United States v. Leonel Miller Hinojosa, Jr.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0096p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
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Plaintiff-Appellee, │
> Nos. 22-1044/1045
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v. │
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LEONEL MILLER HINOJOSA, JR. aka Leon Hinojosa, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:19-cr-00279-1—Janet T. Neff, District Judge.
Decided and Filed: May 5, 2023
Before: SUTTON, Chief Judge; BATCHELDER and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Scott Graham, SCOTT GRAHAM, PLLC, Portage, Michigan, for Appellant.
Davin M. Reust, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for
Appellee.
_________________
OPINION
_________________
MURPHY, Circuit Judge. While on supervised release for a 2012 felon-in-possession
conviction, Leonel Hinojosa shot a man and robbed the man’s companion of drugs and money.
The federal government charged Hinojosa with a fresh set of crimes for this misconduct. A jury
convicted him of three offenses, and a district court sentenced him to 240 months’ imprisonment.
The court separately revoked Hinojosa’s supervised release and imposed a consecutive 24-month
sentence for his 2012 offense. In these consolidated appeals, Hinojosa challenges his
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convictions and sentences. We affirm his convictions and the 24-month sentence for his
supervised-release violations. But the district court applied the wrong law when calculating
Hinojosa’s guidelines range for his new offenses. So we vacate his 240-month sentence and
remand for resentencing.
I
On January 18, 2012, police officers were patrolling a high-crime area in Kalamazoo,
Michigan. See United States v. Hinojosa, 534 F. App’x 468, 469 (6th Cir. 2013). They spotted
Hinojosa engaging in suspicious activity, arrested him for driving on a suspended license, and
found a gun in his waistband. See id. A district court sentenced Hinojosa to 60 months in prison
and 3 years of supervised release for possessing a firearm as a felon, in violation of 18 U.S.C.
922(g)(1). In June 2016, the federal government placed Hinojosa on supervised release in
Kalamazoo.
Hinojosa flouted the terms of his release. Among other things, he used drugs, drove
while intoxicated, and lied to a probation officer. He received modest sanctions for these
violations, including several weekend jail confinements.
As Hinojosa spent one of these weekends in jail, a stolen handgun was found in the
vehicle that he had parked in the jail’s parking lot. The court revoked his supervised release. It
sentenced him to the time that he had already served for this misconduct plus two more years of
supervised release.
Months later, Hinojosa tested positive for methamphetamine. The court imposed more
weekends of jail confinement as a result. Hinojosa appealed. We affirmed the district court’s
decision. United States v. Hinojosa, No. 18-2421, slip op. at 5 (6th Cir. May 20, 2019) (order).
While we considered Hinojosa’s prior appeal, he committed the crimes at issue in this
one. On January 23, 2019, Jody Stamp asked Hinojosa for a ride to Ashley Stapler’s apartment
so that he could buy drugs from her. Stamp Tr., R.139, PageID 904–06. Hinojosa agreed. Id.,PageID 904. Stamp took a BB gun and Hinojosa took a handgun. Id., PageID 909. Two other
men—Terrell Mann and Deon Bradford—were also at Stapler’s apartment. Id., PageID 912;
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Bradford Tr., R.139, PageID 953. Stapler invited Stamp to use methamphetamine while they
negotiated a drug deal. Stamp Tr., R.139, PageID 913; Stapler Tr., R.140, PageID 1075.
Meanwhile, Hinojosa started arguing with Bradford about “[w]ho could get a cheaper ounce of
meth.” Stamp Tr., R.139, PageID 915. After Bradford got up and refused to sit down, Hinojosa
suddenly shot him in the leg. Id., PageID 915–16; Bradford Tr., R.139, PageID 957–59; Stapler
Tr., R.140, PageID 1080–81; Mann Tr., R.140, PageID 1110–11. Hinojosa then directed Stamp
to “grab the bag” of Stapler’s drugs. Stamp Tr., R.139, PageID 917. Hinojosa and Stamp left
with the bag and later shared its contents: about two ounces of methamphetamine and $500 in
cash. Id., PageID 918.
Hinojosa got into a second confrontation on April 17. After participating in a “road rage
incident,” he followed the other driver to a Lee’s Famous Recipe Chicken. Oliver Tr., R.140,
PageID 1202; Howe Tr., R.140, PageID 1210–1219. Police were called when Hinojosa used his
vehicle to block the drive into and out of this fast-food restaurant. Howe Tr., R.140, PageID
1210–11. An officer ordered Hinojosa to leave in one direction and the second driver to leave in
another. Id., PageID 1212–13. But Hinojosa circled back and followed the other driver, who
was taking a friend home. Brown Tr., R.142, PageID 1261. Worried about what Hinojosa might
do, this driver stopped outside an acquaintance’s house (rather than his friend’s). Id., PageID
1261–62. Hinojosa pulled up behind the driver, and the two exchanged words. Id. That night,
someone shot into the acquaintance’s house. Oliver Tr., R.140, PageID 1197–1200. Officers
questioned Hinojosa, who admitted to tailing the other driver and traveling in the area of the
shooting. Id., PageID 1201–03. An expert also opined that the shell casings recovered from the
house came from the same gun as the casing recovered when Hinojosa shot Bradford. Crump
Tr., R.142, PageID 1331–39.
For these two incidents, the government charged Hinojosa with five new offenses. Its
first four counts concerned the events of January 23. The government charged Hinojosa with
robbing Stapler of drugs and drug proceeds in violation of the Hobbs Act, 18 U.S.C. § 1951. It
also charged him with possessing methamphetamine with the intent to distribute it, in violation
of 21 U.S.C. § 841(a)(1); discharging a firearm during a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A)(iii); and possessing ammunition as a felon, in violation of 18 U.S.C.
Nos. 22-1044/1045 United States v. Hinojosa Page 4
§ 922(g)(1). The fifth count concerned the events of April 17. It charged Hinojosa with another
count of possessing ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1).
Before trial, Hinojosa moved to exclude the expert’s opinion that the shell casings from
the January 23 and April 17 incidents came from the same gun. Hinojosa argued that the opinion
was unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The
district court found his motion untimely and meritless.
The court held a five-day trial. At the close of the government’s case, Hinojosa moved
for a judgment of acquittal. The court denied the motion as to the four counts about the January
23 events. But it acquitted Hinojosa of the fifth (felon-in-possession) count about the April 17
events. Despite the government’s evidence that the same firearm had been used in both
shootings, the court held that the jury would have to engage in too much speculation to find that
Hinojosa shot at the acquaintance’s home. The jury later found Hinojosa guilty of three of the
four counts concerning the January 23 events. It convicted him of Hobbs Act robbery,
discharging a firearm during that robbery, and being a felon in possession of ammunition. But it
acquitted him of possessing methamphetamine with the intent to distribute it.
The district court sentenced Hinojosa to a total of 240 months’ imprisonment for these
three new convictions. It imposed two 120-month terms on the robbery and felon-in-possession
counts that ran concurrently with each other. It next imposed a third 120-month term on the
count of discharging a firearm during a crime of violence, but it ordered this sentence to run
consecutively to the other two.
While Hinojosa’s new criminal proceedings progressed, his probation officer separately
charged Hinojosa with violating the terms of his supervised release for his felon-in-possession
conviction from 2012. At a hearing in this older criminal case, the district court found that
Hinojosa had violated his supervised-release terms by committing the crimes of which the jury
found him guilty. The court sentenced him to another 24 months’ imprisonment to run
consecutively to the 240-month term that it had imposed for his three new convictions.
Nos. 22-1044/1045 United States v. Hinojosa Page 5
II
Hinojosa now challenges his convictions, supervised-release revocation, and sentences.
A. Convictions and Supervised-Release Revocation
Hinojosa attacks his convictions and supervised-release revocation on four grounds. He
argues that the government (1) violated the Speedy Trial Act; (2) did not produce sufficient
evidence at trial; (3) wrongly introduced expert testimony at trial; and (4) relied on theories at his
supervised-release hearing that conflicted with the trial’s outcome. We disagree on all fronts.
1. Speedy Trial Act. Hinojosa first raises a claim under the Speedy Trial Act.
U.S. Marshals arrested him in May 2019. But a grand jury did not indict him until that
November. Hinojosa alleges that the six-month gap between his arrest and indictment violated
18 U.S.C. § 3161(b) because that provision required the government to indict him within 30 days
of his arrest. He misreads the provision. Its 30-day clock did not apply here because Hinojosa’s
arrest was based on his alleged violations of the terms of his supervised release, not on the
federal charges in his indictment.
We start with § 3161(b)’s text. It provides: “Any information or indictment charging an
individual with the commission of an offense shall be filed within thirty days from the date on
which such individual was arrested or served with a summons in connection with such charges.”
18 U.S.C. § 3161(b). This language does not trigger the 30-day clock for just any arrest no
matter the underlying reason for it. Rather, the language triggers that clock only for an arrest
that is “in connection with such charges.” Id. Which charges? The use of the adjective “such”
points back to the specific charges that the statute “previously” referred to—the federal charges
listed in the information or indictment. Webster’s New International Dictionary of the English
Language 2518 (2d ed. 1934). This reading forecloses Hinojosa’s claim here because all agree
that his May 2019 arrest was based not on those federal charges, but on his alleged supervised-
release violations.
To be sure, an arrest only need be “in connection with” the federal charges in an
indictment under § 3161(b). And the Supreme Court has recognized that this phrase has an
Nos. 22-1044/1045 United States v. Hinojosa Page 6
“indeterminat[e]” (and potentially limitless) reach. Maracich v. Spears, 570 U.S. 48, 59 (2013)
(citation omitted); see Mont v. United States, 139 S. Ct. 1826, 1832 (2019). Hinojosa thus argues
that an earlier arrest has the required “connection” to later charges in an indictment whenever the
arrest and the charges stem from the “same set” of facts. See United States v. Giwa, 831 F.2d
538, 540 (5th Cir. 1987).
But the Supreme Court has also made clear that we must identify a “limiting principle”
for the phrase “in connection with” that best fits the statutory context and structure. Maracich,
570 U.S. at 60. Here, the statute naturally conveys that its 30-day clock begins to run only if the
federal charges in the indictment provide the grounds for the defendant’s arrest. A “charge” is a
“formal accusation of a crime as a preliminary step to prosecution[.]” Black’s Law Dictionary
227 (7th ed. 1999). And just because an arrest has a “connection with” the factual conduct
underlying a crime does not mean that it has a “connection with” the formal accusation in an
indictment. Suppose, for example, that state police arrest a defendant for conduct that they
allege violates state law. Suppose further that a federal prosecutor decides to charge the
defendant with federal crimes only months later. No ordinary person would say that the state
police arrested the defendant “in connection with” the federal charges. At the time of the arrest,
the federal prosecutor had yet to decide whether to pursue a criminal case, let alone file any
“formal accusation” of federal crimes.
The Act’s structure confirms this reading. See Maracich, 570 U.S. at 60. It offers a
remedy for violations of § 3161(b) only to defendants “against whom a [preindictment]
complaint [was] filed charging [them] with an offense”: “If, in the case of any individual against
whom a complaint is filed charging such individual with an offense, no indictment or
information is filed within the time limit required by section 3161(b) . . . , such charge against
that individual contained in such complaint shall be dismissed or otherwise dropped.” 18 U.S.C.
§ 3162(a)(1). This text provides no remedy if the federal government does not file a complaint
against a defendant. See United States v. Graef, 31 F.3d 362, 363–64 (6th Cir. 1994); see also
United States v. Mills, 964 F.2d 1186, 1188–89 (D.C. Cir. 1992) (en banc) (citing cases). On
Hinojosa’s reading, then, a delay between a supervised-release arrest and an indictment would
violate § 3161(b), but the court could grant no relief under § 3162(a)(1) because the arrest would
Nos. 22-1044/1045 United States v. Hinojosa Page 7
not be tied to charges in a federal complaint. Rather than read the Act to create a remediless
violation, we read its substantive protection to match its remedy by applying only if the
indictment’s federal charges provided the basis for the arrest. And here, the government had no
need to issue a federal complaint because it had already detained Hinojosa for his distinct
supervised-release violations.
Precedent interpreting § 3161(b) also confirms this reading. We have repeatedly held
that an arrest on state charges does not trigger the 30-day clock for a federal indictment even if
federal officials cooperated with the state police in investigating the defendant. See United
States v. Blackmon, 874 F.2d 378, 381–82 (6th Cir. 1989); see also, e.g., United States v.
Jackson, 425 F. App’x 476, 482 (6th Cir. 2011); United States v. Jemison, 310 F. App’x 866,
872–73 (6th Cir. 2009); United States v. Legette-Bey, 147 F. App’x 474, 486–87 (6th Cir. 2005).
Contrary to Hinojosa’s argument, we have made no exception to this rule even when the
defendant’s federal and state offenses both “related” to the same conduct. Legette-Bey,
147 F. App’x at 487.
Even more relevant, other courts have held that a defendant’s arrest for a violation of a
supervised-release condition does not trigger the 30-day clock to file an indictment charging new
federal offenses even when both involve “the same underlying conduct[.]” United States v.
Contreras, 63 F.3d 852, 855 (9th Cir. 1995); see United States v. Keel, 254 F. App’x 759, 761
(11th Cir. 2007) (per curiam); United States v. Patterson, 135 F. App’x 469, 473–74 (2d Cir.
2005) (order); see also Acha v. United States, 910 F.2d 28, 30–31 (1st Cir. 1990) (per curiam);
United States v. Stead, 745 F.2d 1170, 1173 (8th Cir. 1984). We now join these circuits.
One last point. At times, Hinojosa’s opening brief suggested that the delay between his
arrest and indictment violated the Constitution too. But his cursory statements did not suffice to
preserve any constitutional claim. See United States v. Johnson, 440 F.3d 832, 846 (6th Cir.
2006).
2. Sufficiency of the Evidence. Hinojosa next argues that the government failed to
produce enough evidence to convict him. To overturn a jury verdict on this ground, Hinojosa
must meet a “demanding” test. United States v. Potter, 927 F.3d 446, 453 (6th Cir. 2019). He
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must show that no “rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). When applying this
test, moreover, we must resolve any evidentiary conflicts or credibility disputes in a manner that
favors the government’s version of the facts. See United States v. Maya, 966 F.3d 493, 499 (6th
Cir. 2020); United States v. Henley, 360 F.3d 509, 514 (6th Cir. 2004).
Because a sufficiency challenge disputes whether the government proved an offense’s
“essential elements,” this type of challenge starts with an identification of the offense’s elements.
Potter, 927 F.3d at 453. Here, the jury found that Hinojosa committed three offenses on January
23, 2019. It convicted him of robbing Stapler in violation of the Hobbs Act, see 18 U.S.C.
§ 1951(a); of discharging a firearm during a “crime of violence,” see id. § 924(c)(1)(A)(iii); and
of being a felon in possession of ammunition, see id. § 922(g)(1). Hinojosa, though, barely
identifies any of the elements of any of these offenses. He instead raises a generic challenge to
all three offenses and a specific challenge to a single element of one of them.
As a general matter, Hinojosa suggests that the government presented insufficient
evidence of the basic conduct underlying all of the offenses: that he shot Bradford and stole
drugs and drug proceeds from Stapler. Yet the government’s evidence proving this conduct “is
more accurately described as ‘overwhelming’ than ‘insufficient.’” United States v. Kaiser, 2022
WL 17547516, at *6 (6th Cir. Dec. 9, 2022). Though their accounts varied in some details, three
witnesses—Stamp, Stapler, and Mann—unequivocally testified that Hinojosa shot Bradford and
demanded Stapler’s bag. Stamp Tr., R.139, PageID 913–18; Stapler Tr., R.140, PageID 1076–
82; Mann Tr., R.140, PageID 1108–16. And although Bradford could not identify Hinojosa as
the shooter, he too testified that he saw two men in Stapler’s apartment and that the one wearing
black shot him. Bradford Tr., R.139, PageID 955–59. His description of the shooter’s clothes
matched what the other witnesses identified Hinojosa as wearing. Compare id., PageID 956–57,
with Stamp Tr., R.139, PageID 909; Stapler Tr., R.140, PageID 1075; Mann Tr., R.140, PageID
1109.
In response, Hinojosa argues that these witnesses lacked credibility. Stamp, for example,
had a motive to minimize his liability because he took part in the robbery. Likewise, Stapler had
a motive to cooperate because of pending state drug charges against her. But this credibility
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argument runs headlong into our standard of review. Our duty to interpret the evidence in the
government’s favor means that we must assume that the jury accepted the credibility of these
witnesses. See Maya, 966 F.3d at 503–04. So even if “powerful” reasons existed to question
their credibility, the prerogative to resolve that credibility dispute belonged to the jury alone.
Henley, 360 F.3d at 514. In that respect, Hinojosa’s counsel highlighted the credibility concerns
for the jury. In opening statements, counsel described the case as about “how witnesses steeped
in the drug culture can lie and manipulate the system to save themselves an incredible amount of
incarceration.” Tr., R.139, PageID 899. Counsel also cross-examined the witnesses about their
potential biases and memory lapses. That the jury nevertheless rejected Hinojosa’s credibility
arguments gives us no basis to reject its verdict.
Hinojosa counters that we can overturn a jury verdict on credibility grounds if a witness’s
testimony is “facially insubstantial or incredible.” United States v. McCaleb, 302 F. App’x 410,
414 (6th Cir. 2008) (quoting United States v. Welch, 97 F.3d 142, 151 (6th Cir. 1996)). Yet
McCaleb and Welch used this “facially insubstantial” language in dicta. McCaleb rejected a
sufficiency challenge tied to witness credibility, explaining that we could not ignore testimony
favoring the government simply because it was “self-serving” or “contradicted” by other
evidence. 302 F. App’x at 414. Welch likewise found it “irrelevant” to the sufficiency-of-the-
evidence inquiry that witnesses had agreed to cooperate with the government. 97 F.3d at 149.
We thus doubt that any “facially insubstantial” exception exists to our usual rule that we cannot
evaluate witness credibility at this stage. See Henley, 360 F.3d at 514. In all events, the four
witnesses’ accounts in Hinojosa’s case were anything but “facially insubstantial or incredible.”
As a specific matter, Hinojosa asserts that the government failed to establish the
commerce element necessary for Hobbs Act robbery. The Hobbs Act requires the government to
prove that a robbery “obstruct[ed], delay[ed], or affect[ed] commerce” within the federal
government’s “jurisdiction.” 18 U.S.C. § 1951(a), (b)(3); see United States v. Sanders, 2021 WL
4787226, at *2–3 (6th Cir. Oct. 14, 2021). Given the Supreme Court’s expansive interpretation
of the Constitution’s Commerce Clause, the Court has held that the government can satisfy this
commerce element by showing that a defendant “robbed or attempted to rob a drug dealer of
drugs or drug proceeds.” Taylor v. United States, 579 U.S. 301, 303 (2016).
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Taylor’s reading dooms Hinojosa’s sufficiency challenge. The evidence allowed the jury
to conclude that Hinojosa knew Stapler was a drug dealer and robbed her of her drugs and drug
proceeds. Among other things, Stamp asked Hinojosa to drive to Stapler’s apartment so that he
could buy drugs from her. Stamp Tr., R.139, PageID 904–06. While they were there, moreover,
Stamp attempted to use methamphetamine that Stapler had pulled out of her bag. Id., PageID
913, 917. Stapler also testified that she weighed some methamphetamine in front of everyone
and put it into her bag. Stapler Tr., R.140, PageID 1078. She added that she kept her drug
proceeds there. Id., PageID 1078–79. Lastly, Hinojosa demanded this bag after he shot
Bradford. Stamp Tr., R.139, PageID 917. The jury thus had plenty of evidence to conclude that
Hinojosa “knowingly stole or attempted to steal drugs or drug proceeds[.]” Taylor, 579 U.S. at
309.
3. Expert Testimony. Hinojosa next argues that the district court mistakenly allowed the
government’s expert to opine to the jury that the same firearm had discharged the shell casings
from the January 23 and April 17 shootings. Under Federal Rule of Evidence 702, an expert
may opine on an issue only if the opinion is both “relevant” and “reliable.” Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999) (quoting Daubert, 509 U.S. at 589). Hinojosa claims that
the expert based his testimony on an unreliable method of matching shell casings to firearms
developed by the Association of Firearm and Toolmark Examiners. Federal courts have “almost
uniformly” disagreed with this reliability argument. United States v. Brown, 973 F.3d 667, 704
(7th Cir. 2020) (citation omitted).
But we need not enter this debate. Even assuming that the district court wrongly
admitted this evidence, Hinojosa fails to explain how it harmed him. Federal Rule of Criminal
Procedure 52(a) requires us to “disregard[]” errors that do not “affect” a defendant’s “substantial
rights[.]” Our cases have announced slightly different readings of this rule. Some say that the
government must give a “fair assurance” that improper evidence did not “substantially sway[]”
the jury; others say that the government must show that the evidence did not affect the verdict by
a preponderance of the evidence. See United States v. Dotson, 2022 WL 6973397, at *6 (6th Cir.
Oct. 12, 2022) (quoting United States v. Kettles, 970 F.3d 637, 643 (6th Cir. 2020)). Either way,
we have routinely found the improper admission of expert testimony harmless. See United
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States v. Dukes, 779 F. App’x 332, 336 (6th Cir. 2019); United States v. Pearson, 746 F. App’x
522, 525 (6th Cir. 2018); United States v. Miner, 774 F.3d 336, 350 (6th Cir. 2014); United
States v. Lloyd, 462 F.3d 510, 518 (6th Cir. 2006); United States v. Montgomery, 980 F.2d 388,
392 (6th Cir. 1992).
Any error in this case would have been harmless too. For one thing, the government
introduced the expert’s testimony primarily to prove that Hinojosa was the culprit who shot into
the home on April 17. No witnesses saw this shooting. So the government tried to tie it to the
gun that many witnesses saw Hinojosa fire on January 23. Before submitting the case to the
jury, however, the district court acquitted Hinojosa of the sole count relevant to the April 17
shooting—the fifth (felon-in-possession) count. Thus, as the court told the parties when
discussing the jury instructions, the expert’s testimony lost most (if not all) of its relevance. Tr.,
R.142, PageID 1403. For another thing, the government had an “overwhelming” case against
Hinojosa for the three counts of which the jury convicted him. See Dukes, 779 F. App’x at 336.
Each of these counts concerned the earlier January 23 shooting. And, as explained, four
individuals provided eyewitness testimony of this shooting. That the same firearm may have
been used at some later point was, at most, tangential.
Hinojosa responds that the expert’s opinion “hung in the air” at trial and affected the
jury’s verdict on all counts by “link[ing]” him “to guns in general[.]” Appellant’s Br. 38. But
this vague speculation does not suffice to resist a harmless-error finding in light of the
government’s witness-after-witness testimony identifying Hinojosa as the shooter. See Dukes,
779 F. App’x at 336.
4. Supervised-Release Revocation. Hinojosa lastly challenges the district court’s finding
that he violated two terms of his supervised release: that he refrain from committing more crimes
and that he not possess ammunition. According to Hinojosa, the court acted inconsistently. It
acquitted him at trial of possessing ammunition during the April 17 house shooting. But it
allegedly relied on that same incident at his supervised-release hearing to find that he committed
these supervised-release violations. Hinojosa is mistaken. The petition charging the two
violations alleged that Hinojosa possessed ammunition “[b]etween on or about January 23 and
April 17, 2019[.]” Pet., 12-cr-47-01, R.167, PageID 647. And the government introduced
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sufficient evidence that he possessed (and fired) a gun on January 23. The evidence underlying
that separate felon-in-possession conviction alone sufficed to prove both violations.
B. Sentences
Hinojosa raises two sentencing claims. He challenges both his 240-month sentence for
his three fresh convictions and his 24-month sentence for his supervised-release violations.
We find the record too unclear to resolve his first claim but reject his second one.
1. 240-Month Sentence. Hinojosa initially argues that the district court issued a
“procedurally unreasonable sentence” for his new convictions because it used an ineligible prior
offense to calculate his guidelines range. United States v. Riccardi, 989 F.3d 476, 481 (6th Cir.
2021). Specifically, the court gave Hinojosa three criminal-history points for a 1994 Michigan
conviction of assault with intent to do great bodily harm. Sent. Tr., R.204, PageID 1946.
Although Hinojosa committed this assault as a minor, the state charged him as an adult because
he shot the victim in the head. Rep., R.159, PageID 1631. And a state court sentenced him to an
indeterminate sentence of 54 months to 10 years. Id. A criminal-history guideline instructs a
district court to assign three criminal-history points for a prior juvenile offense if the government
tried the defendant as an adult and if the sentence exceeded a year and a month. U.S.S.G.
§ 4A1.2(d)(1). So Hinojosa does not claim that this type of juvenile conviction is categorically
ineligible for criminal-history points. Rather, he argues only that his specific conviction is too
old to qualify.
The same guideline lists the “applicable time period” that a court should use when
deciding whether to add a prior conviction to a defendant’s criminal history. Id. § 4A1.2(e). The
guideline lays out two paths to count an older offense. It first says: “Any prior sentence of
imprisonment exceeding one year and one month that was imposed within fifteen years of the
defendant’s commencement of the instant offense is counted.” Id. § 4A1.2(e)(1). It then says:
“Also count any prior sentence of imprisonment exceeding one year and one month, whenever
imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year
period.” Id.
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Here, the district court could not count Hinojosa’s 1994 assault conviction under the first
path: that the prior court “imposed” the sentence within 15 years of the current offense.
Hinojosa committed his current offenses on January 23, 2019. But the state court imposed the
prior sentence for his 1994 assault almost 25 years before that date. Rep., R.159, PageID 1631.
The district court thus could count Hinojosa’s 1994 assault only under the guideline’s
second path: that his prior sentence for the assault “resulted in” his “being incarcerated” within
15 years of his current offenses (that is, after January 23, 2004). U.S.S.G. § 4A1.2(e)(1). The
court found this path met in a single sentence. It stated “that Mr. Hinojosa was certainly under
the jurisdiction of the State of Michigan for the 1994 offense through . . . sometime in May of
2013, but he also apparently served some time in custody in and around that date.” Sent. Tr.,
R.204, PageID 1946. To hold that Hinojosa was under the state’s “jurisdiction” in 2013 because
of the 1994 assault, the court relied on the testimony of a probation officer with the Michigan
Department of Corrections. But this probation officer testified about how Michigan courts
would treat Hinojosa’s 1994 assault under Michigan law. So the district court equated the
federal guideline’s standards with distinct state-law standards for assessing criminal history.
Because § 4A1.2(e)(1) does not incorporate those state-law standards, the court’s decision to
count this prior crime rests on a legal “misinterpretation” of that guideline. Riccardi, 989 F.3d at
481.
The probation officer’s testimony proves this point. The officer opined that Hinojosa
“went to prison in 1994,” but his “jurisdiction with the Department of Corrections did not end
until” “he got off of parole supervision” on April 22, 2014. Sent. Tr., R.204, PageID 1939. And
his last time in prison under the parole board’s jurisdiction was May 29, 2013. Id., PageID 1943.
To reach this result, the officer testified about two aspects of Michigan sentencing law. On the
one hand, the officer first discussed how state courts calculate a defendant’s criminal history to
determine the guidelines range for state offenses. Unlike the federal guideline’s “15-year gap,”
Michigan courts use a “ten-year gap.” Id., PageID 1939–41. If a defendant’s “discharge date”
for the defendant’s most recent prior conviction was 10 years before the current offense, a state
court should include no criminal history in its guidelines calculations. Mich. Comp. Laws
§ 777.50(2); see People v. Butler, 892 N.W.2d 6, 9 (Mich. Ct. App. 2016). If, though, that
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discharge date fell within that 10-year period, the court must use the conviction. Mich. Comp.
Laws § 777.50(2). The court must next identify the second most recent conviction. If the
discharge date for that conviction fell within 10 years from the offense underlying the first most
recent conviction, the court must use it too. Id. And the court must “repeat” this process until it
identifies a 10-year gap in which the defendant committed no crimes while discharged from the
state’s custody. Id. According to the probation officer, the “discharge date” to trigger this 10-
year window also does not even begin to run until a defendant is wholly outside the state’s
supervision, including off of “parole” and not just out of prison “custody.” Sent. Tr., R.204,
PageID 1940.
On the other hand, the probation officer interchangeably discussed when and how long
Michigan’s parole board has “jurisdiction” over a prisoner. Mich. Comp. Laws § 791.234; Sent.
Tr., R.204, PageID 1944. The parole board’s jurisdiction begins once the prisoner has served the
minimum term of imprisonment (at which point the prisoner becomes parole eligible). See Mich.
Comp. Laws § 791.234(1). But when a defendant receives consecutive sentences for different
offenses (whether at the same time or different times), the parole board gets “jurisdiction” only
after the defendant has served the “total time of the added minimum terms” for both offenses.
Id. § 791.234(3). And a “discharge” of the defendant from the parole board’s jurisdiction cannot
occur until the defendant has served the combined “maximum terms” for these sentences, “unless
the prisoner is paroled and discharged upon satisfactory completion of the parole.” Id.
Both aspects of Michigan law set rules different from the rules in the applicable federal
guideline. If, for example, state prosecutors had charged Hinojosa with his current crimes, state
courts may well have used the 1994 assault to calculate Hinojosa’s criminal history under
Michigan’s unique 10-year-gap rule. But that fact says nothing about whether the 1994 sentence
for this assault “resulted in [Hinojosa’s] being incarcerated” within 15 years of his current
offenses under U.S.S.G. § 4A1.2(e)(1). Indeed, the probation officer conceded on cross-
examination that Michigan’s scoring system does not “have anything to do with whether
[Hinojosa has] completed his imprisonment” for the 1994 assault. Sent. Tr., R.204, PageID
1941. Likewise, Michigan law may well have given its parole board “jurisdiction” over
Hinojosa on a continuous basis between his 1994 assault conviction and his discharge from state
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custody in 2013. But again, that fact does not mean that Hinojosa’s 1994 sentence for his assault
“resulted in” his incarceration for any time between 2004 and 2013. U.S.S.G. § 4A1.2(e)(1). In
short, the district court committed legal error because it did not apply the guideline’s governing
legal test to decide whether Hinojosa’s prior 1994 assault conviction should count in his criminal
history.
In response, the government rightly recognizes that Michigan sentencing law can help
determine—as a matter of historical fact—how Hinojosa’s 1994 conviction affected his state
incarceration. See United States v. Jones, 662 F. App’x 486, 494 (8th Cir. 2016) (quoting United
States v. Renfrew, 957 F.2d 525, 526 (8th Cir. 1992)); see also United States v. Redmond,
418 F. App’x 403, 404–05 (6th Cir. 2011). But neither Michigan’s method of computing
criminal history nor the jurisdiction of its parole board can replace § 4A1.2(e)(1)’s legal test for
counting prior offenses. And the district court erred here because it never applied that federal
test; it relied on the 1994 conviction because Michigan courts would rely on it under that state’s
distinct tests.
The government next counters that the district court properly applied § 4A1.2(e)(1) and
merely made a “factual” finding that Hinojosa had been imprisoned for the 1994 assault in 2013.
Appellee’s Br. 49. The government is correct that we must review the court’s factual findings
for clear error. United States v. Reid, 751 F.3d 763, 768–69 (6th Cir. 2014). But it is incorrect
that the court relied on such factual findings. Its barebones conclusion—when combined with its
reliance solely on the probation officer—leaves no doubt that it adopted the probation officer’s
legal approach. And that approach rested on Michigan law, not § 4A1.2(e)(1). Besides, the
government’s careless analysis in support of this argument would not even survive clear-error
review. When describing Hinojosa’s incarceration history, the government asserts that
Michigan’s parole board revoked his parole in 2009 and that he “was next released from a
Michigan prison on May 29, 2013.” Appellee’s Br. 49. If so, how could officers have
discovered him with a gun on the streets of Kalamazoo in 2012? Hinojosa, 534 F. App’x at 469.
That discovery led to his 2012 federal felon-in-possession conviction and occurred when he was
not in a Michigan prison.
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Alternatively, the government suggests that we may affirm on different grounds. It
suggests that Hinojosa was incarcerated based on the 1994 assault conviction at several earlier
points after January 23, 2004 (the critical date for § 4A1.2(e)(1)’s 15-year lookback period). But
the parties’ briefing and the district court’s factual findings do not suffice to resolve the
government’s alternative arguments now. As a legal matter, the parties spend little time
describing what it takes for a prior sentence to have “resulted in” incarceration at a particular
time within the meaning of § 4A1.2(e)(1). Under the usual meaning of that phrase, a prior
sentence must “bring about” or “cause” the incarceration. McGraw Hill’s Dictionary of
American Idioms and Phrasal Verbs 560 (Richard A. Spears, ed., 2004). And the Supreme
Court often reads this type of causation text as incorporating the traditional tort element of but-
for causation. See Burrage v. United States, 571 U.S. 204, 210–11 (2014) (“results from”); see
also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (“because of”); Holmes v. Secs.
Inv. Prot. Corp., 503 U.S. 258, 265–66 (1992) (“by reason of”). Should this but-for test apply
here? Or should another legal test apply? The district court should address these legal questions
on remand.
As a factual matter, the record lacks clarity over how the 1994 assault affected Hinojosa’s
incarcerations after 2002. In 1994, a state court imposed a sentence of 54 months to 10 years for
this offense (less 192 days’ credit). Judgment, R.159, PageID 1647. The parole board paroled
Hinojosa in 2000. State PSR, R.159, PageID 1631. The next year, however, Hinojosa hit a
coworker with a hammer and fractured his skull. Rep., R.159, PageID 1629. In 2002, a state
court convicted him of another assault and imposed a sentence of 57 months to 10 years.
Judgment, R.159, PageID 1635. Before this 2002 sentence could start to run under Michigan
law, Hinojosa needed to serve the minimum term of his 1994 sentence plus any remainder that
the parole board added. Mich. Comp. Laws § 768.7a(2); Wayne Cnty. Prosecutor v. Dep’t of
Corrs., 548 N.W.2d 900, 901–02 (Mich. 1996).
But we do not know when Hinojosa’s 1994 sentence ended and when his 2002 sentence
began. The government cites no document showing that the parole board revoked parole for the
1994 assault and imposed additional prison time for that offense. To the contrary, a probation
officer’s parole violation report from 2002 notes that Hinojosa returned to prison on the 2002
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conviction and that the officer would “close interest with this report”—suggesting that the board
took no action on the 1994 crime. Rep., R.159, PageID 1621. Under Michigan law, moreover,
the board could “terminate” Hinojosa’s 1994 sentence when he received his 2002 sentence so
long as Hinojosa had served the minimum term of the 1994 sentence. Mich. Comp. Laws
§ 791.234(5). Did the parole board invoke this provision here? We do not know. Other
evidence could point the other way. A later parole eligibility report from 2006 lists the 1994
offense as “active.” Rep., R.159, PageID 1618. That might suggest that the 1994 conviction still
provided a basis for his incarceration. Or it might suggest only that the parole board still had
“jurisdiction” over Hinojosa based on that conviction. Mich. Comp. Laws § 791.234. All told,
the district court on remand should address the proper legal test and make the proper factual
findings.
2. 24-Month Sentence. In his felon-in-possession case from 2012, Hinojosa argues that
the district court unreasonably ordered his 24-month revocation sentence to run consecutively to
his 240-month sentence for his three new crimes. The relevant guidelines generally recommend
that district courts impose consecutive sentences for supervised-release violations when, as in
Hinojosa’s case, the conduct underlying those violations produced fresh criminal convictions.
See U.S.S.G. §§ 5G1.3(d) & cmt. n.4(C), 7B1.3(f) & cmt. n.4; see also United States v. Massey,
758 F. App’x 455, 467 (6th Cir. 2018). This recommendation follows from the nature of the
punishment for a supervised-release violation. It does not qualify as punishment for the
underlying crimes but for a defendant’s “breach of the court’s trust” when permitting the
defendant’s release from prison. United States v. Robinson, 63 F.4th 530, 537 (6th Cir. 2023).
We see no error in the district court’s decision to follow this recommendation in
Hinojosa’s case. The court only needed to “make generally clear” its reason for choosing to run
his sentence for the supervised-release violations consecutively. United States v. Sears, 32 F.4th
569, 576 (6th Cir. 2022) (citation omitted). It did so, emphasizing Hinojosa’s “pretty dismal”
history of violating his terms of supervised release. Sent. Tr., 12-cr-47-01, R.186, PageID 686.
If anything, the court understated things. Hinojosa has consistently refused to follow not only
the conditions of his parole from his state convictions but also the terms of his supervised release
Nos. 22-1044/1045 United States v. Hinojosa Page 18
from his 2012 federal felon-in-possession conviction. His significant and repeated breaches of
the court’s trust more than justified its decision to impose a consecutive sentence.
* * *
We affirm Hinojosa’s conviction, supervised-release revocation, and sentence for his
supervised-release violations. But we vacate his 240-month sentence for his new criminal
convictions and remand for resentencing on those convictions.