United States v. Tavirus Yarbrough

GRIFFIN, Circuit Judge.

Defendant Tavirus Jacoy Yarbrough pleaded guilty to possession with intent to distribute methamphetamine and cocaine. Based on Yarbrough’s previous convictions and sentences, the presentence report calculated a Sentencing Guidelines criminal history score of 10, which correlated with criminal history category V. Yarbrough objected to this calculation, arguing that he should have received only one point for a 2018 conviction, not two. Because the conviction warranted two points, we affirm.

Following Yarborough’s 2018 conviction, a Michigan court sentenced him to four days in jail, followed by one year of probation. However, after he violated probation, the court revoked his probation and sentenced him to 60 days in jail. But the order included a caveat: If Yarbrough turned himself in, then the sentence would be reduced to 30 days. Yarbrough turned himself in, and he served only 30 days in jail.

Under the Guidelines, defendants receive one point for each prior sentence of imprisonment less than 60 days. U.S.S.G. § 4A1.1(c). But they receive two points if a prior sentence was at least 60 days but less than 13 months. Id. § 4A1.1(b). The presentence report assessed Yarbrough’s 2018 conviction two points when calculating his criminal history score.

At sentencing, Yarbrough objected to this calculation, arguing that his 2018 sentence functioned as a suspended sentence under U.S.S.G. § 4A1.2(b)(2), with 30 days suspended and 30 days imposed. And because only the unsuspended portion counts under the Guidelines, Yarbrough contended that his sentence was less than 60 days and should therefore add only one point. The district court disagreed. It concluded that the 2018 sentence was akin to an indeterminate sentence, so the Guidelines required using the maximum term of imprisonment for the offense to determine its point value, which resulted in two points. See id. § 4A1.2(b)(1); id. § 4A1.2 cmt. 2. Accordingly, the district court overruled Yarborough’s objection and sentenced him to 140 months, at the bottom of the Guidelines range. Yarbrough appealed, challenging the district court’s assignment of two criminal history points for his 2018 conviction.

We review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Glover, 167 F.4th 417, 425 (6th Cir. 2026). The sole issue in contention is whether Yarbrough’s 2018 sentence was a suspended or indeterminate sentence. The Guidelines do not define the terms, so “we generally ‘give the term its ordinary meaning.’” United States v. Riccardi, 989 F.3d 476, 486 (6th Cir. 2021) (citation modified).

A “‘suspended sentence’ is a definite sentence postponed so that the defendant is not required to serve his time in prison unless he commits another crime or violates some court- imposed condition during a probationary period.” United States v. Gajdik, 292 F.3d 555, 558 (7th Cir. 2002) (citing Alabama v. Shelton, 535 U.S. 654 (2002)). In other words, it is a set prison term that is actually suspended but can be reimposed. See United States v. Harris, 237 F.3d 585, 589 (6th Cir. 2001).

But here, the state court set a range (30 to 60 days) and a condition upon which the final term of imprisonment would be determined (whether Yarbrough turned himself in). Nothing in the sentence indicates that a portion of it could be reimposed—a key characteristic of a suspended sentence. Instead, the sentence resembles an indeterminate sentence, one in which a court “prescrib[es] a range for the minimum and maximum term,” rather than “a definite term of confinement,” and sets other conditions that determine the final term of imprisonment, usually “based on the prisoner’s conduct.” Indeterminate Sentencing, Black’s Law Dictionary (12th ed. 2024). Thus, Yarbrough’s 2018 sentence was an indeterminate sentence. The Guidelines require calculating indeterminate sentences based on the maximum sentence available, which, here, yields a score of two points for this conviction. See U.S.S.G. § 4A1.2(b)(1); id. § 4A1.2 cmt. 2.

Moreover, even if the district court miscalculated the score, we are satisfied that the alleged error would have had no effect on Yarbrough’s sentence. The district court believed that Yarbrough needed “a level of accountability” that he “never had to face” before. Despite multiple opportunities to help his own addiction, he repeatedly flouted those opportunities; instead, he chose to be “actively involved in the drug community.” Thus, the district court explained that the Guideline calculation did not “affect[] the sentence” and that 140 months of incarceration was appropriate “regardless of how [it] deal[t] with the objection.” On this record, then, the alleged error did not “affect the district court’s selection of the sentence imposed.” United States v. McCarty, 628 F.3d 284, 294 (6th Cir. 2010) (quoting United States v. Jeross, 521 F.3d 562, 569 (6th Cir. 2008)).

We affirm.