Case: 16-10871 Date Filed: 11/28/2017 Page: 1 of 11 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-10871 ________________________ D.C. Docket No. 1:15-cr-20372-JLK-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EDRISS BAPTISTE, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (November 28, 2017) Before WILSON and ROSENBAUM, Circuit Judges, and TITUS, * District Judge. ROSENBAUM, Circuit Judge: * Honorable Roger W. Titus, United States District Judge for the District of Maryland, sitting by designation. Case: 16-10871 Date Filed: 11/28/2017 Page: 2 of 11 Theodor Seuss Geisel (perhaps better known as Dr. Seuss) is said to have observed, “Sometimes the questions are complicated and the answers are simple.”1 This is one of those times. This direct appeal of Defendant-Appellant Edriss Baptiste’s sentence for access-device fraud and aggravated identity theft requires us to determine how to account in Baptiste’s criminal-history calculation for Baptiste’s ostensible sentence from a prior state case. More specifically, a state court purported to sentence Baptiste for a marijuana-possession conviction to “198 days time served,” referring to time he spent in U.S. Immigration and Customs Enforcement detention. Based on this disposition, the district court scored Baptiste two criminal-history points and therefore concluded his criminal-history category was II. The parties debate whether time in Immigration custody can ever qualify as “imprisonment” for purposes of determining criminal history under the Guidelines. While the parties raise interesting arguments, we instead resolve this case by concluding that where, as here, a defendant has pled guilty to a prior crime and adjudication has been withheld, that disposition must be counted for a single criminal-history point under § 4A1.1(c) of the Guidelines, regardless of whether the sentencing court purported to impose—or even actually imposed—198 days or 1 See Wendy Welch, The Little Bookstore of Big Stone Gap: A Memoir of Friendship, Community, and the Uncommon Pleasure of a Good Book 27 (2013) (citing H. Edward Wesemann, Looking Tall by Standing Next to Short People & Other Techniques for Managing a Law Firm (2007)). 2 Case: 16-10871 Date Filed: 11/28/2017 Page: 3 of 11 no days of imprisonment. For this reason, we vacate the sentence imposed by the district court and remand for resentencing, using a criminal-history category of I. I. Defendant-Appellant Edriss Baptiste pled guilty to two federal crimes: possessing at least fifteen unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). In preparation for sentencing, a U.S. Probation officer prepared a Presentence Investigation Report (“PSR”) that ultimately recommended Baptiste’s total offense level as 21 and his criminal-history category as II, with a corresponding guideline range of 41 to 51 months’ imprisonment, plus a consecutive 24-month period of imprisonment on the aggravated-identity theft conviction.2 The district court adopted these recommendations and sentenced Baptiste to 41 months on the unauthorized-access-device count and another 24 months on the aggravated-identity-theft conviction, for a total of 65 months’ imprisonment. On appeal, Baptiste takes issue ...
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