Lead Opinion
Opinion by Judge FERGUSON; Partial Concurrence and Partial Dissent by Judge CYNTHIA HOLCOMB HALL.
OPINION
This appeal presents the issue of whether a temporary detention ordered by the California Youth Authority Youth Offender Parole Board may be treated as either a prior sentence or a constructive parole revocation for the purpose of calculating criminal history points under the Sentencing Guidelines (“Guidelines”). Appellee Giovanni Ramirez pleaded guilty to a Class A felony with a statutory minimum sentence of 10 years. The District Court found that Ramirez’s two prior temporary detentions, which were ordered by the Youth Offender Parole Board as a result of
We have jurisdiction pursuant to 18 U.S.C. § 3742(b) (2002) and 28 U.S.C. § 1291 (2002). Because we conclude that the temporary detentions neither resulted from “adjudications of guilt” beyond a reasonable doubt nor constituted returns to the original term of imprisonment such that they could be treated as constructive revocations of parole, we affirm.
I. BACKGROUND
On December 19, 2000, Ramirez pleaded guilty to distribution of 62.5 grams of methamphetamine, a Class A felony carrying a statutory minimum sentence of 10 years. 21 U.S.C. § 841(b) (2002). Based on Ramirez’s record with the California Youth Authority (CYA), discussed below, the Probation Department’s Presentence Report (PSR) concluded that Ramirez had two criminal history points and was therefore ineligible for a safety-valve departure from the mandatory minimum.
A. Ramirez’s History with CYA
On September 27, 1989, at the age of seventeen and over ten years before the instant offense, Ramirez was found guilty of rape and four other counts and placed in the custody of CYA. Ramirez served a little less than four years of his fourteen year sentence and was paroled from CYA on July 29, 1993, over five years prior to the commission of the instant offense.
On June 21, 1996, Ramirez was issued a citation for speeding. Three days after the citation, he tested positive for marijuana use. As a result of these two occurrences, his parole officer prepared a Corrective Action Plan (CAP)
On November 18, 1996, Ramirez was arrested for possession of a concealed weapon. He was subsequently detained pending a determination of whether the arrest constituted a violation of his parole. On November 20, 1996, Ramirez waived his right to a probable cause hearing, and on November 27, 1996, YOPB issued an order making a probable cause finding as
On April 11, 1997, the YOPB issued an order requiring that Ramirez continue to be detained pending a hearing on his alleged violation. The order stated that Ramirez “had several violations in 1996 and his commitment offense, recent parole performance, and this arrest necessitate a violation]/ disposition hearing.” On May 1, 1997, Ramirez signed a form acknowledging that he had received notice of his rights regarding the parole hearing and waiving his right to a fact-finding hearing, witnesses, or the assistance of an attorney. He admitted the weapons possession allegation as described in the probation disposition report.
On May 13, 1997, based on Ramirez’s admission, the YOPB found that there had been a parole violation. However, instead of revoking his parole, the YOPB ordered Ramirez to spend two weeks in temporary detention. The order specifically noted under “Reasons” for its disposition that Ramirez would “be better served by parole supervision.” Ramirez was released from temporary detention on May 27, 1997. It is undisputed by the parties that Ramirez’s parole was never actually revoked under state law. On September 11, 1997, Ramirez was discharged from CYA parole.
B. Sentencing for the Instant Offense
The District Court conducted a total of eight sentencing hearings. In addition to their initial sentencing briefs, the parties submitted three sets of supplemental briefs, and the probation office submitted two addenda to the PSR. In addition, the District Court requested and heard testimony from both of Ramirez’s CYA parole officers and from the YOPB member who had signed the two temporary detention orders.
On December 7, 2001, the District Court issued its sentencing decision.
II. STANDARD OF REVIEW
A district court’s interpretation of the Sentencing Guidelines is reviewed de novo. See United States v. Veerapol,
III. DISCUSSION
The government contends that the District Court erred in finding that Ramirez
A. Temporary Detention as a Prior Sentence under U.S.S.G. § 4Al.l(c)
Under U.S.S.G. § 4A1.1(c), a defendant receives one criminal history point for “each prior sentence[that is neither a prior sentence of imprisonment exceeding one year and one month] or [a prior sentence of imprisonment of at least sixty days], up to a total of 4 points.” U.S.S.G. § 4A1.1(c). The definition of a “prior sentence” is “any sentence previously imposed upon an adjudication of guilt, whether by guilty plea, trial, or plea of nolo contende-re, for conduct not part of the instant offense.” § 4A1.2(a)(1).
The District Court determined, and Ramirez urges on appeal, that the proceedings underlying the temporary detentions were not “adjudications of guilt.” “When interpreting the sentencing guidelines, we have carefully distinguished between confinement resulting from an adjudication of guilt and confinement for other reasons.” United States v. Johnson,
In the instant case, the government has failed to show that either of the detentions resulted from a finding of guilt beyond a reasonable doubt. The regulation authorizing the YOPB to order a temporary detention requires only a preponderance showing. Cal. Code Regs. tit. 15 § 4985(c)(6).
The government asserts that because Ramirez admitted to the allegations in both cases, there is no need to show that there was a finding of guilt. However, the Guidelines specifically require that an “adjudication of guilt” result from a “guilty plea, trial, or plea of nolo contendere.” U.S.S.G. § 4A1.2(a). No mention is made of “confessions” or “admissions.” “A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction.” Boykin v. Alabama,
B. Temporary Detention as a Constructive Revocation of Parole
The government. alternatively asserts that the District Court erred because the temporary detentions should have been treated as constructive revocations of parole and aggregated with Ramirez’s prior sentence. Specifically, the government argues that the term “revocation,” as used in U.S.S.G. § 4A1.2(k), should be interpreted to include any, instance in which confinement is imposed due to a parole violation, even where parole is not formally revoked under state law.
The Guidelines require that revocations of parole be considered in calculating a sentence so that “the original term of imprisonment [is added] to any term of imprisonment imposed upon revocation.” U.S.S.G. § 4A1.2(k)(l), “To qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence.” U.S.S.G. § 4A1.2 cmt. n. 2. In addition,
[Revocation of ... parole ... may affect the time period under which certain sentences are counted as provided in § 4A1.2(d)(2) and (e). For the purposes of determining the applicable time period, use the following: ... (ii) in the case of any other confinement sentence for an offense committed prior to the defendant’s eighteenth birthday, the date of the defendant’s last release from confinement on such sentence (see § 4A1.2(d)(2)(A)).
U.S.S.G. § 4A1.2(k)(2)(B).
In determining the meaning of “revocation” under the Guidelines, we must apply a uniform, federal definition, “not dependent upon the vagaries of state law.” See United States v. Martinez,
1. Definition of Revocation Under - § 4A1.2(k)
The purpose of creating a uniform federal definition of terms within the Guidelines is to effectuate consistent nationwide application of federal legislation. See Taylor,
In contrast to criminal offenses, the elements of which frequently vary from state to state, the definition of “revocation” is consistent from state to state. Like the terms “conviction” or “plea,” the term “revocation” describes a specific outcome of a process, the basic requirements of which have been clearly articulated by the Supreme Court. We look to these constitutional requirements to determine the outer boundaries for the federal definition of revocation before proceeding to consider the statutory text and contemporary understanding of the term.
a. Constitutional Requirements for Probation or Parole Revocation
Before a revocation of parole or probation can occur, the Constitution requires that there be (1) a formal finding that a probationer or parolee has committed a violation and (2) a determination that the violation was serious enough to warrant reimposing the probationer’s or parolee’s original sentence. See Morrissey v. Brewer,
A violation alone does not automatically trigger a revocation. See id. at 479,
In sum, before a district court can conclude that there has been a revocation pursuant to § 4A1.2(k), there must be, at minimum, a showing that the requirements of Morrissey were met. See Johnson,
b. Ordinary Meaning & Legislative History
Keeping in mind the requirements of Morrissey, and following the two general principles that (1) “[c]ourts can and should ... adopt statutory interpretations, when feasible, that will avoid serious constitutional issues,” United States v. Hernandez,
The particular provision at issue here requires that “the original term of imprisonment [be added] to any term of imprisonment imposed upon revocation.” U.S.S.G. § 4A1.2(k)(l). Neither the Guidelines nor Commentary to the provision provides a definition of revocation. However, the “conventional understanding of ‘revoke’ [is] ‘to annul by recalling or taking back.’ ” Johnson v. United States,
This construction is consistent with the Guidelines’ own probation scheme, which gives sentencing courts discretion to “revoke ... or [ ] extend the term of probation or supervised release and/or modify the conditions of supervision.” U.S.S.G. § 7B1.3(a)(2) (emphasis added). By articulating a clear distinction between formal revocation proceedings and modifications imposed as a result of lower-level violations, the Guidelines contemplate the serious nature of revocation and distinguish it from lesser sanctions imposed without the full protections Morrissey requires. Where the terms of probation are modified, including imposition of temporary periods of confinement, but the probationer remains under the supervision of the probation entity, revocation has not occurred. But see United States v. Glover,
The rule of lenity favors such a narrow construction. We “will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Latimer,
Finally, we note that this construction of § 4A1.2(k) does not preclude the use of evidence of parole or probation conduct that the government believes is relevant to sentencing, nor does it undermine the general premise that “repeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation.” U.S.S.G. ch. 4, pt. A., introductory cmt. (2001); contra Glover,
The government nevertheless argues that any term of confinement presumptively reflects an intent to annul the privilege of parole or probation, regardless of whether the parole or probation entity expresses such an intent in a formal determination. Essentially, the government is arguing that a narrow construction is “at odds with the generally accepted contemporary meaning” of revocation. Taylor,
c. State and Federal Practice
It is clear that, in practice, the imposition of a term of confinement during the ordinary course of parole or probation does not necessarily mean that a revocation has occurred. State statutes describe a wide array of intermediate sanctions
From this vast array of options, parole or probation officials choose the punishment that they believe will best address the needs of the individual parolee or probationer. A finding of a “technical” or lower-level violation typically results in the imposition of an intermediary sanction and not in actual revocation. See generally U.S. Probation Office, Cent. Dist. of Cal. Revocation WoRkbook (last revised 2003). Because their primary aim is to act as a warning to the parolee or probationer, modification procedures generally lack the formality or due process protections required by actual revocation; they are not
It is clear that a violation can result in a vast range of sanctions, including revocation, none of which are necessarily directly related to either the seriousness of the violation or the culpability of the parolee or probationer. Cf. U.S.S.G. § 7B1.3(a) (distinguishing between mandatory versus discretionary revocation on the basis of the seriousness of the violation). The inherently flexible and discretionary nature of the different state systems, which aim to consider the totality of the parolee’s or probationer’s history as well as the gravity of the violation, leads to discrepancies in the type of sanctions handed down for even the same minor violations. A definition of revocation that looks only to the nature of the sanction imposed would thus result in a rule that is more arbitrary than what would result if we adhered to an actual revocation requirement. Parolees or probationers who engaged in similar offenses would receive vastly different sentences based on unsubstantiated guesses as to what parole or probation boards intended to do. We do not believe that Congress contemplated such a result when it wrote § 4A1.2(k).
In short, both Morrissey and practice instruct that we should defer to the original parole or probation entity to determine whether or not revocation is an appropriate sanction for the violation. By engaging in ad-hoc determinations that violations are of a sufficiently serious nature to warrant revocation, or by interpreting a particular sanction as indicative of an intent to revoke, subsequent courts usurp the discretion of the parole or probation authority. Where the parole or probation authority followed the procedures required for revocation but explicitly chose not to initiate revocation, we cannot second-guess that determination any more than we could determine that a defendant who was punished as severely as they would have been for murder was “constructively” convicted of murder.
2. Other Circuits’ Treatment of § 4A1.2(k)
We recognize that our narrow construction of § 4A1.2(k) potentially conflicts with the holdings of other circuits addressing this question. See Glover,
As an initial matter, we note that only one of the other circuits considering the question has dealt specifically with the modification versus actual revocation distinction. See Glover,
More importantly, none of these cases consider, either explicitly or implicitly, the constitutional requirements for revocation set out in Morrissey. Nor did any of the courts have the benefit of the usual definition of revocation articulated by the Supreme Court in Johnson v. United States.
To the extent they are inconsistent with this opinion, we find the decisions in the other circuits treating any violation followed by confinement as a revocation of parole under § 4A1.2(k) to be unpersuasive. To the extent they presume that constructive revocations exist, the holdings ignore the plain language of § 4A1.2(k) and the general rule that we construe penal statutes strictly. They also fail to consider the constitutional requirements for revocation set out in Morrissey. Finally, the other circuits’ approach does not grant sufficient deference to the reasoned determinations of parole or probation authorities, who are in a better position than subsequent courts to determine whether a particular violation is sufficiently grave to warrant revocation.
3. Ramirez’s Parole Was Not Revoked Under Federal Law
In the instant case, neither temporary detention can be equated with a revocation of parole that could be aggregated with Ramirez’s juvenile sentence under § 4A1.2(k). Indeed, both detentions were clearly ordered as alternatives to revoking Ramirez’s parole.
With regard to the first violation, there has been no showing that the requirements of Morrissey were met. See Johnson,
With regard to the second temporary detention, the parole authority neither made a finding of revocation nor returned Ramirez to parole subsequent to his detention. In fact, the YOPB explicitly found that no revocation was necessary and stated that Ramirez would be better served by remaining under the supervision of parole officials. The temporary detention is thus more accurately viewed as a modification of the terms of Ramirez’s parole, as opposed to a revocation. In light of the usual meaning of the term revocation, and state and federal practice, we hold that the second temporary detention does not fall within the scope of § 4A1.2(k).
In sum, we find that Ramirez’s parole was never actually revoked, nor can his time in temporary detention be equated with imprisonment, as he remained under parole supervision. We therefore hold that the District Court did not err in determining that neither of the two temporary detentions ordered by YOPB consti
IY. CONCLUSION
For the reasons discussed above, we hold that the District Court did not err in determining that neither of the two temporary detentions ordered by YOPB constituted either a prior sentence under § 4Al.l(c) or a constructive revocation of parole under § 4A1.2(k).
The judgment of the District Court is AFFIRMED.
Notes
. According to Parole Agent John Sauceda, "CYA ... implemented the use of a CAP to address lower end parole violations where the parolee had signed a waiver of a fact finding hearing.”
. The temporary detention regulation authorizes "detention of a[CYA] parolee for 30 days or less for treatment purposes and/or to redefine the conditions of parole.” Cal. Code Regs. tit. 15, § 4985 (2003). The regulation explains that "[tjemporary detention shall be used when the violation process is not contemplated.” Id.
. On May 9, 2002, the District Court issued an order outlining the reasoning and legal authority underlying its sentencing decision.
. Because a defendant can qualify for the safety-valve provision of the Guidelines so long as he does "not have more than 1 criminal history point,” see U.S.S.G. § 5C1.2(a)(1), the United States must show either that both of the temporary detentions qualify as prior sentences or that one of the detentions can be treated as a constructive revocation that can be aggregated with Ramirez’s four-year term of imprisonment. Unless aggregated with his time in temporary detention, Ramirez’s prior term of imprisonment may not be considered because he was released over five years before the commission of the instant offense. See U.S.S.G. § 4A1.2(d)(2).
. This is also the standard used generally. See United States v. Guadarrama,
. Although Johnson went on to rely upon a looser, unconventional definition of the term "revoke,” see
. The recognition that short periods of confinement are not always relevant to a criminal history score is implicit in U.S.S.G. § 4A1.2(c), which distinguishes between sentences for low level offenses that are of short duration (less than 30 days) and therefore not generally counted, and those which are "of at least thirty days” and therefore are. See U.S.S.G. § 4A1.2(c)(1).
. At least 19 states have statutes providing for intermediary sanctions involving confinement. Many of these sanctions are explicitly designed to allow for punishment of lower-level violations without actual revocation proceedings. See Ariz. Rev. Stat. Ann. § 13— 914(a)(2) (West 2003) (authorizing commitment of violators to an intensive probation program); Colo. Rev. Stat. Ann. § 18-1.3-301(c) (West 2003) (providing that probation officers may recommend violators be committed to a community corrections program); Del. Code Ann. tit. 11, §§ 6705(d) and 6711 (2002) (authorizing violators' enrollment in intensive boot camp incarceration and aftercare parole supervision program); Fla. Stat. Ann. § 958.045(3) (West 2003) (establishing short “shock incarceration” in Youthful offender basic training program as option for offenders); Ga. Code Ann. § 42-8-35.4(a) (West 2002) (permitting trial judge to require a defendant who has violated probation to complete a program of confinement in a detention center); Haw. Rev. Stat. Ann. § 353-63.5(b)-(c) (Michie 2002) (authorizing paroling authority to impose several alternative programs in lieu of incarceration, including home detention, intense supervision, and therapeutic residential and nonresidential programs); 730 III. Comp. Stat. 5/3-2-2(q) (West 2003) (establishing a diversion program to provide a structured environment for parole violators who commit "technical” violations); Iowa Code Ann. §§ 908.11(4), 904.207 (West 2003) (permitting court to either sentence probationer to jail term while continuing probation status or order the defendant to be placed in a violator facility established for the temporary confinement of certain offenders); La. Rev. Stat. Ann. § 15:574.7(B)(2)(b) (West 2003) (permitting parolee violator to be committed to a community rehabilitation center or a substance abuse treatment program as alternative to revocation); Mich. Comp. Laws Ann. § 769.31(b) (West 2003) (providing list of "intermediate sanction"); Mo. Ann. Stat. § 217.378 (West 2002) (establishing probationer violator’s eligibility for a program of institutional correctional alternatives to jail in discipline, exercise, and treatment); Nev. Rev. Stat. Ann. § 176A.660(1) (Michie 2003) (allowing probationer to be placed in residential confinement for parole violations); N.C. Gen. Stat. § 15A-1344(e) (2003) (authorizing periods of temporaiy imprisonment for probationers in violation); Ohio Rev. Code Ann. § 2967.141 (West 2003) (establishing series of violation sanction centers as restrictive control sanctions); Okla. Stat. Ann. tit. 57, §§ 516(A)-17(A) (West 2003) (stating that if revocation is deemed unnecessary for the nature of the violation, parolee or probationer may be placed in an intermediate sanctions facility); Or. Rev. Stat. § 144.106(l)-(2) (2001) (authorizing a "continuum of administrative sanctions,” including jail, community service, house arrest, electronic surveillance, restitution, and work release, for violations of post-prison supervision); Va. Code Ann. § 19.2-316.2(A)(3) (Michie 2003) (allowing violators to be temporarily committed to detention center); Wis Stat. Ann. § 301.048(l)-(4) (West 2002) (establishing an intensive sanctions program consisting of a series of phases based on "public safety considerations and the need for punishment and treatment”); Wyo. Stat. Ann. § 7-13-1107 (Michie 2003) (listing several administrative sanctions available as alternatives to probation or parole revocation, including series of "restrictions on personal liberty”).
. Indeed, this is precisely how the Youth Probation officials in this case described the temporary detention procedures to which Ramirez was subjected.
. Johnson was decided two years after Glover.
. Ramirez's signed "waiver” on the CAP form was not adequate to excuse the lack of procedural due process protections accorded to him during the process.
Concurrence Opinion
concurring in part and dissenting in part.
I join the court’s opinion with the exception of Part III(B). I respectfully dissent from the majority’s conclusion that Ramirez’s parole for his 1989 rape conviction was not “revoked,” as that term is understood. in U.S.S.G. § 4A1.2(k). I find two serious flaws in the majority opinion. First, the majority’s definition, relying almost entirely on state law, is irreconcilable with one of the primary purposes of the Sentencing Guidelines, “avoiding unwarranted sentencing disparities among defendants with similar records.” 28 U.S.C. § 991(b)(B). Second, the way the majority defines a “revocation of ... parole,” under U.S.S.G. § 4A1.2(k), is inconsistent with the fundamental purposes and policies of chapter 4 of the Sentencing Guidelines.
The majority correctly states that the purpose of creating a uniform federal definition of terms within the Guidelines is to effectuate consistent nationwide application of federal legislation. Taylor v. United States,
As the majority itself notes, the “inherently flexible and discretionary nature of the different state systems, which aim to consider the totality of the parolee’s history as well as the gravity of the violation, leads to discrepancies in the type of sanctions handed down for even the same minor violations.” Maj. Op. at 804 (emphasis added). Yet, under the majority’s definition, our court must defer completely to the individual states in our circuit in determining when parole will be revoked. Thus, two criminal defendants in our Circuit who have committed the exact same criminal conduct while on parole and have received the exact same term of confinement for a violation can and will be treated differently under the majority’s definition. Such an approach is inconsistent with the general purposes of the Sentencing Guidelines. See, e.g., 28 U.S.C. § 991(b).
The approach is also contrary to Supreme Court precedent. In Taylor v. United States, the Court considered the meaning of the term “burglary” under a federal sentencing enhancement similar to the one here.
The majority justifies its decision by stating that it does not want to “usurp the discretion of the probation entity.” But I do not see how defining the term “revocation” differently from the state will usurp the discretion of a probation or parole entity. A federal court’s determination that a parole violation is a “parole revocation” under the Sentencing Guidelines certainly does not change the defendant’s parole status under state law. Moreover, state parole officers advance the interests of the individual states when deciding whether to formally revoke parole. The interests the federal guidelines seek to advance are not necessarily considered in a state officer’s decision.
I also do not believe that the majority’s definition advances the purposes and policies of chapter 4 of the Guidelines. Those purposes and policies are expressly laid out in the introduction to the chapter:
A defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment. General deterrence of criminal conduct dictates that a clear message be sent to society that repeated criminal behavior will aggravate the need for punishment with each recurrence. To protect the public from further crimes of the particular defendant, the likelihood of recidivism and future criminal behavior must be considered .... The specific factors included in § 4A1.1 and § 4A.1.3 are consistent with the extant empirical research assessing correlates of recidivism and patterns of career criminal behavior.
Introductory Comments to Chapter 4 of U.S.S.G. It is with these considerations in mind that we must go about interpreting the meaning of the term “revocation of probation, parole, supervised release, special parole or mandatory release.” USSG § 4A1.2(k). The guidelines are concerned with parole revocations because they seek to discourage recidivism and encourage rehabilitation of convicts after release from prison. The guidelines seek to advance certain federal interests and it is within these federal interests that the guidelines must be interpreted. Individual states have wide and varying reasons for why they may not formally revoke a particular convict’s parole or probation. The federal guidelines, however, are not concerned with such reasons. As the Second Circuit has declared, interpreting the term “parole revocation” to not include a parole violation plus a term of imprisonment would be “contrary to the Guidelines’ premise that repeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation and aggravates the need for punishment with each recurrence.” United States v. Glidden,
The definition of parole revocation of the other circuits .and the one that I would adopt requires two conditions be met— 1) a formal finding of violation; and 2) a
Defining “parole revocation” as a formal finding of a parole violation plus a return to a term of imprisonment serves these purposes. When the state has formally found that the defendant has violated the terms of his or her parole and has furthermore deemed that violation serious enough to return the defendant to imprisonment, this demonstrates that the defendant has engaged in behavior that chapter 4 of the guidelines specifically seeks to take into account. Moreover, this definition of parole revocation is straightforward, simple to apply, and treats similarly situated defendants the same. Also, such a definition is, in my opinion, entirely consistent with the plain and intended meaning of the term parole revocation. “The essence of parole is release from prison.” 59 Am. Jur.2d Pardon and Parole § 6 (1987). Notwithstanding the technical status of the person under state law, when a person has been returned.to prison, that person is not commonly understood to still be “on parole.”
The majority’s reliance on ' Supreme Court cases dealing with the requirements that must be met under the Due Process Clause before probation or parole may be revoked are simply inapposite. The issue dealt with in those cases is not involved in this case. Ramirez does not argue that a finding that his parole was revoked,' for purposes of the Federal Sentencing Guidelines would, in any way, deprive him of his federal due process rights.
The government points to two incidents that qualify as parole revocations. If either incident does so qualify, then we must reverse because the district court could not have applied the safety valve departure. It is my opinion that the first incident does not qualify as a revocation but the second one does.
The first incident involved- Ramirez’s speeding ticket and positive test for mari
The second incident involved Ramirez’s being caught with a knife. Here, there is no doubt that there was an express finding of violation. Rather than coming from a CAP, here the allegations came from an allegation form that Ramirez had to answer. The board expressly found probable cause and ordered a hearing where Ramirez had a right to an attorney and a right to call witnesses in his favor. No hearing was held because Ramirez waived his right to such a hearing.
Since Ramirez’s parole was revoked, as those terms are understood in the Sentencing Guidelines, I would vacate Ramirez’s sentence and remand for resen-tencing.
I respectfully dissent.
. See Glidden,
. The majority’s statements that, under pre-Guidelines practice, a probationer may not have his probation reinstated following revocation without a formal resentencing process have little to do with this case. Maj. Op. at 802-803 & 804. Ramirez was not sentenced to probation but was paroled before serving his entire sentence of imprisonment.
. As noted below, when the Parole Board formally charged Ramirez with violating his parole, he was given the right to a hearing, the right to an attorney, and the right to call witnesses in his own defense. Ramirez waived those rights and admitted to the violation. Ramirez does not argue that his waiver was constitutionally deficient.
. Ramirez’s waiver seems to have been fully voluntary.
. Ramirez spent thirty days in county jail and forty-five days in a juvenile confinement facility. He was not free to leave either facility and was therefore deprived of his liberty by the state. Any contention that Ramirez was not "imprisoned” is simply wrong. See Black’s Law Dictionary 757 (6th ed.1990) (defining "imprisonment” as the "detention of a person contrary to his will.”).