AMENDMENT 766

Amendment: The Commentary to §4A1.2 captioned “Application Notes” is amended in Note 5 by striking “counted. Such offenses are not minor traffic infractions within the meaning of §4A1.2(c).” and inserting “always counted, without regard to how the offense is classified. Paragraphs (1) and (2) of §4A1.2(c) do not apply.”.

Reason for Amendment:This amendment resolves differences among circuits regarding when prior sentences for the misdemeanor offenses of driving while intoxicated and driving under the influence (and any similar offenses by whatever name they are known) are counted toward the defendant’s criminal history score.

Convictions for driving while intoxicated and similar offenses encompass a range of offense conduct. For example, convictions for driving while intoxicated and similar offenses can be classified as anything from traffic infractions to misdemeanors and felonies, and they are subject to a broad spectrum of penalties (ranging from a fine to years in custody for habitual offenders). When the prior offense is a felony, the sentence clearly counts toward the defendant’s criminal history score because “[s]entences for all felony offenses are counted.” See subsection (c) of §4A1.2 (Definitions and Instructions for Computing Criminal History). However, when the prior sentence is for a misdemeanor or petty offense, circuits have taken different approaches, in part because of language added to §4A1.2(c)(1). See USSG App. C, Amendment 352 (effective November 1, 1990) (adding “careless or reckless driving” to the offenses listed in §4A1.2(c)(1)).

When the prior sentence is a misdemeanor or petty offense, §4A1.2(c) specifies that the offense is counted, but with two exceptions, limited to cases in which the prior offense is on (or similar to an offense that is on) either of two lists. On the first list are offenses from “careless or reckless driving” to “trespassing.” In such a case, the sentence is counted only if (A) the sentence was a term of probation of more than one year or a term of imprisonment of at least 30 days, or (B) the prior offense was similar to the instant offense. See §4A1.2(c)(1). On the second list are offenses from “fish and game violations” to “vagrancy.” In such a case, the sentence is never counted. See §4A1.2(c)(2).

Most circuits have held that driving while intoxicated convictions, including misdemeanors and petty offenses, always count toward the criminal history score, without exception, even if the offense met the criteria for either of the two lists. These circuits have relied on Application Note 5 to §4A1.2, which has provided:

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).

See United States v. Pando, 545 F.3d 682, 683–85 (8th Cir. 2008) (holding that a conviction for driving while ability impaired was properly included in defendant’s criminal history, and rejecting defendant’s argument that his offense was similar to careless or reckless driving); United States v. Thornton, 444 F.3d 1163, 1165–67 (9th Cir. 2006) (holding that driving with high blood alcohol level was properly included in defendant’s criminal history, and rejecting defendant’s argument that his conviction was “similar” to minor traffic infraction or public intoxication). See also United States v. LeBlanc, 45 F.3d 192, 195 (7th Cir. 1995) (“[A]pplication note [5] reflects the Sentencing Commission’s conclusion ‘that driving while intoxicated offenses are of sufficient gravity to merit inclusion in the defendant’s criminal history, however they might be classified under state law.’ ”); United States v. Deigert, 916 F.2d 916, 918 (4th Cir. 1990) (holding that defendant’s alcohol-related traffic offenses are counted under Application Note 5).

The Second Circuit took a different approach in United States v. Potes-Castillo, 638 F.3d 106 (2d Cir. 2011), holding that Application Note 5 could be read either (1) to “mean that, like felonies, driving while ability impaired sentences are always counted, without possibility of exception” or (2) “as setting forth the direction that driving while ability impaired sentences must not be treated as minor traffic infractions or local ordinance violations and excluded under section 4A1.2(c)(2).” Id. at 110–11. The Second Circuit adopted the second reading and, accordingly, held that a prior sentence for driving while ability impaired “should be treated like any other misdemeanor or petty offense, except that they cannot be exempted under section 4A1.2(c)(2).” Id. at 113. According to the Second Circuit, such a sentence can qualify for an exception, and therefore not be counted, under the first list (e.g., if it was similar to “careless or reckless driving” and the other criteria for a first-list exception were met).

The amendment resolves the issue by amending Application Note 5 to clarify that convictions for driving while intoxicated and similar offenses are always counted, without regard to how the offenses are classified. Further, the amendment states plainly that paragraphs (1) and (2) of §4A1.2(c) do not apply.

This amendment reflects the Commission’s view that convictions for driving while intoxicated and other similar offenses are sufficiently serious to always count toward a defendant’s criminal history score. The amendment clarifies the Commission’s intent and should result in more consistent calculation of criminal history scores among the circuits.

Effective Date: The effective date of this amendment is November 1, 2012.