Antonio DeEric Scott pleaded guilty to one count of being a felon in possession of a firearm, for which he was sentenced to 63 months’ imprisonment and three years’ supervised release. He appeals the district court’s adding three criminal-history points to his base offense level for three prior “crime of violence” sentences that were not already counted because they were grouped with a fourth sentence. Specifically, Scott argues that U.S.S.G. § 4Al.l(f) 1 requires adding points to uncounted “crimes of violence” rather than to uncounted sentences. According to Scott, the four convictions and sentences at issue constituted only one “crime of violence” bеcause they all sprang from a “single criminal episode.” Scott also challenges his sentence as unreasonable because two criminal-history points were added because the instant offense occurred less than two years after he served a sentence of imprisonment under § 4Al.l(e). Scott argues that even though the version of thе Guidelines then in effect required this “recency” enhancement, the sentence imposed was not reasonable because this factor has been shown to be an “irrelevant and improper” factor for determining recidivism.
We affirm the district court on both grounds.
I
Scott was arrested on July 2, 2008, after a police officer conducting a routine traffic stop of Scott’s vehiclе saw a firearm under
The Presentence Report (“PSR”) calculated that Scott had 8 base criminal-history points and 2 additional “recency” points under U.S.S.G. § 4Al.l(e) for committing the instant offense within two years of release from imprisonment, for a total criminal-history score of 10. Three of Scott’s criminal-history points were for a 1996 shooting spree in which Scott shot in the directiоn of four people. As a result of the shooting incident, Scott was charged with and sentenced for four counts of deadly conduct. Under U.S.S.G. § 4Al.l(a)(2), the Guidelines treated and grouped these multiple convictions and sentences as one conviction, as there was no intervening arrest. The PSR calculated a base offense level of 14 and deducted 2 levels for acceptance of responsibility, for a total offense level of 12.
The Government filed various objections to the PSR’s calculation of Scott’s advisory Guideline sentence. The PSR was subsequently amended to raise Scott’s base offense level to 20 on the ground that U.S.S.G. § 2K2.1(a)(4)(A) provides for a base offense level of 20 wherе a defendant has a prior conviction for a crime of violence — in this case, Scott’s deadly-conduct convictions. The amended PSR also raised Scott’s criminal-history score under § 4Al.l(f) on the ground that three of Scott’s prior sentences for deadly conduct were not already counted because they were considered a single sentence and grouped with the fourth deadly conduct conviction under § 4A1.2(a)(2), and each therefore warranted an additional criminal-history point, for a total of 13 criminal-history points. Scott lost his 2-point deduction for acceptance of responsibility due to intervening conduct, including testing positive for cocaine. 2
At sentencing on Sеptember 16, 2010, the district court granted a one-level reduction in Scott’s base offense level to 19 for his substantial assistance to law enforcement. At the time of Scott’s sentencing, the Sentencing Commission had submitted a proposed Guidelines amendment to Congress that would eliminate the two-point “recency” enhancement. Scott argued at sentencing that the recency points should be eliminated from his criminal-history score, and that a sentence based upon those points was substantively unreasonable because recency failed to predict recidivism and had been repudiated by the Sentencing Commission. The district court rejected this argument and determined that Scott had an offense level of 19 and a criminal-history category of VI. Faced with an advisory Guidelines range of 63 to 78 months, the district court sentenced Scott to 63 months’ imprisonment.
Scott timely appealed.
II
Under
Gall v. United States,
our process of reviewing a sentence is bifurcat
Second, “if the district court’s decision is procedurally sound, we consider the substantive reasonableness of the sentence, considering the factors in 18 U.S.C. § 3553(a).”
Id.
(citing
Armstrong,
Scott makes one procedural challenge and one substantive challenge to his sentence, and we address each in turn.
A. Awarding Three Criminal-History Points Under § 4Al.l(f)
Scott had four previous dеadly-conduct convictions, all stemming from a single shooting spree in 1996. Each conviction earned a five-year sentence to run concurrent to the others, and the sentences were all imposed on March 30,1998. The amended PSR determined that the four sentences counted as a “single sentence” under U.S.S.G. § 4A1.2(a)(2), which provided that:
Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest.... If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence. See also § 4Al.l(f).
Section 4Al.l(f) provided:
Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was counted as a single sentence, up to a total of 3 points for this subsection.
Sections (a), (b), and (c) referenced by § 4Al.l(f) provided for adding criminal-history points for “each prior sentence” that fall within various categories. See U.S.S.G. § 4Al.l(a)-(c).
The amended PSR determined that three additional points should be added
We first note that neither the appellant nor the appellee provides a single case that interprets the 2008 version of § 4Al.l(f) to explain how courts are to assess criminal-history points for prior sentences. While one other court of appeals has stated in dicta that courts must award additional criminal-history points under this section to otherwise-uncounted prior offenses committed on the same occasion,
see King v. United States,
First, Scott’s argument that § 4Al.l(f) focuses on the “crime of violence” — that is, “criminal episode” — that is uncounted rather than the sentence is clearly at odds with the remainder of § 4Al.l(f)’s text. The second half of § 4Al.l(f) loops back to foсus on the sentence imposed for the pri- or crime, explaining that section (f) points are added “because such sentence was counted as a single sentence” and did not receive points under § 4Al.l(a)-(c). Common sense dictates that this portion of the sentence refers back to uncounted sentences for crimes of violence rather than uncounted “crimes of violence” themselves. Assuming that there is a difference between an uncounted sentence and an uncounted crime of violence (as argued by Scott), this language only makes sense when explaining why the prior sentence did not receive points.
Second, Scott’s argument that the definition of “crime of violence” itsеlf provides no guidance as to what conduct constitutes multiple crimes of violence fails. A “crime of violence” is defined as a certain type of “offense,” a term that is itself defined by the Guidelines as “the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clеar from the context.” U.S.S.G. §§ 4B1.2(a), 1B1.1 cmt. n. 1(H). This conviction-specific definition of “offense” — and therefore also of “crime of violence” — is contrary to Scott’s broad “criminal episode” definition of “crime of violence.” Again, Scott provides no legal support for his argument that “crime of violence” means “criminal episode.” In this case, Scott was convicted of four counts of deadly conduct. He therefore committed four deadly-conduct
Scott’s remaining arguments are likewise unconvincing. He argues that commentary note 6 to § 4A1.1 provides an example of how to apply section (f) and which defines the rule in his case. The example in commentary note 6 is of two robberies committed on different occasions, but the sentences for the robberies were treated as a single sentence under § 4A1.2(a)(2)(B) because they were imposed on the same day. U.S.S.G. § 4A1.1 cmt. n. 6. In the examрle, the second robbery is assessed a point under § 4Al.l(f) because it was not assessed points under § 4Al.l(a)-(c). Id. Scott argues that the commentary example supports his argument that his deadly-conduct sentences should not have been assessed points under § 4Al.l(f), because they did not occur on different occasions. Scott’s argument, however, misses thе point as to why the sentences receive a point under section (f). This example illustrates how to apply the enhancement to sentences considered a single sentence under § 4A1.2(a)(2)(B) because they were imposed on the same day. It does not speak to sentences considered a single sentence under § 4A1.2(a)(2)(A) because they were contained in the same charging instrument, nor does it state that section (f) points can only be assessed to sentences for conduct that occurred on different days. Furthermore, the Supplement to Appendix C explaining the Guidelines’ amendments provides its own, more general example of how to apply § 4Al.l(f). In the Supplement’s example, it simply states thаt the prior sentences were considered a single sentence and therefore the second sentence deserved a point under section (f), and does not state whether the prior crimes occurred on the same or different days. See U.S.S.G. Supp. to app. C, amend. 709.
Scott also points to the 2006 version of § 4Al.l(f), which did prohibit adding additional criminal-history points for offenses that occurred on the same day, as evidence that his additional deadly-conduct offenses should not have been assessed criminal-history points. See U.S.S.G. § 4Al.l(f) (2006) (“Provided that this item does not apply where the sentences are considered related because the offenses occurred on the same occasion.”). Of course, this language was deleted in the 2007 version and was not a part оf the 2008 Guidelines under which Scott was sentenced. Scott’s argument that this deletion was not intended to be substantive is unavailing because it is contrary to the stated purposes of the amendment: first, to simplify the calculation of the crime-of-violence enhancement; and second, to promote consistency in the application of the Guidelines. U.S.S.G. Supp. to app. C, amend. 709 (2008). Under Scott’s argued interpretation of § 4Al.l(f) and definition of “crime of violence” as a “single criminal episode,” criminals with multiple and different prior offenses would not be assessed criminal-history points for their prior conduct simply because the prior offenses occurred at the same time as other, already-counted offenses. Such a construction does not further uniformity in sentencing for similar criminal conduct.
We therefore affirm the district court’s adding three criminal-history points for Scott’s grouped and otherwise-uncounted deadly-conduct offenses.
B. Two-Point § 4Al.l(e) “Recency” Enhancement
Because the version of the Guidelines then in effect called for a two-point “recency” еnhancement to Scott’s criminal-history score and because Scott was sen
Scott made this argument about the recency enhancement at sentencing, and the district court rejected it, explaining that the Guidelines are discretionary and that in Scott’s particular case there was no reason to downwardly depart by an additional two criminal-history points. Regardless of the policy reasons undergirding the Sentencing Commission’s decision to eliminate § 4Al.l(e) recency points, one factor the district court was bound to consider under § 3553(a) was the applicable Guideline range then in effect. 18 U.S.C. § 3553(a)(4). There is no evidence that, given Scott’s extensive criminal history, the district court abused its discretion in choosing to impose a within-Guidеlines sentence and in refusing to downwardly depart from the Guidelines by two criminal-history points. Scott has not shown that his sentence was substantively unreasonable,
see Gall,
Ill
For the foregoing reasons, we affirm Scott’s sentence.
AFFIRMED.
Notes
. All references to the Sentencing Guidelines are to the 2008 version unless otherwise noted.
. A dеfendant must be sentenced under the version of the Guidelines in effect at sentencing, unless doing so would violate the Ex Post Facto Clause of the Constitution. U.S.S.G. § IB 1.11. Scott was sentenced and the three addenda to the PSR were submitted after the 2009 version of the Guidelines went into effect, and yet the addenda do not explain why Scott was nevertheless sentenced under the 2008 version of the Guidelines. It is of no moment, however, because the 2008 and 2009 versions of the Guidelines provisions at issue in this appeal are identical. See U.S.S.G. § 4A1.1 (e) — (f) (2008, 2009).