CA1: plain meaning of 4A1.1 ?

US v. Hernandez, No. 07-1828. Selya begins this opinion with a bunch of nonsense: “oddly placed transitional expression in an application note and the ingenuity of able counsel combine to give us momentary pause, we conclude that the guideline provision says what it means and means what it says.”  Does anyone who has been to law school really think that a text has some readily ascertainably objective meaning?  Even stranger still, Selya concedes in that first sentence that the meaning isn’t entirely clear.  Why can’t he just come out and say that he is using whatever tools he wants to send someone to jail or not.

Anyway, the dispute is over U.S.S.G. 4A1.1(d) ("if the defendant committed the instant offense while under any criminal justice sentence, including probation."... he gets an enhancement).  In this case, the defendant’s was plead guilty to “conspiracy.”  According to the indictment the conspiracy lasted four months, and in the middle of the four months he was convicted of Operating under the Influence, and given criminal supervision.  Application note four reads "[t]wo points are added if the defendant committed any part of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence."  Therefore, according to Selya, the defendant is arguing that the guideline  “focuses not on the offense of conviction simpliciter but, rather, on whatever act(s) the defendant himself committed within the confines of that offense.”  Selya says that the “i.e.” doesn’t actually change the meaning of “instant offense,” and if there was any inconsistency, the guideline (rather than the note) prevails.

Then Selya seems to get annoyed that the defendant is trying to bring the “complexities” of conspiracy into sentencing law.

Look, maybe Selya is right.  But I don’t get why he is so bent on saying that the result is so obvious.  He even concedes that the guideline and note is not entirely clear.