United States v. Potes-Castillo, No. 07-5518-cr (2d Cir. March 15, 2011) (Straub, Hall, CJJ, Underhill, DJ)
The defendant here received a 188-month sentence after a jury convicted him of a drug conspiracy. At sentencing, it emerged that he had but one prior conviction: a 2004 New York State conviction for driving with ability impaired by alcohol (“DWAI”) in violation of New York Vehicle and Traffic Law § 1192(1). He was sentenced to a one-year conditional discharge and a fine.
Although he argued at sentencing that the conviction should not count in his criminal history score, the district court disagreed. It assessed him one point for the conviction and two additional points for committing the instant offense while under the conditional discharge. This placed him in Category II and rendered him ineligible for safety valve treatment.
On appeal, the circuit reversed.
Guideline Section 4A1.2(c) contains two lists of misdemeanor and petty offenses that are excluded from consideration in the criminal history score. Sentences for the offenses listed in 4A1.2(c)(1) and those “similar to” them are excluded if the sentence was a term of probation of one year or less or a term of imprisonment of at less than thirty days, or the prior offense was similar to an offense for which the defendant is now being sentenced. Included in the § 4A1.2(c)(1) list is “careless or reckless driving.”
Section 4A1.2(c)(2) contains a list of offenses – and also includes those “similar to” them – for which the sentences are never counted. Included on this list are “minor traffic infractions (e.g., speeding.)”
There is an Application Note that deals with DWAI offenses. Note 5 to § 4A1.2 provides that “Convictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are counted. Such offenses are not minor traffic infractions within the meaning of § 4A1.2(c).”
The plain language of the Note precludes an argument that DWAI is a “minor traffic infraction” under § 4A1.2(c)(2), since both the Note and this section use the same phrase.
But, the circuit concluded, Note 5 is ambiguous as to whether it also precludes applying § 4A1.2(c)(1) to DWAI offenses. If the first sentence of the note is read to mean that such offenses are always counted, without possibility of exception, then the second sentence would be rendered “meaningless.” Another reading, however, would be that the Note simply takes such offenses out of § 4A1.2(c)(2), leaving open the possibility that they might still be covered by § 4A1.2(c)(1). This is the reading that the court selected.
The first alternative – advocated by the government – would treat DWAI offenses, in essence, as felonies, and always count them, making them the only misdemeanors or petty offenses to which § 4A1.2(c) can never apply. The court rejected this: “It would be plainly inconsistent with section 4A1.2(c) to argue that DWAI offenses, although they are misdemeanor or petty offenses, are always counted and can never fit within the exclusion explicitly provided in section 4A1.2(c)(1).”
Rather, the court concluded that the Note is meant only to take DWAI offenses out of § 4A1.2(c)(2), but that they can still be excluded from the criminal history score if they are “similar to” any offenses listed in section 4A1.2(c)(1). Under this section, “the seriousness of the conduct in each individual case will determine whether the sentence actually counts.”
Accordingly, here, the district court erred by failing to apply § 4A1.2(c)(1) to the DWAI conviction. Since the sentence imposed on the DWAI was not so severe as to take the conviction out of § 4A1.2(c)(1), and the offense was not similar to the federal offense of conviction, the circuit sent the case back to the district court with instructions to determine whether the DWAI conviction was “similar to” the § 4A1.2(c)(1) offense of “careless or reckless driving.”