U.S. v. Thornton

• Decision Date: 17 April 2006
• Docket Number: No. 04-50226.,04-50226.
• Citation: 444 F.3d 1163
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eric James THORNTON, Jr., aka Seal B, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1163

444 F.3d 1163

UNITED STATES of America, Plaintiff-Appellee, v. Eric James THORNTON, Jr., aka Seal B, Defendant-Appellant.

No. 04-50226.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 19, 2005.

Filed April 17, 2006.

Jerry Sies, Los Angeles, CA, for the defendant-appellant.

Becky S. Walker and Carole C. Peterson, Office of the United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; John F. Walter, District Judge, Presiding. D.C. No. CR-03-01243-JFW-2.

Before CYNTHIA HOLCOMB HALL, DIARMUID F. O'SCANNLAIN, and RICHARD A. PAEZ, Circuit Judges.

PAEZ, Circuit Judge.

This case requires us to decide whether a conviction under California Vehicle Code section 23152(b) for driving with a blood alcohol level of 0.08 or higher is a conviction for an offense "similar" to driving under the influence, such that it must be included in a defendant's criminal history calculation pursuant to U.S.S.G. § 4A1.2 cmt. n. 5.¹ We hold that it is.

I. Background

Eric James Thornton, Jr. pleaded guilty to violating 21 U.S.C. § 846 (conspiracy to distribute a controlled substance). Thornton signed a written plea agreement that contemplated, but did not guarantee, application of U.S.S.G. § 5C1.2, known as the "safety valve" provision. Pursuant to this provision, "in the case of an offense under 21 U.S.C. § ... 846 ..., the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets" certain criteria. U.S.S.G. § 5C1.2(a). One of those criteria is that "the defendant does not have more than 1 criminal history point." Id. § 5C1.2(a)(1). If Thornton did not satisfy the criteria for application of the safety valve, he faced a mandatory minimum sentence of 120 months in prison followed by five years of supervised release. See 21 U.S.C. § 841(b).

Thornton's Presentence Report ("PSR") recommended that one criminal history point be added to his criminal history score for his prior sentence of probation for violating California Vehicle Code section 23152(b). See U.S.S.G. § 4A1.1(c). The PSR also recommend that two criminal history points be added for committing the § 846 offense while under that sentence of probation. See id. § 4A1.1(d). These recommendations resulted in a total criminal history score of three points, which placed Thornton in Criminal History Category II. The three points also rendered him ineligible for safety valve relief.

Thornton objected to the PSR, arguing that his conviction for driving with a blood alcohol level of 0.08 or higher was a conviction for a minor traffic infraction or public intoxication, and should not be counted in his criminal history calculation. See id. § 4A1.2(c)(2) ("Sentences for [minor traffic infractions and public intoxication] and offenses similar to them, by whatever name they are known, are never counted ...."). Under Thornton's theory, the criminal history point attributable to his prior California conviction, as well as the two criminal history points that depended on that earlier conviction, were erroneously counted in determining his criminal history score. Thornton therefore argued that he had a criminal history score of zero and was eligible for the safety valve. If the district court had agreed, it would have been permitted to sentence Thornton to fewer than the 120 months required by the mandatory minimum statute. See id. § 5C1.2.²

The district court, however, rejected Thornton's argument, found him ineligible for U.S.S.G. § 5C1.2's safety valve relief, and imposed the mandatory minimum sentence. Thornton timely appealed.

II. Jurisdiction and Standards of Review

We have jurisdiction over Thornton's appeal pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Although the Sentencing Guidelines are no longer mandatory, we must still consider whether the district court properly applied the Guidelines; if it did not, and if the error was not harmless, we will remand to the district court for resentencing. See United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006).

We review de novo the district court's interpretation of the Sentencing Guidelines. United States v. Ramirez, 347 F.3d 792, 797 (9th Cir.2003). We also review de novo "[w]hether a prior adjudication falls within the scope of the Sentencing Guidelines." Id. (internal quotation marks omitted).

III. Discussion

A. California Vehicle Code section 23152(b) proscribes conduct that is "similar" to driving while intoxicated or under the influence.

In general, under the Sentencing Guidelines, a district court is required to add one point to a defendant's criminal history score for a prior conviction where, as in Thornton's case, the defendant's sentence was suspended and he was placed on probation. See U.S.S.G. §§ 4A1.1(c), 4A1.2(a)(3). The Guidelines, however, contain certain exceptions. Sentences for minor traffic infractions, public intoxication, or similar offenses are not counted. Id. § 4A1.2(c)(2). Sentences for driving under the influence, on the other hand, explicitly are counted. According to the commentary accompanying the Guidelines, "[c]onvictions 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)." Id. § 4A1.2 cmt. n. 5.³

The district court added one point to Thornton's criminal history score for a prior conviction under California Vehicle Code section 23152(b), and an additional two points because Thornton committed the § 846 offense while on probation for that prior conviction. Section 23152 is California's "driving under the influence" statute. Subsection (a) makes it "unlawful for any person who is under the influence of any alcoholic beverage ... to drive a vehicle," and subsection (b) makes it "unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." Cal. Veh.Code § 23152(a), (b).

A conviction under subsection (b) is not the same as a conviction for driving under the influence because the State is not required to prove that a defendant's driving was impaired to convict him of section 23152(b)—only that he had a specified blood alcohol level. See Hamilton v. Gourley, 103 Cal.App.4th 351, 126 Cal. Rptr.2d 652, 658 (2003) ("[T]o obtain a conviction under section 23152, subdivision (b), the prosecution has no burden to prove that the defendant's driving ability was impaired. The trier of fact need not determine whether a defendant was `driving under the influence,' only whether he had the specified BAC level. A conviction for driving with a .08 percent BAC level thus neither entails nor requires a finding of impairment." (citation omitted)); see also People v. Bransford, 8 Cal.4th 885, 35 Cal. Rptr.2d 613, 884 P.2d 70, 73-74 (1994) (en banc) (stating that the prosecution need not prove a defendant was impaired, intoxicated, or under the influence to convict him under section 23152(b)). Because Thornton's conviction, on its face, does not permit the conclusion that he drove while under the influence of alcohol, Thornton urges us to hold that U.S.S.G. § 4A1.2 cmt. n. 5 is inapplicable, and that a conviction under section 23152(b) is analogous to a conviction for a "minor traffic infraction[ ]," which is excluded from a defendant's criminal history score. U.S.S.G. § 4A1.2(c)(2).

As Thornton correctly notes, the Guidelines are silent about whether a conviction for driving with a specified blood alcohol level, as opposed to driving under the influence, qualifies as a minor traffic infraction. According to Thornton, because the Guidelines are silent on this issue, in order to increase his criminal history score based on the section 23152(b) conviction, the district judge implicitly made a factual finding that Thornton was driving under the influence of alcohol during his commission of the prior crime, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Thornton claims that this factual finding violates his Sixth Amendment and due process rights because it adds an element to subsection (b), i.e., impaired driving, that the State was never required to prove to a jury beyond a reasonable doubt.

We disagree. Subsection 23152(b) falls squarely within the language of U.S.S.G. § 4A1.2 cmt. n. 5, which states that "[c]onvictions 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)." U.S.S.G. § 4A1.2 cmt. n. 5 (emphasis added). Although Thornton is correct that the State did not need to prove that his driving was impaired to convict him of violating section 23152(b), it does not follow that a violation of section 23152(b) is a minor traffic infraction. Quite clearly, section 23152(b) proscribes conduct "similar" to driving under the influence. A conviction under California Vehicle Code section 23152(b) is therefore a conviction for an offense "similar" to driving under the influence.

Aside from the inherent logic of this conclusion, we find support for it in the California statutory scheme. Under California law, driving with a blood alcohol level of 0.08 percent or higher creates a rebuttable presumption that a defendant has violated section 23152(a) (driving under the influence). See Cal. Veh.Code § 23610(a)(3). Additionally, the penalty for a violation of section 23152 is the same, regardless of the subsection under which a defendant is convicted. See id. § 23536. These statutes leave us with little doubt that there is sufficient similarity between subsections (a) and (b) of California's "driving under the influence" law to require inclusion of a conviction under section 23152...