Gonzales: DOJ agrees Ninth Circuit precedent on minor offenses is flawed

At a recent sentencing roundtable sponsored by the Sentencing Commission, participants identified the confusing and somewhat irrational rules for when to count minor offenses under U.S.S.G. § 4A1.2(c) as an area in need of improvement. So I received with interest and pleasure word from intrepid Spokane Federal Defender attorney Tracy Staab that the Department of Justice has conceded that the Ninth Circuit should grant rehearing en banc to correct United States v. Williams, 291 F.3d 1180 (9th Cir. 2002).

Let’s take it from the top. Section 4A1.2(c) lists misdemeanor and petty offenses that are generally not counted as criminal history, including disorderly conduct, reckless driving, contempt, driving while suspended or revoked, false information to a police officer, prostitution, trespassing, failure to obey a police officer, and offenses similar to those listed. However, these frequently occurring but relatively minor convictions do count as criminal history "if (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to the instant offense."

The scope of the exception based on the sentence imposed was at issue in Williams. In that case, Mr. Williams argued that, because a prior criminal mischief conviction was similar to disorderly conduct, he should not have received a criminal history point because he received a completely suspended sentence of six months. The Ninth Circuit, in a per curiam opinion, held that the conviction would be counted in any event because the six month sentence, even though suspended, constituted a "prior sentence" under § 4A1.2(a)(3).

So enter Tracy Staab advocating for Mr. Gonzales, whose federal sentence was being increased by a criminal history point for a driving while suspended conviction for which he received a 30-day suspended sentence. While acknowledging that a totally suspended sentence constituted a "prior sentence" under § 4A1.2(a)(3), she pointed out that the suspended portion of the sentence did not constitute a "term of imprisonment" for the purposes of § 4A1.2(c)(1)'s exception to the general rule that the listed offenses do not count as criminal history. Instead, a "term of imprisonment" only includes the non-suspended portion of the sentence under § 4A1.2(b)(2)("'sentence of imprisonment' refers only to the portion [of the sentence] that was not suspended") and United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. 2005). And a sentence that was totally suspended does not qualify as a sentence of imprisonment under U.S.S.G. § 4A1.2, comment. (n.2). In response, the DOJ did the right thing and filed a brief (available here) recommending rehearing en banc to correct the aspect of the Williams opinion that counted the suspended portion of a term of imprisonment.

While we are waiting for the Ninth Circuit to act, a couple of things to keep in mind: we need to take care that our clients’ sentences are not being enhanced based on suspended sentences under Williams while we have a concession that the case was wrongly decided; and this is a good reminder to analyze our cases past the superficial levels to attack seemingly harsh or illogical positions (as illustrated by legal archaeology on errors in minor role and the presumption of reasonableness).

Congrats to the Federal Defenders of the Inland Empire!

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon