Summary
This Third Circuit Court of Appeals opinion addresses how to calculate the look-back period for prior convictions under U.S.S.G. § 4A1.2(e)(2) when determining a defendant’s Criminal History Category. The court held that the phrase “commencement of the instant offense” unambiguously refers to the start of the specific conduct comprising the offense of conviction, rather than broader “relevant conduct” as suggested by guideline commentary. Applying this plain-text interpretation to the appellant’s SORNA violation, the court found that certain prior sentences fell outside the ten-year look-back period and vacated the sentence for resentencing.
Topics
Practice areas
Questions Presented
- Whether the phrase "commencement of the instant offense" in U.S.S.G. § 4A1.2(e)(2) includes relevant conduct or instead refers only to the conduct constituting the offense of conviction.
- Whether the District Court correctly included Josey's 2010 and 2011 sentences in the ten-year criminal-history look-back period.
- What act commenced Josey's offense under 18 U.S.C. § 2250(a) for purposes of calculating the Guidelines look-back period.
Holdings
- The phrase "commencement of the instant offense" unambiguously refers to the start of the specific offense conduct for which the defendant is being sentenced, namely the offense of conviction, and does not include relevant conduct or separate related offenses.
- The District Court erred by using Josey's 2019 New York state-law verification violation as the commencement date and by counting his 2010 and 2011 sentences. Those sentences fell outside the ten-year look-back period and should have been excluded.
- Courts may not presume that commentary to a Sentencing Guideline controls; they must first apply the Nasir ambiguity analysis to the text of the specific Guideline at issue.
Key quotations
““[C]ommencement of the instant offense” means the start of the conduct comprising the offense of conviction, i.e., the specific offense conduct for which the defendant is then being sentenced.” (3)
“As explained below, however, we need not reach the second issue because “relevant conduct” is simply not relevant in determining the look-back period in § 4A1.2.” (9)
“In sum, “commencement of the instant offense” unambiguously refers to the start of the specific offense for which a defendant is then being sentenced and does not include separate or related offense conduct.” (17)
“All three sentences in dispute were imposed in 2010 and 2011 and are thus properly excluded under either the indictment’s or the PSR’s commencement date.” (20)
Factual background
Josey was required to register as a sex offender under SORNA following 2013 North Carolina convictions. After moving from New York to Pennsylvania in January 2023, he failed to update his federal registration as required, leading to his indictment and guilty plea under 18 U.S.C. § 2250(a). In calculating his sentence, the District Court treated an earlier New York failure to verify his address as relevant conduct and counted prior sentences imposed in 2010 and 2011, increasing his criminal-history category from IV to VI.
Procedural history
Josey pleaded guilty in the United States District Court for the Middle District of Pennsylvania to violating 18 U.S.C. § 2250(a). The District Court treated a 2019 New York state-law registration violation as relevant conduct commencing the instant offense, counted 2010 and 2011 sentences, placed Josey in Criminal History Category VI, and imposed a 24-to-30-month Guidelines sentence at the bottom of that range. The Third Circuit vacated the sentence and remanded for resentencing using the correct Criminal History Category.
Remand instructions
Vacate Josey's sentence and remand for resentencing using the correct Criminal History Category, excluding the 2010 and 2011 sentences from the ten-year look-back calculation.