Case Information
*1 Before: GREENAWAY, JR., SLOVITER, and BARRY, Circuit Judges (Opinion Filed: July 19, 2013) __________
OPINION
__________
SLOVITER, Circuit Judge.
Garfield Butler appeals the sentence imposed by the District Court following his guilty plea to illegal reentry in violation of 8 U.S.C. § 1326. For the reasons that follow, we will vacate the sentence and remand to the District Court for resentencing.
I.
Butler is a native and citizen of Jamaica who came to the United States as a teenager and was deported in 2006, after serving a fourteen-year sentence for drug trafficking. Shortly thereafter, he returned to this country. In 2010, Butler was pulled over for a traffic violation in New Jersey. He presented false identification documents to the officer, but his true identity was quickly discovered. Butler was charged with the New Jersey offense of exhibiting false documents as proof of identification, to which he pled guilty. The federal government then indicted Butler for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). Butler pled guilty to that offense as well, and was sentenced to forty-six months‟ imprisonment and a three-year term of supervised release. He raises two issues on appeal.
II.
Butler first alleges that the District Court erred in imposing a term of supervised
release pursuant to the 2010 U.S. Sentencing Guidelines Manual (“Guidelines”), when
*3
the 2011 Guidelines were applicable. Because Butler did not object to supervised release
at sentencing, we may intervene only if the District Court committed a plain error that
affected Butler‟s substantial rights and undermined “the fairness, integrity or public
reputation of judicial proceedings.”
Puckett v. United States
,
The 2010 Guidelines directed sentencing courts to order a term of supervised release whenever they imposed a prison sentence of more than one year. See U.S.S.G. § 5D1.1 (2010). Butler‟s pre-sentencing report was written on the basis of the 2010 Guidelines and cited § 5D1.1. Effective November 1, 2011, however, that provision was amended to include the caveat that
[t]he court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment.
U.S.S.G. § 5D1.1(c). In Butler‟s case, supervised release was not required by statute, see 8 U.S.C. § 1326; 18 U.S.C. § 3583, and Butler faced deportation after imprisonment, *4 see 8 U.S.C. §§ 1227(a)(2)(A)(iii); 1101(a)(43)(B). The record suggests that, at the time of sentencing, removal proceedings were already underway.
Sentencing courts must apply the guidelines in effect at the time of sentencing. 18
U.S.C. § 3553(a)(4)(A)(ii);
United States v. Wood
,
We cannot agree. It is true that the District Court could still have imposed a term
of supervised release pursuant to the 2011 Guidelines upon a finding that Butler‟s case
justified “an added measure of deterrence and protection.” U.S.S.G. § 5D1.1(c) cmt. n.5;
see also United States v. Dominguez–Alvarado
,
finding. As we have noted before, “[i]t is difficult to conclude that a District Court
would have
reached the same result in a given case merely because it
could have
reasonably imposed the same sentence on a defendant.”
United States v. Vazquez-
Lebron
,
With respect to the final step of plain error analysis, “we will generally exercise
our discretion to recognize a plain error in the (mis)application of the Sentencing
Guidelines.”
United States v. Irvin
,
III.
Secondly, Butler alleges that the District Court erred by including his New Jersey
false-identification conviction in his criminal history calculation, rather than considering
it as conduct “relevant” to his reentry offense under Guidelines § 1B1.3(a)(1). In
particular, Butler challenges the District Court‟s legal determination that “relevant
conduct” under § 1B1.3(a)(1) requires temporal proximity. Because Butler contests the
*6
District Court‟s general construction of the Guideline, independent of the particular facts
of his case, our review is plenary.
See United States v. Richards
,
To calculate a defendant‟s sentencing range pursuant to the Guidelines, a sentencing court must make two central determinations: the “offense level” and defendant‟s criminal history category. See U.S.S.G. §1B1.1. The offense level depends on all “relevant conduct,” including
all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant . . . 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.
Id.
§ 1B1.3(a)(1)(A). To determine the defendant‟s criminal history category,
meanwhile, the court must consider any “prior sentence,”
except
if it was for conduct that
is relevant under § 1B1.3.
See id.
§§ 4A1.1, 4A1.2 & cmt. n.1. This ensures that the
same conduct will never be considered toward both the offense level and the criminal
history category.
See United States v. Rivera-Gomez
,
This interpretation was erroneous. According to its plain terms, § 1B1.3(a)(1)
defines relevant conduct to include any act committed by the defendant “to avoid
detection or responsibility” for the underlying offense, without regard to temporality.
[5]
If
Butler presented false identification to avoid detection as an illegal reentrant, that conduct
was relevant within the meaning of § 1B1.3(a)(1).
See Rivera-Gomez
,
In Butler‟s case, as the government notes, classifying his false-identification
conduct as “relevant” may actually result in a higher Guidelines range, should the District
Court determine that it warrants an adjustment.
See, e.g.
, U.S.S.G.§ 3C1.1 & cmt. n.4(G)
(adjustment for obstruction of justice applies if defendant made false statements that
“significantly obstructed or impeded the official investigation or prosecution of the
instant offense”). Alternatively, Butler‟s conduct “may warrant a greater sentence within
the otherwise applicable guideline range.”
Id.
cmt. n.5. On the other hand, the District
Court could determine that no adjustment applies, and sentence Butler to less than forty-
temporally and operationally connected to the current offense.” Response Br. at 36.
Washington
neither asserts nor supports that rule. It simply notes that this court, in
Irvin
,
six months‟ imprisonment. We therefore cannot say that the District Court‟s error was harmless.
IV.
For the foregoing reasons, we will vacate the judgment of sentence and remand for resentencing in accordance with this opinion.
Notes
[1] The District Court had jurisdiction pursuant to 18 U.S.C. § 3231; we have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
[2] The commentary provides further explanation: Unless such a defendant legally returns to the United States, supervised release is unnecessary. If such a defendant illegally returns to the United States, the need to afford adequate deterrence and protect the public ordinarily is adequately served by a new prosecution. The court should, however, consider imposing a term of supervised release on such a defendant if the court determines it would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case.
[3] On the contrary, the contrast between the District Court‟s reflexive imposition of supervised release and its thoughtful analysis of every other issue at sentencing is strong evidence that the Court did not consider whether supervised release was necessary.
[4] The government argues that the dispute centers on the District Court‟s application of the rule to the facts, which we review only for abuse of discretion. See Richards , 674 F.3d at 219-23. We disagree but note that we would reach the same result under that standard.
[5] Sentencing courts consider temporal proximity to determine whether separate offenses
are part of the “same course of conduct” pursuant to § 1B1.3(a)(2), s
ee, e.g.
,
United
States v. Kulick
,
[6] The government invokes
United States v. Washington
,