 You're watching FJTN, the Federal Judicial Television Network. Live from the Federal Judiciary Studios in Washington, DC, the Federal Judicial Center and the United States Sentencing Commission present Sentencing and Guidelines, Criminal History Issues. Come to Sentencing and Guidelines, Criminal History Issues. This is the sixth program in the Sentencing and Guidelines series that's sponsored by the Federal Judicial Center and the United States Sentencing Commission. And these programs are designed to help you in your work with the Sentencing Guidelines. Now as today's title suggests, the program today will focus on Chapter 4 of the Sentencing Guidelines Manual, Criminal History. But, as always, before we get started, there are a few housekeeping items we need to take care of. First of all, all the written materials. They are available on the FJC site on the DCN. That's jnet.fjc.dcn. And those materials include, in addition to the evaluation form and roster, they also include a number of Sentencing Commission resources like the Criminal History Checklist as well as the Guidelines Worksheets. So if you haven't already downloaded that, be sure you take a look at that in conjunction with this broadcast. Now this broadcast is for you and we are really depending on your participation here today. We have reserve time to take your questions and comments, so don't be shy. We will be posting, as you see, our fax number on the screen periodically throughout the program. So please get your questions and comments into us. Like I said, we have built time into the program to accommodate that. Finally, this program has been approved for continuing legal education credit and many CLE, mandatory CLE, jurisdictions. However, if you do plan to apply for any of these credits for the CLE credit, you need to do four things. First, you need to make sure that you sign the participant roster. There's a little CLE box to mark off if you want to receive credit for that. Second, the evaluation form also has a CLE information box that you need to fill out before you return that to the FJC. Third, you do need to have your site coordinator sign your attendance certificate. And fourth, remember you have to submit all of that paperwork to your state bar within 30 days of today's broadcast. Now, if you missed any of those instructions, that as well as a list of all the approved jurisdictions for today's program are also on the FJC site on the DCN. But with that out of the way, it's time to get right into the program, so I'll turn it over to our instructors. We have with us today from the District of Minnesota, the Deputy Chief Probation Officer, Jay Meyer, and from the Sentencing Commission, Education and Sentencing Practice Specialist, Deborah Stevens-Panzer. Thank you, Lauren. Today our broadcast will focus on Chapter 4 of the Sentencing Guidelines Manual, and Jay and I will discuss the issues of assigning criminal history points to prior adult and juvenile sentences. We'll then turn to look at the interaction between relevant conduct and prior sentences and how that interaction affects the assignment of criminal history points. Then we'll look at the issues of related cases and handling prior revocations of supervision. Then we'll move on and talk about the Career Fender Guideline and the Armed Career Criminal Guideline. Our goal today is to provide you with an overview of the issues in Parts A and Parts B of Chapter 4 of the Guidelines Manual. Now, I guess the best way to start is to go right into Guideline 4A 1.1, where we talk about assigning criminal history points. And what we are going to focus on today under 4A 1.1 are the issues of prior sentences and how we apply criminal history points to those prior sentences. We'll look at the defendant's status at the time of the commission of the instant offense of conviction. What we'll focus on is whether the defendant was under some type of criminal justice sentence at the time of the commission of the instant offense. We'll look at the issue of recency. Was the defendant recently released from incarceration on a sentence? And finally, we'll talk about related crimes of violence. Now, before we talk about assigning criminal history points, we need to have two important pieces of information. First, we need to determine whether a sentence of imprisonment was imposed upon a prior sentence. And if so, we need to determine the length of that term of imprisonment. And then we need to determine when that sentence was imposed. So we need to have the date of that imposition of sentence. So we'll move first to adult prior convictions, and we have a chart that will assist you in determining the number of criminal history points to assign to each prior criminal conviction. And as you see, three criminal history points would be assigned to each prior sentence that was greater than one year and one month, provided that that prior sentence was imposed within 15 years of the defendant's commencement of the instant offense of conviction. However, you should keep in mind that if that sentence was imposed more than 15 years prior to the commission of the instant offense, but the term of incarceration extended into the 15-year period, that sentence may still receive criminal history points under subsection A of guideline 4A 1.1. We move on to guideline 4A 1.1 subsection B for the assignment of two criminal history points for each prior sentence that was at least 60 days of imprisonment, but less than 13 months. And now we're looking at a 10-year time frame. So we're looking for a sentence that was imposed within 10 years of the commission of the instant offense. And finally, under subsection C of 4A 1.1, one criminal history point would be assigned to all other prior sentences, again, provided that that sentence was imposed within 10 years of the commission of the instant offense. Now, Jay, there are certain circumstances where prior offenses would not receive criminal history points. Is that true? That's right, but before we go on to that, I just want to add that there's a four-point maximum that could be assigned to one-point sentences so that it can be peaked at four. But as Debbie has said, there are some cases that are never counted. Let's take a look at that list of offenses that, regardless of the sentence length, would not be counted. The first one would be foreign sentences. Then tribal court sentences. Summary courts' marshals in Article 15s. Minor traffic violations. Public intoxication and vagrancy. Juvenile status offenses. And then diversionary dispositions without a finding of guilt. And lastly, expunged convictions. Okay, Debbie, let's talk about how you go and count juvenile sentences. Okay. We're going to keep in mind that when we're talking about juvenile sentences, we're looking at conduct the defendant committed prior to his or her 18th birthday. And again, like we had for the adult criminal convictions, we have a chart that should assist you in applying these criminal history points. And again, you will see that three criminal history points are assigned for each prior juvenile sentence that was greater than one year and one month provided that the juvenile was convicted as an adult. And we're looking at a sentence that was imposed in 15 years of the commencement of the instant offense. Similar to adult prior convictions, if the term of incarceration extended into the 15-year period, you would receive criminal history points under subsection A. Two criminal history points are assigned for juvenile sentences that resulted in a sentence of imprisonment of at least 60 days, but less than 13 months. And now we're changing our time frame from 10 years for adult convictions to five years for juvenile sentences. So for all juvenile sentences imposed within five years, we're looking at for the assignment of two criminal history points. Finally, one criminal history point is assigned for all other juvenile convictions, again provided that the sentence was imposed within five years of the commission of the instant offense. So now that we've looked at subsections A, B, and C for the assignment of one, two, or three criminal history points, we'll look at the defendant's status at the time he or she committed the instant offense of conviction. We find the status issue discussed at subsection D of 4A1.1, and we see that two points are assigned if the defendant committed the instant offense while under any criminal justice sentence that received points under subsections A, B, or C. And what we mean by under a criminal justice sentence, we're looking at sentences of probation, parole, supervised release, imprisonment, work release status, or escape status, and we need to keep in mind that failure to report for service of a sentence would be treated as an escape and may be assessed criminal history points under subsection D of 4A1.1. In addition to the defendant's status, we need to look at the issue of recency and was the defendant recently released from incarceration on a sentence. And we find this in subsection E of 4A1.1. And again, two points are assessed if the defendant committed the instant offense less than two years after release from imprisonment on a sentence that was counted under subsection A or subsection B, so either three criminal history points were applied or two, provided, however, if the defendant received points for his status at the time of the commission of the instant offense, when we're dealing with the issue of recency, only one additional criminal history point would be added. So we've discussed almost all of the issues in 4A1.1. And, Jay, let's talk about related crimes of violence. Okay. The last section of 4A1.1 is subsection F, which pertains to a segment of offenses that are related crimes of violence. Now, in a few minutes, we'll be discussing what is related and what is a crime of violence because there are certain definitions in chapter 4 that tell us what that's all about. But in the situation if you have related crimes of violence, let's take a look at subsection F and see what it tells us to do. It says that one point is added for each prior sentence for a crime of violence, not receiving points under subsection A, B, or C due to relatedness. And a total of three points may be given for this type of case. Okay. Let's talk about the definition of a prior sentence. Okay. Well, maybe we should talk about the criteria for... That would make sense to me. ...the related crimes of violence. All right. Let's figure out how you know that you have a related case under a crime of violence. Okay. First of all, they have to be related to another crime of violence. The offenses must have occurred separately. The points are assigned to a related case. And the crime of violence did not contribute to assigned points for the related case. Now, that may be confusing. So let's take a look at a few examples. It would help demonstrate what we're trying to teach here. So in this situation, we would have... We have three robbery convictions or sentences. Again, prior sentences with two years imposed on each count. And you can see the second count and the third count have consecutive terms imposed. So the total amount of time imposed by this court would be six years. Well, you can assign three points to the first robbery conviction that exceeds 13 months, as Debbie had indicated earlier. So then we add an additional point for each of the two... the second and third robbery for a total of two points. So the grand total in this situation would be five points. Let's pull up another example to show another way of doing this. In this situation, we have three robbery counts again. But in this situation, there's one... The first robbery count has one year imposed. The second robbery count has another consecutive year. And then the third count has an additional two years. So the total for this is three years. Now, the first robbery count does not qualify for three points on its own because it's under 13 months. So what you would do is add the two together, the first and the second, to get to the 13-month threshold, assign that three points. And then there's still the third robbery count, a sentence that has a one-year consecutive term. So you'd add an additional point for that. So the total then for this group of sentences would be four points. Okay, now let's talk about the definition of a prior sentence. Okay. So we've looked at all of the subsections in guideline 4A1.1. So let's move on to guideline 4A1.2. And the first thing we deal with in that guideline is what exactly is a prior sentence. So let's look at that. And as we see under guideline 4A1.2A1, we define the term prior sentence to mean a sentence for conduct not part of the instant offense of conviction. And we're looking at a sentence previously imposed upon adjudication of guilt or whether by a guilty plea or a trial or a plea of null or contender for which conduct is not part of the instant offense. So what we need to keep in mind is when we're at guideline 4A1.2, this is where all of our instructions and our definitions for applying criminal history rules are found. And we need to take those and look through all of those as well as the commentary and the application notes to the guideline because that'll provide some very helpful information for us when we're determining what is a prior sentence. So when we're looking at the issue what is a prior sentence, we need to start with chapter one of the guideline manual and look at the relevant conduct guideline in 1b1.3. And when we look specifically at A2 of relevant conduct, we deal with an expanded prong of relevant conduct. And what we're looking for or we're looking to do is expand the time frame of actions or conduct committed by the defendant that we can include in the guideline calculation. So when we look to expand the time frame, we're looking for actions committed by the defendant that were part of the same course of conduct or common schema plan as the offensive conviction. And as you know in the commentary to 1b1.3, we define the concepts or the terms same course of conduct or common schema plan. We also discuss the issue of prior sentences and the relationship that relevant conduct has in application note 8. And let's look at the language that we have here. The note states that the offense conduct that's associated with a sentence that was imposed prior to the ax or omissions constituting the instant offense is not considered as part of the same course of conduct or common schema plan as the offensive conviction. Well that application note says a lot and it's also we get a lot of calls on the helpline regarding that application note. So usually an example or two is the best way to explain what we mean whether we can include prior conduct as relevant conduct in our guideline calculation or whether we need to consider that as a prior sentence and assign criminal history points. So let's look at an example. In the example we have here, the defendant has committed four frauds. The instant offensive conviction is found in fraud 3. So now what we need to do is go back and take the concepts in relevant conduct and determine whether the fraud behavior in number 1 and number 2 are considered relevant conduct or as we see in fraud number 2 we have a sentence associated with that behavior. So we need to determine whether we can include that as relevant conduct or does that count as a prior sentence. Well as stated in application note 8 since the fraud behavior in number 2 occurred before the commission of the instant offensive conviction in fraud 3 and a sentence was imposed on that conduct we cannot include that as relevant conduct therefore it is considered a prior sentence. Now let's look at a slightly different situation. Again where you have a defendant with four fraud behaviors the instant offensive conviction in this example is found in fraud 1. We need to consider based on the concepts of relevant conduct whether the fraud behavior in counts 2, 3 and 4 can be considered relevant conduct. Now we need to keep in mind again that fraud 2 has a sentence associated with it. But application note 8 tells us that as long as the prior sentence as long as the sentence does not occur before the commission of the instant offense it may be considered as relevant conduct provided that it meets the definitions of being part of the same course of conduct or common schema plan as the instant offensive conviction. And if it qualifies as relevant conduct it's very important to remember that we cannot then assess criminal history points to it later on in chapter 4 when we're going through the guidelines manual. So what we've talked about is the relationship of relevant conduct and prior sentences when we talked about the assignment of criminal history points under guideline 4A1.1 we mentioned time frames and we need to keep certain time frames in mind. So what we've developed for you is a graphic that should help you to determine whether if something's relevant conduct and the counting back for time frames and assessing the criminal history points. So as we see on this graphic we're not starting with the date of the offensive conviction that may be listed in the indictment or information we need to determine the earliest date of relevant conduct the earliest date the defendant commenced the instant offensive conviction and we use that date to count back 5, 10, or 15 years when we're trying to assess 1, 2, or 3 criminal history points. Okay, so we've talked about A1 of guideline 4A1.2 dealing with what is a prior sentence. Another issue we have is what do we do with related cases? Good question. We talked about it earlier with related crimes of violence. Let's take a look at what the criteria are to determine if we have a related case. First of all, if these sentences occurred on the same occasion they may be related or if they were part of a single common schema plan or lastly if they were consolidated for trial or sentencing which in my experience is by far the most common reason why you'd have related cases. Now we have an example to show what we're trying to demonstrate here. Our first example are two cases that were consolidated for sentencing. You can see here that they were both sentenced on 9, 494, one year imprisonment imposed on each so obviously they were sentenced the same day and under the rules would consider these cases consolidated for sentencing. Now Debbie, we treat cases differently whether they're related or unrelated so can we talk about how we assign points to that? Sure, we need to keep that in mind. It's very important when we're assessing criminal history points. So if we look how we treat related cases we state that prior sentences in related cases are always treated as one sentence. Now where you have a situation where concurrent sentences were imposed when we assess the number of criminal history points we look at the sentence that resulted in the longest sentence. When we have consecutive sentences that were imposed on prior convictions we're using an aggregate to determine the maximum number of criminal history points. Now that's for cases where you have related cases but in unrelated cases prior sentences are always counted separately. Okay Jay, should we talk about some examples to maybe highlight these two issues? Alright, our first example here shows cases that were related or they are considered related because they were consolidated for sentencing both sentenced on the same day to one year imprisonment so the total sentence here was one year so we apply two points because that sentence that total sentence is over 60 days but less than 13 months we apply two points to the whole sentence of one year. And then our next slide shows where we have two sentences where there's a consecutive sentence imposed on the second count and you can see here that we would just add the two together the total sentence here was two years which obviously exceeds 13 months so we assign three points to that group of sentences. Now keep in mind that there's a very basic rule with related and unrelated cases which is that cases are not considered related if they were separated by an intervening arrest. Now we have an example to show exactly what we're saying here. Here we have a situation where we have two theft sentences they were actually consolidated for sentencing you can see in the third column under the disposition however if you take a look at the first column you see that the first theft case there was an arrest on June 20, 1995 and the second arrest occurred on July 13, 1995 so there was obviously two different arrest dates so even though the court brought them together at sentencing and consolidated them we would consider them unrelated because of the intervening arrest so we'd count those separately and assign points to each one. Now Debbie, let's talk about revocations which can cause all sorts of questions when it comes to sifting through criminal history. Exactly. As we're moving down through guideline 4A1.2 we're going to look at subsection K dealing with revocations of prior supervision and we also address this issue in the commentary to the guideline in application note 11 where we tried to provide some examples of how to calculate criminal history points. So if we look at subsection K in application note 11 we're dealing with revocations of probation, parole, mandatory release, or supervised release. And what's important to remember is we have to come to some understanding of we have a prior sentence for which a sentence was imposed initially and now we have a revocation and how do we reconcile those to assign criminal history points and that often causes some confusion. So when we're dealing with handling prior revocations keep in mind that we have to treat this as one sentence. So what we do is we add the time that was initially imposed at the original sentencing with the time that was imposed upon the revocation. Now there are certain situations or certain times where a revocation applies to multiple separate sentences and what we do in those situations is we add the time to the one prior sentence that would result in the greatest number of criminal history points. Now the issue becomes when we're adding time together we may make a sentence that was previously uncountable because it was outside of the time frames we may make that accountable sentence. So if we're adding the time initially imposed with the time for the revocation we may make that a sentence that's greater than one year and one month. We talked about that initially under guideline 4A1.1 subsection A where then we can look at the last date of release from incarceration on that sentence. So now we may take a sentence that was previously uncountable, make it countable. In any other situation where you have a revocation that does not result in a combined sentence of greater than one year and one month the original date the sentence was imposed on that prior conviction is the controlling date when we're counting back for our time frames and assessing the criminal history points. We recently had a case where there were 61 criminal history points. I think it was the district record and I know that that case had numerous examples where there was revocations and time frames changed. It can get very tricky. The detail on dates doesn't know what you're doing. Exactly. And it's important to look at subsection K as well as application note 11. That may help you with some of the issues and also keep in mind what we've discussed today. Okay. Lauren, we've talked a little bit about part A of chapter 4. Do we have any faxes that may have come in? Well, we have a couple of questions here and we would like to get a lot more faxes so make sure you send those questions into us because that's what Jay and Debbie are here for to answer your questions about criminal history. Also, though, there are a couple of questions, though, to get us started. And the first one here is talking about revocations, I believe. The question says the defendant was sentenced to a sentence of probation 12 years ago. Eight years ago, the probation was revoked and the defendant was sentenced to two years imprisonment on the revocation. Would this prior conviction receive criminal history points under section 4A 1.1? Well, that comes at a good time since we just discussed the issue about revocation in subsection K. Initially, that sentence of probation would not have received criminal history points since it was imposed 12 years prior to the instant offense. But the revocation occurred. A two-year sentence of imprisonment was imposed and now we're able to change the time frame and we'll look at the last date of release from incarceration since that sentence was greater than one year and one month. So now we've taken a sentence that was previously uncountable and now it's countable. And yes, I think that we could impose criminal history points under 4A 1.1. Okay, there are a couple more here. So here's another one related to probation. In computing criminal history, should a defendant whose probation term has expired but who committed the instant offense when subject to an active warrant receive criminal history points for status? Well, I think I'll jump in on this one. The defendant, although an active warrant is out there and committed the instant offense, the defendant has never been released from a criminal justice sentence. So I think in that situation we could easily say that that would be a countable sentence and the defendant is still under a criminal justice sentence. Okay, and here's our last one, a question asking, is a diversionary sentence based upon a plea of nolocontendri, adjudication withheld, considered a prior sentence for the purposes of criminal history computation? Well, Jay, you mind? Go ahead. I'm the answer woman today. Okay, in that situation, a plea of nolocontendri was entered. So I think that we would say, based on the commentary in Chapter 4, that would be a countable sentence. As long as a plea of guilty of some sort was entered or a finding of guilt is entered, it could be counted as a prior sentence under Subsection C for a 1.1. We need to keep in mind that this is in accord with the federal rules of criminal procedure that generally treat a plea of nolocontendri the same as a guilty plea for determination of guilt and sentencing purposes. And I guess that's the last one that we have for right now. So we've talked about the issues that we need to be specifically concerned about in Part A of Chapter 4, dealing with the assignment of criminal history points under 4a 1.1 and the instructions and definitions in 4a 1.2. But I think before we move on to Part B, dealing with career fender and armed career criminal application, there's probably one part of Part A that we should discuss a little bit further. I think so, and it's really a significant area because when the Sensing Commission wrote the guidelines, they actually put into Chapter 4 a policy statement that really addresses directly departures. 4a 1.3, which is a policy statement, not a guideline, contains a lot of information about when the court might consider departure. Now, when you take a look at the language, it indicates that after you've come up with the total score, after you've counted the points through 4a 1.1 and 2, and you've come up with a total number of points, you then have to consider, does the criminal history category score that you've determined does it under-represent or over-represent the defendant's past criminal conduct or the likelihood of further criminal activity? So the court needs to make a decision on whether that score that has been derived from the criminal history section, whether there are some departure issues. Now, we actually talked to the Sensing Commission folks and they gave us data from the fiscal year 2000. One of the reasons is that adequacy of criminal history is actually the most common reason for upward departure. Roughly 33% of the departures in 2000 were because of the criminal history category score under-represented the defendant's past criminal conduct or likelihood of further criminal activity. On the other hand, it was the third most common reason for downward departures in the 2000 data set. The first reason, in case you're curious, was because of the plea argument. The second most common reason was because of the general mitigating circumstances of the case. But in 11% of the cases in 2000, the court departed downward because of adequacy of criminal history or in other words, the defendant's criminal history score over-represented, excuse me, his or her past criminal conduct or the likelihood of further criminal activity. So it's important to keep in mind that we have the policy statement in there. We're discussing adequacy of criminal history, and we need to incorporate that or include that when we're working through chapter 4 of the guideline manual, keeping that in mind. Right. Our defendant with 61 criminal history points was not a candidate for downward departure, by the way. Just in case you might have thought that question, which you thought I did. Okay. So we've talked about part A. So let's move on to part B. Okay. A little bit more history about the sentencing guideline in chapter 4. When Congress developed the Sentencing Reform Act, a explicit instruction to the Sentencing Commission to devise a method to handle those individuals who had, as an instant offense, a crime of violence or drug trafficking and someone who had two prior crimes of drug trafficking or a controlled substance offense. And Congress wanted them to receive as close to possible the maximum sentence allowed by law. So we have what is considered an override in chapter 4, which sets apart individuals who meet this criteria so that they will get as close to the maximum sentence as possible. So the Sentencing Commission has devised a 4B1.1, which let's take a look at now to determine whether or how do we know that we have a career offender. The first thing we have to take a look at is whether the defendant was 18 years at the time of the instant offense. So we are obviously looking only at adults as career offender candidates. The second item we need to take a look at is whether the instant offense is a crime of violence or a controlled substance offense. Now let's take a look at what that's all about because we might all have a definition of what we think is a crime of violence or a controlled substance offense, but the Sentencing Guidelines tell us in chapter 4, part B, what we are looking for. Basically for a crime of violence, we're taking a look at felonies that have as an element the use, attempted use, threaten use, a physical force against the person is an offense, a burglary of a dwelling, arson, explosives, or otherwise present a potential risk of physical injury to another. Now there are some differences across the circuits. I know in the Ace Circuit, escaped from a halfway house or a walkaway could be considered a crime of violence. I don't think that's the law of the land, but people need to be aware that this definition of a crime of violence for the purpose of a career offender really can vary from circuit to circuit. So violence is another area where we'll just spend a little bit of time here talking about what we're looking for here. Essentially we're looking for drug traffic and behavior. We're looking for adult felony convictions that have as their nature, distribution, possession with intent to distribute, importation, manufacture, or conspiracy to commit any of the above, but would not include mere possession or simple possession of a controlled substance. So we've covered the definitions for that. Let's move on to the third prong and if we have a career offender. The last item that we have to be aware of is whether the defendant has two prior felony convictions of either a crime of violence or a controlled substance offense. Now, if the defendant meets those criteria, there is a new way of doing business here with calculations because chapters two and three, the offense level that was derived through the calculations of chapters two and three, are really put on a shelf at this point because we have to take a look at chapter four part B would have us do. There's actually a table, and let's take a look at how we determine the new offense level. As you can see there, there's a list of years and what we're looking at here is the maximum sentence allowed by law for the instant offense. So in the first case, if the offensive conviction carries up to life imprisonment, the new offense level under career offender would be a level 37. As you move down the table, you can see that as the statutory maximum also decreases down to level 12 if you have more than one year but less than five. Now it's important to remember that by the time you reach chapter four part B, you've addressed all general offense characteristics in chapter three. You adjust obstruction, roll, multiple counts. There's one thing that must be revisited again which is adequacy, which is acceptance of responsibility. Once a defendant has designated a career offender, there is the mechanism to reduce by two or three levels for acceptance of responsibility and that then would be the total offense level for a career offender. But we're not finished yet. We still have to take a look at the defendant's criminal history category because not all defendants are in category six. However, once they are designated a career offender, they automatically become category six candidates because part B tells us that all career offenders will be category six. Now of course there are some folks who are already category six but by the time you get there this doesn't make a difference. So you'd move them up but you'd keep them in the same place. And I should also add that when you are determining the maximum penalty for a career offender, you would take a look at what the enhanced penalty might be if a Title 21 section 851 enhancement was filed for the drug offenses which would raise the maximum. We would use that new maximum then as the penalty or the maximum on a time so that would drive the determination of the new offense level. Okay, that's a really good point. Something we don't want to miss and I think we can also find that language in the application note to the career offender guideline in case anyone forgets about that. Before I talk about armed career criminal I'd like to just add one or two things about the career offender guideline. Now there are certain situations where we have individuals who are have a prior conviction for using a firearm in connection with a controlled substance offense or a crime of violence and the question often comes up is that considered cannot be considered as a predicate or a prior conviction does that qualify. And I think we discussed that also in the application note but important to point out that as long as that underlying offense meets the criteria of controlled substance offense crime of violence then we may be able to consider that as a predicate offense. Okay. But when we're looking at career offender and if we have a defendant whose instant offensive conviction is for a violation of Title 18 United States Code Section 924C that we would not be using the career offender guideline. We could not use that as a trigger if you will for the career offender guideline since that has a separate statutory consecutive penalty that goes along with it. Right. Okay. So we've talked about career offender and how to determine the offense level and the criminal history category. Let's move on to guideline 4B1.4 and talk about armed career criminals. So we'll see that individuals who may qualify as an armed career criminal are slightly different from those who qualify as career offenders. First off a defendant must be subject to enhanced sentence under 18 United States Code Section 924E and the instant offensive conviction must be a violation of Title 18 United States Code Section 922G for the defendant being a felon in possession at the time of the instant offense. And unlike the career offender guideline, armed career criminals must have three prior convictions to qualify and they must be violent felonies, serious drug offenses or both or some combination thereof and they must have been committed on occasions different from one another. Now unlike the career offender guideline where we provide you in the application notes definitions of controlled substance offense and crime of violence, the definitions of violent felony and serious drug offenses are found in the statute and in the commentary to 4B1.4 we refer you back to Title 18 United States Code Section 924E for the definitions of violent felony and serious drug offense. So let's take a look at those since they are slightly different than those for the career offenders. So when we're looking at Title 18 United States Code Section 924E for violent felony we're looking for offenses that were punishable by a term of imprisonment exceeding one year or certain acts of juvenile delinquency that involved the use of a knife, a firearm or a destructive device and that same type of offense would be punishable by such a term of imprisonment if committed by an adult or we're looking at acts that include the use of physical force against another or offenses such as burglary, arson, extortion or conduct that presents a serious risk of injury to another. So there are some slight differences between the definition of violent felony and crime of violence and again there are differences between serious drug offense and controlled substance offense that we find in the career offender guideline so let's look at the statute for that definition. So for serious drug offense under Title 18 United States Code Section 924E we're looking at offenses that we would find under Title 21 of the United States Code under the controlled substances act the controlled substances import act or the Maritime Law Enforcement Act. Now there are certain situations where you may have state offenses and if you have a state offense we're looking at state offenses that involve the manufacture, distribution, possession with intent to distribute a controlled substance and for all these we're looking for a statutory maximum penalty that is at least 10 years. So those are the two types of prior offenses that we need to consider. We need to look at violent felonies and serious drug offenses. And now when we're at the Armed Career Criminal Guideline we saw that there was a chart in 4B1.1 for the career offenders. We have a slightly different way to determine the offense level for those who qualify as armed career criminals. So let's take a look at the guideline. The offense level for an armed career criminal is determined by choosing the greatest of the following items. First, once we've determined the offense level from chapters 2 and 3 we need to look at that total offense level. Or we look at the chart in guideline 4B1.1 for career offender provided that the defendants prior convictions meet the definition or the defendant meets the qualifications of being a career offender. Or a 34 if the defendant possessed the firearm in connection with a crime of violence controlled substance offense. Or in any other situation the offense level would be a total of 33. Now we talked about in the career offender guideline that the defendant's criminal history category is always a 6. But that's not quite the same when we're at Armed Career Criminal and we need to go through again a list and pick the greatest number to determine what the criminal history category is. So let's go ahead and look at the guideline and determine what the potential criminal history category would be for these defendants. First, we look at the category determined from chapter 4 part A which is what we talked about in the beginning of the broadcast assigning criminal history points. Or we look at the career offender guideline if the defendant so qualifies. Or the defendant would be considered a criminal history category 6 if the defendant possessed the firearm in connection with the crime of violence or controlled substance offense. Or, and here's something that's somewhat different, if the defendant possessed a firearm that's listed in the National Firearms Act. And we find a list of those firearms at Title 26, United States Code, Section 5845A. Or if those three do not apply the criminal history category for the Armed Career Criminal would be Criminal History Category 4. So we've talked a little bit you explained to career offender, I talked about Armed Career Criminal, it's probably best to highlight the distinct differences between the two so we know what we're dealing with. So when we're contrasting career offender with Armed Career Criminal keep in mind that the prior convictions that qualify as predicate offenses under the career offender guideline must be countable and that means simply that they must have received criminal history points under subsections A, B, or C of guideline 4A1.1 so either 2, 3 or 1 criminal history point would have been assigned. Also under career offender the qualifying prior predicate offenses would be affected by time frames and related cases. So they need to have been affecting by time frame means we need to make sure they were countable offenses and they need to have been counted separately and not have been considered related cases. Now when we're at the Armed Career Criminal guideline the qualifying three prior convictions or predicates need not be countable. So they didn't necessarily need to receive points under subsections A, B, or C of 4A1.1 and again the predicates are not affected by time frames in related cases. So they may have been outside of that 15-year time frame for the most serious action for the three points but that's not a problem if you will when you're at the Armed Career Criminal Guideline. Well the Armed Career Criminal Guideline and statute really picks up juvenile adjudications as well whereas the career offender does not. And it seems as though the career offender guideline the goal is to really get close to the maximum whereas the Armed Career Criminal Guideline is trying to carve out a sentence somewhere between 15 years and life depending on the nature of the offense and so on so there's a little different approach but they're both overrides that could count and sometimes you have defense who are both which makes for a lot of work in chapter 4 which is why we have you going back to the career offender guideline and some circumstances for the offense level and for the criminal history category. Lauren let's see if we have any faxes that deal with this part of the broadcaster maybe some from our discussion of Part A Yes thankfully we do have a couple of faxes and so I'd really like to thank Tammy Spencer from Southern District of Illinois thank you very much we have a couple of faxes here. The first question is the defendant has a prior sentence for which the court imposed a sentence of probation for one year. The defendant's probation was revoked and the court upon revocation imposed another term of probation so how many criminal history points could be assigned, would be assigned in this case? So it sounds as though probation was initially imposed and then later revoked but probation was reimposed. That's what it sounds like to me. I would consider that a one point sentence if it were just a sense of straight probation even though there was a violation or revocation that was put back on the person was put back on probation so I think that'd be a one point sentence. I think so too and we need to keep in mind we don't have the dates of any of the prior sentence the date of the instant offensive conviction so in a situation where we don't have a revocation sentence added with a prior sentence totaling more than one year and one month we need to keep in mind that the controlling date is the date of the original sentence. Otherwise I think we're right on with that one. Okay great there's another fax here again from the southern district of Illinois that asks does an escape charge qualify as a crime of violence for purposes of a career offender? I can handle that. I think it depends where you live. In the 8th circuit we have case law that says that it would in fact walk away from a halfway house is considered a predicate for the career offender. I don't know about the other circuits frankly but in others the potential for that to be considered as a predicate for or actually as the instant it's as well. What are your thoughts Debbie? I think that's right. Distinct case law issues when we get to career offender and depending on the circuit it's probably best to check the case law for your circuit and make that determination. Another example for us in the 8th circuit is that a burglary of a commercial dwelling is considered a crime of violence where the sentencing manual the sentencing guideline manual is designed to stay tuned to the case law in your circuit. Okay, that's good advice. We also have a couple of other questions here. One is a felon in possession conviction, a qualifying crime of violence another crime of violence question for purposes of the career offender provision. I can handle that. That's a common question, an excellent question. The answer is no. It was confusing in the early years of the sentencing guidelines but the Commission did add commentary in 1991 to clarify that a crime of violence does not include unlawful possession of a firearm by a felon. Okay, and here's another one for you about the defendant's instant offense in this case is for distributing drugs. He has two prior sentences for the same type of offense but one of the prior convictions came after he committed the instant offense did he be considered a career offender? I'll take that since I covered that part. He would not be. Remember for the career offender guideline the instant offense has to follow two prior convictions for either crime of violence or control of substance offense in the example here although you would add criminal history points to that sentence it would not qualify because the sequence of convictions is vital to determining career offender. The instant offense must be the last offense committed for the three to count and kick in the enhancement. Okay, and here's another with regarding related cases I believe the defendant's prior record includes two robberies the second was committed while he was out on bail for the first. The two robbery offenses were consolidated for sentencing. Now are these two prior sentences considered related cases criminal history points? I can handle that since I also covered that part the answer would be no they would not be considered related because there was an intervening arrest so even though courts may consolidate cases for sentencing and that can happen often times in the state courts it's very important to pay attention to the arrest dates in this example that we receive there are different arrest dates so they'd be separated out and counted separately provided Right, Jane I think we just need to keep in mind that when we're trying to determine whether there was an intervening arrest just keep in mind the defendant commits the first offense is arrested before the second offense ever occurs. That's probably an easy way short hand way just to look at two prior cases and determine whether they were separated by an intervening arrest. Good advice, sometimes it's difficult to determine you have to dig deep but you can usually find it somehow. Okay that's great, we also we have a couple of more here that I want to get to but we also have time if anybody does have any other faxes or comments, questions about criminal history be sure to fax them in because we do have a couple of minutes left we can get to those questions probably. Also one question here I have though says the defendant has a prior conviction for driving after a revocation is this considered a minor traffic offense? I'll handle this as well. This gets into a very tricky area in Chapter 4 because there are certain offenses or certain prior sentences that count only if they meet a certain threshold. Under 4A1.2C1 you'll find a list of offenses, mainly misdemeanors, some minor felonies that need at least 30 days confinement or a year probation or are similar to the instant offense in order for them to be counted. So driving after revocation and suspension is listed there so it would not be considered a minor traffic offense because the commission has told us that if a certain sentence was imposed then it should be considered for point calculation. Okay and another one that we have asks if a conviction for 21 USC Section 843B communication facility be used to determine whether the defendant qualifies for career offender status? Well Jay, although you talked about career offender I'll jump in here and talk about this. Since it's somewhat relates to the issue we talked about prior convictions for 924C convictions and we're looking to the underlying offense. And in situations where you have a violation of if you will a telephone count what we need to do is look at that underlying behavior and I think we point this out in the application notes to 4B1.1 and what we need to determine is underlying behavior to that telephone count. If that would qualify as a controlled substance offense then possibly we would be able to use the conviction under Title 21 843B. So we need to make some determinations. We can't flat out say yes or no. We need to look at that underlying behavior. Okay and we have two more questions here and let's see this one asks if a defendant commits an offense after the instant offense but is sentenced for a subsequent offense prior to sentencing on the instant offense. You got all that? Can it be counted under criminal history as a prior sentence? I can handle that. The answer is yes. 4A1.2 tells us that we can take a look at any prior sentence that was imposed up to the time of sentencing. So even though our instant offense might have occurred prior to this sentence being considered for criminal history points it's not a problem. We take a look at it and assign points for any offense that occurred up to the day of sentencing. So in this situation we would consider it for points. Exactly. Okay great. And our last question that we have here is can points be given to I'm sorry let me start all over again can points be given pursuant to section 4A1.1D if the prior conviction did not receive any points under 4A1.1 A, B, or C? Well I'll talk about that since I discussed status initially. In order to get points for a status the defendant must have accountable sentence under 4A1.1 A, B, or C. So the defendant must have been assessed criminal history points for that prior sentence in order to be considered in order for the status to also receive criminal history points. And I think you can also find some of that language in the application notes to guideline 4A1.2 where again where we talked about the instructions and the definitions and the importance of looking at the commentary along with the guidelines and the subsections within that guideline for helping us out when we're determining whether we can assign points under guideline 4A1.1. There are a lot of rules and exceptions in chapter 4 that really need to be studied to know how to proceed through it. Exactly. And I think Lauren said that was our last facts. So what we hope we've done for you today is to provide you with an overview or an explanation of assigning criminal history points under 4A1.1 especially point out some of the issues and concerns in 4A1.2 and then discuss the issues of career fender and armed career criminal application and the differences and how you would go about assessing whether someone is a career fender or an armed career criminal. And that's our part and that's what we've done for today. Please keep in mind if you have any questions or any issues have been raised as a result of our broadcast today you can reach us at the sentencing commission in the office of education and sentencing practice on our helpline and the numbers there on your screen and we're available to take your calls Monday through Friday and also you see our website listed on the screen and we have important training materials on our website as well as currently we have the amendments that have been submitted to Congress that should go into effect on November 1st and you might want to look at those because we may have some changes coming to chapter 4 and an additional guideline in part B dealing with dangerous sex offenders. So it might be a good idea to take a look at that now and give us any calls if you have any questions or concerns about that. I know there's some important amendments coming up that will be effective November 1st so we'll stay tuned. And you should be seeing us again later in our next broadcast dealing with the amendments and some more insight on that. Lauren. Thanks. Well that means that we've reached the end of our time here today. I want to thank you all very much for participating. We did start getting some questions there toward the end but if we didn't get to your question though I'm sure Debbie and all the folks in the Office of Education Sentencing Practice can get back to and answer any of those questions that you might have left lingering about criminal history. But in the meantime please remember to fax in your participant rosters and those program evaluations because we really do rely on your feedback to plan our future programming and regarding CLE credit remember you have to check off those boxes and the roster and the evaluation and get those back to us as well. Now Debbie and Jay did mention about the 2001 amendments that will be the next in the series of the Sentencing Guidelines programs that is first scheduled to air next November so please be sure to keep an eye out in the FJT and Bulletin for all the further details related to that. And that is all we have here for today so on behalf of everyone here in the studio and have a pleasant day.