisonment exceeding one year and one month.
(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).
(c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this item.
Consistent with USSG § 4A1.2(k)(l), the PSR used 5 years and 20 days as the total incarceration time for purposes of calculating the criminal history points to be afforded to the Controlled Substance Conviction. 2 Consequently, it assigned three criminal history points to the Controlled Substance Conviction under USSG § 4Al.l(a) because the sentence exceeded one year and one month. 3
Dozier objected to the assessment of three criminal history points for the Controlled Substance Conviction, arguing he should have received only one criminal history point. He would have received only one criminal history point if the original sentence was calculated as either a 20-day sentence of imprisonment, see USSG § 4Al.l(c), 4 or a sentence of 36 months probation, see USSG § 4A1.2 comment. (n.2). The two-point difference is significant. Had Dozier received five instead of seven total criminal history points, he would have been in Criminal History Category III instead оf IV and his advisory guideline range would have been 15 to 21 months instead of 21 to 27 months.
The court overruled Dozier’s objection and adopted the PSR’s calculation of Do *1139 zier’s criminal history, resulting in a guideline range of 21 to 27 months. It sentenced Dozier to 18 months. The reduction came from granting a three-mоnth credit (over the government’s objection) for the five months Dozier served in state custody for violating his probation. Dozier appeals, asserting the court erred in overruling his objection. 5
II. DISCUSSION
Dozier contends the district court erred in holding the sentence imposed following the revocаtion of his probation on the Controlled Substance Conviction was a “prior sentence” within the meaning of USSG § 4A1.1, which is defined as “any sentence previously imposed upon adjudication of guilt ... for conduct not part of the instant offense.” USSG § 4A1.2(a)(l). He argues the conduct resulting in the revocаtion of his probation is the same conduct that forms the basis of the instant offense; it is thus “part of the instant offense” and by definition cannot be a “prior sentence.”
6
This is a question of law, which we review de novo.
See United, States v. Munoz-Tello,
“Generally speaking, we interpret the Sentencing Guidelines according to accepted rules of statutory construction.”
United States v. Cornelio-Pena,
Dozier’s argument focuses on USSG § 4A1.2(a)(l), which he believes excludes the sentence imposed following the rеvocation of his probation from the definition of “prior sentence.”
7
His argument
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ignores the relation-back aspect of the law-incarceration resulting from a probation revocation is punishment for the original offense.
8
It is imposed as a consequence of the defendаnt’s breach of probation terms but is not punishment for the breach.
See Alabama v. Shelton, 535
U.S. 654, 662,
This is an issue of first impression in this Circuit, but our holding is consistent with
United States v. Wheeler,
Dozier calls our attention to
United States v. Loudon,
wherein the Second Circuit held the district court did not err in departing upward under USSG § 4A1.3(a)
10
after concluding a sentence imposed upon a probation revocation could not be considered for purposes of calculating defendant’s criminal history because the sentence was imposed for conduct which formed the basis of the subsequent federal conviction.
Dozier points out, correctly, that the timing of state and federal court proceedings might lead to anomalous results. Additional criminal history points will be included when, as here, the state court probation revocation precedes the federal sentencing, but not when the federal sentencing precedes the state court revocation. While it may seem somewhat arbitrary, the problem is more thеoretical than real because probation revocation proceedings tend to be handled more expeditiously than federal criminal proceedings due to, inter alia, the lesser burden of proof and the absence of a jury in revocation proceedings. In any event, the possibility of anomalous results is not reason to rewrite the guidelines. 11
Where probation is revoked based on the same conduct forming the basis of a federal offense, the imposition of the original sentence is attributable to the original act of conviction, not the act underlying the revocation. The 0 to 5 year sentence imposed on Dozier following the revocation of his probation was not part of the “instant offense” and the court properly considered it in determining Dozier’s criminal history.
AFFIRMED.
Notes
. All references to the United States Sentеncing Guidelines are to the 2007 version.
. The term "sentence of imprisonment" “refers to the maximum sentence imposed.” USSG § 4A1.2(b)(1). Thus, an indeterminate 0 to 5 year sentence is considered a 5-year sentence.
See id.,
comment, (n.2);
see also United States v. Chavez-Diaz,
. The guidelines instruct that for purposes of calculating criminal history points under § 4A1.1, "[i]f part of a sentence of imprisonment was suspended, [the term] 'sentence of imprisonment’ refers only to the portion that was not suspended.” USSG § 4A1.2(b)(2).
. The PSR did not specifically set forth this calculation but we presume this was the approach it followed.
. The government has not appealed from the gratuitous reduction.
. The government points out that the record does not indicate the specific conduct that led to the revocation of Dozier’s probation on the Controlled Substance Conviction. Indeed, the PSR indicates only that Dozier’s probation was revoked because "he failed to obey all laws and, therefore, failed to comply with the State Court’s order.” (R. Vol. II, Doc. 24 at Addendum.) The government appears to be raising a factual issue. Because it did not raise this issue with the district court, we will not consider it here and will assume Dozier’s probаtion was revoked based on the same conduct underlying the instant offense.
.Dozier seems to concede, as we think he must, that the original sentence he received for the Controlled Substance Conviction-20 days imprisonment and 36 months probation-qualifies as a "prior sentence” within the meaning of the guidelines, meriting one criminal history point.
See
USSG §§ 4A1.1(c), 4A1.2 comment, (n.2). His argument thus treats the original sentence and the post-revocation 0 to 5 year sentence as disparate sentences. But USSG § 4A1.2(k)(l) expressly provides that a sentence imposed following the revocation оf probation is not to be calculated separately from the original sentence imposed but is to be combined therewith.
See
USSG § 4A1.2, comment, (n.ll) ("Rather than count the original sentence and the re-sentence after revocation as separate sen
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tences, the sentence given upon revocation should be added to the original sentence of imprisonment, if any, and the total should be counted as if it were one sentence.”). This more specific guideline controls.
See NISH v. Rumsfeld,
. It is not double jeopardy when a defendant is sentenced for a criminal act and his probation in another case is revoked as a consequence of that same criminal act.
See Johnson v. United States, 529
U.S. 694, 700,
.
See also United States
v.
Madrigal-Rodriguez,
.Pursuant to this guideline, a court can depart upward "[i]f reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history оr the likelihood that the defendant will commit other crimes.” USSG § 4A1.3(a)(1).
. The same timing problem exists in other circumstances and can work in a defendant’s favor. Where, for example, a federal defendant has been convicted but not yet sentenced in state court, the state convictiоn is only assigned one criminal history point, even though the sentence ultimately imposed may exceed one year and one month and therefore warrant three criminal history points. See USSG §§ 4Al.l(a), 4A1.2(a)(4). On the other hand, if the state sentencing precedes federal sentencing, the defendant will receive three criminal history points for a sentence exceeding one year and one month. USSG § 4Al.l(a).