United States v. Robert Joseph Karpinen , 551 F. App'x 529 ( 2014 )

Case: 13-11016 Date Filed: 01/07/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11016
Non-Argument Calendar
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D.C. Docket No. 0:12-cr-60215-RSR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT JOSEPH KARPINEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 7, 2014)
Before TJOFLAT, JORDAN, and HILL, Circuit Judges.
PER CURIAM:
Robert Karpinen appeals his sentence of 57 months’ imprisonment, imposed
after he pleaded guilty to bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 2.
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On appeal, Karpinen argues that the district court plainly erred by assigning him 2
criminal history points based on a Florida burglary conviction for which Karpinen
received a sentence of 2 years’ drug offender probation and 70 days’ imprisonment
with 70 days’ credit for time served.
We review objections to the district court’s sentencing calculation raised for
the first time on appeal for plain error. United States v. Bennett, 472 F.3d 825, 831
(11th Cir. 2006). Plain error requires that (1) there is error, (2) the error is plain,
(3) the error affects substantial rights, and (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id. at 831-32. We
have stated that “[i]t is the law of this circuit that, at least where the explicit
language of a statute or rule does not specifically resolve an issue, there can be no
plain error where there is no precedent from the Supreme Court or this Court
directly resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th
Cir. 2003).
Undisputed facts in the presentence investigation report (“PSI”) are deemed
admitted for sentencing purposes unless a party objects to them before the
sentencing court. United States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009). “It
is the law of this [C]ircuit that a failure to object to allegations of fact in a PSI
admits those facts for sentencing purposes.” Id.
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Pursuant to U.S.S.G. § 4A1.1(a), when calculating a defendant’s criminal
history point total, three criminal history points are added for each prior sentence
of imprisonment exceeding one year and one month. U.S.S.G. § 4A1.1(a). Under
§ 4A1.1(b), 2 points are added for each sentence of imprisonment of at least 60
days not counted in subsection (a), and 1 point is added under § 4A1.1(c) for each
prior sentence not counted in subsections (a) or (b). Id. § 4A1.1(b), (c). A
maximum of four points may be counted under subsection (c). Id. § 4A1.1(c).
“Sentence of imprisonment” is defined as a sentence of incarceration that refers to
the maximum sentence imposed. Id. § 4A1.2(b)(1). “To qualify as a sentence of
imprisonment, the defendant must have actually served a period of imprisonment
on such a sentence . . . .” Id. § 4A1.2, comment. (n.2). “A sentence of probation is
to be treated as a sentence under § 4A1.1(c) unless a condition of probation
requiring imprisonment of at least [60] days was imposed.” Id. “Federal law, not
state law, controls the application of the Sentencing Guidelines.” United States v.
Madera-Madera, 333 F.3d 1228, 1231 n.2 (11th Cir. 2003).
Because Karpinen did not object to his criminal history calculation in the
district court, we review his claim only for plain error. See Bennett, 472 F.3d at
831.
Karpinen fails to show that the district court plainly erred by assigning him
two criminal history points for his Florida burglary conviction. The statements in
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the PSI, to which Karpinen did not object, indicated that he received a sentence of
2 years’ drug offender probation and 70 days’ imprisonment with credit for 70
days’ time served. On appeal, Karpinen does not dispute that he received a
sentence of 70 days’ imprisonment with credit for 70 days’ time served, instead
arguing that this sentence does not constitute a sentence of imprisonment under
Florida law. Karpinen fails to establish plain error because he provides no case on
point or unambiguous language of the sentencing guidelines establishing that a
sentence of probation and 70 days’ imprisonment with credit for 70 days’ time
served does not receive 2 criminal history points under § 4A1.1(b). See Lejarde-
Rada, 319 F.3d at 1291. His arguments regarding how the sentence is considered
under Florida law are misplaced, because federal law, not state law, governs our
interpretation of the sentencing guidelines, and Karpinen identifies no federal law
addressing this point. See Madera-Madera, 333 F.3d at 1231 n.2. Thus, it was not
plain error for the district court to assign him two criminal history points.
Accordingly, we affirm. 1
AFFIRMED.
1
Because Karpinen fails to establish plain error even without supplementation of the
record, the government’s motion to supplement the record on appeal and take judicial notice is
DENIED as unnecessary.
4