United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS UNITEDiSTAJSS DISTRICT JUDGE
22, 2016, Defendant Santiago Salinas was charged by
Indictment with conspiring to distribute methamphetamine, and
with three separate counts of distributing a mixture or
substance containing more than fifty grams of
methamphetamine. See Doc. 10. He entered a guilty
plea on August 15 of that same year to Count 4 of the
Indictment, which was one of the actual distribution counts.
See Doc. 39-40, 42. This Court sentenced him on
January 12, 2017, to 151 months of imprisonment with 3 years
of supervised release to follow, along with a $100.00 special
assessment and a $2, 900.00 fine. See Doc. 78.
February 14, 2019, Mr. Salinas filed a Motion Requesting
Judicial Clarification (Doc. 85), in which he raises issues
regarding the statutory maximum sentence described in his
Plea Agreement, as well as the calculation of his criminal
history score in his Presentence Investigation Report
("PSR"). With respect to the former set of issues,
Mr. Salinas argues that his 151-month sentence is
inconsistent with "a 60 month cap" that he contends
was set forth in his Plea Agreement, and he asks that this
Court "provide an avenue for relief that would bring
his sentence into alignment with that purported cap. See
Id. at 1. But Mr. Salinas is simply incorrect about what
his Plea Agreement stated. In the "Maximum
Penalties" section of his Plea Agreement, Mr. Salinas
acknowledged that the count to which he was pleading guilty
carried "a mandatory minimum term of
imprisonment for 5 years" and "a maximum term of
imprisonment for 40 years." See Doc. 39, H 12
(emphasis added). In other words, he acknowledged that 60
months was the least- not the most-amount of time to
which this Court could sentence him to prison. This
acknowledgement was a correct statement of the law.
See 21 U.S.C. §841(b)(1)(B)(viii). And his
sentence of 151 months was far below the 480-month statutory
cap that he acknowledged in his Plea Agreement. See
other issue raised in Mr. Salinas's Motion concerns the
PSR's calculation of his criminal history score. Mr.
Salinas states that he "received an enhancement in his
criminal history of six (6) points," and asks this Court
to explain how his criminal history score was computed as
well as "how past behavior was used in criminal history
computation." See Doc. 85, p. 1.
Court has reviewed Mr. Salinas's PSR, and has discovered
a typo that it believes might have contributed to Mr.
Salinas's confusion on this matter. The PSR assigned 3
criminal history points each for two prior convictions of
distributing a controlled substance, for a subtotal of 6
criminal history points. See Doc. 72, ffll 96-98.
Then 2 more points were added because Mr. Salinas was still
under a 15-year suspended sentence at the time he committed
the instant offense, yielding a subtotal of 8 criminal
history points. See Id. at H 99. The PSR then states
that "a criminal history score of eight
(8) establishes a criminal history category of
VI." See Id. at U 100 (emphasis in original).
But in fact a criminal history score of 8 should establish a
criminal history category of IV- not VI. See
U.S.S.G. Ch. 5, Pt. A. This is the typo, then: it appears the
"I" and the "V" were inadvertently
reversed in paragraph 100 of the PSR.
this might be a significant error, because the criminal
history category is one of the two inputs used to calculate a
defendant's advisory guidelines range for imprisonment.
(The other such input is the defendant's offense level.)
In other words, if a criminal history category of VI were
applied when category IV should have been applied instead,
then this would yield an advisory guidelines range that is
more severe than what is actually called for under the
sentencing guidelines. It is well established that "[a]
failure to properly calculate the advisory Guidelines range
is a significant procedural error," and if it is
determined on appeal that such an error occurred and was not
harmless, then the case must be remanded for
resentencing. See United States v. Spikes, 543
F.3d 1021, 1023 (8th Cir. 2008).
in this case, the aforementioned typo did not result in an
incorrect calculation of Mr. Salinas's advisory
guidelines range. This is because in the very next paragraph
following the typo, as well as in paragraph 87, the PSR notes
that Mr. Salinas is a "career offender" under
U.S.S.G. § 4B1.1. See Doc. 72, Iffl 87, 101. He
acquired this status because two of his prior offenses, along
with his instant offense, were convictions for "a
controlled substance offense." See U.S.S.G.
§ 4B1.1(a). And as the PSR correctly observes, "[a]
career offender's criminal history category in every case
is VI," regardless of what their underlying criminal
history score is. See Doc. 72, TI 101 (emphasis in
original); U.S.S.G. § 4B1.1(b). Thus, although paragraph
100 of the PSR incorrectly identified Mr. Salinas's
preliminary criminal history category as VI instead of as IV,
his final criminal history category was correctly identified
as VI, and his advisory guidelines range was correctly
calculated on that basis.
IS THEREFORE ORDERED that Defendant Santiago
Salinas's Motion Requesting Judicial Clarification is
GRANTED IN PART AND DENIED IN PART.
Specifically, the Motion is denied in all respects except
that, pursuant to Fed. R. Crim. P. 36, the Probation Officer
is DIRECTED to issue a corrected Presentence
Investigation Report for Mr. Salinas, in which paragraph 100
is revised to read as follows: "The total criminal
history score is eight (8). According to the
sentencing table in USSG Chapter 5, Part A, a criminal
history score of eight (&) establishes a
criminal history category of IV."
IS SO ORDERED.
 Mr. Salinas did not pursue an appeal
in this matter. See Doc. 84.
 Even if Mr. Salinas's advisory
guidelines range had been incorrectly calculated, Fed. R.
Crim. P. 35 only authorizes a district court to "correct
a sentence that resulted from arithmetical, technical, or
other clear error" if the correction is done
"[w]ithin 14 days after sentencing." Mr. Salinas
filed the instant ...