In United States v. Powell, No. 14-3932 (Aug. 19, 2015), the Sixth Circuit clarified application of the career-offender provision under the Sentencing Guidelines.
Powell argued that the district court erred in classifying him as a career offender because the court mistakenly counted two of his prior convictions separately.
The Guidelines explain that “prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2). “If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence.” Id.
The district court relied on pair of assault convictions to sentence Powell as a career offender. But Powell merely received a summons for the first of these charges before being arrested two months later on the second charge, and he was sentenced for both crimes on the same day. The Sixth Circuit sided with an en banc Ninth Circuit decision, and dicta from other circuits, to decide that an intervening summons or citation does not constitute “an intervening arrest” under § 4A1.2(a)(2). The Sixth Circuit declined to follow a contrary decision from the Seventh Circuit.
On another important note, Powell had waived most of his appellate rights as part of his plea agreement, but preserved his ability to challenge the determination of his criminal-history category. This exception, the Sixth Circuit decided, allowed an appellate challenge to the career-offender determination, even though it affected both Powell's criminal history and offense level. Even more interesting, the court's holding ultimately did not change Powell's criminal history category: his score dropped from 20 to 15, leaving him in category VI. But the Sixth Circuit nonetheless remanded because of the change in offense level.