United States District Court, E.D. Arkansas, Western Division
Kristine G. Baker United States District Judge.
the Court are defendant Walter Nunley's objections to his
Pre-Sentence Report (“PSR”). On August 16, 2017,
this Court convened a sentencing hearing in Mr. Nunley's
case. The Court heard argument from counsel in regard to Mr.
Nunley's objections and issues this written Order. The
Court will set by separate Order a second sentencing hearing
in this case to impose sentence on Mr. Nunley.
Nunley objects to being classified as a Career Offender under
United States Sentencing Guidelines (“USSG”)
§4B1.1. Specifically, in regard to paragraph 33 of the
PSR, Mr. Nunley contends that criminal history points should
not be assessed for these convictions and that these
convictions do not count as qualifying offenses under the
Career Offender provision. Mr. Nunley argues that his parole
eligibility date on the Lincoln County, Arkansas, charge was
April 1, 1998, and the discharge date was April 1, 2003, for
the 72-month sentence imposed for Furnishing a Prohibited
Article. He argues that the parole eligibility on the Class C
drug charge out of Lincoln County, Arkansas, was August 31,
1997, and his discharge date was September 30, 1999. These
sentences were imposed on April 1, 1997.
time they were imposed, Mr. Nunley's sentences for
Furnishing a Prohibited Article and Possession of Marijuana
with Intent to Deliver were ordered to run concurrently with
one another and with his sentence in Case No. 96-145-1 from
Desha County, Arkansas, which was a 240 month sentence. The
240 month sentence was imposed on March 13, 1997, for an
offense described in paragraph 34 of the PSR. As a result,
according to Mr. Nunley, there was never a determination of a
release date for Mr. Nunley with regard to the sentences for
Furnishing a Prohibited Article and Possession of Marijuana.
The parole eligibility would have been calculated when the
sentence was entered but was not calculated here. The
sentence release dates are all that showed on Mr.
purposes of sentencing for the current offense, Mr.
Nunley's attorney asked Miriam Lester, who is the Records
Administrator for the Arkansas Department of Correction, to
provide the parole eligibility and release dates for the two
offenses described in paragraph 33 of the PSR. Ms. Lester
provided these dates by electronic mail message, which was
received by the Court as evidence at Mr. Nunley's initial
sentencing hearing and made a part of the record in this
case. Mr. Nunley's attorney believes that Mr. Nunley
would have been released on the Furnishing a Prohibited
Article charge on April 1, 1998, which would be outside of
the 15-year window for a qualifying predicate offense. Mr.
Nunley's attorney also believes that Mr. Nunley would
have been released on the Possession of Marijuana with Intent
to Deliver charge on or about August 31, 1997, which also
would be outside of the 15-year window for it to receive
criminal history points. These arguments are premised on the
hypothetical that Mr. Nunley would have received parole for
these offenses when first eligible.
Nunley's attorney argues that Ms. Lester is the
individual who would determine whether Mr. Nunley would go to
the parole board when first eligible. He contends that Mr.
Nunley was a class one inmate at the time, which according to
counsel, means there would have been no reason for Mr. Nunley
not to have been paroled at his earliest parole eligibility
date. Further, he argues that, even if the parole decision
would have taken some time such that Mr. Nunley remained
imprisoned for a period after his first eligibility date
before being granted parole, his sentence still would have
ended prior to the necessary 15-year period.
initial sentencing hearing, the Court asked for some evidence
that on April 1, 1998, or August 31, 1997, Mr. Nunley was a
class one inmate. Counsel represented that this information
was relayed in a conversation with Ms. Lester but not
memorialized in the electronic mail evidence presented to the
Court at the initial sentencing hearing. On January 17, 2018,
the Court again requested evidence that on April 1, 1998, or
August 31, 1997, Mr. Nunley was a class one inmate. The Court
raised this issue because, in the PSR and specifically in
paragraph 34, it details several infractions Mr. Nunley
committed while serving his sentence. The PSR does not
provide dates for these infractions nor does it indicate
whether any of these infractions made Mr. Nunley ineligible
for a parole hearing at any point. The Court also notes that
the offenses in paragraph 33 of the PSR occurred when Mr.
Nunley brought a controlled substance into the Arkansas
Department of Correction's Varner Unit conference room
located in Grady, Arkansas. Mr. Nunley's attorney
concedes that, ultimately, the decision of whether to grant
parole is not up to Ms. Lester; instead, it is up to the
Nunley's attorney argues that criminal history points
should not be assessed for these convictions and that these
convictions should not count as qualifying offenses for Mr.
Nunley to be considered a career offender under USSG §
4B1.1(a). Sentences that are imposed for felony convictions
more than 15 years prior to the instant offense are not
counted unless the defendant's incarceration extended
into the 15-year period. USSG § 4A1.1(a) (Application
Note 1); see also USSG § 4A1.2(e)(1). To
determine whether an offense is a qualifying offense under
the Career Offender provision, USSG § 4B1.1 (Application
Note 1) refers to the definitions in USSG § 4B1.2.
§ 4B1.2 (Application Note 1) states in pertinent part
that a “prior felony conviction” is a
“prior adult federal or state conviction for an offense
punishable by death or imprisonment for a term exceeding one
year, regardless of whether such offense is specifically
designated as a felony and regardless of the actual sentence
imposed.” Further, it states in USSG § 4B1.2
(Application Note 3) that the “provisions of §
4A1.2 (Definitions and Instructions for Computing Criminal
History) are applicable to the counting of convictions under
§ 4B1.1.” USSG § 4A1.2 provides definitions
and instructions for computing criminal history. This Court
concludes that Mr. Nunley's offenses as described in
paragraphs 33 and 34 of the PSR should be counted separately.
USSG § 4A1.2(a)(2). Under the Guidelines, a
“sentence of imprisonment” means a sentence of
incarceration and refers to the maximum sentence imposed.
USSG § 4A1.2(b)(1). Sentences for all felony offenses
are counted. USSG § 4A1.2(c).
criminal history purposes, this Court is to “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.” USSG § 4A1.2(e)(1). When assessing a
sentence of imprisonment, “criminal history points are
based on the sentence pronounced, not the length of time
actually served.” USSG § 4A1.2 (Application Note
offense for which Mr. Nunley currently is being sentenced
concluded on September 29, 2014. Fifteen years prior to this
date is September 29, 1999.
Possession of Marijuana with Intent to Deliver offense
described in paragraph 33 of the PSR, Mr. Nunley received a
sentence that exceeded one year and one month. He received a
30-month sentence. Regardless of the time he actually served,
the Court counts the “criminal history points based on
the sentence pronounced. . . .” USSG § 4A1.2
(Application Note 2). The 30 month sentence was imposed on
April 1, 1997, and 30 months from that date is September 30,
1999, his discharge date, which is within the 15 year period
from when the current sentencing offense conduct concluded.
Therefore, this Court concludes that his argument regarding
parole eligibility does not impact his criminal history
based on the record evidence before the Court and the
applicable Guideline provisions, the Court is not inclined to
exclude this offense as a qualifying offense for determining
that Mr. Nunley is a Career Offender. The Court acknowledges
that the rules of evidence do not apply in the context of
sentencing hearings, and courts may rely on hearsay or other
typically inadmissible evidence if that evidence bears
sufficient indicia of reliability. See United States v.
Aldridge, 561 F.3d 759, 767 (8th Cir. 2009), cert.
denied, -- U.S. --, 120 S.Ct. 1095 (Jan. 11, 2010); USSG
§ 6A1.3(a). Moreover, “unless a defendant objects
to a specific factual allegation contained in the PSR, the
court may accept that fact as true for sentencing
purposes.” United States v. Moser, 168 F.3d
1130, 1132 (8th Cir. 1999). The preponderance of the evidence
standard governs factual finding at sentencing hearings.
See United States v. Azure, 596 F.3d 449, 456 (8th
sentence imposed for the Possession of Marijuana with Intent
to Deliver was 30 months. The Court acknowledges that a
parole date of August 31, 1997, would be outside the 15 year
period. However, that is not the sentence imposed on Mr.
Nunley for the Possession of Marijuana with Intent to
Deliver. His parole date was not calculated when sentence was
imposed; only his sentence release dates showed on his
timecard. For the reasons explained by the Court, the Court
determines that Mr. Nunley has not come forward with