Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 94-CR-30079--William L. Beatty, Judge.
Before CUMMINGS and RIPPLE, Circuit Judges, and WILL, District Judge. *fn*
Mark Booker pleaded guilty to the charge of knowingly, intentionally and unlawfully possessing approximately ten grams of crack cocaine, in violation of 21 U.S.C. sec. 844. On November 29, 1994, Mr. Booker was sentenced to sixty months of imprisonment. The issue before the sentencing court and on appeal is the appropriateness of assigning one criminal history point for a prior state conviction of criminal damage to property. For the reasons discussed in the following opinion, we reverse the judgment of the district court and remand for resentencing.
Among the five prior convictions listed by the probation office in its presentence investigation report ("PSR") was a July 7, 1992 misdemeanor conviction in St. Clair County, Illinois Circuit Court for the offense of knowing damage to property. The PSR included this explanatory comment:
Court records reflect that the defendant did knowingly break the glass window out of the front door of 1425 Gross, East St. Louis, without the consent of Patricia Hawkins. PSR at 6.
For that conviction Mr. Booker was sentenced to one month of court supervision. The PSR assessed one criminal history point for that misdemeanor offense and one point for a later battery conviction, and calculated Mr. Booker's Criminal History Category at II. *fn1
Mr. Booker objected to the inclusion of this property damage conviction; however, the district court rejected Mr. Booker's argument. The court explained its reason for counting this misdemeanor sentence by noting the relationship between the window-breaking incident at his girlfriend's home and the subsequent misdemeanor conviction for intentionally causing bodily harm to the same woman five months later. The court then imposed a sentence of sixty months of incarceration, three years of supervised release, and a fine and special assessment. *fn2 Mr. Booker appeals the sentencing court's assessment of an additional criminal history point for the prior misdemeanor conviction.
Section 4A1.1 of the United States Sentencing Guidelines sets forth the general method for assessing criminal history points to reflect a defendant's record of past criminal conduct. Its Introductory Commentary states that a "defendant's record of past criminal conduct is directly relevant" to the purposes of sentencing and that "the likelihood of recidivism and future criminal behavior must be considered." This appeal involves the subsequent section, sec. 4A1.2, that deals with how previous criminal convictions are to be counted in determining a guidelines sentence. Because the subsection is central to our decision, we set it out in its entirety:
Sec. 4A1.2(c). Sentences Counted and Excluded
Sentences for all felony offenses are counted. Sentences for misdemeanor and petty offenses are counted, except as follows:
(1) Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty ...