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COMMENCEMENT TIME
Usually, commencement happens in the spring. But in calculating Criminal History under the Guidelines, the time since prior convictions occurred is calculated from the “commencement of the instant offense.”
Sometimes, that’s easy. A defendant who pulled a “smash and grab” at a jewelry store and is convicted of a Hobbs Act robbery knows the date and hour his crime “commenced.” But many, if not most, cases are not so cut-and-dried.
Xavier Josey did time for a North Carolina child sex case. Afterward, he was required to register in whatever state he lived as a sex offender. He moved from North Carolina to New York, where he did not properly register. Later, he moved to Pennsylvania, where he failed to register again.
The Feds charged him with nonregistration in Pennsylvania. In scoring his criminal history, to determine his Guidelines sentence, the District Court looked back 15 years from the date he should have registered in New York, which happened four years before he failed to register in Pennsylvania. The District Court concluded that “commencement of the instant offense” meant commencement of any relevant conduct as defined by USSG § 1B1.3 rather than commencement of the conduct that underlay the count of conviction. It’s like the Hobbs Act defendant having “commencement” of his robbery turned back to the time he took a kid’s French fries at McDonald’s ten years before.
The effect of Xavier’s court setting “commencement of the instant offense” as being a few years before his current crime was that his criminal history included three prior sentences that would otherwise have been excluded. His Guidelines sentencing range became 24 to 30 months instead of 15 to 21 months.
Last week, the 3rd Circuit vacated the sentence.
In calculating a defendant’s Criminal History Category, the Guidelines assign points for each prior sentence of imprisonment, but only if it was imposed within a specified period of time looking back from “the defendant’s commencement of the instant offense.” For prior sentences exceeding one year and one month the “look-back period” is fifteen years, and for any other prior sentence, it is ten years. But what conduct “commence[s]… the instant offense” to anchor the look-back period?
The Guidelines, however, say it is the conduct comprising the offense of conviction. The Sentencing Commission, however, included commentary to USSG § 4A1.2 instructing that “commencement of the instant offense” includes “relevant conduct.” USSG § 4A1.2 cmt. n.8. Guideline § 1B1.3 says that “relevant conduct” includes “all acts and omissions… that were part of the same course of conduct.” And § 1B1.3’s commentary, in turn, describes “same course of conduct” in terms that potentially sweep in a wide range of similar activity.
The 3rd held that “courts may consider commentary only when the text of a particular Guideline is genuinely ambiguous… and here there is no such ambiguity: ‘Commencement of the instant offense’ means the start of the conduct comprising the offense of conviction, i.e., the specific offense conduct for which the defendant is then being sentenced.”
How the commencement date of the instant offense in drug and white-collar conspiracy cases gets figured often has a significant effect on a defendant’s criminal history score. The Circuit has reminded defendants that the commencement date cannot be rolled back on a whim.
United States v. Josey, Case No. 24-1891, 2025 U.S. App. LEXIS 24290 (3d Cir. September 19, 2025)
~ Thomas L. Root
