United States v. Leal-Felix

• Citation: 2011 Daily Journal D.A.R. 17179,665 F.3d 1037,11 Cal. Daily Op. Serv. 14355
• Decision Date: 30 November 2011
• Docket Number: No. 09–50426.,09–50426.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Israel LEAL–FELIX, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

11 Cal. Daily Op. Serv. 14,355

2011 Daily Journal D.A.R. 17,179

665 F.3d 1037

UNITED STATES of America, Plaintiff–Appellee,

v.Israel LEAL–FELIX, Defendant–Appellant.

No. 09–50426.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 22, 2011.Filed Nov. 30, 2011.

Michael Tanaka, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Michael J. Raphael, Assistant United States Attorney, Los Angeles, CA; and Bryan F. Boutwell, Special Assistant United States Attorney, Riverside, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, District Judge, Presiding. D.C. No. 5:09–cr–00067–VAP–1.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, SUSAN P. GRABER, M. MARGARET McKEOWN, KIM McLANE WARDLAW, WILLIAM A. FLETCHER, RICHARD A. PAEZ, JOHNNIE B. RAWLINSON, MILAN D. SMITH, JR., SANDRA S. IKUTA, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge N. RANDY SMITH; Concurrence by Judge McKEOWN; Dissent by Judge RAWLINSON.

OPINION

N.R. SMITH, Circuit Judge:

In this appeal, we are asked to interpret the United States Sentencing Guidelines § 4A1.2(a)(2). The United States Sentencing Commission (the “Commission”) has authority to define the terms in the Sentencing Guidelines. See 28 U.S.C. § 994(p). However, until it does, we consider the context and purpose of the Sentencing Guidelines as a whole in interpreting them. Cf. Dolan v. U.S. Postal Serv., 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006). In Sentencing Guidelines § 4A1.2(a)(2), we interpret the term “arrest” to require that the individual be formally arrested; the mere issuance of a citation, even if considered an arrest under state law, is insufficient. Therefore, we vacate the sentence imposed by the district court and remand for resentencing.

FACTS

At all times relevant to this case, Israel Leal–Felix was a citizen of Mexico and an alien, as defined by United States immigration law. On April 20, 2009, Leal–Felix was charged with violating 8 U.S.C. § 1326(a) and § 1326(b)(2), because he was found in the United States after having been removed or deported from the United States and without permission to reapply for admission following removal or deportation. In the charging information, the Government alleged that the previous removal or deportation occurred after a conviction for an aggravated felony.

Leal–Felix entered into a binding plea agreement with the Government. The plea agreement required that, in exchange for the entry of a guilty plea by Leal–Felix, the Government would recommend that he be sentenced at the lower end of the applicable Guidelines range, as determined by a total offense level of nine. Both parties waived their right to appeal the sentence, provided that the district court imposed a sentence in accordance with the plea agreement. However, Leal–Felix reserved the right to appeal the calculation of his criminal history category.

Relevant to this appeal, Leal–Felix's criminal history included two citations for driving with a suspended license. The citations were received on November 17, 1998, and November 19, 1998 (the November citations).¹ Leal–Felix was sentenced for both citations on January 19, 2000, receiving concurrent sentences of 36 months' probation on the condition that he serve 180 days in the county jail.

On June 8, 2009, Leal–Felix entered his plea of guilty in the present case, pursuant to the plea agreement. The PSR calculated that Leal–Felix was in criminal history category VI with 14 criminal history points, including two points for each of the November citations. Leal–Felix objected to counting the second citation separately under Sentencing Guidelines § 4A1.2(a)(2), because the two violations were sentenced on the same day and were not separated by an intervening arrest.

At the sentencing hearing, Leal–Felix argued that the second violation should not be counted in the criminal history, because he had not been arrested for the first violation, but only cited. The district court disagreed. The court held that a citation for a traffic violation was the same as an arrest under § 4A1.2(a)(2), meaning that the first citation was “an intervening arrest.” Using this interpretation, the court calculated that Leal–Felix had 13 criminal history points, placing him in criminal history category VI. In accordance with the plea agreement, the district court sentenced Leal–Felix to 21 months (the low end of the Guidelines range for category VI) on August 10, 2009.

PROCEDURAL HISTORY

Leal–Felix timely appealed his sentence on August 25, 2009. A divided panel affirmed on November 1, 2010. The majority concluded: “We agree with the Seventh Circuit in [ United States v. Morgan, 354 F.3d 621 (7th Cir.2003) ] that treatment of Leal–Felix's traffic violations as arrests comports with the Sentencing Guidelines.” United States v. Leal–Felix, 625 F.3d 1148, 1151 (9th Cir.2010). We granted Leal–Felix's petition for review en banc on April 19, 2011. United States v. Leal–Felix, 641 F.3d 1141 (9th Cir.2011).

ANALYSIS

The applicable Guidelines sentencing range is determined by both the calculated offense level and the criminal history category. Prior sentences are counted in determining the criminal history category, but may be counted separately or as a single sentence, depending (in part) on whether there was an intervening arrest. U.S.S.G. § 4A1.2(a)(2).

If the defendant has multiple prior sentences, determine whether those sentences are counted separately or as a single sentence. Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest ( i.e., the defendant is arrested for the first offense prior to committing the second offense). If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence. See also § 4A1.1(e).

Id. The definition of an “intervening arrest” is the subject of our interpretation here. Under this Guideline, if a citation is equivalent to an arrest, then Leal–Felix's two citations for driving with a suspended license must be counted separately. Counting each citation as an arrest, and adding two points for each, would place him in criminal history category VI, with a Guidelines range of 21–27 months. However, if a citation is not an intervening arrest, his citations would be counted together and he would be included in criminal history category V, with a Guidelines range of 18–24 months.

“We review de novo the district court's interpretation of the Sentencing Guidelines (because it is a pure question of law).” United States v. Laurienti, 611 F.3d 530, 551 (9th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 969, 178 L.Ed.2d 797 (2011).

The Sentencing Guidelines do not define the term “arrest” in the context of § 4A1.2(a)(2). Although the Commission may define any terms used in the Guidelines, see United States v. LaBonte, 520 U.S. 751, 754–55, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997), it has not defined “arrest.” Because the Commission has not defined the term, we must interpret this provision in order to resolve the present appeal. If, after applying the normal rules of statutory interpretation, the Sentencing Guideline is still ambiguous, the rule of lenity requires us to interpret the Guideline in favor of Leal–Felix. See DePierre v. United States, ––– U.S. ––––, 131 S.Ct. 2225, 2237, 180 L.Ed.2d 114 (2011).

To begin, we may not rely on California law to define an arrest. Although California may consider a citation the equivalent of an arrest, see Cal.Penal Code § 4030, we do not look to state law to determine the meaning of the Sentencing Guidelines. “[A] federal sentencing enhancement provision ... is interpreted according to a uniform, national definition, not dependent upon the vagaries of state law.” United States v. Martinez, 232 F.3d 728, 732 (9th Cir.2000) (citing Taylor v. United States, 495 U.S. 575, 591–92, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). In Taylor, the Supreme Court refused to define predicate offenses using state law, holding that the same conduct could not result in a sentencing enhancement in California, but not in Michigan, depending solely on how the state defined the offense. 495 U.S. at 590–91, 110 S.Ct. 2143. Similarly, in this case, what constitutes an arrest cannot vary between states based on state law, but must have “a uniform, national definition.” See Martinez, 232 F.3d at 732.

For the purpose of the Sentencing Guidelines, an arrest is a “formal arrest.” A formal arrest may be indicated by informing the suspect that he is under arrest,² transporting the suspect to the police station,³ and/or booking the suspect into jail.⁴ Limiting “arrest” to a formal arrest (rather than a mere citation) is consistent with common usage, case law, ⁵ and the context and purposes of the Sentencing Guidelines.

Arrest is commonly used as it is defined: “the taking or detainment (of a person) in custody by authority of law; legal restraint of the person; custody; imprisonment.” Webster's Third New International Dictionary 121 (unabridged ed., 1993); accord Black's Law Dictionary 109–10 (6th ed. 1990) (“Taking, under real or assumed authority, custody of another....”). While this common understanding creates a clear and usable definition, “[t]he definition of words in isolation ... is not necessarily controlling in statutory construction.” Dolan, 546 U.S. at 486, 126 S.Ct. 1252. “Interpretation of a word or phrase [in a statute] depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.” Id.

There is little precedent in case law addressing § 4A1.2(a)(2) to...