Jose Galaviz challenges his 70-month sentence for being a felon in possession of a firearm on the grounds that the district court miscalculated his criminal-history category. This challenge by Galavitz is not prevented by the language of his plea agreement, which provided that:
Defendant retains his right to directly appeal the Court’s adverse determination of any disputed guideline issue that was raised at or before the sentencing hearing.” The issue of the district court’s calculation of his criminal-history category under the Guidelines was raised by Galaviz both in a sentencing memorandum submitted to the court prior to sentencing and at the sentencing hearing. Therefore, under the language of the plea agreement, Galaviz has preserved the issue for appeal.
At issue here is whether being incarcerated waiting for a parole revocation is the same thing as being revoked for subsequent sentencing purposes. The Sixth Circuit says not, and under the policy of lenity it means that the Court will not interpret a federal statute so as to increase the penalty it places on Galavitz now at this sentencing when such an interpretation can be no more than a guess as to what Congress intended. Case remanded by the Sixth Circuit for resentencing.
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