U.S. v. Landa, No. 09-10429 (6-15-11)(Tallman with Fernandez; dissent by W. Fletcher).

California makes it an offense to be driving under the age of 21 with a BAC of 0.05. (This is not an offense for someone over 21...an important distinction for the dissent). When the defendant was barely over 18, more than 6 years ago, he was convicted of this misdemeanor offense, placed on probation, and fined, which he paid early. Subsequently, when he was older if not necessarily wiser, he pled to a federal drug charge that carried a mandatory minimum five year sentence. He was not safety valve eligible because the court did not consider the offense a juvenile status offense not to be assessed points under 4A1.2 note 5 (there was also another minor conviction that got him 1 point). On appeal, the 9th crafted a test for whether a juvenile matter qualifies as a juvenile status offense never to be counted based on (1) the defendant was younger than 18; (2) his conduct would be lawful if adult; and (3) it was not serious in nature. The 9th found the first two factors to weigh for him (although older than 18, he was considered by the state to be underage). Underage drinking and driving the 9th considered serious and akin to a DUI. It goes through the risks, and harms, and comes out for counting. In dissent, W. Fletcher argues that the nature was not serious, there was no possible jail time, and analogized to underage smoking. The emphasis was on the fact it was not a crime for an adult.