USA v. LEAL-FELIX

• Decision Date: 01 November 2010
• Docket Number: No. 09-50426.,09-50426.
• Citation: United States v. Leal-Felix, 625 F.3d 1148 (9th Cir. 2010)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Israel LEAL-FELIX, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

625 F.3d 1148

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 11, 2010.

Filed Nov. 1, 2010.

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

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: ALFRED T. GOODWIN and JOHNNIE B. RAWLINSON, Circuit Judges, and MARK W. BENNETT, District Judge. ^*

Opinion by Judge GOODWIN; Dissent by Judge BENNETT.

OPINION

GOODWIN, Senior Circuit Judge:

Israel Leal-Felix, a previously deported Mexican citizen, appeals his sentence after pleading guilty to violating 8 U.S.C. § 1326(a), unlawful reentry into the United States of a removed alien, because of an alleged miscalculation in his criminal history. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Leal-Felix was deported to Mexico in February, 2005, after pleading guilty to the aggravated felony of possessing a firearm by a convicted felon. In March, 2009, Leal-Felix reentered the United States and was found in the Central District of California without having applied for admission to the United States following his removal. Under a plea agreement, Leal-Felix pled guilty to a single-count information for violating 8 U.S.C. § 1326(a), which subjected him to a potential imprisonment term of 20 years. 8 U.S.C. § 1326(b)(2). The plea agreement provided that Leal-Felix would be sentenced at the low end of the Sentencing Guidelines range, determined by a total offense level of 9 and his calculated criminal history.

The Probation Office calculated Leal-Felix's criminal history at 14 points, including in the calculation his pleading guilty to charges for burglary in 2001 and importing controlled substances, methamphetamine, in 2008 for sale and distribution. Among those points were 2 points allotted for each of Leal-Felix's arrests or citations for driving with a suspended license on November 17, 1998, and November 19, 1998. On the condition that he serve 180 days in the county jail for both traffic violations, Leal-Felix was sentenced to concurrent sentences of 36 months of probation for the traffic violations. In accordance with the plea agreement, the district court calculated the imprisonment sentence at the low end of the Sentencing Guidelines range of 21 to 27 months, with an offense level of 9 and Criminal History Category VI, and sentenced Leal-Felix to 21 months of imprisonment.

DISCUSSION

[1] We review a district court's interpretation of the Sentencing Guidelines de novo. United States v. Medina-Villa, 567 F.3d 507, 511 (9th Cir.2009), cert. denied, --- U.S. ----, 130 S.Ct. 1545, 176 L.Ed.2d 138 (2010). The only issue on appeal is whether a citation for a traffic violation is an arrest countable for criminal history under the Sentencing Guidelines. Leal-Felix argues that, because he was cited but not arrested for the November 17, 1998, traffic violation, the two violations were not separated by an intervening arrest under U.S.S.G. § 4A1.2(a)(2), and the 2 points added for the November 19, 1998, traffic violation should not have been counted. The difference to Leal-Felix would be that the subtraction of the 2 points would put him in Criminal History Category V, where the low-end imprisonment term would be 18 months instead of 21 months under Criminal History Category VI, or 3 months of imprisonment.

On similar facts, concerning whether two violations of driving after the defendant's license had been revoked that occurred 15 days apart should have been counted separately under U.S.S.G. § 4A1.2(a)(2), the only circuit court to address this issue is the Seventh Circuit. United States v. Morgan, 354 F.3d 621 (7th Cir.2003) (Easterbrook, J.). The Morgan court recognized that “[c]alling the traffic stop an ‘arrest’ implements the Sentencing Commission's goal” and that “[a] traffic stop is an ‘arrest’ in federal parlance,” as opposed to state law. Id. at 623, 624(citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); United States v. Childs, 277 F.3d 947 (7th Cir.2002) (en banc); cf. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). The Seventh Circuit also noted that “Morgan was halted and prevented from leaving until the officer released him,” although he “could have been taken to the stationhouse, converting a street arrest to a full custodial arrest.” Id. at 624, 111 S.Ct. 1547 (emphasis added).

Since the Seventh Circuit's analysis in Morgan, the Sentencing Commission amended § 4A1.2 in 2007. Rather than the “related” or recidivism reasoning of the guideline in Morgan, § 4A1.2(a)(2) provides that “[p]rior 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).” U.S.S.G. § 4A1.2(a)(2) (emphasis added); see United States v. Rooks, 596 F.3d 204, 212-13 (4th Cir.2010). Excepting the relatedness/recidivism reasoning of Morgan, the “arrest” analysis still holds.

[2] Implicit in a street arrest is that it can turn quickly into a full custodial arrest, depending on the conduct of the defendant. This was true of both of Leal-Felix's street arrests for traffic violations. Moreover, he was sentenced to a concurrent sentence of 180 days in the county jail for these offenses, or 90 days per traffic violation. Imprisonment for his traffic violations shows that, for Guidelines purposes, they represent more than mere citations that Leal-Felix asserts should be disregarded in calculating his criminal history. Under Criminal History Category, § 4A1.1(b), a sentencing court must “[a]dd 2 points for each prior sentence of imprisonment of at least sixty days.” U.S.S.G. § 4A1.1(b). Because there were prison sentences for each of Leal-Felix's prior traffic violations, the court properly calculated 2 points for each guilty-plea conviction under § 4A1.1(b).

CONCLUSION

The district court correctly calculated Leal-Felix's criminal history. We agree with the Seventh Circuit in Morgan that treatment of Leal-Felix's traffic violations as arrests comports with the Sentencing Guidelines.

AFFIRMED.

BENNETT, District Judge, dissenting:

+-----------------+
                ¦TABLE OF CONTENTS¦
                +-----------------¦
                +-----------------+
                 

+------------------------------------+
                ¦I.  ¦THE DECISION IN MORGAN    ¦1152¦
                +----+--------------------------+----¦
                +----+--------------------------+----¦
                ¦II. ¦THE MAJORITY'S DECISION   ¦1153¦
                +----+--------------------------+----¦
                +----+--------------------------+----¦
                ¦III.¦PLAIN AND ORDINARY MEANING¦1154¦
                +------------------------------------+
                 

+-----------------------------------------------------+
                ¦¦A.¦Rules Of Interpretation And Construction    ¦1154¦
                ++--+--------------------------------------------+----¦
                ¦¦B.¦“Arrest” Plainly Does Not Include “Citation”¦1155¦
                ++--+--------------------------------------------+----¦
                ¦¦C.¦The Purpose Of U.S.S.G. § 4A1.2(a)(2)       ¦1157¦
                ++--+--------------------------------------------+----¦
                ¦¦D.¦A Split Does Not Create Ambiguity           ¦1158¦
                +-----------------------------------------------------+
                 

+-----------------------------+
                +---+--------------------+----¦
                ¦IV.¦POTENTIAL AMBIGUITY ¦1159¦
                +-----------------------------+
                 

+-----------------------------------+
                ¦¦A.¦“Arrest” In Other Contexts¦1159¦
                +-----------------------------------+
                 

+-------------------------------------+
                ¦¦¦1.¦Dictionary definitions     ¦1159¦
                +++--+---------------------------+----¦
                ¦¦¦2.¦Common law definitions     ¦1160¦
                +++--+---------------------------+----¦
                ¦¦¦3.¦State statutory definitions¦1160¦
                +-------------------------------------+
                 

+-----------------------------+
                ¦¦B.¦Context And Purpose ¦1161¦
                ++--+--------------------+----¦
                ¦¦C.¦The Rule Of Lenity  ¦1161¦
                +-----------------------------+
                 

+-------------------+
                +--+-----------+----¦
                ¦V.¦CONCLUSION ¦1162¦
                +-------------------+
                 

With all due respect, because whether a “citation” is an “arrest” within the meaning of U.S.S.G. § 4A1.2(a)(2) is an issue of second impression across the breadth of the federal courts, it deserves more serious analysis than the judicial sleight of hand performed by the United States Court of Appeals for the Seventh Circuit in Morgan and adopted by this court today. Like the classic street shell game, Thimblerig, ¹ which used three thimbles or walnut shells and a pea-the so-called “short con,” because it was quick and easy to pull off- Morgan palmed the pea, so that plain meaning, a common sense and legally correct view of the word “arrest,” and fundamental fairness are no longer under the shells. Surprisingly, Morgan managed to pull off this trick with a single paragraph. I respectfully dissent from falling for the con.

More specifically, I do not find the decision of the Seventh Circuit Court of Appeals in Morgan to be persuasive on the question of whether a “citation” is an “arrest” within the meaning of U.S.S.G. § 4A1.2(a)(2), on either a “recidivism” rationale or the majority's “what might have happened” rationale. Moreover, the fact that U.S.S.G. § 4A1.1(b) requires a sentencing court to “[a]dd 2 points for each prior sentence of imprisonment of at least sixty days” simply begs-but does nothing to resolve-the question of whether Leal-Felix had an intervening “arrest” within the meaning of § 4A1.2(a)(2), as the answer to that question determines whether or not Leal-Felix had one or two prior sentences to “count” pursuant to § 4A1.1(b). The majority's analysis would make the sentences received on prior offenses the determining factor in the calculation of a defendant's criminal history, not...