UNITED STATES of America, Plaintiff-Appellee, v. Luis Emilio GONZALES, Defendant-Appellant, 506 F.3d 940

Opinion by Judge WARDLAW; Partial Concurrence and Partial Dissent by Judge IKUTA. WARDLAW, Circuit Judge, with whom Chief Judge SCHROEDER, Judges PREGERSON, HAWKINS, THOMAS, McKEOWN, W. FLETCHER, GOULD, PAEZ, BERZON, RAWLINSON, and MILAN D. SMITH, JR., join, and with whom Judges BYBEE, BEA, and IKUTA join as to

Part V: The three-judge panel that originally heard this appeal on July 24, 2006, issued a sua sponte call for hearing this appeal en banc to reconcile two of our decisions construing United States Sentencing Guideline (“U.S.S.G.”) § 4A1.2(e). A majority of the active judges of our court voted to hear the appeal en banc to address the question whether a suspended sentence of thirty days or more constitutes a “term of imprisonment of at least thirty days” under § 4A1.2(c)(1), and thus should be counted in the defendant’s criminal history score. In United States v.

Williams, 291 F.3d 1180, 1195 (9th Cir.2002), we held that a totally suspended six-month sentence for criminal mischief counted as a “prior sentence,” mandating an additional point on the defendant’s criminal history score; however, in United States v. Hernandez-Hernandez, 431 F.3d 1212, 1220 (9th Cir.2005), we also held that a partially suspended three-month misdemeanor sentence resulting in three days of imprisonment did not count as a “prior sentence,” and thus did not increase the defendant’s criminal history score.

We agree with both the government and Gonzales that our analysis in Williams was flawed by its failure to read the relevant Guidelines sections as a whole. We hold that the language “term of imprisonment” in § 4A1.2(c)(1) refers only to certain non-felony sentences for which the defendant actually served a period of imprisonment. Therefore, we overrule Williams, clarify Hernandez-Hernandez, vacate Gonzales’s sentence and remand for resentencing. I. On March 21, 2003, Yakima Police Department officers stopped a vehicle driven by Luis Emilio Gonzales.

When the officers approached the vehicle, they observed a knife under the driver’s seat and a marijuana bud in plain view. Gonzales was arrested. During a search incident to arrest, the officers also found a gym bag on the passenger-side floor containing methamphetamine and a loaded gun. When questioned, Gonzales admitted that he was a convicted felon. Before the car was impounded, officers discovered two additional guns in the trunk, one of which had been reported stolen. At the police station, Gonzales admitted ownership of the drugs and that he was a drug dealer.

Gonzales also admitted that all of the guns in the car were his and that he knew that one of the guns was stolen. Gonzales had been previously convicted in Washington state court for possession of a stolen firearm, in August 1996 and again in November 2001. In December 2002, Gonzales was also convicted of third-degree driving with a suspended license and sentenced to thirty days in jail. The entire sentence, however, was suspended.

On October 1, 2003, Gonzales pled guilty pursuant to a written plea agreement to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1), and possession of a stolen firearm in violation of 18 U.S.C. § 922(j). At sentencing, Gonzales objected to a four-level enhancement for possession of a firearm in connection with another felony offense under U.S.S.G. § 2K2.1(b)(5) and to the inclusion of one criminal history point for his conviction of third-degree driving with a suspended license.

The district court found that although Gonzales’s sentence had been totally suspended, the court was required to count the sentence under our precedent in Williams. The district court also found that Gonzales possessed a firearm within the meaning of § 2K2.1(b)(5). The district court therefore overruled both of Gonzales’s objections and sentenced Gonzales to fifty-seven months imprisonment. II. We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s

interpretation of the Sentencing Guidelines de novo, its application of the Sentencing Guidelines to the facts for abuse of discretion, and its factual findings for clear error. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005). III. Gonzales argues that because his thirty-day sentence for driving with a suspended license was entirely suspended, it should have been excluded under U.S.S.G. § 4A1.2(c)(1) (2003). We agree.

Section 4A1.1 instructs that the following points be added to a defendant’s criminal history score for prior criminal sentences: (

a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month. (

b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a). (

c) Add 1 point for each prior sentence not counted in (

a) or (b), up to a total of 4 points for this item. § 4A1.1. The Application Notes to § 4A1.1(

c) direct us to the definition of “prior sentence” in § 4A1.2(a).

Section 4A1.2(a)(1) defines “prior sentence” as “any sentence previously imposed upon adjudication of guilt ... for conduct not part of the instant offense.”

Section 4A1.2(a)(3) further provides that a totally suspended sentence “shall be counted as a prior sentence under § 4A1.1(c).” § 4A1.2(a)(3). This is the provision upon which the Williams opinion rested. As the government notes, however, the Williams analysis failed to account for § 4A1.2(b)-(

c) and the related Commentary.

Section 4A1.2(b)(1) states that “[t]he term ‘sentence of imprisonment’ means a sentence of incarceration and refers to the maximum sentence imposed.” The corresponding Application Notes state that “[t]o qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence.” § 4A1.2, cmt. n. 2. In other words, a “sentence of imprisonment” requires a period of confinement.

Section 4A1.2(b)(2) further provides that if a sentence is partially suspended, the “sentence of imprisonment” refers only to the non-suspended portion. Therefore, while a totally suspended sentence could never result in additional criminal history points under § 4A1.1(

a) or (b), it could result in one additional point under § 4A1.1(c), depending on the nature of the prior offense and whether or not the prior offense is deemed “countable” under that section. The Application Note for § 4A1.1(

c) makes clear that “[sjentences for certain specified non-felony offenses are counted only if they meet certain requirements” as outlined by § 4A1.2(c)(1). § 4A1.1, cmt. n. 3. In § 4A1.2(e)(1), the Sentencing Commission has specified which sentences should or should not be counted, presumably based upon the degree of seriousness of the underlying offense. While, under § 4A1.2(c), sentences for all felony offenses must be counted, the Guidelines exempt from the criminal history calculation sentences for certain misdemeanors and petty offenses: Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (

A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (

B) the prior offense was similar to an instant offense.... § 4A1.2(c)(1) (emphasis added). The Guidelines next identify the misdemeanor and petty offenses, including driving with a suspended license, that should be counted only if the sentence imposed was a term of probation of at least one year or a term of imprisonment of at least thirty days, or if the prior offense was similar to the instant offense. The issue before us is whether a totally suspended thirty-day sentence constitutes a “term of imprisonment” of at least thirty days.

While “term of imprisonment” is not specifically defined, “sentence of imprisonment” is clearly defined by § 4A1.2(b)(1) and the corresponding Application Notes. See § 4A1.2, cmt. n. 2. A plain reading of § 4A1.2(c)(1) suggests that, in this context, the phrases are interchangeable. The grammatical structure of the provision dictates the way in which we must construe it: Sentences for misdemeanor and petty offenses are counted, except as follows:

(1) Sentences for the [listed] prior offenses and offenses similar to them, by whatever name they are known, are counted only if (

A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days.... § 4A1.2(c)(1). We agree with the government that at least as used in this provision in

Chapter Four of the Guidelines Manual, there is no meaningful distinction discernable between the phrase “the sentence was ... a term of imprisonment” and the phrase “sentence of imprisonment,” which is fully defined in § 4A1.2(b), the preceding subsection. Because the only logical conclusion is that the requirement of actual incarceration also applies to “term of imprisonment,” a totally suspended sentence for a qualifying misdemeanor, regardless of its length, cannot be counted as a prior sentence.

In other words, while a totally suspended sentence is a “prior sentence” under § 4A1.2(a)(3), it is not necessarily “counted” in the calculation of a defendant’s criminal history score. Moreover, a partially suspended sentence for a misdemeanor listed in § 4A1.2(c)(1) counts only if the non-suspended portion of the sentence is at least thirty days. Because Gonzales’s sentence was for a misdemeanor listed in § 4A1.2(c)(1), and his sentence was not a term of imprisonment of at least thirty days, it must be excluded from his criminal history calculation. We therefore vacate his sentence and remand for resentencing.

IV. We next address our prior holdings in Williams and Hernandez-Hernandez. Williams argued that his totally suspended six-month sentence for a criminal mischief conviction was excludable under § 4A1.2(c)(1) because the offense was similar to disorderly conduct, one of the misdemeanors listed in § 4A1.2(e)(1). Williams, 291 F.3d at 1195. The Williams panel erroneously concluded that the defendant’s suspended six-month sentence was not ex-cludable under § 4A1.2(c)(1) because, according to § 4A1.2(a)(3), the definition of “prior sentence” includes totally suspended sentences. Id.

As discussed above, however, “[t]he real issue is not whether [the suspended] sentence is a ‘prior sentence,’ but rather whether or not it is a ‘countable’ sentence under the Guidelines,” as our sister circuits have recognized. United States v. Johnson, 43 F.3d 1211, 1214 (8th Cir.1995); see also United States v. Harris, 325 F.3d 865, 872 (7th Cir.2003) (“[Section] 4A1.2 limits the applicability of § 4A1.1 through its definition of ‘prior sentence.’ Notably, subsection 4A1.2(c)(1) excludes certain enumerated prior offenses .... ”); United States v.

Morales, 239 F.3d 113, 115 (2d Cir.2000) (“Each [prior] sentence of less than 60 days counts for one point, except that sentences for certain misdemeanors and petty offenses are not counted at all.”) (internal citations omitted). Certain suspended sentences, such as sentences for felonies and non-qualifying misdemeanors, are countable “prior sentences,” resulting in one additional criminal history point under § 4A1.1(c). However, totally suspended sentences for qualifying misdemeanors listed in § 4A1.2(e)(1) are not.

Therefore, if the Williams panel had found that criminal mischief was a qualifying misdemeanor under § 4A1.2(c)(1), then the defendant’s suspended sentence should have been excluded. But if criminal mischief was not considered a qualifying misdemeanor, then the defendant’s suspended sentence would have counted as a prior sentence, and properly resulted in one additional point. To the extent the Williams opinion failed to properly determine whether the defendant’s suspended sentence was excludable under § 4A1.2(e)(1), and therefore reached an incorrect result, we now overrule it.

We were confronted with a similar situation in Hernandez-Hernandez, where the defendant argued that his ninety-day sentence for a conviction for threats to do harm, of which eighty-seven days were suspended, was excludable under § 4A1.2(c)(1). 431 F.3d at 1220. The panel did not expressly hold that “term of imprisonment” requires actual time served, but that

interpretation is implicit in its holding. The Hernandez-Hernandez panel correctly analyzed whether the defendant’s partially suspended sentence constituted a term of imprisonment of at least thirty days under § 4A1.2(c)(1). Id. The panel relied on § 4A1.2(b)(2), which states that “[i]f part of a sentence of imprisonment was suspended, ‘sentence of imprisonment’ refers only to the portion that was not suspended.” § 4A1.2(b)(2). Therefore, the panel found that because the term of imprisonment was only three days, under § 4A1.2(c)(1)(A), it did not count as a term of imprisonment of at least thirty days. Id.

While the Hernandez-Hernandez panel recognized that its holding “may appear to be at odds with [Williams ],” it inadequately distinguished Williams. Hernandez-Hernandez, 431 F.3d at 1220. The panel reasoned that because Williams’ sentence was totally suspended, and not partially suspended as in Hernandez-Hernandez, § 4A1.2(b)(2) did not apply. Id. It is correct that § 4A1.2(b)(2) is inapplicable to the totally suspended sentence in Williams.

However, the shortcoming in Williams was that it failed to go beyond the definition of “prior sentence” and recognize that for certain non-felony “prior sentences” the actual time served is determinative as to whether the sentence counts for purposes of adding a criminal history point. Although both decisions relied upon different subsections of the Guidelines and therefore may not be in direct conflict, when taken together, the holdings in Williams and Hernandez-Hernandez lead to illogical and unjust results.

Under Williams, a defendant convicted of a qualifying misdemeanor who received a wholly suspended thirty-day sentence would receive one criminal history point. However, under Hernandez-Hernandez, a defendant convicted of the same offense who received a thirty-day sentence with one day suspended — thus actually serving twenty-nine days in jail—would not receive a criminal history point. See Thomas W.

Hutchison et al., Federal Sentencing Law and Practice § 4A1.1 cmt. 5(f)(ii)(B)(5) (2007) (“It would be anomalous to count a 30-day sentence of imprisonment that totally was suspended when a 30-day sentence of imprisonment that had only one day suspended (resulting in a 29-day term of imprisonment) would not be counted.”). Therefore, we clarify our holding in Hernandez-Hernandez.

Under § 4A1.2(c)(1), both a totally suspended sentence for a misdemeanor and a partially suspended sentence for a misdemeanor, where the actual time served was under thirty days, do not count; however, a totally suspended sentence for a felony or non-qualifying misdemeanor would result in one additional criminal history point under the Guidelines. V. Gonzales also argues that the district court erred in concluding that he possessed a firearm in connection with another felony offense under U.S.S.G. § 2K2.1(b)(5) (2003). We reject that claim.

Section 2K2.1(b)(5) instructs the district court to increase the base level for weapons offenses by four points if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” § 2K2.1(b)(5). According to the Application Notes, a “felony offense” is defined as “any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or conviction obtained.” § 2K2.1(b)(5), cmt. n. 7. We have found that mere possession is insufficient to support a § 2K2.1(b)(5) upward adjustment. United States v.

Routon, 25 F.3d 815, 819 (9th Cir.1994). “[T]o the extent that the government relies upon physical possession, it must show that the firearm was possessed in a manner that permits an inference that it facilitated or potentially facilitated—i.e., had some potential emboldening role in — a defendant’s felonious conduct.” Id. Here, the police officers found a firearm in the same gym bag as the methamphetamine in Gonzales’s car. Gonzales admitted that both the drugs and the guns in the car were his. He also admitted to selling drugs.

Therefore, the district court did not abuse its discretion in finding, based on these facts, that the government proved by a preponderance of the evidence that Gonzales possessed the firearm in connection with either felony distribution of methamphetamine or felony possession of methamphetamine. See United States v.

Polanco, 93 F.3d 555, 567 (9th Cir.1996) (finding that the government proved by a preponderance of the evidence that the defendant “possessed” the gun in a manner that facilitated the defendant’s felonious conduct because the presence of the gun in the defendant’s car “potentially emboldened him” to sell drugs). Thus, we affirm the district court’s application of a four-level enhancement under § 2K2.1(b)(5). VI. For the foregoing reasons, we vacate Gonzales’s sentence and remand to the district court for resentencing. VACATED and REMANDED. .

Section 4A1.2(c)(2) goes on to list certain offenses for which sentences are "never counted.” . The dissent, taking language out of context from a few of our cases, asserts, without any legal support, that the "plain meaning” of the phrase "term of imprisonment” is the sentence imposed, not the period of confinement. See Dissent, infra at 947-49. The dissent is incorrect. Black’s Law Dictionary defines "term” as "[a] fixed period of time” and "imprisonment” as "[t]he act of confining a person, esp. in a prison” or "[t]he state of being confined; a period of confinement.” Black's Law Dictionary 1510, 773 (8th ed.2004). Combining the two

definitions, the plain meaning of the phrase "term of imprisonment” is "period of confinement.” Thus, the plain meaning of the phrase supports our view that, at least for the purposes of construing

Chapter Four of the Sentencing Guidelines, "term of imprisonment” means a term of actual confinement. .In United States v. Echavairia-Escobar, we addressed an entirely different issue: whether a suspended sentence constitutes an aggravated felony for purposes of enhancing a present sentence under 8 U.S.C. § 1326(b)(2). 270 F.3d 1265, 1270-71 (9th Cir.2001). One of the defendant’s arguments in that case as to why certain suspended sentences should not be considered part of the required term of imprisonment under U.S.S.G. § 2L1.2 was that the Application Notes to § 4A1.2 define "sentence of imprisonment” as requiring actual time served. Id. We rejected this argument stating that § 4A1.2(

b) defines "sentence of imprisonment,” not "term of imprisonment.” Id. at 1271. We further explained that "[8] U.S.C. § 1101(a)(48)(B), not U.S.S.G. § 4A1.2(

b) applies for the purposes of defining ‘term of imprisonment' in U.S.S.G. § 2L1.2.” Id. (internal quotations omitted). The superficial reference to the

definitions of the terms used in § 4A1.2 did not affect our holding in Echavairia-Escobar, nor does it provide us with any useful guidance in the present case. However, to the extent that our statement in Echavarria-Escobar could be read as holding that “sentence of imprisonment” and “term of imprisonment” in

Chapter Four of the Sentencing Guidelines are not interchangeable for any purpose, as an en banc court, we overrule it. . In the current 2006 edition of the Guidelines, possession of a firearm in connection with another felony offense falls under § 2K2.1(b)(6). . It is unclear from the sentencing transcript whether the district court based the § 2K2.1(b)(5) enhancement on felony distribution of methamphetamine or felony possession of methamphetamine. However, the record supports an enhancement based on either felony offense.