U.S.S.G. §4A1.2

(a) PRIOR SENTENCE

(1) The term “prior sentence” means any sentence previously imposed

upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo

contendere, for conduct not part of the instant offense.

(2) If the defendant has multiple prior sentences, determine whether

those sentences are counted separately or treated as a single sentence.

Prior sentences always are counted separately if the sentences were

imposed for offenses that were separated by an intervening arrest

(i.e., the defendant is arrested for the first offense prior to committing

the second offense). For purposes of this provision, a traffic stop is not

an intervening arrest. 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. Treat any prior sentence covered by subparagraph (A) or (B) as a single sentence.

See also §4A1.1(d).

For purposes of applying §4A1.1(a), (b), and (c), if prior sentences are

treated as a single sentence, use the longest sentence of imprisonment

if concurrent sentences were imposed. If consecutive sentences were

imposed, use the aggregate sentence of imprisonment.

(3) A conviction for which the imposition or execution of sentence was totally suspended or stayed shall be counted as a prior sentence under

§4A1.1(c).

(4) Where a defendant has been convicted of an offense, but not yet sentenced, such conviction shall be counted as if it constituted a prior

sentence under §4A1.1(c) if a sentence resulting from that conviction

otherwise would be countable. In the case of a conviction for an offense

set forth in §4A1.2(c)(1), apply this provision only where the sentence

for such offense would be countable regardless of type or length.

“Convicted of an offense,” for the purposes of this provision, means

that the guilt of the defendant has been established, whether by guilty

plea, trial, or plea of nolo contendere.

(b) SENTENCE OF IMPRISONMENT DEFINED

(1) The term “sentence of imprisonment” means a sentence of incarceration and refers to the maximum sentence imposed.

(2) If part of a sentence of imprisonment was suspended, “sentence of imprisonment” refers only to the portion that was not suspended.

(c) SENTENCES COUNTED AND EXCLUDED

Sentences for all felony offenses are counted. Sentences for misdemeanor

and petty offenses are counted, except as follows:

(1) 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 more than one year or a term of

imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense:

Careless or reckless driving

Contempt of court

Disorderly conduct or disturbing the peace

Driving without a license or with a revoked or suspended license

False information to a police officer

Gambling

Hindering or failure to obey a police officer

Insufficient funds check

Leaving the scene of an accident

Non-support

Prostitution

Resisting arrest

Trespassing.

(2) Sentences for the following prior offenses and offenses similar to

them, by whatever name they are known, are never counted:

Fish and game violations

Hitchhiking

Juvenile status offenses and truancy

Local ordinance violations (except those violations that are also

violations under state criminal law)

Loitering

Minor traffic infractions (e.g., speeding)

Public intoxication

Vagrancy.

(d) OFFENSES COMMITTED PRIOR TO AGE EIGHTEEN

(1) If the defendant was convicted as an adult and received a sentence of

imprisonment exceeding one year and one month, add 3 points under

§4A1.1(a) for each such sentence.

(2) In any other case,

(A) add 2 points under §4A1.1(b) for each adult or juvenile sentence

to confinement of at least sixty days if the defendant was released

from such confinement within five years of his commencement of

the instant offense;

(B) add 1 point under §4A1.1(c) for each adult or juvenile sentence

imposed within five years of the defendant’s commencement of

the instant offense not covered in subparagraph (A).

(e) APPLICABLE TIME PERIOD

(1) Any prior sentence of imprisonment exceeding one year and one

month that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever

imposed, that resulted in the defendant being incarcerated during any

part of such fifteen-year period.

(2) Any other prior sentence that was imposed within ten years of the

defendant’s commencement of the instant offense is counted.

(3) Any prior sentence not within the time periods specified above is not

counted.

(4) The applicable time period for certain sentences resulting from offenses committed prior to age eighteen is governed by §4A1.2(d)(2).

(f) DIVERSIONARY DISPOSITIONS

Diversion from the judicial process without a finding of guilt (e.g., deferred

prosecution) is not counted. A diversionary disposition resulting from a

finding or admission of guilt, or a plea of nolo contendere, in a judicial proceeding is counted as a sentence under §4A1.1(c) even if a conviction is not

formally entered, except that diversion from juvenile court is not counted.

(g) MILITARY SENTENCES

Sentences resulting from military offenses are counted if imposed by a general or special court-martial. Sentences imposed by a summary court-martial or Article 15 proceeding are not counted.

(h) FOREIGN SENTENCES

Sentences resulting from foreign convictions are not counted.

(i) TRIBAL COURT SENTENCES

Sentences resulting from tribal court convictions are not counted.

(j) EXPUNGED CONVICTIONS

Sentences for expunged convictions are not counted.

(k) REVOCATIONS OF PROBATION, PAROLE, MANDATORY RELEASE, OR SUPERVISED

RELEASE

(1) In the case of a prior revocation of probation, parole, supervised release, special parole, or mandatory release, add the original term of

imprisonment to any term of imprisonment imposed upon revocation.

The resulting total is used to compute the criminal history points for

§4A1.1(a), (b), or (c), as applicable.

(2) Revocation of probation, parole, supervised release, special parole, or

mandatory release may affect the time period under which certain

sentences are counted as provided in §4A1.2(d)(2) and (e). For the purposes of determining the applicable time period, use the following:

(A) in the case of an adult term of imprisonment totaling more than

one year and one month, the date of last release from incarceration on

such sentence (see §4A1.2(e)(1)); (B) in the case of any other confinement sentence for an offense committed prior to the defendant’s eighteenth birthday, the date of the defendant’s last release from confinement on such sentence (see §4A1.2(d)(2)(A)); and (C) in any other case,

the date of the original sentence (see §4A1.2(d)(2)(B) and (e)(2)).

(l) SENTENCES ON APPEAL

Prior sentences under appeal are counted except as expressly provided below. In the case of a prior sentence, the execution of which has been stayed

pending appeal, §4A1.1(a), (b), (c), (d), and (e) shall apply as if the execution of such sentence had not been stayed.

(m) EFFECT OF A VIOLATION WARRANT

For the purposes of §4A1.1(e), a defendant who commits the instant offense

while a violation warrant from a prior sentence is outstanding (e.g., a probation, parole, or supervised release violation warrant) shall be deemed to

be under a criminal justice sentence if that sentence is otherwise countable, even if that sentence would have expired absent such warrant.

(n) FAILURE TO REPORT FOR SERVICE OF SENTENCE OF IMPRISONMENT

For the purposes of §4A1.1(e), failure to report for service of a sentence of

imprisonment shall be treated as an escape from such sentence.

(o) FELONY OFFENSE

For the purposes of §4A1.2(c), a “felony offense” means any federal, state,

or local offense punishable by death or a term of imprisonment exceeding

one year, regardless of the actual sentence imposed.

(p) CRIME OF VIOLENCE DEFINED

For the purposes of §4A1.1(d), the definition of “crime of violence” is that

set forth in §4B1.2(a).

Commentary

Application Notes:

1. Prior Sentence.—“Prior sentence” means a sentence imposed prior to sentencing on the instant offense, other than a sentence for conduct that is part of the instant offense. See §4A1.2(a).

A sentence imposed after the defendant’s commencement of the instant offense, but prior to sentencing on the instant offense, is a prior sentence if it was for conduct other than conduct that

was part of the instant offense. Conduct that is part of the instant offense means conduct that is

relevant conduct to the instant offense under the provisions of §1B1.3 (Relevant Conduct).

Under §4A1.2(a)(4), a conviction for which the defendant has not yet been sentenced is treated

as if it were a prior sentence under §4A1.1(c) if a sentence resulting from such conviction otherwise would have been counted. In the case of an offense set forth in §4A1.2(c)(1) (which lists

certain misdemeanor and petty offenses), a conviction for which the defendant has not yet been

sentenced is treated as if it were a prior sentence under §4A1.2(a)(4) only where the offense is

similar to the instant offense (because sentences for other offenses set forth in §4A1.2(c)(1) are

counted only if they are of a specified type and length).

2. Sentence of Imprisonment.—To qualify as a sentence of imprisonment, the defendant must

have actually served a period of imprisonment on such sentence (or, if the defendant escaped,

would have served time). See §4A1.2(a)(3) and (b)(2). For the purposes of applying §4A1.1(a), (b),

or (c), the length of a sentence of imprisonment is the stated maximum (e.g., in the case of a

determinate sentence of five years, the stated maximum is five years; in the case of an indeterminate sentence of one to five years, the stated maximum is five years; in the case of an indeterminate sentence for a term not to exceed five years, the stated maximum is five years; in the case

of an indeterminate sentence for a term not to exceed the defendant’s twenty-first birthday, the

stated maximum is the amount of time in pre-trial detention plus the amount of time between

the date of sentence and the defendant’s twenty-first birthday). That is, criminal history points

are based on the sentence pronounced, not the length of time actually served. See §4A1.2(b)(1)

and (2). A sentence of probation is to be treated as a sentence under §4A1.1(c) unless a condition

of probation requiring imprisonment of at least sixty days was imposed.

3. Application of “Single Sentence” Rule (Subsection (a)(2)).—In some cases, multiple prior

sentences are treated as a single sentence for purposes of calculating the criminal history score

under §4A1.1(a), (b), and (c). However, for purposes of determining predicate offenses, a prior

sentence included in the single sentence should be treated as if it received criminal history points,

if it independently would have received criminal history points. Therefore, an individual prior

sentence may serve as a predicate under the career offender guideline (see §4B1.2(c)) or other

guidelines with predicate offenses, if it independently would have received criminal history

points. However, because predicate offenses may be used only if they are counted “separately”

from each other (see §4B1.2(c)), no more than one prior sentence in a given single sentence may

be used as a predicate offense.

For example, a defendant’s criminal history includes one robbery conviction and one theft conviction. The sentences for these offenses were imposed on the same day, eight years ago, and are

treated as a single sentence under §4A1.2(a)(2). If the defendant received a one-year sentence of

imprisonment for the robbery and a two-year sentence of imprisonment for the theft, to be served

concurrently, a total of 3 points is added under §4A1.1(a). Because this particular robbery met

the definition of a felony crime of violence and independently would have received 2 criminal

history points under §4A1.1(b), it may serve as a predicate under the career offender guideline.

Note, however, that if the sentences in the example above were imposed thirteen years ago, the

robbery independently would have received no criminal history points under §4A1.1(b), because

it was not imposed within ten years of the defendant’s commencement of the instant offense.

See §4A1.2(e)(2). Accordingly, it may not serve as a predicate under the career offender guideline.

4. Sentences Imposed in the Alternative.—A sentence which specifies a fine or other non-in-

carcerative disposition as an alternative to a term of imprisonment (e.g., $1,000 fine or ninety

days’ imprisonment) is treated as a non-imprisonment sentence.

5. Sentences for Driving While Intoxicated or Under the Influence.—Convictions for driving

while intoxicated or under the influence (and similar offenses by whatever name they are known)

are always counted, without regard to how the offense is classified. Paragraphs (1) and (2) of

§4A1.2(c) do not apply.

6. Reversed, Vacated, or Invalidated Convictions.—Sentences resulting from convictions that

(A) have been reversed or vacated because of errors of law or because of subsequently discovered

evidence exonerating the defendant, or (B) have been ruled constitutionally invalid in a prior

case are not to be counted. With respect to the current sentencing proceeding, this guideline and

commentary do not confer upon the defendant any right to attack collaterally a prior conviction

or sentence beyond any such rights otherwise recognized in law (e.g., 21 U.S.C. § 851 expressly

provides that a defendant may collaterally attack certain prior convictions).

7. Offenses Committed Prior to Age Eighteen.—Section 4A1.2(d) covers offenses committed

prior to age eighteen. Attempting to count every juvenile adjudication would have the potential

for creating large disparities due to the differential availability of records. Therefore, for offenses

committed prior to age eighteen, only those that resulted in adult sentences of imprisonment

exceeding one year and one month, or resulted in imposition of an adult or juvenile sentence or

release from confinement on that sentence within five years of the defendant’s commencement

of the instant offense are counted. To avoid disparities from jurisdiction to jurisdiction in the age

at which a defendant is considered a “juvenile,” this provision applies to all offenses committed

prior to age eighteen.

8. Applicable Time Period.—Section 4A1.2(d)(2) and (e) establishes the time period within which

prior sentences are counted. As used in §4A1.2(d)(2) and (e), the term “commencement of the

instant offense” includes any relevant conduct. See §1B1.3 (Relevant Conduct).

9. Diversionary Dispositions.—Section 4A1.2(f) requires counting prior adult diversionary dispositions if they involved a judicial determination of guilt or an admission of guilt in open court.

This reflects a policy that defendants who receive the benefit of a rehabilitative sentence and

continue to commit crimes should not be treated with further leniency.

10. Convictions Set Aside or Defendant Pardoned.—A number of jurisdictions have various

procedures pursuant to which previous convictions may be set aside or the defendant may be

pardoned for reasons unrelated to innocence or errors of law, e.g., in order to restore civil rights

or to remove the stigma associated with a criminal conviction. Sentences resulting from such

convictions are to be counted. However, expunged convictions are not counted. §4A1.2(j).

11. Revocations to be Considered.—Section 4A1.2(k) covers revocations of probation and other

conditional sentences where the original term of imprisonment imposed, if any, did not exceed

one year and one month. Rather than count the original sentence and the resentence after revocation as separate sentences, the sentence given upon revocation should be added to the original

sentence of imprisonment, if any, and the total should be counted as if it were one sentence. By

this approach, no more than three points will be assessed for a single conviction, even if probation

or conditional release was subsequently revoked. If the sentence originally imposed, the sentence

imposed upon revocation, or the total of both sentences exceeded one year and one month, the

maximum three points would be assigned. If, however, at the time of revocation another sentence

was imposed for a new criminal conviction, that conviction would be computed separately from

the sentence imposed for the revocation.

Where a revocation applies to multiple sentences, and such sentences are counted separately

under §4A1.2(a)(2), add the term of imprisonment imposed upon revocation to the sentence that

will result in the greatest increase in criminal history points. Example: A defendant was serving

two probationary sentences, each counted separately under §4A1.2(a)(2); probation was revoked

on both sentences as a result of the same violation conduct; and the defendant was sentenced to

a total of 45 days of imprisonment. If one sentence had been a “straight” probationary sentence

and the other had been a probationary sentence that had required service of 15 days of imprisonment, the revocation term of imprisonment (45 days) would be added to the probationary sentence that had the 15-day term of imprisonment. This would result in a total of 2 criminal history

points under §4A1.1(b) (for the combined 60-day term of imprisonment) and 1 criminal history

point under §4A1.1(c) (for the other probationary sentence).

12. Application of Subsection (c).—

(A) In General.—In determining whether an unlisted offense is similar to an offense listed in

subsection (c)(1) or (c)(2), the court should use a common sense approach that includes consideration of relevant factors such as (i) a comparison of punishments imposed for the listed

and unlisted offenses; (ii) the perceived seriousness of the offense as indicated by the level

of punishment; (iii) the elements of the offense; (iv) the level of culpability involved; and

(v) the degree to which the commission of the offense indicates a likelihood of recurring

criminal conduct.

(B) Local Ordinance Violations.—A number of local jurisdictions have enacted ordinances

covering certain offenses (e.g., larceny and assault misdemeanors) that are also violations

of state criminal law. This enables a local court (e.g., a municipal court) to exercise jurisdiction over such offenses. Such offenses are excluded from the definition of local ordinance

violations in §4A1.2(c)(2) and, therefore, sentences for such offenses are to be treated as if

the defendant had been convicted under state law.

(C) Insufficient Funds Check.—“Insufficient funds check,” as used in §4A1.2(c)(1), does

not include any conviction establishing that the defendant used a false name or non-existent account.

Background: Prior sentences, not otherwise excluded, are to be counted in the criminal history score,

including uncounseled misdemeanor sentences where imprisonment was not imposed.