U.S. v. Potes–castillo

• Decision Date: 14 March 2011
• Docket Number: Docket No. 07–5518–cr.
• Citation: 638 F.3d 106
• Parties: UNITED STATES of America, Appellee,v.Johnny POTES–CASTILLO, Jorge Valencia, Juan Lopez, Martha Bohorquez, Ana Patricia Cortes–Vargas, Carlos A. Mera and Sonia Diaz, Defendants,Walter Gonzalez–Rivera, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

638 F.3d 106

UNITED STATES of America, Appellee,

v.Johnny POTES–CASTILLO, Jorge Valencia, Juan Lopez, Martha Bohorquez, Ana Patricia Cortes–Vargas, Carlos A. Mera and Sonia Diaz, Defendants,Walter Gonzalez–Rivera, Defendant–Appellant.

Docket No. 07–5518–cr.

United States Court of Appeals, Second Circuit.

Argued: Jan. 12, 2009.Decided: March 14, 2011.

Gary G. Becker, Gary G. Becker L.L.C., New York, NY, for Defendant–Appellant.Rita M. Glavin, Assistant United States Attorney (Kevin R. Puvalowski, Assistant United States Attorney, of counsel), for Michael J. Garcia, United States Attorney's Office for the Southern District of New York, for Appellee.Before: STRAUB and HALL, Circuit Judges, and UNDERHILL, District Judge.UNDERHILL, District Judge:

This appeal raises the question whether a conviction for driving while ability impaired in violation of New York law must categorically be counted when calculating a defendant's criminal history score. Because we conclude that Walter Gonzalez–Rivera's prior sentence for violating New York's driving while ability impaired law should not be counted toward his criminal history calculation if it is similar to an offense listed in United States Sentencing Guidelines section 4A1.2(c)(1), we remand to the District Court for determination in the first instance whether Gonzalez–Rivera's conviction is similar to careless or reckless driving.

I. Background

Gonzalez–Rivera appeals from a sentence of 188 months' imprisonment imposed by the United States District Court for the Southern District of New York (Kimba M. Wood, then-Chief Judge ) following a jury verdict finding him guilty of conspiracy to distribute a controlled substance. The District Court held a series of sentencing hearings and ultimately sentenced Gonzalez–Rivera on November 20, 2007.

At the time of sentencing, Gonzalez–Rivera had one prior conviction, for driving while ability impaired by alcohol in violation of New York Vehicle and Traffic Law § 1192(1). That offense is treated as a “traffic infraction” by the state, and is punishable by a maximum fine of $500 and up to fifteen days' imprisonment. N.Y. Veh. & Traf. Law § 1193(1). In May 2004, Gonzalez–Rivera was sentenced to a one-year “conditional discharge,” and was required to pay a $500 fine.

During his sentencing hearings, Gonzalez–Rivera argued that his prior conviction should not be counted toward his criminal history score under the Sentencing Guidelines because it was similar to careless or reckless driving, one of the offenses listed in U.S.S.G. § 4A1.2(c)(1). The government argued that the prior sentence must be counted because Application Note 5 to section 4A1.2(c) and three prior decisions of this Court required that the sentence be counted. Judge Wood acknowledged that Application Note 5 is “somewhat strangely worded” and that she would likely rule in Gonzalez–Rivera's favor on the issue had she not felt bound by prior decisions of this Court.

In the end, Judge Wood did count the prior sentence, which she assigned one criminal history point. As a result of the fact that the charged conspiracy began before May 2004 and continued beyond that date, she also assigned Gonzalez–Rivera two points for committing the instant offense “while under a [ ] criminal justice sentence,” U.S.S.G. § 4A1.1(d), i.e., while “serving” his conditional discharge. See United States v. Ramirez, 421 F.3d 159, 165–66 (2d Cir.2005) (noting that “probation” and “conditional discharge” are generally synonymous for purposes of calculating criminal history). The resulting three criminal history points placed Gonzalez–Rivera in criminal history category II. Although the District Court departed from that criminal history category pursuant to section 4A1.3, because Gonzalez–Rivera was placed in criminal history II prior to that departure, by operation of section 4A1.3(b)(3)(B) he remained ineligible for a sentence less than the mandatory minimum ten years' imprisonment and ineligible for a two-point reduction in his offense level pursuant to the safety valve provision of the Sentencing Guidelines. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2.

Gonzalez–Rivera timely appealed, raising two issues concerning the calculation of his Sentencing Guideline range. We address substantively only the calculation of Gonzalez–Rivera's criminal history category.¹

II. Discussion

We review the sentencing court's interpretation of the Sentencing Guidelines de novo, but review its related findings of fact only for clear error. United States v. Fiore, 381 F.3d 89, 92 (2d Cir.2004). The de novo standard applies to our consideration of the proper interpretation of U.S.S.G. § 4A1.2(c).

A. The Text and Structure of Section 4A1.2(c)

Chapter 4, Part A, Subpart 1 of the Sentencing Guidelines governs calculation of a defendant's criminal history score. Criminal history points are accumulated when prior sentences meet qualifying criteria but do not also satisfy exclusionary criteria. Qualifying criteria include, among others, the nature of the offense (e.g., felony or misdemeanor, section 4A1.2(c)), the length of imprisonment imposed (e.g., sentences exceeding 13 months and those not, section 4A1.1(a)), and the timing of the commission of the instant offense (e.g., while on probation or supervised release, section 4A1.1(d)). Exclusionary criteria are numerous and include, among others, the nature of the offense (e.g., fish and game violations, § 4A1.2(c)(2)), the age of the conviction (e.g., misdemeanor conviction imposed more than ten years prior to commencement of the instant offense, § 4A1.2(e)(2)), and the identity of the court imposing the sentence (e.g., sentences imposed by foreign tribunals, § 4A1.2(h)). Exclusions trump qualifying criteria. Thus, for example, although all felonies are counted, felonies that are more than fifteen years old are omitted from the criminal history calculation. As the Commentary to this subpart of the Guidelines repeatedly states, “[c]ertain prior sentences are not counted or are counted only under certain conditions.” U.S.S.G. § 4A1.1, Application Notes 1, 2, & 3.

Section 4A1.2(c) of the Sentencing Guidelines follows the same general approach as the subpart, identifying qualifying and exclusionary criteria used by the sentencing court to determine whether a prior sentence is included or excluded from the criminal history calculation. The section addresses which sentences “are counted” ² by classifying all prior convictions into three groups based on the nature of the crime of conviction for which the sentence was imposed: (1) sentences that “are counted,” U.S.S.G. § 4A1.2(c); (2) those that “are counted” subject to possible exception, id. § 4A1.2(c)(1); and (3) those that are “never counted,” id. § 4A1.2(c)(2).

The first group of sentences—those always counted—includes all felonies. Regardless of the nature of the conduct underlying the felony, it is counted—and felonies are the only class of sentences always counted under this section. Id. § 4A1.2(c) (“Sentences for all felony offenses are counted.”).

The second group of sentences—those counted unless an exception applies—includes all misdemeanor and petty offenses. Sentences for the offenses listed in section 4A1.2(c)(1) “and offenses similar to them, by whatever name they are known,” are counted “only if (A) the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to” an offense for which the defendant is now being sentenced. Id. § 4A1.2(c)(1). Thus, misdemeanor and petty offenses of the type listed in section 4A1.2(c)(1) are excluded provided, among other things, that the sentences imposed were not too severe. The list of offenses that are not counted unless one of the specified conditions applies includes “[c]areless or reckless driving.” Id.

The third group of sentences—those never counted—includes a list of specified minor offenses. Sentences for the offenses listed in section 4A1.2(c)(2) “and offenses similar to them, by whatever name they are known,” are “never counted.” Id. § 4A1.2(c)(2). Thus, unlike the offenses listed in section 4A1.2(c)(1), sentences for offenses listed in section 4A1.2(c)(2) are not counted, regardless of the severity of the sentence imposed for such a conviction and regardless of any similarity between the listed offense and the offense for which the defendant is being sentenced. The list of offenses that are never counted includes “[m]inor traffic infractions ( e.g., speeding).” Id.

B. The Impact of Application Note 5

Because Gonzalez–Rivera's prior sentence is for a traffic infraction for which he received no term of imprisonment, one might expect him to argue that the text of section 4A1.2(c)(2) requires that the sentence be excluded from the criminal history computation as a “minor traffic infraction.” Gonzalez–Rivera does not make that argument, however, acknowledging that Application Note 5 to section 4A1.2(c) expressly precludes it. That application note provides:

5. Sentences for Driving While Intoxicated or Under the Influence.—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 Application Note precludes a good faith argument that a driving while ability impaired conviction is a minor traffic infraction within the meaning of section 4A1.2(c)(2); the Application Notes uses the precise term, “minor traffic infractions,” appearing in the list of excludable offenses in section 4A1.2(c)(2). Moreover, three decisions of this Court clearly hold that, as a result of Application Note 5, a conviction such as Gonzalez–Rivera's is not excluded as a minor traffic infraction. United States v. Loeb, 45 F.3d 719 (2d Cir.), cert. denied, 514 U.S. 1135, 115 S.Ct. 2017, 131 L.Ed.2d 1015 (1995); United States v....