United States v. Schnupp (368 F.3d 331, 2004)

OPINION OF THE COURT

SCIRICA, Chief Judge.

At issue is whether a criminal sentence served in an alternative housing facility such as a halfway house can qualify as “a prior sentence of imprisonment” under § 4A1.1 of the U.S. Sentencing Guidelines for the purpose of calculating the criminal history score. In two separate cases before us, United States v. Schnupp, No. 03-1964, and United States v. Wormsley, No. 03-3384, defendants contend their prior sentences served in halfway houses should be classified under § 4A1.1 as “prior sentences,” not “prior sentences of imprisonment.” Defendants seek to vacate and remand for resentencing. We will affirm.

I.

A.

Andrea Schnupp pled guilty to fraudulently receiving Social Security benefit payments in violation of 42 U.S.C. § 408(a)(5). The presentence report (PSR) designated an adjusted offense level of 8 and a criminal history score of 7— three points under U.S.S.G. § 4Al.l(a) for a 1998 narcotics conviction; one point under § 4Al.l(c) for a conviction for resisting arrest and disorderly conduct; two points under § 4Al.l(d) for committing the instant offense while on parole; and one point under § 4Al.l(e) for committing the instant offense within two years of being released from a sentence of imprisonment. Schnupp’s sentencing guideline range was 10-16 months.

Schnupp contests the assignment of criminal history points on her 1998 state narcotics conviction. In 1998, a state judge sentenced Schnupp to three consecutive six-month terms of imprisonment in the Allegheny County jail. See 42 Pa. Cons.Stat. § 9762(3). But the judge also permitted alternative housing. The state court’s judgment reads:

And now [count two] Jan 08 1998, in open court, defendant appearing with counsel, sentenced to pay a fine of d/k to the Commonwealth. Pay costs of prosecution and undergo an imprisonment of 6 mos in the Allegheny County Jail and stand committed. Eff 3-9-98. And now [count three] Jan 08 1998, in open court, defendant appearing with counsel, sentenced to pay a fine of to the Commonwealth. Pay costs of prosecution and undergo an imprisonment of 6 mos in the Allegheny County Jail and stand committed. Consec. [consecutive] Ct 2 with work release[.] And now [count four] Jan 08 1998, in open court, defendant appearing with counsel, sentenced to pay a fíne of 6%