United States of America v. Xavier Josey

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 24-1891
_____________
UNITED STATES OF AMERICA
v.
XAVIER JOSEY,
Appellant
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4:23-cr-00254-001)
District Judge: Honorable Matthew Brann
_______________
Argued April 30, 2025
Before: KRAUSE, BIBAS, and MONTGOMERY-REEVES,
Circuit Judges
(Filed: September 19, 2025)
Frederick W. Ulrich [ARGUED]
Office of Federal Public Defender
100 Chestnut Street

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Suite 306
Harrisburg, PA 17101
Counsel for Appellant
Patrick J. Bannon [ARGUED]
Office of United States Attorney
235 N Washington Avenue
P.O. Box 309, Suitse 311
Scranton, PA 18503
Carlo D. Marchioli
Michael R. Scalera
Office of United States Attorney
Middle District of Pennsylvania
Sylvia H. Rambo United States Courthouse
1501 N 6th Street, 2nd Floor
P.O. Box 202
Harrisburg, PA 17102
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
Recency as well as frequency and severity of prior
offenses matters for sentencing under the United States
Sentencing Guidelines. So in calculating a defendant’s
Criminal History Category, the Guidelines assign points for
each prior sentence of imprisonment, but only if it was imposed

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within a specified period of time looking back from “the
defendant’s commencement of the instant offense”. U.S.S.G.
§ 4A1.2(e)(1), (2). For prior sentences exceeding one year and
one month that “look-back period” is fifteen years, and for any
other prior sentence, it is ten years. Id. The question presented
by this appeal, however, is what conduct “commence[s] . . . the
instant offense” to anchor the look-back period? By its terms,
the Guideline says it is the conduct comprising the offense of
conviction. The Sentencing Commission, however, included
commentary to § 4A1.2 instructing that “commencement of the
instant offense” includes “relevant conduct.” Id. § 4A1.2 cmt.
n.8. Per the so-called “Relevant Conduct Guideline” at
U.S.S.G. § 1B1.3, “relevant conduct” includes “all acts and
omissions . . . that were part of the same course of conduct.”
Id. § 1B1.3(a)(2). And § 1B1.3’s commentary, in turn,
describes “same course of conduct” with potential to sweep in
a wide range of similar activity. See id. § 1B1.3 cmt.
n.5(B)(ii).
In this case, the District Court sentenced Appellant
Xavier Josey treating “commencement of the instant offense”
as if the Guidelines commentary controlled, so it looked back
from the start of what it considered “relevant conduct” rather
than from the start of Josey’s actual offense of conviction,
counting three prior sentences towards Josey’s criminal history
score that would otherwise have been excluded and producing
a Guidelines range of 24 to 30 months instead of 15 to 21
months. Under our precedent, however, courts may consider
commentary only when the text of a particular Guideline is
genuinely ambiguous, United States v. Nasir, 17 F.4th 459, 471

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(3d Cir. 2021) (en banc), and here there is no such ambiguity:
“[C]ommencement 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. We will therefore vacate Josey’s sentence and
remand for resentencing using the correct Criminal History
Category.
I. Background
In 2013, Josey pleaded guilty to three counts of indecent
liberties with a child, in violation of North Carolina law. PSR
¶ 4. As a consequence of that conviction, he was required
under a provision of the Sex Offender Registration and
Notification Act (SORNA), 34 U.S.C. § 20913(b), to register
federally as a sex offender and to update his registration within
three days of any change of name, residence, employment, or
student status. PSR ¶ 4. Josey updated his information when
he moved from North Carolina to Far Rockaway, New York,
in 2017, and again when he moved within New York from Far
Rockaway to Queens later that year. PSR ¶ 6-7. He also
correctly updated his information when he moved within
Queens in 2018. PSR ¶ 8. But New York had its own sex
offender registration law that also required Josey to register
and to verify, on an annual basis, that he continued to reside at
his registered address. See N.Y. Correct. Law § 168-f(2)(a)-
(b).
Josey was not as compliant with this New York statute.
He submitted his verification of address in 2018 but then failed

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to do so in 2019 or any subsequent year until January 2023, the
date the Government first identifies Josey as residing in
Pennsylvania. And after he moved to Pennsylvania, Josey also
failed to update his address on the federal registry as required
by SORNA. PSR ¶ 7-11. As a result, later that year Josey was
indicted and pleaded guilty to knowingly failing to update his
federal registration after traveling in interstate commerce, in
violation of 18 U.S.C. § 2250(a). PSR ¶ 1-3; J.A. 15-22.
In anticipation of sentencing, the Probation Office
prepared a Presentence Investigation Report (PSR) that
calculated a Guidelines range using an offense level of 10
based on Josey’s plea to a SORNA violation, and a criminal
history score of 13 corresponding to a Criminal History
Category of VI. That criminal history score took account of
Josey’s numerous prior convictions dating back at least
thirteen years, to 2010. The resulting advisory Guidelines
range was 24 to 30 months’ imprisonment. PSR ¶ 36, 79.
Josey filed objections to the PSR, pointing out that
under U.S.S.G. § 4A1.2(e)(2), only those sentences imposed
“within ten years of the defendant’s commencement of the
instant offense” should be counted towards his criminal
history, yet three of the convictions counted by the Probation
Office—two in 2010 and one in 20111—had resulted in
1 These include a six-month probation imposed in 2012 for a
2010 conviction for possession of drug paraphernalia (one
criminal history point); a 45-day imprisonment, followed by 30
months’ supervision, in 2011 for a 2010 conviction for injury

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sentences imposed more than 10 years before his 2023 SORNA
violation. PSR Addendum 1-2. And without those sentences,
which added four points to his criminal history score, Josey
would have only 9 points, placing him in Criminal History
Category IV instead of VI and reducing his Guidelines range
to 15 to 21 months’ imprisonment.
The Probation Office disagreed, reasoning that the term
“instant offense” in § 4A1.2(e)(2) includes “relevant conduct,”
defined in U.S.S.G. § 1B1.3(a)(2) as “all acts and omissions
. . . that were part of the same course of conduct.” So the PSR
maintained that the “instant offense” in Josey’s case
commenced in New York in 2019 when he failed to submit his
state address verification, and that Josey’s 2010 and 2011
sentences were thus countable as having been imposed within
ten years of the “commencement of the instant offense.” PSR
Addendum 1-2. So the PSR recommended the District Court
sentence Josey using Criminal History Category VI. Id.
At his sentencing hearing, Josey renewed his objection,
but the District Court resolved it in the Government’s favor.
J.A. 24-25. Notably, the District Court did not reference the
to personal property (two criminal history points); and an 8-to-
10 month imprisonment in 2012 for a 2011 conviction for
breaking and entering (one criminal history point). PSR ¶ 26-
27, 29. Because each of these sentences was for less than one
year and one month, they could only be counted if they were
imposed within ten years of the “commencement of [Josey’s]
instant offense.” U.S.S.G. § 4A1.2(e)(2).

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commentary to § 4A1.2, in which the Sentencing Commission
cited § 1B1.3 and instructed that “the term ‘commencement of
the instant offense’ includes any relevant conduct.” U.S.S.G.
§ 4A1.2 cmt. n.8. Nor did the Court explain why it otherwise
believed it appropriate to consult the Relevant Conduct
Guideline at all in interpreting the text of § 4A1.2(e)(2).
Nonetheless, it proceeded, consistent with § 4A1.2’s
commentary, to consider relevant conduct, agreed with the
Probation Office that Josey’s state-law verification violation
qualified as relevant conduct because it was part of “the same
course of conduct” as his SORNA violation, and therefore held
that Josey’s 2010 and 2011 sentences fell within the ten-year
look-back period, placing him in Criminal History Category
VI.
In concluding that Josey’s state-law violation was part
of the same course of conduct as his SORNA violation, the
District Court relied heavily on United States v. Caldwell, 746
F. App’x 518 (6th Cir. 2018), where the Sixth Circuit
confronted similar facts and rejected an argument much like
Josey’s. Id. In contrast to its approach to § 4A1.2, however,
the District Court, in interpreting the Relevant Conduct
Guideline, did explicitly distinguish between text and
commentary. It acknowledged the Government’s argument
that, applying the commentary interpreting “same course of
conduct,” U.S.S.G. § 1B1.3 cmt. n.5(B)(ii), Josey’s state and
federal violations constituted a “continuous course of
conduct,” App. 24, but it also recognized that, under Nasir,
deference to Guidelines commentary is only appropriate when
the text of a Guideline is itself ambiguous. The District Court

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therefore stated it would “disregard the [Relevant Conduct
Guideline’s] commentary” and rely only on the plain text of
§ 1B1.3 and the “persuasive analysis” of Caldwell to conclude
Josey’s violation of New York law was part of “the same
course of conduct” as his violation of SORNA.2 Id. at 25.
Applying this reasoning, the District Court concluded
that Josey fell within Criminal History Category VI, resulting
in a Guidelines range of 24 to 30 months’ imprisonment, and
it sentenced Josey to the bottom of that range. J.A. 25, 29. This
timely appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C.
§ 3231, and we have jurisdiction under 28 U.S.C. § 1291. We
review the District Court’s interpretation of the Sentencing
Guidelines de novo. United States v. McIntosh, 124 F.4th 199,
205 (3d Cir. 2024).
2 As Caldwell itself expressly relied on the § 1B1.3
commentary in reaching its conclusion, the District Court’s
reliance on Caldwell’s analysis necessarily includes deference
to the § 1B1.3 commentary. See United States v. Caldwell, 746
F. App’x 518, 520-21 (6th Cir. 2018) (citing U.S.S.G. § 1B1.3
cmt. n.5(B)(ii)). We need not decide today whether such
deference would be appropriate under Nasir, however, because
we conclude it was error to look to § 1B1.3 in the first place.

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III. Discussion
On appeal, Josey challenges both the District Court’s
decision to consider relevant conduct in determining the
“commencement of the instant offense” in U.S.S.G.
§ 4A1.2(e)(2), and the Court’s conclusion that his state-law
violation was part of “the same course of conduct” as his
SORNA violation under U.S.S.G. § 1B1.3. As explained
below, however, we need not reach the second issue because
“relevant conduct” is simply not relevant in determining the
look-back period in § 4A1.2. Instead, “commencement of the
instant offense” unambiguously means the start of the conduct
constituting the offense of conviction. So whether the District
Court implicitly deferred to § 4A1.2’s commentary or simply
assumed, as it seems the Caldwell court did, that relevant
conduct was properly considered under § 4A1.2, it erred in
concluding that Josey “commenc[ed] . . . the instant offense,”
U.S.S.G. § 4A1.2(e)(2), when he violated New York law in
2019 and that the sentences imposed for his 2010 and 2011
convictions fell within the ten-year look-back period.
Below we explain why “commencement of the instant
offense” does not include relevant conduct and then address
the implications for Josey’s sentence.

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A. “Commencement of the Instant Offense” Does
Not Include Relevant Conduct.
1. Deference to Guidelines Commentary Is Not
Presumed.
For many years, we treated the Sentencing
Commission’s commentary as authoritative and gave it
controlling weight unless it was “inconsistent with, or a plainly
erroneous reading of” the Guidelines. United States v. Metro,
882 F.3d 431, 437 (3d Cir. 2018) (quoting Stinson v. United
States, 508 U.S. 36, 38 (1993)). That changed when the
Supreme Court decided Kisor v. Wilkie in 2019 and held that
courts should defer to agency interpretations of their own
regulations only where the regulation is genuinely ambiguous.
588 U.S. 558, 573 (2019). In Nasir, we interpreted that holding
to extend to the Sentencing Guidelines because the
Commission’s interpretation of its Guidelines is akin to an
agency’s interpretation of its own regulations. See 17 F.4th at
470-71. Accordingly, we held that deference to Guidelines
commentary should no longer be presumed. Id.
Instead, we announced a three-step test to decide
whether to defer to a particular provision of the Guidelines
commentary. See id. at 471. First, we ask whether the
Guideline is “genuinely ambiguous” after “carefully
consider[ing] the text, structure, history, and purpose.” Id.
(quoting Kisor, 588 U.S. at 575). If it is not, our inquiry is at
an end, and we apply the plain text of the Guideline. Id. If the
Guideline is genuinely ambiguous, we proceed to step two and

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ask if the commentary is “reasonable,” id., meaning the
commentary “clarif[ies] the ambiguity” identified in step one
without “chang[ing] the meaning of the text,” United States v.
Chandler, 104 F.4th 445, 450 (3d Cir. 2024). Put another way,
the commentary must be within “the outer bounds of
permissible interpretation.” Nasir, 17 F.4th at 471 (quoting
Kisor, 588 U.S. at 576). Finally, if the commentary is
reasonable, we proceed to step three and consider “whether the
character and context of the agency interpretation entitles it to
controlling weight.” Id. (quoting Kisor, 588 U.S. at 576). If
the commentary’s interpretation “implicate[s] [the
Commission’s] substantive expertise” and “reflect[s] fair and
considered judgment,” we will defer to it. Id. (quoting Kisor,
588 U.S. at 577, 579).
Here, the District Court recognized the need under
Nasir to consider the text of a Guideline before turning to its
commentary, but it performed that analysis only on § 1B1.3’s
“same course of conduct” language. Before considering
§ 1B1.3’s language at all, however, the District Court should
have first performed the Nasir analysis on the Guidelines
language “commencement of the instant offense” under
§ 4A1.2. Instead, the District Court implicitly deferred to
§ 4A1.2’s commentary, which instructs that “the term
‘commencement of the instant offense’ includes any relevant
conduct” and cites the Relevant Conduct Guideline at § 1B1.3.
U.S.S.G. § 4A1.2 cmt. n.8. But § 4A1.2(e) itself identifies the
prior sentences that count towards a defendant’s Criminal
History Category as only those imposed within the defined
look-back period from the “commencement of the instant

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offense.” Id. § 4A1.2(e). Thus, under Nasir, the first step—
and for our purposes today, the last—is whether the text of
§ 4A1.2(e)(2) is itself ambiguous.
2. “Commencement of the Instant Offense” Is Not
Ambiguous.
To discern whether the text of § 4A1.2(e)(2) is
genuinely ambiguous, we employ “the traditional tools of
construction” including examining “the text, structure, history,
and purpose” of the Guideline. Nasir, 17 F.4th at 471 (cleaned
up) (quoting Kisor, 588 U.S. at 575). A Guideline is genuinely
ambiguous if it is “susceptible to more than one reasonable
reading.” Kisor, 588 U.S. at 566. Here, the traditional tools of
construction demonstrate that the phrase “commencement of
the instant offense” is susceptible to only one reasonable
meaning: it refers to the start of the specific offense for which
a defendant is being sentenced, meaning it does not include
relevant conduct or other offenses.
a. Text
We look first to the plain text of the Guideline and
assume that words carry their ordinary meaning. See United
States v. Caraballo, 88 F.4th 239, 246 (3d Cir. 2023). Because
the phrase “commencement of the instant offense” is not
expressly defined in the Guidelines, we ascertain the plain
meaning of each of its constituent terms, see id., by
“refer[ence] to standard reference works such as legal and

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general dictionaries,” Da Silva v. Att’y Gen., 948 F.3d 629, 635
(3d Cir. 2020) (quotation omitted).
We begin, appropriately, with the term
“commencement.” At the time § 4A1.2(e) was drafted,
Black’s Law Dictionary defined “commence” as “[t]o initiate
by performing the first act,” “[t]o institute,” or to “start.”
Commence, Black’s Law Dictionary (5th ed. 1979). This
definition captures two distinct ideas that pertain here. First,
to “commence” something is to begin it. The term does not
refer to mere preparation, nor does it encompass similar or
related activities; rather it focuses on the “first act” of the
particular venture under consideration. Second, “commence”
is defined as the performance of an “act,” in this case an act by
a defendant. Thus, “commencement” refers to the first act
taken by a defendant as part of the “instant offense.”
So what of the term “instant offense”? At the time
§ 4A1.2(e) was drafted, “offense” was defined simply as “[a]
felony or misdemeanor; a breach of the criminal laws.”
Offense, Black’s Law Dictionary (5th ed. 1979). The
Government contends that the term “offense” is ambiguous
because it lacks a clear temporal component. Ans. Br. at 20.
But we do not read words in isolation. The term at issue is
“instant offense,” and the word “instant,” which modifies
“offense,” provides precisely that temporal overlay.
Contemporary dictionaries defined “instant” as “immediate,”
“direct,” “present,” or “current.” Instant, Webster’s New
Collegiate Dictionary (1980). Webster’s, in fact, provides, as
an illustrative example of the word “instant,” the phrase:

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“previous felonies not related to the instant crime.” Id. Thus,
the term “instant offense” means the immediate or present
offense under consideration, as distinguished from prior
offenses. In this way, “instant offense” is synonymous with
the term “offense of conviction,” as both refer to the specific
offense conduct for which a defendant has been convicted.
Notably, the Relevant Conduct Guideline itself makes this
distinction by acknowledging that relevant conduct may not
necessarily comprise part of “the instant offense of
conviction.”3 See U.S.S.G. § 1B1.3(c).
b. Structure and History
The structure and history of the Sentencing Guidelines
and § 4A1.2(e) further demonstrate that the phrase
3 Several Guidelines also expressly distinguish an “instant
offense” from similar or related offenses, see, e.g., U.S.S.G.
§ 4A1.2(c)(1), and others distinguish an “instant offense” from
“relevant conduct,” see, e.g., U.S.S.G. §§ 3C1.1, 5G1.3(b).
Though not dispositive, these consistent uses elsewhere in the
Guidelines reinforce our conclusion here. See U.S.S.G.
§ 1B1.1 cmt. 2 (instructing that “[d]efinitions of terms [that]
appear in other sections . . . are not designed for general
applicability”); United States v. Abreu, 32 F.4th 271, 277 (3d
Cir. 2022) (noting that, if this commentary is binding under
Nasir, it may require determining the meaning of the same term
in different section of the Guidelines on a case-by-case basis).

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“commencement of the instant offense” refers to the start of the
specific offense conduct for which a defendant is then being
sentenced.
When the first Sentencing Commission met to draft the
Guidelines, one of the most significant questions they faced
was the scope of conduct that should be used to determine a
defendant’s sentence. See Stephen Breyer, The Federal
Sentencing Guidelines and the Key Compromises upon Which
They Rest, 17 Hofstra L. Rev. 1, 8-9 (1988). The Commission
considered two approaches: the “charge offense” system and
the “real offense” system. Id. Under a “charge offense”
system, a sentencing court could only consider facts and
conduct that were charged and proven as part of the elements
of a defendant’s offense. Id. at 9. But under a “real offense”
system, courts could consider additional information,
including the manner in which a defendant committed the
offense, the circumstances leading up to and following the
offense, and the harm caused as a result. Id. at 10.
The Commission initially sought to develop a “real
offense” system, which most aligned with how pre-Guidelines
courts approached sentencing. However, it ultimately shifted
closer to a modified or hybrid system under which certain
Guidelines turn solely on the specific offense charged and
others direct courts to look to additional conduct and
surrounding circumstances. Id. at 11-12. Under Chapter Two
of the Guidelines, for example, courts begin by identifying the
applicable “Offense Conduct” Guideline, a pure “charge
offense” inquiry that turns only on the specific offense for

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which a defendant has been convicted. See U.S.S.G.
§ 1B1.1(a)(1). From there, however, each Offense Conduct
Guidelines incorporates “real offense” elements by directing
courts to consider additional conduct and circumstances
beyond the charged offense through various specific offense
characteristics and cross-references. See, e.g., U.S.S.G.
§ 2A3.5(b)(1) (providing, in the case of a sentence for an 18
U.S.C. § 2250(a) violation, that a defendant’s Base Offense
Level may be increased if he commits another sex offense
“while in a failure to register status”).
Chapter Four adopts a similar structure. It begins by
defining the relevant criminal history look-back period, the
types of prior sentences to be counted, and the number of points
to be added for each sentence. See Id. §§ 4A1.1, 4A1.2. These
Guidelines set forth a mechanical formula for calculating a
Criminal History Category that does not invite courts to
consider a defendant’s specific conduct, surrounding
circumstances, or the relationship between prior offenses and
the instant offense of conviction. It is only once a Criminal
History Category has been calculated that § 4A1.3 provides an
opportunity for courts to consider additional past conduct and
circumstances in deciding whether to apply an upward or
downward departure if the calculated Criminal History
Category substantially under- or over-represents a defendant’s
actual criminal history. See id. § 4A1.3. The fact that Chapter
Four consolidates these “real offense” considerations within
§ 4A1.3 and permits them only in deciding whether to apply a
departure from a Criminal History Category demonstrates that

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they do not have a role to play in calculating an initial criminal
history score under § 4A1.2.
Finally, if any doubt remained that the phrase
“commencement of the instant offense” excludes relevant
conduct, the Relevant Conduct Guideline itself dispels it.
Section 1B1.3 directs courts to consider “relevant conduct” in
applying the specific offense characteristics, cross-references,
and adjustments in Chapters Two and Three of the Guidelines.
Id. § 1B1.3(a). But it takes a different approach for the
“[f]actors in Chapters Four and Five that establish the guideline
range,” id. § 1B1.3(b), providing that these factors “shall be
determined on the basis of the conduct and information
specified in the respective guidelines” within those chapters,
id. And, as noted above, nothing in Chapter Four or the text of
§ 4A1.2 permits courts to consider any offenses other than “the
instant offense” when determining the start of the look-back
period.
In sum, “commencement of the instant offense”
unambiguously refers to the start of the specific offense for
which a defendant is then being sentenced and does not include
separate or related offense conduct.
B. The Implications for Josey’s Sentence.
Given the unambiguous meaning of § 4A1.2(e), the
District Court erred in effectively deferring to the Guidelines

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commentary and calculating the start of Josey’s criminal
history look-back period based on his New York state-law
violations. To determine when Josey’s instant offense
“commenced,” the Court should have looked to the elements
of the charged SORNA violation under 18 U.S.C. § 2250(a)
and identified the first culpable act comprising that offense.
Section 2250(a) has three elements, two of which are
prerequisites to criminal liability but not themselves conduct
commencing the offense.
First, a defendant must be “required to register” under
SORNA. 18 U.S.C. § 2250(a)(1). This element describes a
status, rather than an act, and so does not mark the
“commencement” of the offense. Cf. City of Grants Pass v.
Johnson, 603 U.S. 520, 546-47 (2024) (distinguishing between
the status of homelessness and the act of camping on public
property); Rehaif v. United States, 588 U.S. 225, 230 (2019)
(distinguishing between the status of being an illegal alien and
the act of possessing a firearm).
Second, the registered individual must satisfy a
jurisdictional element by either committing the underlying sex
offense on federal, tribal, or territorial land, or—as relevant
here—by “travel[ing] in interstate or foreign
commerce.” 18 U.S.C. § 2250(a)(2)(B). Interstate travel is an
act, but that act in isolation is not what § 2250(a) criminalizes.
A sex offender may cross state lines without violating
§ 2250(a) and may even move permanently to a new state,
provided he updates his registration after doing so. See Carr

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v. United States, 560 U.S. 438, 447 (2010) (“Once a person
becomes subject to SORNA’s registration requirements
. . . that person can be convicted under § 2250 if he thereafter
travels and then fails to register.”). Thus, the interstate- or
foreign-travel element functions as a jurisdictional nexus and
predicate for the culpable omission of failing to update a
registration.4
It is therefore the third element—the “knowing[]
fail[ure] to register or update a registration as required by
[SORNA]” following interstate travel—that constitutes the
first culpable act comprising the offense. 18 U.S.C.
§ 2250(a)(3). Under SORNA, a sex offender must update his
registration within three days of “each change of name,
residence, employment, or student status,” 34 U.S.C.
§ 20913(c).
In Josey’s case, this requirement was triggered when he
changed his residence and employment upon moving to
Pennsylvania, so the violative conduct that “commence[d]
. . . the instant offense” occurred three days after Josey’s
4 In Carr, the Supreme Court observed that, unlike many
jurisdictional elements, the act of interstate travel by registered
sex offenders was part of “the very conduct at which Congress
took aim” by enacting SORNA. Carr, 560 U.S. at 454.
Nonetheless, § 2250(a) by its own terms only makes interstate
travel a culpable act where it is followed by a failure to update
a registration, meaning the offense does not commence until
the failure to register occurs.

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change in residence or employment after entering
Pennsylvania, whichever came first. That took place,
according to both the indictment and the PSR, in January
2023,5 meaning that § 4A1.2(e)(2)’s ten-year look-back period
extended only as far back as January 2013. Josey’s prior
sentences imposed in 2010 and 2011 thus fall outside the
5 There is a discrepancy between the indictment and PSR as to
the precise date of the move triggering Josey’s registration
requirement. Although neither document identifies the exact
date when Josey changed his residence, the indictment states
that the offense began on or about January 21, 2023, J.A. 15,
while the PSR reflects that Josey began working at a
McDonald’s in Pennsylvania on January 10, 2023, PSR ¶ 10.
Thus, the PSR would place “the commencement of the instant
offense” three days later on January 13, 2023. We need not
decide today how such a discrepancy should be resolved or
whether a sentencing court may rely in this context on facts in
a PSR that contradict those in a charging instrument because it
is immaterial in Josey’s case. Cf. United States v. Kayfez, 957
F.2d 677, 678-79 (9th Cir. 1992) (holding that the starting date
alleged in an indictment does not fix the start of the criminal
history look-back period); United States v. Eske, 925 F.2d 205,
207-08 (7th Cir. 1991) (holding that a sentencing court
properly used a starting date preceding that charged in the
indictment to determine the start of a criminal history look-
back period). All three sentences in dispute were imposed in
2010 and 2011 and are thus properly excluded under either the
indictment’s or the PSR’s commencement date.

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relevant look-back period and should have been excluded in
determining his Criminal History Category. J.A. 25.
IV. Conclusion
For the foregoing reasons, we will vacate Josey’s
sentence and remand for resentencing consistent with this
opinion.

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