U.S. v. Leal-Felix, No. 09-50426 (11-30-11) (en banc: N. Smith writes majority; McKeown writes concurrence; Rawlison dissents).

Sitting en banc, the 9th holds that a citation is not an intervening arrest for Guideline criminal history purposes. The defendant had two citations, issued at different times, and he was sentenced on both at the same time. The district court considered the issuance of a citation subsequent to another to be an intervening arrest (as some state laws and precedents define it). The 9th disagreed. The 9th holds that a citation does not rise to an arrest level for purposes of defining an intervening arrest. "[W]e interpret the term 'arrest' to require that the individual be formally arrested; the mere issuance of a citation, even if considered an arrest under state law, is insufficient." (20500). The Commission has not defined "intervening arrest" a citation as an arrest. An analysis of what is an arrest, drawing from Fourth Amendment precedents, does not cover a citation. A contrary approach is the Seventh Circuit, but it relies upon precedent that is questionable, misread, or inapposite. The 9th's approach finds support in the Supreme Court's definitions of arrest, and the over-all approach of the Guidelines. Here, the defendant was never told he was "under arrest" for driving with a suspended license, he was not transported to a police station, nor booked into a jail. These are formal arrests hallmarks that are missing here. Concurring, McKeown (joined by Kozinski, Graber, and Wardlaw) highlights the common understanding of what an arrest is. The concurrence has practical pragmatic reasons, some amusing (related to applications for jobs, colleges, and so forth). as to why citations are different from arrests. Rawlinson dissents, arguing that Fourth Amendment jurisprudence should not be imported to sentencing jurisprudence, and that we should not conflict with the Seventh Amendment. Rawlinson believes that treating citations as a "non-event" undermines the recidivism considerations of the Guidelines and understates the criminal history.