United States v. Perez, 1:24-cr-00368

Defendant Jorge Perez, a resident superintendent at NYCHA in the Bronx, pleaded guilty to soliciting and receiving bribes from contractors in violation of 18 U.S.C. § 666(a)(1)(B).
Perez's plea agreement stipulated a sentencing guideline level of 17 with a criminal history point attributed to a prior New York Driving While Ability Impaired (DWAI) infraction, resulting in a suggested guideline imprisonment range of 24-30 months.
The key dispute was whether the DWAI civil infraction should count toward Perez’s criminal history.
New York law treats DWAI as a traffic infraction and not a criminal conviction, while federal sentencing guidelines and subsequent amendments have ambiguous applicability to such infractions.
The court received supplemental briefing and underlying paperwork about the DWAI incident to resolve whether Perez was eligible for the "Zero Point Offender" reduction.

Issue	Perez's Argument	Government's Argument	Held
Should Perez’s DWAI infraction add a criminal history point for federal sentencing under U.S.S.G. § 4A1.2(c)?	DWAI is a non-criminal infraction not covered by the guideline; Amended Application Note 5 does not apply.	Amended Application Note 5 mandates that all DWAI-like offenses always be counted for criminal history, regardless of classification.	No criminal history point; Perez’s DWAI is not categorically more serious than reckless driving and does not trigger § 4A1.2(c)(1).

United States v. Potes-Castillo, 638 F.3d 106 (2d Cir. 2011) (DWAI offenses must be compared to reckless driving to determine criminal history point eligibility)
United States v. Valente, 688 F. App’x 76 (2d Cir. 2017) (upholding district court’s approach to DWAI under Potes-Castillo)
United States v. Smith, 2025 WL 751377 (2d Cir. Mar. 10, 2025) (procedural error to miscalculate sentencing range)