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United States of America v. Walter Gonzalez-Rivera

October 17, 2011

UNITED STATES OF AMERICA
v.
WALTER GONZALEZ-RIVERA, DEFENDANT.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.:

OPINION & ORDER

I. Background

On November 20, 2007, Walter Gonzalez-Rivera ("Defendant") was sentenced to 188 months' imprisonment for conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin. At sentencing, the Court assigned Defendant three criminal history points for his prior New York state conviction for driving while ability impaired by alcohol ("DWAI").*fn1

Defendant appealed from his conviction, and, on March 14, 2011, the Second Circuit remanded the case to this Court. The Second Circuit held that Defendant's DWAI conviction should not have been counted toward his criminal history calculation, absent a determination by this Court that the DWAI conviction was "categorically more serious" than reckless driving, one of the offenses listed in section 4A1.2(c)(1). (See Second Circuit Remand Order, Dkt. Entry No. 198, at 12 (hereinafter "Remand Order").) The Second Circuit asked this Court to decide "whether [Defendant's DWAI] conviction should be counted or excluded under section 4A1.2(c)(1), and how that determination might affect [Defendant's] sentencing." (Id.)

II. Legal Standards

Section 4A1.2(c) of the Guidelines identifies criteria used by sentencing courts to determine whether a prior sentence is included or excluded from the criminal history calculation.

Although all felony offenses are counted for criminal history purposes, certain misdemeanors and petty offenses are not always counted. Specifically, section 4A1.2(c)(1) provides that prior sentences for certain enumerated misdemeanors and petty offenses-and offenses similar to (i.e. not "categorically more serious than")*fn2 those enumerated offenses-are counted toward a defendant's criminal history only if (A) the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to the instant offense for which the defendant is now being sentenced. See U.S.S.G. § 4A1.2(c)(1). One of those enumerated misdemeanors in section 4A1.2(c)(1) is "careless or reckless driving." Id. § 4A1.2(c)(1).

With respect to Defendant's prior DWAI conviction, the Second Circuit stated that this conviction "should be treated like any other misdemeanor or petty offense" and analyzed under section 4A1.2(c)(1). (Remand Order at 11.) The Second Circuit also stated that neither of the two exceptions in section 4A1.2(c)(1) applies to Defendant's prior DWAI conviction. (Id. at 12.)*fn3 Thus, Defendant's DWAI offense will count toward his criminal history only if it is categorically more serious than a reckless driving offense.

In determining whether the unlisted offense (DWAI) is "categorically more serious" than the listed offense (reckless driving), a district court may consider several factors, including "[1] a comparison of the punishments imposed for the listed and unlisted offenses, [2] the perceived seriousness of the offenses as indicated by the level of punishment, [3] the elements of the offenses, [4] the level of culpability involved, [5] the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct[,]" as well as (6) the actual conduct involved, and (7) the actual penalty imposed. (See Remand Order at 12 (citing United States v. Potes-Castillo, 638 F.3d 106, 113-14 (2d Cir. 2011) and United States v. DeJesus-Conception, 607 F.3d 303, 304 (2d Cir. 2010).)

III. Application to Facts

Defendant's DWAI offense will count toward his criminal history only if it is categorically more serious than reckless driving. The Court will thus compare the two offenses, using the factors listed above.

A. Comparison of Punishments Mandated by Law*fn4 and the Perceived Seriousness of the Offenses as Indicated by Those Levels of Punishment

The Court must compare (1) the punishments mandated by the DWAI law with those mandated by the reckless driving law; and (2) the perceived seriousness as indicated by those levels of punishment.

Under VTL section 1193(1), a DWAI offense is a traffic violation, and is not a crime. See VTL § 1193(1); see also VTL § 155 ("A traffic infraction is not a crime and the punishment imposed therefore shall not be deemed for any purpose a penal or criminal punishment." ). By contrast, someone who has been convicted of reckless driving has committed a misdemeanor. See VTL § ...


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