Whether U.S.S.G. § 4A1.1(d) applies to federal criminal defendants who were previously released from prison pursuant to state statutes authorizing the early release of prisoners for purposes of being deported from the United States

QUESTION PRESENTED Several states have or had statutes authorizing the early release of state prisoners with deportation orders to the United States Immigration and Naturalization Service (“INS”) to facilitate prompt removal from the United States. Arizona had such a statute in effect from 1996 to 2016. See A.R.S. § 411604.14, repealed 2016 Ariz. Sess. Laws, ch. 89, § 1. United States Sentencing Guideline (“U.S.S.G.”) § 4A1.1(d) adds two points to a federal defendant’s criminal history score if the defendant committed an offense “while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape.” This petition concerns whether U.S.S.G. § 4A1.1(d) applies to federal criminal defendants who were previously released from prison pursuant to state statutes authorizing the early release of prisoners for purposes of being deported from the United States. Specifically, does the two-point increase in a federal defendant’s criminal history score authorized by U.S.S.G. § 4A1.1(d) apply to a defendant who was previously released from a state prison before serving the entirety of his or her sentence so that he or she could be removed from the United States by the INS, regardless of how many years have transpired since his or her release and regardless of whether his or her sentence would have long since expired?