United States v. Pielago

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 95-5405

________________________

D.C. Docket No. 93-594-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ADRIAN PIELAGO,

MARIA VARONA,

Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Southern District of Florida

________________________

(February 17, 1998)

Before CARNES, Circuit Judge, and KRAVITCH and REAVLEY*, Senior

Circuit Judges.

*

Honorable Thomas M. Reavley, Senior U.S. Circuit Judge for the

Fifth Circuit, sitting by designation.

CARNES, Circuit Judge:

Appellants Maria Varona and Adrian Pielago were jointly

indicted, along with two others, in a multi-count indictment.

After a one-week trial, a jury found Varona and Pielago guilty of

conspiring to possess cocaine with the intent to distribute it in

violation of 21 U.S.C. §§ 841(a)(1) and 846. They appeal their

convictions and sentences. We reject Varona’s sentence arguments

without discussion, see 11th Cir. Rule 36-1, but two of her

conviction-related arguments do warrant discussion, although not

acceptance. She contends that the indictment against her should

have been dismissed, because the government used her immunized

statements to obtain it. She also contends that her conviction

must be reversed, because the government’s presentation of certain

evidence against her at trial violated the proffer agreement. We

reject her first contention as devoid of merit, and her second one

because she failed to raise the issue in the district court. We do

not believe that there was any error involving the proffer

agreement, and we are convinced there was no plain error.

Pielago challenges both his conviction and sentence. We

reject his conviction-related arguments summarily, see 11th Cir.

Rule 36-1. However, we find merit in his contention that his

sentence is due to be reversed, because the district court

incorrectly calculated his criminal history by treating his prior

term of confinement in a community treatment center as a “sentence

of imprisonment” for purposes of U.S.S.G. § 4A1.1.

I. FACTS

In mid-1993, the City of Miami Police Department and the Drug

Enforcement Administration (DEA), through surveillance and

undercover narcotics purchases, identified the homes of Frank

Novaton and Jose Varona (“Jose”) as drug distribution locations.

The authorities discovered that Jose normally obtained cocaine from

Novaton and brought it to his house, where he operated his cocaine

distribution business. Further investigation revealed that Adrian

Pielago and Jose’s wife, Maria Varona (“Varona”), advised and

assisted Jose in his drug operation. On November 6, 1993, Jose

was arrested after surveillance indicated he was about to sell

eight kilograms of cocaine that he had just received from Novaton

to a drug dealer named “Carlos.” For a short time after Jose’s

arrest, Novaton, Pielago, “Carlos,” and Varona were unaware that

Jose had been apprehended and were confused as to his whereabouts.

During this confusion, Varona delivered one kilogram of cocaine to

“Carlos” in a gray tool box.

Based on the government’s investigation and the evidence

gathered as a result of Jose’s November 6 arrest, in December of

1993 a grand jury indicted Jose, Pielago, Rolando Caceras -- who

the government then believed was “Carlos” -- and Varona. The

indictment charged them with conspiring to possess cocaine with the

intent to distribute it, and possession of cocaine with the intent

to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and 846.

3

Initially, Jose and Varona cooperated with the government, and

they intended to plead guilty in return for a reduced sentence.

Varona signed a proffer agreement, agreeing to give the government

information about the conspiracy in return for a promise to

consider leniency. The agreement provided for “use immunity,”

specifying that none of the information or statements Varona

provided would be used against her in any criminal proceeding, but

it explicitly reserved the government’s right to pursue

investigative leads derived from Varona’s proffered statements and

to use any derivative evidence against her. Among her statements to

the government, Varona named Carlos Hechavarria as the real

“Carlos.” The government, satisfied with Varona’s proffer, said

that it was willing to allow her to plead guilty to a lesser

offense, namely, using a telecommunications facility to facilitate

a narcotics transaction.

Based on Jose and Varona’s statements, the government sought

and obtained a superseding indictment which named Carlos

Hechavarria as a conspirator and dropped the charges against

Caceras. The superseding indictment also added the use of a

telecommunications facility charge, in order to allow Varona to

plead guilty to that charge.

However, Varona’s cooperation ceased when her husband Jose was

murdered. Fearing for their lives, Varona and her children were

taken into protective custody. Apparently, Jose had been murdered

4

because he had been cooperating with the government. His plea

agreement had specifically required him to testify against his co-

conspirators and other drug dealers. With Jose’s death, the

government needed Varona to testify, but she refused to do so.

Because of her refusal, the government rescinded its plea offer.

Varona and Pielago went to trial on the superseding indictment.

II. DISTRICT COURT PROCEEDINGS

On the first day of trial, after the jury was sworn, Varona

moved to dismiss the superseding indictment on the ground that the

government had used her statements against her before the grand

jury in violation of her proffer agreement. Because she refused to

ask for a mistrial, the district court declined to rule on her

motion to dismiss the indictment until after trial, warning her

that under United States v. Mechanik, 475 U.S. 66, 106 S. Ct. 938

(1986), a guilty verdict might eliminate her claim.

Hechavarria, who had pleaded guilty, testified for the

government at trial, providing much of the evidence against Varona

and Pielago. Varona did not object to introduction of

Hechavarria’s testimony as a breach of her proffer agreement. The

jury found her and Pielago guilty of conspiring to possess cocaine

with the intent to distribute it. However, the jury acquitted

Pielago of possessing cocaine, and deadlocked on the possession and

5

telecommunications facility charges against Varona. Those charges

were later dismissed.

Following the verdicts, the district court conducted an

evidentiary hearing pursuant to Kastigar v. United States, 406 U.S.

441, 92 S. Ct. 1653 (1972), in order to determine whether the

government had violated Varona’s proffer agreement. The court held

that the government had not violated the proffer agreement by using

Varona’s statements to obtain the superseding indictments, because

it found that the government had prior knowledge of and independent

sources for the evidence used to indict Varona. Accordingly, the

district court denied Varona’s motion to dismiss the superseding

indictment.

The district court then conducted a sentencing hearing. At

that hearing the court found Varona and Pielago responsible for the

nine kilograms of cocaine involved in the conspiracy (the eight

confiscated when agents arrested Jose plus the one in the tool box

that Varona gave Hechavarria). Based on that amount of cocaine,

the district court determined that both their base offense levels

were thirty. Because Varona had a Category I criminal history, the

district court sentenced Varona to 97 months imprisonment, the

minimum term for her sentencing range of 97 to 121 months.

The probation officer recommended that Pielago be given seven

criminal history points, resulting in a Category IV criminal

history. Pielago objected in part, contending that he should be

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given one rather than two criminal history points for his 1986

conviction for conspiring to transfer an automatic firearm because

his sentence of six months had been served in a community treatment

center. The district court disagreed, because it considered the

six-month sentence to a community treatment center to be a

“sentence of imprisonment” under § 4A1.1, which prescribed two

criminal history points. Accordingly, Pielago was given a Category

IV criminal history, instead of a Category III. As a result,

Pielago’s sentencing range was 135 to 168 months. The court

sentenced him to 140 months imprisonment.

III. STANDARDS OF REVIEW

We review the district court’s denial of Varona’s motion to

dismiss the indictment for an abuse of discretion. See United

States v. Thompson, 25 F.3d 1558, 1562 (11th Cir. 1994). Because

Varona did not object to Hechavarria’s testimony at trial, we

review only for plain error the admission of that testimony. See

Fed. R. Crim. P. 52(b). Finally, we review the district court’s

interpretation of the sentencing guidelines de novo. See United

States v. Coe, 79 F.3d 126, 127 (11th Cir. 1996).

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IV. DISCUSSION

A. WHETHER THE SUPERSEDING INDICTMENT

SHOULD HAVE BEEN DISMISSED

Varona challenges the district court’s denial of her motion to

dismiss the superseding indictment. Because the grand jury which

issued the superseding indictment heard her immunized statements,

she contends that indictment should have been dismissed. Varona

relies on United States v. Tantalo , 680 F.2d 903, 909 (2d Cir.

1982), in which the Second Circuit adopted a per se rule that an

indictment must be dismissed as to any defendant whose immunized

statement or testimony was heard by the grand jury returning the

indictment. However, to the extent that Tantalo establishes a per

se rule1, we disagree with it. We have never accepted a per se rule

for dismissing indictments obtained as a result of a defendant’s

immunized testimony; the facts of this case show why a per se rule

is inappropriate.

1

The Tantalo Court held that a superseding indictment should

have been dismissed where the government obtained an additional

count, for which the defendant was ultimately convicted, by using

the defendant’s immunized testimony before the grand jury. See 680

F.2d at 904-06. Although the Second Circuit stated that the whole

indictment should have been dismissed “as a matter of law,” see id.

at 909, we are not sure it intended a broad rule requiring that the

indictment be dismissed in every instance where the government uses

immunized testimony to obtain a superseding indictment. The Second

Circuit reversed the defendant’s conviction because the government

failed to make a showing that it had legitimately obtained the

information upon which it indicted the defendant, and the trial

court failed to conduct a Kastigar hearing on the matter. See id.

at 908-09. The circumstances of this case are different.

8

The grand jury returned the original indictment against Varona

based on the testimony of a DEA case agent named Lucas.

Subsequently, Varona made her proffer statements inculpating

Hechavarria. Later, the same grand jury heard Agent Lucas’

recitation of Varona’s proffer statements and returned the

superseding indictment. The superseding indictment reflected but

two substantive changes: (1) Hechavarria was substituted for

Caceras in the conspiracy count; and (2) a count for using a

telecommunications facility to facilitate a narcotics transaction

was added against Varona.

It is clear that the addition of the telecommunications

facility count was harmless; that charge was dismissed after the

jury deadlocked on it. So, too, was the change in the conspiracy

count. Varona does not challenge the validity of the conspiracy

count in the original indictment, nor does she contend that there

would have been a material variance between the proof and the

indictment if that court had not been modified. Varona’s proffer

statements were only used “against” her to accuse her of conspiring

with Jose, Pielago, and Hechavarria, instead of with Jose, Pielago,

and Caceras. Either way, she was still on the hook for her

participation in the conspiracy; it matters not with whom she

shared that hook. See, e.g., United States v. Davis, 679 F.2d 845,

851 (11th Cir. 1982)("The existence of the conspiracy agreement

rather than the identity of those who agree is the essential

9

element to prove conspiracy."). Therefore, the use of Varona’s

proffer statement resulting in a change of the indictment did not

prejudice her. Accordingly, the district court did not abuse its

discretion in refusing to dismiss the superseding indictment.

B. WHETHER THE GOVERNMENT VIOLATED THE PROFFER AGREEMENT

BY USING HECHAVARRIA AS A WITNESS AGAINST HER

Because Varona did not object to the government calling

Hechavarria as a witness, we can only reverse her conviction if it

was plain error for the district court to allow him to testify.

See Fed. R. Crim. P. 52(b). The plain error rule places a daunting

obstacle before Varona. In United States v. Olano, 507 U.S. 725,

732, 116 S. Ct. 1770, 1776 (1993), the Supreme Court held that for

a judgment to be reversed for plain error, three conditions must

exist: (1) a legal error must have been committed; (2) that error

must be plain; and (3) the error must have affected the substantial

rights of the appellant.

Even if all three requirements are met, it is still within the

court of appeals’ discretion whether to correct the forfeited

error. See United States v. King, 73 F.3d 1564, 1572 (11th Cir.

1996); United States v. Vasquez, 53 F.3d 1216, 1221 (11th Cir,

1995). Moreover, that discretion may be exercised “to notice a

forfeited error only if . . . the error seriously affects the

fairness, integrity, or public reputation of the judicial

proceedings.” Johnson v. United States, --- U.S. ---, ---, 117 S.

10

Ct. 1544, 1549 (1997); accord United States v. Gaudin, 515 U.S.

506, 527, 115 S. Ct. 2310, 2322 (1995)(“A court of appeals should

not exercise that discretion unless the error seriously affects the

fairness, integrity or public reputation of judicial

proceedings”)(internal quotation marks and brackets omitted).

The narrowness of the plain error rule is a reflection of the

importance, indeed necessity, of the contemporaneous objection rule

to which it is an exception. The contemporaneous objection rule

fosters finality of judgment and deters “sandbagging,” saving an

issue for appeal in hopes of having another shot at trial if the

first one misses. See, e.g., Esslinger v. Davis, 44 F.3d 1515,

1525 and n.36 (11th Cir. 1995)(contemporaneous objection rule

“deters ‘sandbagging,’ the withholding of claims in an effort to

get more than ‘one bite at the apple.’”): United States v. Joshi,

896 F.2d 1303, 1307 and n.3 (11th Cir. 1990)(noting ”the Supreme

Court’s ‘admonition against “sandbagging” on the part of defense

lawyers’ who intentionally decline to object to a potentially

unconstitutional trial procedure in order to inject reversible

error into the proceeding.”); Spencer v. Kemp, 781 F.2d 1458, 1473

(11th Cir. 1986)(“contemporaneous objection rules prevent a

defendant from ‘sandbagging,’ taking a chance on a jury verdict

while reserving his claim in the event of an unfavorable verdict”).

The contemporaneous objection rule also promotes the salutary

interest of making the trial the main event. Failure to enforce it

11

“tends to detract from the perception of the trial of a criminal

case . . . as a decisive and portentous event.” Wainwright v.

Sykes, 433 U.S. 72, 90, 97 S. Ct. 2497, 2508 (1977). Moreover,

requiring timely objections allows trial courts to develop a full

record on the issue, consider the matter, and correct any error

before substantial judicial resources are wasted on appeal and then

in an unnecessary retrial. See United States v. Sorondo, 845 F.2d

945, 948-49 (11th Cir. 1988). A full record and a prior decision

in the district court are essential ingredients to our substantive

review of issues -- they flesh out an issue in a way the parties’

briefs may not.

“In the absence of plain error . . . it is not our place as an

appellate court to second guess the litigants before us and grant

them relief they did not request, pursuant to legal theories they

did not outline, based on facts they did not relate.” Adler v.

Duval County School Bd., 112 F.3d 1475, 1481 n.12 (11th Cir. 1997).

Because the contemporaneous objection rule is essential to the

integrity and efficiency of our judicial process, we have stressed

that “[t]he plain error test is difficult to meet.” United States

v. King, 73 F.3d 1564, 1572 (11th Cir. 1996); accord, e.g., United

States v. Sorondo, 845 F.2d at 948-49; United States v. Chaney, 662

F.2d 1148, 1152 n.4 (5th Cir. Unit B 1981). We turn now to

application of that test to the issue at hand. Of course, there

12

can be no plain error if there was no error at all. So, we begin

with this inquiry: was there any error, plain or not?

Varona’s proffer agreement precludes the government from using

in criminal proceedings against her any “information or statements”

it acquired from her in the course of her cooperation. She

contends that the government’s use of Hechavarria’s testimony,

which it acquired only because of Varona’s statements, is a breach

of the proffer agreement. Therefore, she argues, the district

court should not have allowed Hechavarria to testify against her.

The construction of proffer agreements, like plea agreements,

is governed generally by the principles of contract law, as we have

adapted it for the purposes of criminal law. See United States v.

Weaver, 905 F.2d 1466, 1472 (11th Cir. 1990); Rowe v. Griffin, 676

F.2d 524, 528 (11th Cir. 1982) (interpreting immunity agreements

pursuant to principles applied to interpretation of plea

agreements); cf. United States v. Jefferies, 908 F.2d 1520, 1523

(11th Cir. 1990) (“Plea agreements are interpreted and applied in

a manner that is sometimes likened to contractual

interpretation.”). “This analogy, however, should not be taken too

far.” Jefferies, 908 F.2d at 1523. A "hyper-technical reading of

the written agreement" and "a rigidly literal approach in the

construction of language" should not be accepted. In re Arnett,

804 F.2d 1200, 1203 (11th Cir. 1986)(internal citation and quotes

omitted). The written agreement should be viewed "against the

13

background of the negotiations." Id. Any ambiguities in the terms

of a proffer agreement should be resolved in favor of the criminal

defendant. See Rowe, 675 F.2d at 526 n.4.

Paragraph three of the proffer agreement in this case states,

in relevant part:

No information or statement provided by Maria Varona may

be used against [her] in this case or any other criminal

investigation . . . .

Gov. Ex. 48 at 1-2, para. 3. However, the proffer agreement

further provides in paragraph four that:

The government also expressly reserves the right to

pursue any and all investigative leads derived from Maria

Varona’s statements or information and use such

derivative evidence in any criminal or civil proceeding

against her and/or others.

Gov. Ex. 48 at 2, para. 4. Those two paragraphs set out two

separate terms: (1) the government may not use the information or

statements obtained from Varona directly against her, which is to

say it may not use them as evidence to obtain an indictment or

guilty verdict; but (2) the government may use evidence derived

from her information or statements against her to obtain an

indictment or guilty verdict.

If only paragraph three existed, we might well agree with

Varona and conclude that the government, by using testimony it

would not have obtained but for the “information” provided by

Varona, violated her proffer agreement. Without the information

she provided, the government would not have known that “Carlos” was

14

Hechavarria, instead of Caceras, and therefore would not have

indicted Hechavarria. Had the government not indicted Hechavarria,

he would have had no incentive to testify against Varona.

Therefore, the government “used” Varona’s information against her

in the broadest sense of the term.

However, paragraph four explicitly allows the government to

use evidence derived from the information and statements Varona

proffered against her. We do not believe that the two paragraphs,

when properly construed, conflict. It is a cardinal principle of

contract law that no term of a contract should be construed to be

in conflict with another unless no other reasonable construction is

possible. See Guaranty Financial Services, Inc. v. Ryan, 928 F.2d

994, 1000 (11th Cir. 1991); United States v. Johnson Controls,

Inc., 713 F.2d 1541, 1555 (Fed. Cir. 1983). In this case,

paragraph four should be read as qualifying, instead of

contradicting, paragraph three. Both paragraphs describe the

governments’ right to use evidence acquired from Varona’s proffer.

Paragraph three, read together with paragraph four, prohibits the

government from directly using the statements and information which

made up Varona’s proffer against her. Paragraph four

correspondingly allows the government to use evidence derived from

her proffer statements against Varona. The fact that Varona’s

trial counsel did not object to Hechavarria’s testimony indicates

that her lawyer, the same lawyer who negotiated the proffer

15

agreement for Varona, believed then that the government was within

its rights to put Hechavarria on the stand.

Moreover, even if the provisions of the two paragraphs

conflicted, another contract interpretation principle would

vindicate the government’s position. When two contract terms

conflict, the specific term controls over the general one. See

United States Postal Service v. American Postal Workers Union, 922

F.2d 256, 260 (5th Cir. 1991); Boatmen’s National Bank of St. Louis

v. Smith, 835 F.2d 1200, 1203 (7th Cir. 1987)(“Where the document

contains both general and specific provisions relating to the same

subject, the specific provision controls”). In Varona’s proffer

agreement, paragraph three is the general provision, using broad

language to forbid the government from using statements or

information it acquired from Varona against her; paragraph four is

the specific term, permitting the government to use evidence it

derived from the information and statements she gave against her.

Consistent with paragraph four, the more specifically

applicable provision, the government’s use of Hechavarria’s

testimony did not breach the agreement. The government used

Varona’s proffer statements to indict Hechavarria. As a result of

his indictment, Hechavarria decided to cooperate, plead guilty and

testify against Varona and Pielago. Therefore, by its very nature,

Hechavarria’s testimony was derivative evidence. See Black’s Law

Dictionary 443 (6th Ed. 1991)(defining derivative as “coming from

16

another; taken from something preceding; secondary . . . [a]nything

obtained or deduced from another”). The government was only

forbidden from introducing Varona’s statements and the information

she provided into evidence against her, and did not violate the

proffer agreement by putting Hechavarria on the stand. Because it

would not have been error for the district court to allow

Hechavarria to testify even if there had been an objection, there

is no plain error.

The dissenting opinion leaves us unmoved. Its position is

based upon an interpretation of the term “derivative evidence” in

paragraph four that is at variance with the plain meaning of that

term. The dissenting opinion constructs a hypothetical involving

hidden cocaine, which might be interesting to discuss in an

academic setting, but it bears no resemblance to the facts of this

case. What happened in this case is that Varona made statements

conveying information to the government. The government did not

introduce any of those statements into evidence against Varona.

Instead, it used what she said to obtain an indictment of

Hechavarria. His indictment was derived from Varona’s statements

and information. Hechavarria’s indictment was not evidence against

Varona. Instead, the government used Hechavarria’s indictment in

its successful effort to persuade him to cooperate. Thus, his

cooperation including his testimony against Varona was derived, in

part, from an indictment which was in turn derived from statements

17

and information Varona gave. We do not think that Hechavarria’s

testimony, which is two steps removed in the derivative chain from

Varona’s statements and information, can be considered anything but

“derivative evidence,” which paragraph four expressly permits the

government to use.

Moreover, even if we were to conclude that it was error for

the district court to have allowed Hechavarria’s testimony, we

would not conclude that such an error was plain error. In

practice, errors become plain errors in either of two ways. First,

an intervening decision of this Court or the Supreme Court squarely

on point may make an error plain. See, e.g., United States v.

Antonietti, 86 F.3d 206, 208-09 (11th Cir. 1996)(intervening

decision of this Court made counting seedlings as marijuana plants

plain error); United States v. Walker, 59 F.3d 1196, 1198 (11th

Cir. 1995)(intervening decision of the Supreme Court holding the

Gun Free School Zone Act unconstitutional made defendant’s

conviction under the law plain error). Second, errors have been

found to be plain where they are particularly egregious, and strike

at a core principle which the violated rule or law embodies. See,

e.g., United States v. Quinones, 97 F.3d 473, 475 (11th Cir.

1996)(finding plain error where district court failed to ensure

that the defendant understood the nature of the charges against

him, one of the core principles of Fed. R. Crim. P. 11).

18

The dissenting opinion never satisfactorily explains why, if

the error in interpretation it perceives is “plain,” that error

escaped the attention not only of the district court judge but also

of the very defense counsel who negotiated the terms of the

agreement. Nor does the dissent adequately explain how such a

“plain” error could appear, even after briefing and oral argument,

to be no error at all to two-thirds of this panel. We have

previously recognized that “no one is perfect, least of all federal

appellate judges.” United States v. Hogan, 986 F.2d 1364, 1369

(11th Cir. 1993). Notwithstanding that truth, if the “plain”

requirement of the Rule 52(b) plain error provision is to have any

teeth, when two of the three judges who address a matter conclude

that there is no error at all, that must mean there is no plain

error. As the Supreme Court has held, “[a]t a minimum, court[s] of

appeals cannot correct an error pursuant to Rule 52(b) unless the

error is clear under current law.” United States v. Olano , 507

U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993).

C. WHETHER CONFINEMENT IN A COMMUNITY TREATMENT CENTER IS A

SENTENCE OF IMPRISONMENT FOR THE PURPOSES OF § 4A1.1

Pielago challenges the district court’s determination of his

criminal history category. Specifically, he argues that the

district court should have given him one less criminal history

point, because his 1986 six-month sentence to a community treatment

center should not have been considered a “sentence of imprisonment”

19

for the purposes of § 4A1.1(b) of the Sentencing Guidelines. That

criminal history point makes a difference, because without it his

criminal history category is III, which means a sentencing range of

121 to 151 months instead of 135 to 168 months. The issue Pielago

presents is one of first impression for this Court, although two of

our sister circuits have addressed matters relating to it.

We begin, as always, with the text of the Sentencing

Guidelines. U.S.S.G. § 4A1.1 provides, in relevant part:

The total points from items (a) through (f) determine the

criminal history category in the Sentencing Table . . .

(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.

Pielago contends that a six-month sentence to a community treatment

center falls within subsection (c) instead of (b), because it is

not a “sentence of imprisonment.” For a definition of “sentence of

imprisonment” within the meaning of § 4A1.1(b) we look to the

Sentencing Guidelines’ commentary. Note 1 of the commentary to §

4A1.1 refers us to § 4A1.2 for a definition of the term. Section

4A1.2(b) states that “sentence of imprisonment means a sentence of

incarceration . . .,” a definition that is not particularly helpful

to our analysis.

20

Fortunately, the background commentary to § 4A1.1 sheds some

light on what the Sentencing Commission meant by a “sentence of

imprisonment”:

Subdivisions (a), (b), and (c) of § 4A1.1 distinguish

confinement sentences longer than one year and one month,

shorter confinement sentences of at least sixty days, and

all other sentences, such as confinement sentences of

less than sixty days, probation, fines, and residency in

a halfway house.

U.S.S.G. § 4A1.1 comment. (backg’d). That commentary makes it

clear that a sentence to a halfway house is not a “sentence of

imprisonment.” But the commentary uses residency in a halfway

house as an example, not an exhaustive list of the types of

confinement that are not “sentences of imprisonment.” The question

we must decide, then, is whether for the purposes of § 4A1.1

confinement in a community treatment center equates to residency in

a halfway house or instead to a sentence of confinement. Our

circuit has no decision close to point.

We begin by looking at how other circuits have answered

related questions. In United States v. Rasco, 963 F.2d 132, 135-36

(6th Cir. 1992), the Sixth Circuit concluded that confinement in a

community treatment center as a result of a parole revocation was

“imprisonment” under § 4A1.2(k). The Rasco Court reasoned that the

Sentencing Commission was focusing on the reason for the

defendant’s confinement, not his place of confinement. See id. at

135. The court explained that because § 4A1.2(k) deals with

confinement as a result of parole revocation, the Commission was

21

obviously concerned with the reason why the defendant had been

confined, the defendant’s failure to stay out of trouble while on

parole. See id. at 135-36. Therefore, it was irrelevant where the

defendant spent his sentence; only the fact that the his parole had

been revoked was determinative. See id. However the Rasco Court

did “recognize that this interpretation arguably conflicts with the

background commentary to section 4A1.1” Id. at 136.

Whether it conflicts with the commentary or not, Rasco is

distinguishable from this case. Section 4A1.2(k), which is

concerned with calculating the criminal histories of prior parole

violators, implicates a different set of policy concerns than does

§ 4A1.1. The Sentencing Commission had a reason to more harshly

sanction those who have violated parole in the past, even though

the resulting incarceration was only in a halfway house or

community treatment center. However, Pielago’s stay in a community

treatment center was not the consequence of a parole violation. He

was sentenced directly to that confinement. Therefore, the Rasco

Court’s reasoning is not applicable to this case. See also United

States v. Jones , 107 F.3d 1147, 1161-65 (6 th Cir. 1997) (limiting

the Rasco decision, and holding that a sentence of home detention

is not a “sentence of imprisonment” for § 4A1.1 purposes).

A year later, the Ninth Circuit, addressing exactly the same

issue as the Rasco Court, concluded that a term of confinement in

a community treatment center is not a “sentence of imprisonment,”

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even when it resulted from revocation of parole. In United States

v. Latimer, 991 F.2d 1509, 1516 (9th Cir. 1993), the Ninth Circuit

declined to follow Rasco, and rejected the idea that the term

“sentence of imprisonment” meant anything other than precisely what

it says. See id. The Latimer Court based its holding on what the

Sixth Circuit acknowledged but failed to be guided by: the

background commentary to § 4A1.1. See id. at 1515. Because that

commentary distinguishes a term of confinement in a halfway house

from a sentence of imprisonment, the Ninth Circuit concluded that

the question was whether a term confinement in a community

treatment center should be included along with residency in a

halfway house as a sentence that is not a “sentence of

imprisonment.” See id. at 1516. It answered affirmatively, noting

that community treatment centers and halfway houses are treated as

equivalent forms of punishment throughout the Sentencing

Guidelines. See id. at 1512-13.

We agree with the Ninth Circuit’s reasoning in Latimer.

Several Sentencing Guidelines provisions indicate that the

Commission considers confinement in a community treatment center,

like confinement in a halfway house, not to be “imprisonment.”

Section 5C1.1(d) provides that district courts may sentence

defendants whose sentencing range is six to ten months to

“community confinement” in lieu of part of their sentence of

imprisonment. Section 5F1.1 defines “community confinement” as

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“residence in a community treatment center, halfway house . . . or

other community facility.” U.S.S.G. § 5F1.1 comment. (n.1). These

two provisions indicate that the Sentencing Commission considered

a sentence to confinement in a community treatment center to be

different from a “sentence of imprisonment.”

The Sentencing Guidelines also indicate that community

treatment centers and halfway houses are functionally equivalent.

Section 2P1.1(b)(3) states that “if the defendant escaped from the

non-secure custody of a community corrections center, community

treatment center, ‘halfway house,’ or similar facility, . . . .

decrease the offense level by 4 levels.” Similarly, § 5B1.4(b)(19)

states that “residence in a community treatment center, halfway

house or similar facility may be imposed as a condition of

probation or supervised release.” These two provisions show that

the Sentencing Commission considered time served in community

treatment centers and halfway houses to be equivalent to each other

and distinct from a sentence of imprisonment.

As a matter of fact, in five of the six sections of the

Sentencing Guidelines in which the term “halfway house” appears,

the term “community treatment center” appears right alongside it.

Compare U.S.S.G. §§ 2J1.6(b)(1)(B); 2P1.1(b)(3); 5B1.4(b)(19);

5C1.1(e)(2); 5F1.1 comment. (n.1) with U.S.S.G. § 4A1.1 comment.

(backg’d). The only time “halfway house” does not appear with

“community treatment center” is in the background commentary to §

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4A1.1. We do not read any significance into that omission. The

Sentencing Commission simply did not make an all-inclusive list

there. Instead, “halfway house” is used only as an illustrative

example of the types of confinements that are not to be considered

“imprisonment” under § 4A1.1.

For these reasons, we join the Ninth Circuit in concluding

that a term of confinement in a community treatment center, like

residency in a halfway house, is not a “sentence of imprisonment”

for the purposes of § 4A1.1. As a result, § 4A1.1(c) applies in

this case, and Pielago should have been given only one criminal

history point for his 1986 conviction and sentence. Accordingly,

his criminal history category should have been III and his

sentencing range 121 to 151 months.

V. CONCLUSION

We AFFIRM Varona’s conviction and sentence. We AFFIRM

Pielago’s conviction, but we VACATE his sentence and REMAND his

case to the district court for resentencing.

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