United States v. Dwon Pollock ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 27, 2019
Decided March 21, 2019
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 18-3177
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 3:18-cr-30067-DRH
DWON POLLOCK, David R. Herndon,
Defendant-Appellant. Judge.
ORDER
In 2018 Dwon Pollock pleaded guilty to one count of unlawful possession of a
firearm by a felon, 18 U.S.C. § 922(g)(1). Because of his considerable criminal history,
including a prior crime of violence (Missouri second-degree robbery), the district court
calculated a Sentencing Guidelines range of 63 to 78 months’ imprisonment and
sentenced him to the bottom of that range. Pollock appeals, arguing that his criminal
history points were miscalculated. We affirm.
In December 2017, police responded to a request for a wellness check on a man
asleep with a bag on his lap in the drivers’ seat of a parked car. The man, Dwon Pollock,
told the officers that he was waiting for his girlfriend, who lived in the housing projects
No. 18-3177 Page 2
nearby. Officers removed the bag from the vehicle and discovered it contained a firearm
and ammunition. Pollock sped away, but he was apprehended when he got into a
traffic accident. Pollock was indicted on a single charge of felon in possession of a
firearm. See 18 U.S.C. § 922(g)(1). The probation officer who completed the presentence
investigation report assigned a base offense level of 14 and factored in adjustments for
obstruction and acceptance of responsibility to arrive at a total offense level of 13. The
officer calculated a criminal history score of 14.
Both Pollock and the government filed objections to the PSR. The government
argued that according to U.S.S.G. § 2K2.1(a)(4), the base offense level should have been
20, because Pollock had a prior conviction for a “crime of violence” (Missouri second-
degree robbery) as defined in § 4B1.2(a). The probation officer accepted this objection
and revised the PSR. As for Pollock’s objections, he first argued that the PSR improperly
counted two different burglary sentences separately when they should have been
counted together. He asserted that because the two burglaries were charged in the same
instrument, their sentences should have been treated as a single sentence for Guidelines
calculation purposes, which would have resulted in just three, not six, criminal history
points. Soon after, Pollock filed a second objection, this time contending that his 2009
second-degree robbery was assigned too many criminal history points “due to the
amount of time he was in treatment.”
The district court rejected Pollock’s objections, ruling that his two burglaries
were properly treated separately, and that the 14 months Pollock spent incarcerated for
his second-degree robbery offense justified the criminal history points the PSR assigned
to it. The court then adopted the Guidelines calculations in the PSR, which yielded an
offense level of 19, a criminal history category of VI (resulting from 14 criminal history
points), and a Guidelines range of 63 to 78 months. The court sentenced Pollock to 63
months’ imprisonment and three years of supervised release. Pollock appeals the
sentence.
Incorrect calculation of the Sentencing Guidelines range is a procedural error that
justifies a new sentencing hearing. Molina-Martinez v. United States, 136 S. Ct. 1338, 134
(2016); Gall v. United States, 552 U.S. 38, 51 (2007). This court reviews procedural errors
de novo. United States v. Poulin, 809 F.3d 924, 930 (7th Cir. 2016).
Pollock’s sole argument on appeal is that the district court erroneously assigned
three criminal history points to his sentence for Missouri robbery under U.S.S.G.
No. 18-3177 Page 3
§ 4A1.1(a).1 That Guideline provides that criminal history points should be assigned to
prior sentences according to their length. Pollock appears to suggest that he did not
have a “sentence of imprisonment” at all for the purposes of this provision: he asserts
that his entire sentence—including his time served—was suspended. He arrives at this
conclusion by noting that the PSR said “sentence suspended,” and not “remainder of
sentence suspended.” He argues alternatively that, even if the suspension did not
encompass his time served, he was serving multiple sentences at once, and the record
does not clarify to which of these sentences his time served applied.
Pollock attempts to manufacture ambiguity where there is none. The PSR
describes the following sequence of events: on May 13, 2010, Pollock pleaded guilty to
robbery. He was sentenced to 10 years in prison. Fourteen months later this sentence
was suspended. He then was placed on two years’ probation. After two years, his
sentence was discharged. Pollock’s suggestion that the suspension might have been
backward-looking to encompass his 14 months’ time served is not only incorrect as a
matter of fact; it is incorrect as a matter of law. Suspensions and time served are
mutually exclusive. “Time served is real time and time suspended is not.” United States
v. Staples, 202 F.3d 992, 998 (7th Cir. 2000). Pollock's “sentence of imprisonment” for
Guidelines purposes was, simply, ”the portion [of his original sentence] that was not
suspended”: his 14 months’ time served. § 4A1.2(b).
Pollock’s argument in the alternative—that he was serving multiple sentences at
once, and the record is not clear to which sentence his time served applied—suggests a
misunderstanding of what it means to serve sentences “concurrently.” We note that the
parties do not dispute that Pollock was serving his sentences concurrently, and the
publicly available information makes clear that he was. A report from Missouri’s online
court database shows that the court ordered his sentence for the second-degree robbery
conviction to run concurrently, and in Missouri, sentences run concurrently by default.
See Mo. Rev. Stat. § 558.026 (2009). Sentences served concurrently are served at the same
time as one another; a prisoner gets credit for each of them. See, e.g., Setser v. United
States, 566 U.S. 231 (2012) (discussing concurrent-consecutive sentencing issues and
using “concurrent” to mean “at the same time”). So, Pollock served 14 months on his
second-degree robbery sentence, irrespective of his concurrently running sentences.
AFFIRMED
1Pollock’s opening brief was more expansive, but he withdrew several
arguments.