Tuesday, November 9, 2010

Traffic Violation Citations Counted as Arrests to Calculate Criminal History Points

The Ninth Circuit affirmed a district court judgment which included traffic violation citations as “arrests” when calculating the defendant’s criminal history under U.S.S.G. § 4A1.2(a)(2). The Court agreed with the Seventh Circuit in its application of United States v. Morgan, which treated Leal-Felix’s traffic violations as arrests with regard to the Sentencing Guidelines. United States v. Morgan, 354, F .3d 621 (7th Cir. 2003).

In February 2005 Israel Leal-Felix plead guilty to aggravated felony of possessing a firearm by a convicted felon and was deported from the United States to Mexico. In March of 2009, Leal-Felix reentered the United States without applying for readmission after his deportation. Under a plea agreement, Leal-Felix pled guilty to a single-count of violating 8 U.S.C. § 1326(a) (illegal re-entry), for which the potential prison term is 20 years. The plea agreement provided that Leal-Felix would be sentenced to at the low end of the Sentencing Guidelines range, determined by a total offence level and his calculated criminal history.

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

Leal-Felix appealed on the issue of whether a citation for a traffic violation is an arrest countable for criminal history under the Sentencing Guidelines. Leal-Felix argued that because he was cited but not arrested for the November 17th, 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 19th, 1998, traffic violation should not have been counted. If these points were not counted Leal-Felix would be in Criminal History Category V, where the Sentencing Guidelines range low is 18 months rather than 21 months in Category VI.

The Ninth Circuit considered United States v. Morgan, which addressed this issue in the Seventh Circuit. In Morgan, the Seventh Circuit recognized “calling 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 for purposes of § 4A1.2(a)(2). Additionally, Leal-Felix was imprisoned for 90 days per traffic violation, demonstrating that, for guidelines purposes, these violations represented more severe instances than should be disregarded when calculating criminal history. The Court of appeals ruled that the district court properly counted 2 criminal history points for each of the convictions in these traffic violations.

Notably, while Judge Goodwin wrote an eight-paragraph opinion on this sentencing guidelines case, Judge Bennett (sitting by designation from the District of Iowa) responded by authoring a twenty-page, single-spaced dissent (bolstered by a table of contents), and argued that a “citation” does not mean an “arrest.”

The case is: United States v. Leal-Felix, 9th Cir.; November 1, 2010. 09-50426.