United States v. Potes-Castillo
2011 U.S. App. LEXIS 5310
2d Cir.2011Background
- Gonzalez-Rivera had a prior New York DWAI conviction (Veh. & Traf. Law §1192(1)) with a May 2004 conditional discharge.
- At sentencing for conspiracy to distribute a controlled substance, the district court counted the prior DWAI conviction toward criminal history.
- Section 4A1.2(c) categorizes prior sentences into three groups: always counted, counted with exceptions, and never counted.
- Application Note 5 states DWAI offenses are counted and are not minor traffic infractions under §4A1.2(c)(2).
- Gonzalez-Rivera argued the DWAI should be excluded under (c)(2) or counted under (c)(1) depending on interpretation; the government urged counting without exception under (c)(1) per decisions.
- We remanded to determine, in the first instance, whether the DWAI sentence is similar to careless or reckless driving under §4A1.2(c)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| DWAI under §4A1.2(c)(1) or (c)(2)? | Gonzalez-Rivera—DWAI should be excluded as minor traffic infraction under (c)(2). | Government—DWAI is counted; consider (c)(1) exception if similar to listed offenses. | DWAI should be treated like misdemeanors/petty offenses and may be excluded under (c)(1) if similar to careless/reckless driving; remand required. |
| Meaning and effect of Application Note 5 on DWAI counting | Note 5 does not foreclose application of (c)(1); DWAI may be excluded if similar to listed offenses. | Note 5 requires DWAI convictions to be counted, not exempt by (c)(1). | Note 5 is ambiguous; proper reading permits counting under (c)(1) if conduct is similar to careless/reckless driving; remand. |
Key Cases Cited
- United States v. Loeb, 45 F.3d 719 (2d Cir. 1995) (DWAI not minor infraction; counted toward criminal history)
- United States v. Moore, 968 F.2d 216 (2d Cir. 1992) (DWAI convictions not minor infractions; should be counted)
- United States v. Jakobetz, 955 F.2d 786 (2d Cir. 1992) (DWAI as not minor infraction; precedential limit discussed)
- United States v. DeJesus-Concepcion, 607 F.3d 303 (2d Cir. 2010) (per curiam; factors for similarity to listed offenses and (c)(1) application)
- United States v. Ramirez, 421 F.3d 159 (2d Cir. 2005) (probation/conditional discharge treated for criminal history calculations)
- Stinson v. United States, 508 U.S. 36 (Sup. Ct. 1993) (guidelines commentary as authoritative, but not binding in all instances)
- TRW Inc. v. Andrews, 534 U.S. 19 (Sup. Ct. 2001) (statutory interpretation principles for avoiding superfluous text)