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United States v. Reed

August 28, 1996

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

REGINALD REED, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of Illinois. No. 94 CR 10044 Michael M. Mihm, Chief Judge.

Before POSNER, Chief Judge, and ROVNER and DIANE P. WOOD, Circuit Judges.

ROVNER, Circuit Judge.

ARGUED MAY 24, 1996

DECIDED AUGUST 28, 1996

Reginald Reed was charged in a one-count indictment with possession of a firearm by a convicted felon in violation of 18 U.S.C. sec. 922(g). He pled guilty to that offense and was sentenced under the federal Sentencing Guidelines to a prison term of 51 months. Reed challenges that sentence here, arguing that the district court erred in assessing three criminal history points to a six-month prison sentence he received on a 1987 robbery conviction. The district court applied the three points after finding that the prison sentence exceeded one year and one month when two revocations of the sentence's probation component were taken into account. See U.S.S.G. sec. 4A1.2(k)(1). Reed argues, however, that the sentences imposed for his probation violations should not be considered because his probation was never actually revoked. Reed's appeal therefore requires us to interpret the phrase "revocation of probation" in section 4A1.2(k)(1) of the Guidelines. Because we believe that phrase is sufficiently broad to encompass what occurred in this case, we affirm Reed's sentence.

I.

The dispute in this appeal focuses on the sentence Reed received on a 1987 robbery conviction in the Circuit Court of Cook County, Illinois. The presentence investigation report ("PSI") reveals the following about that sentence. Reed was under the age of eighteen when he committed the robbery, but he was prosecuted as an adult. He ultimately pled guilty and on June 30, 1987, was sentenced to a prison term of six months, with a four-year probation period to follow. On March 1, 1988, a warrant was issued which indicated that Reed had violated the terms of his probation. Reed apparently was jailed at the time, and on March 24, he came before a judge on the alleged violation. The judge found that Reed had violated the terms of his probation, sentenced him to 69 days in jail for that violation, and then resentenced him to probation. Because Reed apparently had been jailed at least 69 days awaiting a hearing, however, and because he was given credit for time served, he was released after the March 24 hearing. Yet later the same year, Reed was arrested on a drug charge, and on October 28, 1988, a second probation violation warrant issued. On January 12, 1990, the state judge found that Reed again had violated the terms of his probation and sentenced him to an additional 249 days in jail, again giving Reed credit for the time he had served prior to the hearing. Reed was also at that point resentenced to probation. Reed's probation on the 1987 robbery conviction terminated unsuccessfully on August 9, 1990.

The PSI assigned three criminal history points to the 1987 robbery conviction, citing sections 4A1.1(a) and 4A1.2(k)(1) of the federal Sentencing Guidelines. *fn1 Section 4A1.1(a) requires that three criminal history points be assigned to "each prior sentence of imprisonment exceeding one year and one month." Although Reed originally was sentenced to a prison term of only six months on the robbery conviction, the probation officer added to that sentence the additional 318 days to which Reed was sentenced for his probation violations, all in accordance with U.S.S.G. sec. 4A1.2(k)(1). That section provides:

In the case of a prior revocation of probation, parole, supervised release, special parole, or mandatory release, add the original term of imprisonment to any term of imprisonment imposed upon revocation. The resulting total is used to compute the criminal history points for sec. 4A1.1(a), (b), or (c), as applicable. U.S.S.G. sec. 4A1.2(k)(1).

The probation officer found that under this section, Reed's ultimate sentence exceeded the "one year and one month" threshold, requiring the assessment of three criminal history points.

Reed objected to the PSI's application of section 4A1.2(k)(1), arguing that although he had been sentenced to time-served on the probation violations, his probation had never actually been revoked as required by the guideline. The district court rejected Reed's argument and agreed with the probation officer. The three points assessed to Reed's sentence on the 1987 robbery conviction gave him a total of 12 criminal history points, placing Reed in criminal history category V. With a total offense level of 21, the Sentencing Table assigned to Reed an imprisonment range of 70 to 87 months. The district court departed downward from that range, however, after the government made a substantial assistance motion under U.S.S.G. sec. 5K1.1. The court sentenced Reed to a prison term of 51 months.

Reed argues in this appeal that his 1987 robbery conviction should not have been assessed any criminal history points under the Guidelines. Section 4A1.2(k)(1) is inapplicable, he contends, because his probation was never actually revoked. No points may be assigned to the original six-month sentence, moreover, because Reed was under the age of eighteen when he committed the robbery, and he was released from prison on that sentence more than five years prior to the instant offense, which he committed on August 6, 1994. See U.S.S.G. sec. 4A1.2(d). *fn2 Reed therefore contends that he should have been assigned 9 rather than 12 criminal history points, placing him in a lower criminal history category and thereby lowering his imprisonment range. With an equivalent substantial assistance departure, Reed believes that his sentence should be approximately ten months shorter than his current 51-month sentence.

II.

Reed's argument requires us to interpret the phrase "revocation of probation" in section 4A1.2(k)(1) of the Guidelines. It therefore presents a question of law that we consider de novo. United States v. McDuffy, 90 F.3d 233, 235 (7th Cir. 1996); ...


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