Saturday, December 03, 2011

Case o' The Week: Ninth, En Banc, Gets its "Citations" Right -- Leal-Felix and Sentencing Guidelines

Were you "arrested" when got that that (well-deserved) speeding citation south of Barstow, on your way to Vegas?

Judge N.R. Smith doesn't think so, either.
United States v. Leal-Felix, 2011 WL 596602 (9th Cir. Nov. 30, 2011), decision available here.

Players: Big victory for CD Cal. Deputy Federal Public Defender Michael Tanaka. Decision by Judge N. Randy Smith (left).

Facts: Leal-Felix pleaded guilty to illegal reentry. Id. at *1. His criminal history reflected (among other things), two citations for driving with a suspended license, issued two days apart. Id. He had been sentenced for both citations on the same date, receiving concurrent sentences. Id.

Probation hit the defendant with Criminal History (“CH”) points for both of the citations. Id. Leal-Felix objected, arguing under USSG § 4A1.2(a)(2) that the two citations should get one set of points – they were both sentenced on the same day, and were not separated by an intervening arrest. Id. Instead, the events were separated by an intervening citation. The district court disagreed, both events were assigned CH points, Leal-Felix wound up in a higher category. Id. A three-judge panel affirmed, agreeing with the Seventh Circuit that a traffic citation was an “arrest” under the guideline. Id. at *1. The case went en banc.

Issue(s): “The definition of an ‘intervening arrest’ is the subject of our interpretation here. Under this Guideline, if a citation is equivalent to an arrest, then Leal–Felix's two citations for driving with a suspended license must be counted separately. Counting each citation as an arrest, and adding two points for each, would place him in criminal history category VI, with a Guidelines range of 21–27 months. However, if a citation is not an intervening arrest, his citations would be counted together and he would be included in criminal history category V, with a Guidelines range of 18–24 months.” Id. at *2.

Held: “In Sentencing Guidelines § 4A1.2(a)(2), we 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. Therefore, we vacate the sentence imposed by the district court and remand for resentencing.” Id. at *1.

Of Note: In a well-written opinion Judge NR Smith carefully explains the obvious – a “citation” is not an “arrest.” Interestingly, a considerable chunk of his analysis relies on the interpretation of “arrest” in the Fourth Amendment context. Id. at *4-*5. The sole dissenter, Judge Rawlinson, is unpersuaded: in her view, the majority decision “improperly imports Fourth Amendment analysis into calculation of a sentence under the Sentencing Guidelines . . . .” Id. at *7.
Meanwhile, in an entertaining concurrence, Judge McKeown highlights “the most compelling reason” to conclude that a citation isn’t an “arrest:” common sense. Id. at *6. Someone who got a traffic ticket for speeding isn’t going to disclose that they were “arrested” when applying for a job, or filling out a college application, or completing adoption papers. Id.

How to Use: This case is good news for folks on the cusp of a criminal history category; it may mean one bump down in the CH category, and in this case it saved Leal-Felix three months on the low-end range. This is great news, however, for Safety Valve candidates. Recall that Safety Valve is that precious opportunity to get below a mandatory-minimum drug sentence, if a defendant has – among other things – no more than one Criminal History point. See generally USSG § 5C1.2(a)(1). Before Leal-Felix, the following criminal history would have precluded Safety Valve eligibility:

* Traffic stop and release,

* Then second traffic citation,

* Then later resolution of both offenses in one joint concurrent sentence


= 2 CH points.

After Leal-Felix, under the same scenario the defendant would have 1 point, and would still eligible for Safety Valve. Bear Leal-Felix in mind for drug defendants with minor criminal histories; the case should broaden the reach of Safety Valve eligibility.

For Further Reading: Chief Deputy Fed. Public Defender Steve “Rule of Lenity” Sady is happy. Sady has been a tenacious advocate for this rule of construction, which instructs that an ambiguous term in a statute, or guideline, should be interpreted in favor of the defense. Judge N.R. Smith caps off his (correct) statutory analysis in Leal-Felix with the (correct) observation that the Rule of Lenity also requires that the guideline’s use of the term “arrest” excludes “citations.” Id. at *5.

For a survey of the Ninth’s use (and abuse) of the Rule of Lenity, visit the collection of blog entries here.

Image of the Honorable N. Randy Smith from Image of CHP traffic citation from

Steven Kalar, Senior Litigator N.D. Cal FPD. Website at


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