United States v. Glover

1291 Co., Cir.1962). argument; dants’ it is inconsistent with bind York Times 308 F.2d 474 ing precedent. Supreme precedent Court is In nothing suggests the instant an ab- plaintiffs joining clear that a motivation for a get joint sence of a “real intention to a important long defendant is not as the judgment” against Crump. Pur- plaintiff pursue has the intent to foregoing precedent, reject suant to the we against Chicago, the defendant. Rock argument. defendants’ “bad faith” hart, Ry. Schwy Island & v. Co. Pacific reasons, foregoing For the we hold 184, 250, (1913), U.S. 33 S.Ct. 57 L.Ed. 473 Crump fraudulently joined. that is not Be plaintiff personal inju filed an action for complete diversity cause there is not among against railway company ries and its parties, the federal courts do not have servant, Barrett, negli whose immediate subject jurisdiction matter to hear this ease.9 gence allegedly injury. caused the Plaintiff and defendant Barrett were citizens of Mis

souri, V. Conclusion railway company but the was diverse. railway company sought to remove the We reverse the district court’s court, alia, arguing, case to federal inter and remand with directions that the district joined Barrett was for the sole and fraudu court remand this case to the Alabama state removal, purpose preventing lent being court. person property of little or no while the AND REVERSED REMANDED. company fully pay. Rejecting able to argument, the Court held: “[o]n removal, question of we have not to consider

more than there whether was a real intention joint get judgment, and whether there ground

was a colorable for it as the

record stood when the removal was denied.” 194,

Id. at 33 S.Ct. at 251. The Court also

said: America, UNITED STATES of Again, plaintiff, the motive of the taken Plaintiff-Appellee, itself, right does not affect the to remove. joint

If liability, there is a abso- v. it, right lute to enforce whatever the rea- GLOVER, Defendant-Appellant. Robert J. son that him makes wish to assert No. 97-4456. Hence, right_ compa- the fact that the ny poor is rich and Barrett does not affect Appeals, United States Court of the case. Eleventh Circuit. 193, Chicago, Id. at at S.Ct. 251. Accord Whiteaker, Ry. Rock Island & Co. v. Sept. Pacific S.Ct. 60 L.Ed. 360 (1915) (“to apply epithet ‘fraudulent’ to joinder showing will not suffice: the must compels be such as the conclusion that the

joinder right”); is without Parks v. New arguments argue plaintiff

9. Defendants make additional which Defendants also did not First, readily we find to be without merit. defen- perfect interlocutory appeal to this Court. argue dants that the instant case involves a de- petition appeal Plaintiff failed to file a procedure fect in removal that therefore the the Eleventh Circuit within ten of the dis- untimely motion to remand under 28 U.S.C. certifying trict court’s initial order this case for 1447(c). reject argument. We It clear is However, interlocutory appeal. plaintiff’s motion to remand was based on court reconsidered and re-entered its the assertion that the district court was without subject procedure recognized Aparicio which was v. jurisdiction, matter an assertion with Lake, (5th Cir., Swan 643 F.2d spelled we which for the reasons out in the 1981). Apr.27, subsequently perfected Plaintiff text. Because there is no time for motions limit appeal timely Consequently, in a manner. challenge subject jurisdic- to remand that tion, matter reject procedural arguments. defendants’ timely plaintiff's motion was filed. Barrist, Defender, Pub.

Lori Asst. Fed. Beach, FL, Defendant-Appel- Palm West lant. Bowen, Miami, FL, Atty.,

Dawn Asst. U.S. Herman, and Carol Asst. Janice LeClainche Beach, FL, Plain- Attys., West Palm tiff-Appellee. BARKETT, EDMONDSON and

Before ALARCÓN*, Judges, Senior Circuit Judge. BARKETT, Judge: seventy-seven- appeals Robert possession of a firearm month sentence for felon, by a in violation 18 U.S.C. convicted 922(g)(1). calculating Glover’s sentence Guidelines,1 under the federal agreed probation de- with the district court in- criminal record partment that Glover’s felony least convictions cluded “at or a of either a crime of violence controlled offense,” which resulted in a base substance twenty-four under U.S.S.G. offense level 2K2.1(a)(2). prior convictions on The two department relied were possession Glover’s 1986 conviction his 1982 intent to distribute and cocaine with counting burglary. It is conviction felo- burglary as a the 1982 conviction ny of ... a crime of violence” that challenges appeal.2 in this * Alarcon, dispute that parties do not L. Senior U.S. Honorable Arthur drug con- Circuit, properly counted sitting by designa- Judge for the Ninth felony "prior conviction of viction as a tion. offense” within the mean- substance controlled for the firearm 1. Because Glover was sentenced 2X2.1(a)(2). Had the district court conviction, February appropriate refer offense in counted twenty. have been version of the Guidelines. base level would 2K2.1(a)(4)(A). eigh- spent in while the second age he had was under Because Glover burglary of- hearing. teen he committed when fense, it can be counted as a total court calculated Glover’s The district 2K2.1(a)(2) if Glover “was conviction under for the sentence of incarceration an adult convicted as and received sentence 4A1.2(k)(l)4 adding § to pursuant imprisonment exceeding year one of one and required by ninety days the the modification 4A1.2(d)(l).3 §§ is un- month.” It U.S.S.G. jail probation to the term of order disputed Glover was as an adult treated the.subsequent in revocation ques- in state court. the Florida the days, qualifying thus for a total of presented tion here is whether the sentence felony conviction of ... a offense as a one imprisonment of exceeded the § crime of under 2K2.1. violence” year month threshold. pled guilty in to the state court DISCUSSION in burglary offense December 1982 and was years probation. three of Al- sentenced to I. though original sentence included no contends that his Glover first jail time, was twice term of sentenced to a probation only actually was revoked once— imprisonment violating probation. his when the trial court state issued its revoca The first violation resulted in an of “Order following probation tion order second Probation,” extending of Modification his hearing only 364-day jail term violation — probation by year, one as a requiring, and imposed pursuant to that order be should probation, serve condition of that Glover 4A1.2(k)(l). § support counted under of jail, ninety days county in the with credit 4A1.2(k)(l), “plain meaning” § reading of he had been incarcerated treating Glover asserts that the state trial following arrest on the violation warrant. partial court’s modification order as a revoca subsequent on hearing After a violation Glo- probation effectively ignores tion of dis violations, probation ver’s state additional tinction the Guidelines elsewhere probation court revoked Glover’s and sen- probation draw between the revocation of 364-day jail term, him to a credit tenced with probation. and the of a term extension of days for the 121 he had This served. 7B1.3(a)(2) (giving § See sen U.S.S.G. 121-day period ninety reflected the Glo- téneing discretion spent trial court to either “revoke ver had to the probation proba- court’s modification order as well as the time ... or extend the term of 2K2.1, 4A1.2(d). § “'prior Although § 3. As used in the term the record does prior conviction' adult or state precise means federal not date reveal the of Glover’s release punishable by 29, 1984, conviction an offense death or jail, only from of March Glover had year,” imprisonment exceeding for a term one burglary left to serve on his conviction. for an offense "[a] conviction committed any suggestion contrary, Absent to the we as- eighteen prior age is an adult if it is conviction sume that Glover released on schedule an adult under laws classified as conviction 1984, significantly sometime in late November jurisdiction of the in which the defendant requisite years prior more than the five to June comment, (n.3). § convicted.” U.S.S.G. 4B1.2 the date which he committed in- Commentary specifies 2K2.1 further Accordingly, possession stant firearm of that to determine defendant’s total number only conviction can be convictions, prior felony history only points criminal thus can —and that re- should consider those convictions prior felony counted as a conviction for a crime history points ceive criminal under 4A1.1. See of violence under 2K1.2-—if sen- Glover’s total comment, (n.5). 4A1.1 U.S.S.G. 2K2.1 Section imprisonment tence of for that offense exceeded assigns history points prior criminal for certain year one month. See id. factors, variety on a includ- convictions based length of the sentence of 4A1.2(k)(l) provides 4. Section that to calculate respect prior imposed. to the With offenses total term “[i]n defendant’s age eighteen, if the defendant was released probation, pa- the case of a revocation of years prior from confinement than five more . role, release, offense, supervised special parole, of the or man- his commencement instant release, datory original history imprison- add the receives criminal term of imprison- points any imprisonment imposed upon defendant's if the ment to 4A1.2(k)(l). ment exceeded one month. revocation.” U.S.S.G. finding type “the of viola- upon finding a tion” tion). that if the Sen- a time-served coupled also maintains had intended tencing resentencing to Commission and a 4A1.2(k)(l) pro- to include modifications under probation’ a ‘revocation constitutes violations, bation, would refer section 4A1.2(k)(l),” id. at 345. section revocations, Finally, probation. Glo- Glidden, Similarly, United minimum, that, argues at a the Guide- ver (2d Cir.1996), the Second F.3d that, light of this ambiguous, and lines are held have fol- court should ambiguity, the district given a sus- has been when Glover, lenity the rule of lowed and been pended sentence excluding modification order thus placed probation, and the on of total sentence the calculation Glover’s thereafter, proba- upon finding he violated imprisonment. tion, period of a ordered him to serve Reed, 94 F.3d 341 In United incarceration, it view proper we think to Cir.1996), government primarily on partial as at a revocation that order least relies, challenged the district the defendant scope of probation that within the falls 4A1.2(k) respect application of court’s 4A1.2(k)(l). Guidelines robbery. for the offense of to his conviction in the defendant Id. at 40. As originally Although been the defendant had probation, his in had twice violated Glidden prison to be to a six-month term sentenced had response in state trial court to which the probation, term of he by four-year a followed incar- initially him to a term of his resentenced subsequently probation violated sixty-nine- subsequently plus probation and had occasions and was sentenced ceration term, 249-day respectively. In jail entirely, day probation and a the defendant’s revoked total sentence of determining the defendant’s In again imposing a term of incarceration. pursu- burglary offense imprisonment for the calculating the defendant’s total 4A1.2(k), court added ant to the district for the state offense under jail sixty-nine-day both the Guidelines, Sentencing federal original six-month terms to the defendant’s terms incar- court had included both argued appeal, sentence. On following the defendant’s imposed ceration imposed as a that neither of the sentences probation appeal, the violations. On Second probation violations should have result rejected argument the defendant’s sentence to calculate total been used actually probation that because his probation “his robbery offense because until after his second vio- revoked actually required never been revoked as had lation, only imposed that the sentence guideline.” at by Id. 343. pursuant violation should have been included any Observing that other federal “[l]ike 4A1.2(k), noting interpreta- that such an statute, [Sentencing] must be Guidelines “contrary to tion would be the Guidelines’ law, interpreted in accordance with federal ‘[Repeated premise criminal behavior is that those refer to some even when Guidelines likelihood of indicator of limited success- court,” occurring in state the Seventh event rehabilitation,’ ‘aggravate^] ful need con- initially rejected the defendant’s ” Id. punishment with each recurrence.’ courts “should look tention that federal comment.). A, (citing Ch. Pt. intr. determining in constitutes to state law what ” We with the Second Seventh probation.’ Id. at The a ‘revocation of 4A1.2(k)(l) that, contemplates that Circuits proceeded interpret phrase court then calculating a defendant’s total sentence probation” a matter of fed- “revocation of offense, for a Remarking purpose eral law. that any aggregate district court will term of 4A1.2(k)’s aggregation rule is to “limit[] imposed proba- because of a points history that of criminal the number original tion violation with the defendant’s ..., may single any, imprisonment, if sentence multiple prison if the defendant served even reject Accordingly, Glover’s con- on that conviction due sentences jail id, ninety-day term probation,” the court concluded tention of his pursuant assigned points to the state trial modifica- exclusively court’s had based on the Urbizu, tion order should not have been counted in sentencing record. the sentenc- calculating his total term of judgment provided, court’s written 4A1.2(k)(l). §to part, relevant the defendant was to “jail institution,” type serve six months in a II. five-year proba- to be followed term of Urbizu, 4 We thus turn to Glover’s tion. F.3d at alternative 638. The defendant argument together, argued that even added the two fact served his terms as a result of his proba halfway house, confinement this tion violations do riot amount ato sentence of qualify sentence did not as a “sentence of imprisonment exceeding imprisonment” under the federal that, month. having Glover maintains been Eighth rejected Guidelines. The ninety-day jail sentenced to a term because argument, holding that where the violation, of his first and then to a “court’s written and [the defen- 364-day jail original term with credit for the dant’s] evidence describe the nature of his upon subsequent differently[,] confinement ... a rule that re- probation, revocation of his his total sentence language lies on the used in the of incarceration govern was 364 promote court’s pur- will better responds ment that the proper district court poses Chapter Sentencing 4 of the Guide- ly imposed treated the terms as a result Drake, lines.” Id. at 638-39. the state separate of Glover’s violations as judgment court reflected that the defendant sentences, adding and thus was correct in the “ days had been sentenced to ‘serve 78 364-day imprison to the County jail Benton days with credit for 78 ment to calculate Glover’s total sentence of ” Drake, already served.’ 942 F.2d at 518 imprisonment for the (internal omitted). Although citation the de- The provide Guidelines presented fendant an affidavit from the state imprisonment’ term ‘sentence of “[t]he means him, judge stating who had sentenced a sentence of incarceration and refers to the bond, “had [defendant] been free on he would imposed.” maximum sentence U.S.S.G. have only twenty sentenced [defendant] 4A1.2(b)(l). Commentary 4A1.2 days jail, only and that the reason he purposes clarifies that for determining entered seventy-eight days for was history points number of criminal that should because had [defendant] served that to a conviction under trial,” days awaiting Eighth number 4Al.l(a), (b), (e), length or “the of a sen- concluded that “the district court was imprisonment tence of is the stated maxi- holding correct in require that the Guidelines is, mum.... history points That criminal plain wording the court to look to the of the pronounced, are based on the sentence not imposed.... case, actual sentence In this length actually of time served.” U.S.S.G. the most authoritative comment, record of the (n.2). § 4A1.2 part Where of a judgment, sentence is the state court not the imprisonment suspended, “ judge’s stating state court affidavit the sen- however, imprisonment’ ‘sentence of refers imposed.” tence he would have Id. portion suspended.” to the that was not 4A1.2(b)(2). sentencing In this documents in record, upon which the district court To determine a defendant’s total sen rely, following. must reflect the As noted purposes tence of of the I, part first sentence of Guidelines, agree Eighth we with the imposed ninety days pursuant on Glover was language that we look to the used in the order, notwithstanding to the modification sentencing judgments. court’s See United the credit he received for Urbizu, 4 F.3d 639 Cir. pendirig hearing. served the violation 1993); Drake, v. 942 United States F.2d Garin, (8th Cir.1991). United States v. 103 F.3d 690 518 In both Urbizu and (8th Cir.1996) (where Drake, defendant had challenged the defendant been ‘sixty days ... history points court’s assessment of “sentenced to with credit for criminal ” days,’ for a conviction where the district court time served of two his total sentence resentencing the case sixty days, fifty- REMAND argued), cert. de opinion. eight, as defendant with consistent — -, nied, 117 S.Ct. (1997). sen Glover’s second L.Ed.2d 484 EDMONDSON, dissenting: Judge, result imprisonment,

tence order, days, was 364 with the revocation today’s agree I with the bulk of While previously Al days served. credit the result. opinion, I cannot Court record though cannot look outside the sentencing gives credit aWhen state documents, consider we must pursu- served for time time served —even totality. It is clear in their those documents probation violation —that ant an earlier that the orders view, credit, impact no my ninety included the for time served credit pronounced.” it is the sen- And “sentence days in the modification face pronounced from the tence —discerned above, thirty- counted we have which is control- of the trial court —that days served while 4A1.2, comment ling here. See U.S.S.G. thirty-one hearing.5 The second (n. 2) (“That is, history points are criminal part is of Glo for time served days’ credit pronounced, not on the sentence based sentence for ver’s served”). actually Adding the length of time hearing and there adjudicated at second However, pronounced, Glover’s term sentences counted. See id. fore must be ninety days Glover served exceeds 4A1.2(d): a sec cannot now be counted first violation + 364 month under of im = time. second ond days. aggregated was 274 prisonment to be I affirm. would ninety days imposed for the By adding the days for and the 274 the subse- first violation violations, total sentence of

quent Glover’s To add addi-

imprisonment was 364-day figure, ninety days to the as

tional wishes, count his first government would this sen-

ninety-day sentence twice. Because 4A1.2(d)’s §of

tence falls short threshold, find that the district month treating burglary con- erred in conviction of

viction as a assigning Glover base

crime violence” 2K2.1(a). Ac- level

cordingly, Glover’s sentence we VACATE 1984, however, 1, Glover was that Glover On March while

5. The record reflects incarcerated, violating Septem- arrested for a new affidavit of still 21, 1983, filed, he ber and that remained incarcerated Glover violation was remained 27, posted he bond. until October 1983 when hearing while on the additional 3, January guilty pled Glover violation on charged. adjudicated confinement "in the and was sentenced to guilty of violations on March 1984 and those County Jail a term of 90 Palm Beach "in the Palm was sentenced confinement The sentenc- from to 10/27/83.” w/credit 9/21/83 County Beach Jail for 121 w/credit required orders Glover "surrender days.” Glover was incarcerated Because by County Beach Jail on 12:00 Palm 1/9/84 September from to October begin serving ninety-day sentence. noon” to this 29, 1984, January 9 to March the date of from county jail When surrendered to hearing, days’ credit the second violation the 121 required, served during necessarily incarceration reflects Glover's period Sep- sentence—the calculation, periods. We note that our these 27, 1983 tember 21 to October days; Glover had served total of 116 given credit. Glover was court had him however, discrepancy not affect our does complete March his sentence on scheduled conclusion as to source credit.

Case Details

Case Name: United States v. Glover

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 17, 1998

Citation: 154 F.3d 1291

Docket Number: 97-4456

Court Abbreviation: 11th Cir.