USA v. Xavier Priester

Filing

OPINION filed: We VACATE Priester s sentence and REMAND for further proceedings consistent with this opinion. The motion to vacate is granted, and the motion to expand the appellate record is denied as moot. [4685324-2] [4637974-2] Martha Craig Daughtrey, Circuit Judge; R. Guy Cole , Jr., Circuit Judge and Julia Smith Gibbons, Circuit Judge (AUTHORING).

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1217n.06
No. 11-2612
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
XAVIER ALEXANDER PRIESTER
Defendant - Appellant

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FILED
Nov 26, 2012
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN

Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Xavier Priester appeals his sentence, arguing
that the district court erroneously found that he served substantial sentences on two prior criminal
offenses, resulting in a higher sentencing range under the U.S. Sentencing Guidelines (“Guidelines”)
than he would otherwise have received. Priester has also filed a motion to remand this case for resentencing and a motion to supplement the record on appeal. We grant the motion to remand and
deny as moot the motion to supplement the record. Accordingly, we vacate Priester’s sentence and
remand for re-sentencing so the district court can assess, in the first instance, the accuracy of the
representations the parties have made about the time Priester spent in jail as a result of his March 14,
2005, state-court criminal adjudication.

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I.
A.
Priester pled guilty to conspiring to distribute crack cocaine, powder cocaine, and marijuana
in 2008 and received a sentence of 180 months’ imprisonment. On his first appeal, we vacated and
remanded for re-sentencing in light of Spears v. United States, 555 U.S. 261 (2009). See United
States v. Priester, 646 F.3d 950, 953 (6th Cir. 2011).
The pre-sentence report (“PSR”) prepared for Priester noted that he had been arrested for
marijuana possession and driving with a suspended license on March 14, 2005, in Washtenaw
County, Michigan. The PSR described the adjudication of the offense as follows:
9-30-05/ Ct. 1, 12 months probation, 180 days jail, suspended, $1,195 fine; Ct. 2, 90
days jail, suspended, $645 fine
03-01-06/ 180 days jail, release on payment of $1,840 fine, unsuccessful probation
discharge
Washtenaw County Jail, Ann Arbor, Michigan, records reflect Mr. Priester was
released from custody on July 23, 2006.
Because the PSR found that Priester spent more than sixty days in jail for this offense, it assessed
two criminal history points to Priester, as mandated by the 2008 version of the Guidelines. U.S.
Sentencing Guidelines Manual § 4A1.1(b) (2008). In addition, since Priester committed the
conspiracy offense for which he was being sentenced in federal court “less than two years after
release from imprisonment on a sentence counted under” § 4A1.1(b), this offense triggered the
Guidelines’ “recency” provision. Id. § 4A1.1(e). Accordingly, the PSR assessed two additional
criminal history points to Priester for this offense, for a total of four points related to this offense.
Priester objected to the PSR’s scoring of this offense. He agreed that the sentence he
received on September 30, 2005, was accurately stated by the PSR and admitted that he had been
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arrested on a bench warrant in February 2006 for violating his probation terms and imprisoned for
a few days. But he argued that he paid his $1,840 fine on March 1, 2006, in lieu of serving out the
jail sentence and “did not serve [the 180-day] term that was imposed.” Priester relied upon the
county’s Misdemeanor Register of Actions (“Register”) to prove his assertion, which he submitted
as an exhibit to his sentencing memorandum. The Register includes the following note on Priester’s
sentence, dated March 1: “Serve 180D Jail/Credit 5D/Bal 175D to serve Release on payment of
$1,840” on March 1. The entry immediately below it, also dated March 1, indicates Priester paid
the fine: “pd 1840 bal 0.” Priester contends that this offense should have been scored under
§ 4A1.1(c), rather than § 4A1.1(b), because he paid a fine as an alternative to serving out the full
term of imprisonment. U.S. Sentencing Guidelines Manual § 4A.2, cmt. 4 (2008) (“A sentence
which specifies a fine or other non-incarcerative disposition as an alternative to a term of
imprisonment . . . is treated as a non-imprisonment sentence.”). This would lead to one criminal
history point being assessed against Priester related to this offense, instead of four, since subsection
(c) prior offenses merit only one criminal history point and do not trigger additional points for
“recency” under § 4A1.1(e). Scoring the offense in the manner Priester proposes would have
significantly reduced his Guidelines sentencing range.
The government argued at the re-sentencing hearing that Priester’s interpretation of the
Register was erroneous. It asserted that the fine was an additional requirement for Priester’s release,
rather than an alternative sentence, and that he actually served a jail term longer than sixty days after
violating probation. The district judge agreed and made the following ruling from the bench on the
dispute:

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Paragraph 64, as I indicated, does show that the 180 days of jail that was
imposed initially I think sometime in 2005 was suspended. That’s clear on the face
of the document. But when you read in later in what the presentence report indicates
it’s that the 180 days was later imposed because of a probation violation with credit
for five days’ time served and the remaining 175 then to be served. And that’s an
entry from March 1 of 2006.
The argument from defense here, I think, is that the Court should treat this as
an alternative sentence and treat it as a noncustodial sentence because the document
says that release could happen upon payment of $1,840 for the costs and fines.
I don’t think that’s really what an alternative sentence is . . . . It certainly was
not imposed as an alternative sentence . . . . Rather it was imposed ultimately based
on the probation violation as the jail term. In fact, five days had already been served
and credited with 175 to go, and it’s simply a future condition of release, not imposed
in my view as an alternative sentence from the inception as we sometimes see. So
it seems to me that the two points there are appropriately scored even if there was a
later release that occurred before the full 180 days had been served.
Priester also objected to the scoring of an October 6, 2001, arrest in Oakland County for
driving with a suspended license. The PSR states that Priester served thirty-one days in jail for this
offense and assessed him one criminal history point, but Priester maintains that the court suspended
his sentence. The first page of the Register for this offense notes that Priester received a thirty-oneday jail sentence. But on the January 28, 2002 entry reflecting the minutes of Priester’s sentencing,
the phrase “jail term suspended” appears immediately below the listing for a “jail term” of thirty-one
days. The district judge agreed with the government that Priester actually served thirty-one days in
jail for this offense:
[M]y reading of the documents . . . is that the 31 days was actually imposed and was
not judicially suspended. Certainly that’s what the [first] page of even the Register
of Actions indicates where in the middle of the page it says, “Jail sentence, 31 days,”
and there’s no indication of suspension at all. As in contrast, for example, to the
paragraph 64 papers, which we’ll look at in a minute, there’s an asterisk right on the
face page indicating that the jail time was suspended. At least initially. But 61
there’s no such indication. And when you look into that January 28, ‘02, entry where
the jail term is noted, it’s 31 days. There’s then what I would interpret as a field for
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jail term suspended which would either have to be indicated yes with an X or
something like that and it isn’t. So I don’t think the fairest reading of this paper is
that the sentence was suspended even in the view of whoever prepared the Register
of Actions.
Based on Priester’s category IV criminal history and offense level of thirty-five, the district
judge calculated a sentencing range of 151 to 188 months’ imprisonment. Because Priester offered
substantial assistance to the government, the district judge adjusted his sentencing range downward
pursuant to § 5K1.1 of the Guidelines, resulting in a final range of 110 to 137 months’ imprisonment.
The district judge sentenced Priester to 117 months’ imprisonment. This timely appeal followed.
B.
Priester’s principal brief on appeal addressed his issue with the scoring of his March 14, 2005
prior offense, but not his October 6, 2001 prior offense. In his reply brief on appeal, Priester
submitted the Washtenaw County jail records upon which the probation department supposedly
relied in calculating the criminal history points on his March 14, 2005 offense. These records show
that authorities brought Priester to the jail on February 27, 2006 at 4:30 p.m., but released him on
March 1, 2006 at 6:47 p.m. A code on the records explains that the jail released Priester because he
“POSTEDBOND.” The July 23, 2006, date included in the PSR as Priester’s release date is never
mentioned in these records, and they do not indicate that he spent more than a handful of days in the
Washtenaw County jail on any prior offense. Priester also challenged the scoring of his October 6,
2001, offense in his reply brief by submitting an e-mail from the Oakland County Sheriff’s Office
Records Bureau. The e-mail states that the Oakland County jail did not have any record of Priester
being a prisoner in their facilities. This undercuts the assertion in the PSR that Priester spent thirtyone days in jail on the October 6, 2001 incident.

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After the completion of briefing, Priester filed a motion to remand this case for re-sentencing
and a motion to expand the record on appeal in light of the contents of these records, both of which
are pending. Priester also moved to expand the record in the district court, but the district judge
denied the motion without prejudice, reasoning that this court is “in the best position to evaluate
whether to supplement the record, remand for further consideration, or proceed with a plain error
standard of review . . . .”
II.
A.
We address issues raised by Priester’s March 14, 2005, arrest for marijuana possession and
driving with a suspended license first. The scoring of this prior offense was the original subject of
this appeal, but Priester did not submit the Washtenaw County jail records that are now at issue until
he filed his reply brief. The government asserts that these records are “new evidence” and that we
should review Priester’s sentence without considering them. Generally, arguments not raised in an
appellant’s opening brief are considered abandoned. Youghiogheny & Ohio Coal Co. v. Milliken,
200 F.3d 942, 955 (6th Cir. 1999). Nonetheless, this rule “is prudential and not jurisdictional.” Id.
“Deviations are permitted in ‘exceptional cases or particular circumstances,’ or when the rule would
produce a ‘plain miscarriage of justice.’” Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d
1445, 1461 (6th Cir. 1988) (quoting Hormel v. Helvering, 312 U.S. 552, 558 (1941)).
Overlooking Priester’s failure to produce the jail records until this stage of the case is
warranted. In the district court, the government relied upon the PSR’s assertions about the
Washtenaw County jail records to argue for a higher sentencing range for Priester. While the
government asserts in its response to the motion to remand that the records Priester submitted do not
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prove conclusively that he is correct, it does not dispute that the records are genuine and offers no
explanation as to how the PSR reached its conclusions about the time Priester spent in jail.
Moreover, while Priester did not introduce the actual jail records until a very late stage of litigation,
he raised the substance of his objection to the criminal history scoring of this offense in both the
district court and in his opening brief on appeal. To guard against a potential miscarriage of justice,
we will give full consideration to Priester’s claim. See United States v. Alaniz, 75 F. App’x 344,
352–53 (6th Cir. 2003) (vacating sentence and remanding case after prison records discovered by
defendant’s appellate counsel demonstrated PSR’s representations about a prior conviction were not
accurate under “plain error” review).
The government raised concerns in its response to the motion to remand that Federal Rule
of Criminal Procedure 35(a) precluded review of the Washtenaw County jail records. It may be
correct that Rule 35(a) would have prohibited the district court from reconsidering Priester’s
sentence on these grounds, although that is an issue we need not decide today. See Fed. R. Crim. P.
35 (Notes to 1991 Amendments) (acknowledging that Rule 35(a) “recognize[s] explicitly the ability
of the sentencing court to correct a sentence,” but that such ability is “very narrow”) (emphasis
added); United States v. Dotz, 455 F.3d 644, 646 (6th Cir. 2006) (“Rule 35(a) . . . allows the district
court to correct arithmetical, technical, or other clear sentencing errors.”). But Rule 35(a) does not
prevent this court from considering issues raised by Priester’s jail records. That is not to say there
are no limits on such consideration; assignments of error not presented to the district court are only
reviewed for plain error. Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may
be considered even though it was not brought to the court’s attention.”); United States v. Gardiner,
463 F.3d 445, 459 (6th Cir. 2006) (recognizing that only obvious errors that affect a defendant’s
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substantial rights and adversely impact the integrity of judicial proceedings may be corrected under
“plain error” review). But “plain error” has been found in cases similar to this one. See, e.g., Alaniz,
75 F. App’x at 352–53. Accordingly, we find that Priester’s failure to raise this issue in a Rule 35(a)
motion does not preclude our consideration of it.
B.
During sentencing, the district court “must—for any disputed portion of the pre-sentence
report . . . rule on the dispute or determine that a ruling is unnecessary . . . .” Fed. R. Crim. P.
32(i)(3)(B). We have held that this rule is not satisfied when a district judge relies upon a PSR’s
factual contentions after being asked to resolve a dispute regarding those contentions. United States
v. Tarwater, 308 F.3d 494, 518 (6th Cir. 2002) (“Because the purpose of the rule is to ensure that
sentencing is based on reliable facts found by the court itself after deliberation, a court may not
merely summarily adopt the factual findings in the presentence report or simply declare that the facts
are supported by a preponderance of the evidence.”).
For instance, in United States v. Darwich, 337 F.3d 645 (6th Cir. 2003), the district court
failed to “make specific factual findings” on a leadership enhancement recommended by a PSR, even
after the defendant objected to the PSR’s factual assertions buttressing the enhancement. 337 F.3d
at 666. We found that the district court’s “exclusive reliance on the PSR . . . cannot be considered
a ruling” on disputed facts in a PSR. Id. at 667. To correct the oversight, we remanded to the district
court to “issue a ruling” on the contested factual issues and determine whether the enhancement was
actually applicable. Id.; see also United States v. Corrado, 227 F.3d 528, 540–41 (6th Cir. 2000)
(remanding for re-sentencing after the district court “did not set out findings” as to leadership
enhancements after defendants “objected to several findings in the presentence report”); United
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States v. Tackett, 113 F.3d 603, 613–14 (6th Cir. 1997) (remanding for re-sentencing after the
“district court made no independent findings regarding the basis for the obstruction of justice
enhancement,” including the “hotly contested factual question of how much wasted time and effort
defendants’ conduct had caused”).
The gravamen of Priester’s objection to the scoring of his March 14, 2005, offense is that the
district judge did not resolve the dispute over the facts stated in his PSR. The burden was on the
government to prove the facts supporting the additional criminal history points. See Darwich, 337
F.3d at 665. Nonetheless, the district judge appeared to presume that Priester served the full prison
sentence. Actual resolution of the objection would have required examination of the underlying jail
records mentioned in the PSR to see which party’s assertions about the nature of Priester’s setence
are correct. Accordingly, we must vacate Priester’s sentence and remand this case so the district
court can resolve, in the first instance, whether the underlying facts of the adjudication of his March
14, 2005, offense actually justify the three additional criminal history points he received. On
remand, the district court should consider all evidence relevant to this issue, including the jail
records. We anticipate that if the district judge finds that a new base sentencing range is appropriate,
he will nonetheless continue to apply an adjustment to that range reflecting Priester’s “substantial
assistance” to the government commensurate with the one applied during Priester’s first resentencing.
III.
Priester also asks for reconsideration of the scoring of his October 6, 2001, offense on
remand. We find the failure to raise this issue distinguishable from his arguments regarding the
March 14, 2005, offense in at least four ways. First, Priester did not even mention the scoring of this
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offense in his opening brief. Second, the district judge did engage in the necessary factual inquiry
with respect to this offense by examining the evidence submitted and explaining why he believed
the sentence was actually imposed. Third, the e-mail Priester submitted to prove he did not spend
time in the Oakland County jail is not necessarily inconsistent with the district judge’s finding.
Unlike the Washtenaw County jail records, which show the times and dates on which Priester was
brought into and released from custody, the e-mail merely states that the jail had “no record of this
incarceration” and suggested that Priester’s counsel “check with the court of record” to pursue the
matter further. Fourth, there appears to be no error in the scoring of this offense. Priester received
a suspended sentence, probation, and community service from the state court after entering his guilty
plea, which qualifies as a “prior sentence” under § 4A1.1(c) of the Guidelines. A term of
imprisonment is not required. While not all misdemeanor convictions are scored, “[d]riving without
a license or with a revoked or suspended license” is, regardless of the sentence imposed, if
committed within ten years of the offense for which the defendant is being sentenced. U.S.
Sentencing Guidelines Manual §§ 4A1.2(c)(1) & 4A1.2(e)(2) (2008). The amount of time Priester
spent incarcerated on this offense is therefore irrelevant, and we see no reason to overlook Priester’s
failure to mention this issue at all in his opening brief. See Youghiogheny, 200 F.3d at 955. This
argument is waived.
IV.
The motion to vacate is granted, and the motion to expand the appellate record is denied as
moot. Accordingly, we vacate Priester’s sentence and remand for further proceedings consistent
with this opinion.

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