US v. Peter

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; Kermit V. Lipez, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [12-1345]

Case: 12-1345

Document: 00116459793

Page: 1

Date Filed: 11/21/2012

Entry ID: 5692150

United States Court of Appeals
For the First Circuit

No. 12-1345
UNITED STATES OF AMERICA,
Appellee,
v.
DONALD LEE PETERS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]

Before
Howard, Lipez and Thompson,
Circuit Judges.
Thomas J. Trebilcock-Horan, Research and Writing Specialist,
with whom Héctor E. Guzmán-Silva, Federal Public Defender, and
Héctor L. Ramos-Vega, Assistant Federal Public Defender, were on
brief, for appellant.
Dina Avila-Jimenez, Assistant United States Attorney, with
whom Rosa Emilia Rodriguez-Velez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief,
for appellee.

November 21, 2012

Case: 12-1345

Document: 00116459793

Page: 2

HOWARD, Circuit Judge.

Date Filed: 11/21/2012

Entry ID: 5692150

Donald Lee Peters appeals a

judgment of the United States District Court for the District of
Puerto

Rico,

which

sentenced

him

to

thirty-three

months'

imprisonment for failing to register as a sex offender.
calculating

a

range

for

his

sentence

under

the

In

sentencing

guidelines, the district court included two additional criminal
history points because Peters was under a criminal justice sentence
when he failed to register.

Peters contends that he was not under

a criminal justice sentence at that time.

We affirm.

I. Background
To

explain

Peters's

sentence,

relevant portion of his criminal history.

we

first

discuss

the

In 2001, Peters pleaded

guilty in a Wyoming court to various counts of child abuse and
indecent liberties against minors and was sentenced to eight years
of incarceration.
under

the

Sex

As a result, he must register as a sex offender

Offender

18 U.S.C. § 2250(a).

Registration

and

Notification

Act.

In 2004, Wyoming released Peters on parole

and transferred the supervision of his parole to Virginia.

While

in Virginia, Peters committed grand larceny, and in August 2006 a
Virginia court sentenced him to two years of incarceration with the
Virginia Department of Corrections, with one year and nine months
suspended on the condition that Peters "be of good behavior for 3
years from [his] release from confinement." In doing so, the court
considered a presentence report indicating that Wyoming had revoked

-2-

Case: 12-1345

Document: 00116459793

Peters's

parole

confinement.
2006.

and

had

Page: 3

Date Filed: 11/21/2012

issued

a

warrant

for

his

Entry ID: 5692150

further

Peters was incarcerated in Virginia until November

Without

being

released

from

confinement,

he

was then

transferred to Wyoming, where he was incarcerated until November
2008.

After his release from confinement in Wyoming, Peters

traveled to Puerto Rico but failed to register as a sex offender
there, a crime which he was alleged to have committed in February
2010 and to which he pleaded guilty.
Peters's sentence for failing to register as a sex
offender was calculated in part under Section 4A1.1 of the United
States Sentencing Guidelines, which provides, "Add 2 [criminal
history] points if the defendant committed the instant offense
while under any criminal justice sentence . . . ."

The presentence

investigation report prepared in advance of sentencing stated that
Peters's

requirement,

under

the

Virginia

sentence,

of

"good

behavior for 3 years from [his] release from confinement" began to
run when he was released from confinement in Wyoming in 2008 and
ended in 2011.

As a result, the report stated, Peters was under a

criminal justice sentence when he failed to register in 2010.

The

report thus recommended that the court add two criminal history
points when calculating Peters's sentence, a recommendation the
government supported. At the sentencing hearing, the United States
probation officer who prepared the report testified that he reached
this recommendation after conferring with a Virginia district

-3-

Case: 12-1345

Document: 00116459793

attorney.
justice

Page: 4

Date Filed: 11/21/2012

Entry ID: 5692150

Peters, who concedes that he was under a criminal
sentence

so

long

as

he

was

subject

to

Virginia's

requirement that he "be of good behavior for 3 years from [his]
release from confinement," argued at sentencing that this period
started to run when he was transferred from Virginia to Wyoming in
2006, so that he was no longer under a criminal justice sentence in
2010.

The court agreed with the government and added two criminal

history points, which resulted in a guideline sentence of twentyseven to thirty-three months' imprisonment.

The court sentenced

Peters to thirty-three months' imprisonment.

If the court had not

added these two points, the guideline sentence would have been
twenty-one to twenty-seven months.
II. Analysis
We review the district court's Guidelines calculation de
novo and any predicate factual findings for clear error.

United

States v. Thomas, 635 F.3d 13, 16 (1st Cir. 2011).
The

fundamental

question

in

this

case

is

what

the

Virginia court meant when it suspended a portion of Peters's
sentence on the condition that he "be of good behavior for 3 years
from [his] release from confinement."

Peters asserts that because

the sentencing order stated that his incarceration was to be "with
the Virginia Department of Corrections," the phrase "release from
confinement" should be understood to mean "release from confinement

-4-

Case: 12-1345

Document: 00116459793

Page: 5

Date Filed: 11/21/2012

with the Virginia Department of Corrections."

Entry ID: 5692150

Peters also relies

on the sentencing order's lack of references to Wyoming.
We hesitate to assume that the Virginia court meant
something other than what it said:

the requirement of good

behavior began when Peters was released from confinement, not just
from confinement in Virginia.

At sentencing, the court was fully

aware that Wyoming intended to confine Peters after he served his
sentence in Virginia. Knowing that fact, if the court nevertheless
had meant for Peters's good-behavior period to run while Peters was
imprisoned in Wyoming, it easily could have said so. Therefore, we
decline to adopt Peters's reading.
This is not to say that an order of the type represented
by the Virginia sentencing order must be read, regardless of the
circumstances, to commence the running of the supervised release
period only after all conceivable consecutive confinement has been
served.

It became clear during oral argument that such a rule

potentially could result in an unreasonably lengthy hold over a
person who had long since completed the incarcerative term related
to the charges for which sentence had been imposed.

But the

factual context of the Virginia sentencing at issue does not
remotely suggest such an eventuality.
Given

the

circumstances

attendant

to

the

Virginia

sentencing, reading the sentencing order as written serves an
apparent purpose of the good-behavior requirement:

-5-

to evaluate

Case: 12-1345

Document: 00116459793

Page: 6

Date Filed: 11/21/2012

Entry ID: 5692150

Peters's ability to function in free society. Peters concedes that
a requirement of good behavior is the functional equivalent of
unsupervised probation.
(Va. 1952).
confinement.
probation

See Dyke v. Commonwealth, 69 S.E.2d 483

"An order granting probation is not a sentence to
Indeed, it has exactly the opposite effect.

order

stays,

confinement in prison."

relieves,

or

prevents

a

person

A

from

Vick v. Commonwealth, 111 S.E.2d 824, 826

(Va. 1960), superseded on other grounds by statute as recognized in
Vincent v. Warden of the Dillwyn Corr. Ctr., 517 S.E.2d 17, 18-19
(Va. 1999). Peters's interpretation of the sentencing order, which
would count his time in prison in Wyoming toward his good-behavior
requirement, works against these principles.
statutes

"confer

upon

trial

courts

wide

Moreover, Virginia's
latitude

and

much

discretion in matters of suspension and probation to provide a
remedial tool in the rehabilitation of criminals . . .."

Deal v.

Commonwealth, 421 S.E.2d 897, 899 (Va. Ct. App. 1992) (alterations
omitted) (citations omitted) (internal quotation marks omitted).
In light of this guidance, we will not impose an unduly narrow
reading of the sentencing order.
Although no Virginia law clearly addresses the question
at hand, analogous cases support the conclusion that the goodbehavior period did not begin until Peters was released from
incarceration in Wyoming. The Virginia Supreme Court has held that
when a defendant commits another crime during his probation, the

-6-

Case: 12-1345

Document: 00116459793

Page: 7

Date Filed: 11/21/2012

Entry ID: 5692150

statutory time limit for the state to revoke his probation is
tolled during the defendant's incarceration for the other crime.
Rease v. Commonwealth, 316 S.E.2d 148, 151–52 (Va. 1984).

The

Court reasoned that
[r]ehabilitation is more readily accomplished
when the probationer is under the broad
control
of
the
court
and
the
direct
supervision of the court's probation officer.
And when defendant, due to his own conduct, is
no longer under such control and supervision,
the act of grace in granting probation in the
first place is rendered a nullity.
Id. at 151. The probation period itself is also tolled under these
circumstances. Pierce v. Commonwealth, 633 S.E.2d 755, 759–60 (Va.
Ct. App. 2006) (citing Rease).

We recognize that the facts of this

case differ in that Peters committed his crimes in Wyoming before
he was sentenced in Virginia, and that he was not sentenced to
supervised probation.

But measuring Peters's good-behavior period

from his release from confinement in Wyoming serves Virginia's
interest in ascertaining whether Peters can behave himself as a
member

of

free

society.1

The

district

court's

sentencing

calculation was sound.
III. Conclusion
We affirm the district court's judgment.

1

Because we hold that Peters's good-behavior requirement did
not begin until 2008, we do not reach the government's alternative
argument that the requirement began in 2006 but was tolled while
Peters was incarcerated in Wyoming.
-7-