UNITED STATES v. SMITH (2021)

Defendant-Appellant Dillan Smith pleaded guilty to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g), and was sentenced within the advisory guidelines range to 24 months of imprisonment. On appeal, Smith maintains that the district court erred in assigning a criminal history score of III rather than II. He specifically contends that the court erred in assessing two criminal history points for his 2013 Louisiana conviction for indecent behavior with a juvenile, for which he received a seven-year suspended sentence with credit for time served prior to trial and sentencing. He complains that time served on pretrial detention for a conviction resulting in a suspended sentence should not count as a “sentence of imprisonment” for assessing criminal history points under the Guidelines.

The Government is correct that United States v. Fernandez, 743 F.3d 453, 457 (5th Cir. 2014), controls here. Because, as in Fernandez, Smith's time-served credit could not be suspended, his eight-month pretrial custody serves as the “sentence of imprisonment” for purposes of U.S.S.G. §§ 4A1.1(b) and 4A1.2(b)(2), and he was properly assessed two criminal history points for that conviction. See Fernandez, 743 F.3d at 457.

Smith's attempt to distinguish Fernandez from his case is unpersuasive. His request that this panel revisit Fernandez is unavailing: One panel of this court may not overrule a decision made by a prior panel “[a]bsent an intervening Supreme Court or en banc decision or a change in statutory law.” United States v. Treft, 447 F.3d 421, 425 (5th Cir. 2006).

AFFIRMED.

FOOTNOTES

FOOTNOTE.  

Per Curiam:* FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.