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Tenth Circuit Vacates Enhancement for Prior Crime of Violence Because it Wasn’t Independently Eligible to Receive Criminal History Points

Donovan Patrick Lee Silva pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Pertinent to calculating his Guidelines range at sentencing in 2019, Silva had been previously sentenced for third-degree burglary and second-degree assault in 2006. He was sentenced to two years’ imprisonment for the burglary together with costs and fines for the assault both on the same day.

He was assigned three criminal history points under § 4A1.1(a) since both priors counted as a single sentence, and he was given a base offense level of 20 under § 2K2.1(a)(4)(A) for having a prior crime of violence (the assault charge). The resulting advisory range was 51 to 63 months, and he was sentenced to 42 months.

Silva appealed, arguing that the prior assault charge should not have been used to raise his base offense level. Because he failed to object to this error at sentencing, he would normally have to prove plain error, a demanding four-prong test. However, under United States v. Sabillon-Umana, 772 F.3d 1328 (10th Cir. 2014), the third and fourth prongs are presumed in his favor if he can prove the first two: that “(1) the district court erred” and “(2) the error was plain.” He can do this by demonstrating the Guidelines are “clearly and obviously limited to the interpretation [he] advocates.” United States v. Poe, 556 F.3d 1113 (10th Cir. 2009).

The Court began it analysis with the commentary on § 2K2.1 because the “commentary from the Sentencing Commission is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” United States v. Gieswein, 887 F.3d 1054 (10th Cir. 2018).

Commentary note 10 of Section 2K2.1 states (in relevant part): “For the purposes of applying subsection ... 4(A), use only those felony convictions that receive criminal history points under § 4A1.1(a), (b), or (c) ... See § 4A1.2(a)(2).”

Under § 4A1.2(a)(2), multiple sentences imposed on the same day are considered a “single sentence.” Further, application note 3(A) reads (again in relevant part): “However, for purposes of determining predicate offenses, a prior sentence included in the single sentence should be treated as if it received criminal history points, if it independently would have received criminal history points.”

Thus, his prior assault conviction must qualify for criminal history points when considered separately from the burglary conviction if it is to be used as a “predicate offense” under § 2K2.1. However, under § 4A1.2(e)(2), sentences of less than one year and one day must have occurred within 10 years of the current offense in order to be assigned criminal history points. Since the sentence for the assault charge included no prison time and was imposed 13 years prior to his current charge, the assault charge did not independently qualify for criminal history points and thus could not be used as a predicate offense under § 2K2.1(a)(4)(A).

The Government argued that there is conflicting language in § 2K2.1 comment note 10 and § 4A1.2 comment note 3, but the Court cited Amendment 795 to the Guidelines, whose language regarding the history and purpose of the amendment refutes this argument.

The Court concluded that Silva’s prior assault conviction should not have been deemed a “predicate offense” and used to increase his base offense level. Further, this was a clear error by the district court.

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Related legal case

United States v. Silva

 

 

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