United States v. Kohl, 910 F.3d 978

Justin Kohl was convicted of federal methamphetamine offenses and sentenced after a bench trial in 2018.
The PSIR assigned Kohl one criminal-history point for a 2016 Wisconsin conviction for operating a vehicle with a detectable restricted controlled substance in his blood (WIS. STAT. § 346.63(1)(am)).
Under Wisconsin law a first violation of § 346.63(1) is punishable only by a forfeiture and is not a crime (WIS. STAT. §§ 346.65(2)(am), 939.12).
Kohl objected under U.S.S.G. § 4A1.2(c)(2), arguing such noncriminal forfeiture offenses (like ordinance violations) are excluded and that Note 5 (which mandates counting DWI and “similar” offenses) should not apply because his offense lacks an impairment element.
The district court counted the Wisconsin conviction as a similar offense under Note 5, placed Kohl in Criminal History Category IV, but imposed a below-Guidelines 36-month sentence.
The Seventh Circuit affirmed, holding the Wisconsin offense is "similar" to driving-under-the-influence offenses and thus properly counted under Note 5.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Wisconsin forfeiture conviction for operating with a detectable controlled substance is excluded from criminal-history calculation under U.S.S.G. § 4A1.2(c)	Kohl: First-offense forfeiture is not a crime and should be excluded like an ordinance violation; Note 5 does not apply because the offense lacks an impairment element	Government: Note 5 mandates counting DWI and similar offenses regardless of classification; the Wisconsin offense is within the state’s "operating under influence" statute and thus similar	The court held the offense is "similar" to DWI under Note 5 and properly counted in Kohl's criminal-history score

Grzegorczyk v. United States, 800 F.3d 402 (7th Cir. 2015) (cited for de novo review and Guidelines interpretation principles)
Hill v. United States, 645 F.3d 900 (7th Cir. 2011) (Application Notes are part of the Guidelines and govern interpretation)
Arnaout v. United States, 431 F.3d 994 (7th Cir. 2005) (same principle on treating Application Notes as authoritative)
LeBlanc v. United States, 45 F.3d 192 (7th Cir. 1995) (local ordinance DWI-type offenses counted when within Note 5 scope)
Thornton v. United States, 444 F.3d 1163 (9th Cir. 2006) (strict-liability BAC offense without impairment element still "similar" to DWI for Note 5 purposes)
State v. Albright, 298 N.W.2d 196 (Wis. 1980) (Wisconsin precedent recognizing first § 346.63(1) violation is not a crime)