*1 (and affirm, jurisdiction in un- fore statutory leaving day another stricted court) fashion. precedented perhaps for another whether there and inconsistent state federal court Wilton, Since two of our sister least so, judgments, final and if which judgment circuits have affirmed the exercise of De- claratory jurisdiction when is full Judgment Act enforceable under faith and credit at issue and the coverage insurance was principles. first.
federal action was filed See Ameri- Cas. Krieger,
can Co. (9th Cir.1999); Capitol
1117-20 Kapiloff,
Ins. Co. v.
(4th Cir.1998). My has research uncov- ered 378 decisions Wilton. Not one citing America, UNITED STATES those decisions reversed trial court for Appellee, exercising jurisdiction. its denying Some months after motion WEBB, Appellant. Justin dismiss, stay court grant- the district No. 99-3006. summary judgment Capitol ed in favor of Indemnity, unaware state trial Appeals, Court granted summary judgment had court de- Eighth Circuit. ciding coverage favor issue Feb. Submitted 2000. days previously. Hunts some twelve Haverfields and Hunts do not raise on Filed July appeal the issue of whether the district Rehearing Rehearing En and Banc court, court, or this deferred Sept. Denied 2000.* rendering decision in this Declara- final tory Judgment Act until case after the initially inconsistent trial court state deci- Instead, final ap-
sion became on appeal. (i) argue
pellants the district abused its denying
court discretion their (ii) dismiss, stay
earlier motion to interpretation the district court’s Capitol Indemnity policy wrong was view, my
the merits. In a development
that occurs after court proper- the district jurisdiction,
ly exercises its such as incon- parallel initial rulings
sistent in the federal proceedings,
and state court is insufficient
reason reverse the initial exercise of
discretion, knocking thereby askew the
Eighth interpreting Circuit law apply- statute, a federal Declaratory
Judgment Act.
I conclude the district court did not its denying
abuse discretion in the motion stay or dismiss. I further conclude the granted properly summary
district court
judgment in favor of Capitol Indemnity for 3, 1999, May its
the reasons stated in there-
Memorandum Order. would
* McMillian, Arnold, Judge Judge grant petition. Richard S. Arnold, Judge Judge Bye Morris S. *2 Gross, Louis, MO, A.
Michael St. ar- gued, for Appellant. Delworth, C. Assistant U.S. At-
James (Michael Louis, MO, torney, argued St. W. brief), Reap, Attorney, U.S. Appellee. WOLLMAN, Judge,
Before: Chief HANSEN, and MORRIS SHEPPARD ARNOLD, Judges. Circuit WOLLMAN, Judge. Chief guilty After pled charge one possess with intent dis- conspiracy marijuana in violation of tribute U.S.C. 841(a) §§ Webb was & Justin sen- by the district court1 tenced to months’ Jackson, E. The Honorable Carol of Missouri. Judge States District for the Eastern District supervised and five as determined under imprisonment 4A1.1. and we affirm. appeals, release. Webb appeal,
On Webb contends that the dis- trict court it erred when tallied his crimi- I. *3 nal history points and when it considered 4A1.1, Following guidelines the section him ineligible valve reduc- court four criminal assessed Webb tion. We review the district appli- court’s history points, placing him criminal his- sentencing guidelines cation of the de novo category III. the tory charge Because had findings and its factual for clear error. of'26, a offense level which the court base Wound, See United States Bad acceptance to decreased 23 for Webb’s of 1072,1076 (8th Cir.2000). responsibility, Webb fell within a sentenc- range imprisonment.
ing 57-71 months’ History A. Criminal Points criminal analyzing history, After Webb’s prior Whether a sentence counts court category the district found that III for history purposes question criminal the past overstated seriousness Webb’s of federal law. United States v. See John departed criminal conduct. The court thus son, Cir.1993). Un 4A1.3, pursuant downward to section mov- 4A1.1, der section criminal history points history into category criminal I. sentence,” are to “each prior be added for Therefore, statutory absent the mandatory 4A1.2(c) 4A1.1, see U.S.S.G. but section minimum imprison- sentence of 60 months’ provides exception to this rule for cer ment, fallen Webb would have within a tain petty misdemeanors and crimes.2 range of months. guidelines After departure, requested In determining the that the Webb’s criminal score, history “safety court consider a valve” reduction the district court assessed 3553(f), point one pursuant prior 18 U.S.C. for Ohio Webb’s conviction eligible “prohibitions,” would render for lesser sen- for the offense of a first- misdemeanor, than statutory degree charge tence minimum. The based on concluded possession court the reduction was Webb’s of alcohol when he was years court ad guidelines unavailable because the relevant old. The assessed two 4Al.l(d) 5C1.2, provision, requires points section that a ditional section be under probation defendant not have more than one criminal cause Webb was inactive for 4A1.2(c) Hindering obey police 2. offi- Section states: or failure (c) cer Counted Sentences and Excluded felony Sentences for all offenses are count- check Insufficient funds petty ed. Sentences misdemeanor and Leaving the scene an accident counted, except are as offenses follows: (excluding violations lo- Local ordinance (1) following prior Sentences for the of- also cal ordinance violations that are them, by fenses offenses similar law) under state known, they name are whatever count- Non-support (A) only if was a ed sentence term of Prostitution probation year of at or least one a term of Resisting arrest (B) thirty imprisonment days, of at least Trespassing. prior offense was an instant similar (2) following prior of- Sentences for offense: them, by fenses and offenses similar to Careless or reckless known, whatever name are never Contempt of court counted: Disorderly disturbing conduct or Hitchhiking peace truancy Juvenile status offenses Driving without a license with a re- Loitering suspended voked or license (e.g., speeding) Minor traffic infractions police False information to a officer Public game intoxication Fish violations Vagrancy. Gambling satisfy did at 318-19. The offenses at of the instant Id. the time that conviction old test Correa was 19 im- because challenge does offense. Webb the offenses and at the time he committed Ohio point fourth another position of a commentary to 4A1.2 defines conviction. a defendant who is not as the dis- did before argues, 319; at years old. See id. court, have ex- that the court should trict comment, (n. 7). also Correa under conviction cluded his part of the test. failed to meet second 4A1.2(c) eliminated thus Correa, See points based history the three criminal ap First Circuit’s believe it. asserts under upon Webb “certainty goals well with proach fits *4 4A1.2(c)(2) prohibitions the crime of of purposes in the meeting and fairness that not “juvenile status offense” avoiding sentenc sentencing, unwarranted and, alternatively, that have been counted disparities with sim among defendants intoxication, a public “similar to” it is ... flex maintaining ... ilar records while See excluded. U.S.S.G. crime also 991(b)(1)(B); § see ibility....” 28 U.S.C. 4A1.2(c)(2). in re- The government, States, 488 U.S. also Mistretta v. United the district court sponse, contends that 361, 365-66, 109 714 S.Ct. L.Ed.2d was find the offense was correct to that (1989). parts The first two Correa’s juvenile that the not a status offense and uni three-part promote certainty test driving like without license crime more defendants, third formity among while the violations, game like fish cir of individual provides for consideration 4A1.2(c)(l), in provides listed which section adopt we the Accordingly, cumstances. if require- other for their inclusion certain it to the three-part apply Correa test and ments relevant our discussion not to circumstances of this case. argues prohi- that government met. The test, prohibitions Under Webb’s that com- bitions is an adult Webb to requirements conviction fails meet the yet mitted an adult who had offense, juvenile for a status he was age majority. reached the juvenile when he the offense. committed his offense is not Accordingly, de offense” is not “Juvenile status within mean- juvenile status offense the In guidelines. in sentencing fined 4A1.2(c)(2). ing of section 314, Correa, v. 114 F.3d 319 United States (1st Cir.1997), con the First Circuit was argu We next address Webb’s fronted two offenses that the defen with prohibitions is ment that the offense of argued juvenile dant should be considered “similar to” offenses enumerated age pur one’s falsifying status offenses: 4A1.2(c)(2). v. In section contributing the delin chase alcohol Mitchell, (8th Cir.1991), 690, 941 691 child. The court held that quency of a as it is used in we defined “similar to” together “[cjonsidering caselaw 4A1.2(c)(l)(B) that and determined crime guideline provisions,” the actual “normal, dictionary given it must be its if: constitutes a status offense is, similar meaning,” that two offenses are (1) another, they crime “if resemble one whether committed the defendant ” ‘related;’ if juvenile, they they com- not are similar
as a
see U.S.S.G.
(2)
(n. 7);
ment.
conduct
have
have the same or similar character.
adult,
defini
by
consistently
if
an
retained that
engaged
been lawful
Ward,
“similar
in other
phrase
see
71 F.3d
tion
to”
4A1.2(c).
(7th
(3)
Cir.1995); and
the of-
See United
parts
263-64
Jenkins,
serious,
v.
989 F.2d
979-80
fense is not
see United States
States
(5th
(8th
Cir.1993);
Hardeman,
Ziglin,
United States v.
933 F.2d
(8th
Cir.1991).
Cir.1992);
964 F.2d
Unit-
cf.
Harris,
ineligible
safety
valve
finding
128 F.3d
ed States v.
Cir.1997)
“emphasis on the
(noting that
provides
exception
provision,
with
comports
[of
offenses]
elements
mandatory minimum
application
” for the
plain meaning of ‘similar’
charged
for those
with certain
sentences
4A1.2(c)). Thus, to
of section
purposes
drug trafficking offenses. See United
similar to
which offenses are
determine
Hendricks,
listed,
meaning
plain
we consider the
those
(8th Cir.1999).
parties agree
The
compare the
of that term and
resemblance
five
requirements
four of the
Mitch-
and character of the offenses. See
provision
valve
have been met
this case.
ell,
691; Correa, 114
F.3d at
cf.
requires
The contested criterion
that “the
(“The enumerated offenses
[in
not have
than 1 crimi-
]
defendant
more
[
4A1.2(c)(2)
possess
quality
all
a bland
]
nal
as determined under the
more
helps
distinguish
them from
sentencing
guidelines....
”).
transgressions....
substantial
5C1.2(1).
being
pos-
a minor in
argues
public
of alcohol is similar to
intox-
session
court found that
did
ication,
government compares
whereas
requirement
not meet this
because he had
Although
it to
without a license.
history points.
con-
four
*5
has at least one of the
public intoxication
tends
the district court
.because
illegal pos-
the crime of
same features as
I,
by
him
category
moved
into
which
defi-
namely,
session of
the alcohol—
alcohol—
nition is for those defendants who have
we believe that
the character of Webb’s
history
points,
one or no criminal
driving
closer to that of
without
offense is
has at most one criminal
valid
such
fish and
a
license. Offenses
as
rendering
eligible
safety
thus
for the
a li-
game violations and
without
do
agree.
valve. We
not
involve a defendant who affirmative-
cense
scheme,
ly
regulatory
violates a
whereas
Section 5C1.2 states that a defendant
such
status offenses
offenses
as
must not have more than one criminal
public
punish
and
intoxication tend to
commentary
history point. The
to section
offender on the basis of the offender’s
explains that this means “more than
5C1.2
status, see, e.g.,
current state or
history point
one criminal
as determined
(1st
Unger,
v.
915 F.2d
763
5C1.2,
com
under
4A1.1.” U.S.S.G.
Cir.1990), particularly when that status
Under,
(n. 1).
4A.1.1,
ment.
might
public generally
harm the
and
history
Nothing
points.
has four criminal
which,
cases,
harm to
might
in some
cause
4A1.3,
provision
in section
under which
They
legal
actions
the individual.
court shifted
into a lower
awry,
gone
speak.
so to
a
history category,
criminal
indicates that
offense,
hand, represents
other
on the
change
provision
under this
de
category
law,
specific liquor
violation of a
control
history
criminal
previously
letes
assessed
being merely
rather
than
reflective of a
purposes
of the section
points for
juvenile delinquency
crime
status
such
analysis.
the Tenth Circuit has
5C1.2
As
public
against
peace.
or an offense
“[sjection
noted,
4A1.3 does not authorize
prohi-
the offense of
Accordingly, because
crimi
a court to add or subtract individual
properly belong
not
to the
bitions does-
history points
nal
from a defendant’s rec
listed in section
category
Owensby,
....
v.
ord
United States
4A1.2(c)(2),
in
the district court did not err
(10th Cir.1999).
1244, 1246
Accord
counting
of that offense
Webb’s conviction
Robinson,
1294;
158 F.3d at
United States
determining
history
his criminal
score.
(11th
Orozco,
121 F.3d
Cir.
Safety
B.
Valve Reduction
Resto,
1997);
74 F.3d
United States
(2d Cir.1996);
v. Valen
then,
turn,
to Webb’s second
cia-Andrade,
contention,
Cir.
that the district court erred
(the
1995).
impos-
4A1.1
crimes
is
“mechanistic” as section
and status
distinction
As
Robinson,
anyway),
to maintain
but rather
be,
158 sible
may
see United
curiam),
(D.C.Cir.1998)
A sim-
offense conduct.
seriousness
(per
denied,
ple glance at the two lists demonstrates
526 U.S.
rt.
ce
do
clearly:
“Minor
offenses”
traffic
(1999),
ing purposes, seems to is not some regulatory
artificial distinction between