UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
October 17, 2011
UNITED STATES OF AMERICA
WALTER GONZALEZ-RIVERA, DEFENDANT.
The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.:
OPINION & ORDER
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 " a comparison of the punishments imposed for the listed and unlisted offenses,  the perceived seriousness of the offenses as indicated by the level of punishment,  the elements of the offenses,  the level of culpability involved,  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 § 1212 ("Every person violating this provision [reckless driving] shall be guilty of a misdemeanor.").
A first-time DWAI offense is punishable by a term of imprisonment not to exceed 15 days, and/or a fine between $300 and $500. See VTL § 1193(1)(a).*fn5 A first-time reckless driving offense is punishable by a term of imprisonment not to exceed 30 days and/or a fine not to exceed $300. Id. § 1801.*fn6
For second-time offenders, the maximum term of imprisonment for a DWAI offense is 30 days, and for a reckless driving offense is 90 days. Id. §§ 1193, 1801.
A DWAI offense carries a mandatory 90-day suspension of one's driver's license; a reckless driving offense does not. Id. § 1193.
With respect to the perceived seriousness of the offenses as reflected by the levels of punishment imposed by law, the Government argues that the legislature's view that a DWAI is more serious is reflected by the facts that (1) DWAI penalties increase in severity if the DWAI offender is driving a "special vehicle" (e.g., a taxicab or school bus with passengers), but reckless driving penalties contain no such provision; (2) a DWAI offender who commits the same offense within 5 years faces increased penalties, whereas a reckless driving offender who commits the same offense within 18 months faces increased penalties (reflecting a desire to deter DWAI offenses for a longer period of time); and (3) a DWAI offense carries a mandatory minimum fine, whereas a reckless driving offense does not.*fn7
The Government also notes that the New York Court of Appeals has described the statutory scheme behind the DWAI law as "distinct" and "highly integrated" with "exclusive penalties." See People v. Prescott, 95 N.Y. 2d 655, 663 (2001). The Government contends that there is no comparable discussion of a statutory scheme with respect to reckless driving.
C. A Comparison of the Elements of the Offenses
The Court compares the elements of a DWAI offense with the elements of a reckless driving offense, as follows.
With respect to a DWAI offense, NY VTL § 1192(1) states that "[n]o person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol."*fn8 With respect to a reckless driving offense, NY VTL § 1212 provides that "[r]eckless driving shall mean driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway."
Although both DWAI and reckless driving involve violations of the VTL, the Government contends that the DWAI statute covers a broader range of conduct. The Government notes that a person is guilty of a DWAI offense simply if she "operates her motor vehicle" while her ability is impaired. Id. § 1192. By contrast, reckless driving means driving or using any motor vehicle "in a manner which unreasonably interferes with the free and proper use of the public highway," id. § 1212, and which creates "an actual and apparent, as opposed to a theoretical danger to the person or property of another." People v. Dipoumbi, 2009 WL 1395826, at *3 (N.Y. City Crim. Ct. (April 28, 2009)) (emphasis added). A person can commit a DWAI offense without driving or operating a car in a way that involves a "public highway," and without creating "an actual and apparent danger to the person or property of another."*fn9
D. The Level of Culpability Involved
The Court compares the level of culpability involved in DWAI offenses with the level of culpability involved in reckless driving offenses, as follows.
Defendant contends that there is no meaningful distinction between the levels of culpability involved in a DWAI offense and a reckless driving offense.
The Government, however, notes that operating a vehicle in a manner that some might consider reckless does not constitute the offense of reckless driving. See, e.g., People v. Bulgin, 908 N.Y.S.2d 817, 825-26 (N.Y. Sup. Ct. Bx. 2010) (finding no probable cause to arrest for reckless driving when "defendant drove five to 15 miles above the speed limit and failed to stop at one stop sign and two steady red lights . . . but there was no evidence that any pedestrians or other drivers were affected in any way"). The Government notes that Defendant's own actions-driving through a red light while impaired by alcohol-would not support a New York reckless driving conviction unless his actions unreasonably interfered with the free and proper use of the public highway and created "an actual and apparent, as opposed to a theoretical danger to the person or property of another." Dipoumbi, 2009 WL 1395826, at *3. By contrast, any individual who has consumed alcohol and whose ability to operate a vehicle is impaired as a result can be convicted of a DWAI offense.
E. The Likelihood of Recurring Criminal Conduct
The Court compares the likelihood of recidivism among DWAI offenders and reckless driving offenders, as follows.
Defendant argues that a person who drives while his ability is impaired by alcohol and a person who drives recklessly both tend to be recidivists.
The Government notes that individuals who repeatedly engage in reckless driving may not always be liable under the reckless driving statute, for the reasons stated above in Sections D & E. By contrast, any individual who has consumed alcohol and whose ability to operate a vehicle is impaired as a result can be convicted of a DWAI offense. The Government contends that this distinction demonstrates an increased likelihood of recidivism with respect to DWAI offenses.*fn10
F. Actual Conduct and Actual Penalty Imposed
The Court also considers Defendant's actual conduct and the actual penalty imposed on Defendant, for his DWAI offense, as follows.
Defendant was convicted of a DWAI offense after he drove through a steady red light while impaired by alcohol. The punishment imposed on Defendant for that offense was a one-year term of unsupervised "conditional discharge," a 90-day suspension of his driver's license, treatment for alcohol abuse, and a $500 fine.
G. Summary of All Factors
The chart below summarizes the factors relevant to a comparison of the offense of DWAI and the offense of reckless driving.
Punishments Mandated by LawPerceived Seriousness of Offenses as Reflected by those Mandated PunishmentsElemtns of the OffenseLevel of CulpabilityLikelihood of RecidivismActual Conduct and Actual Penalty
DWAITraffic violation; not a crime
Find of $300-$500 and/or maximum term of 15 days' imprisonment.
For second-time offenders, maximum term of 30 days.
Mandatory 90-day suspension of driver's license.Severity of punishment increases when driving a "special vehicle."
A DWAI offender who commits the same offense within five years faces increased penalties.
DWAI's statutory scheme described by the New York Court of Appeals as "distinct" and "highly integrated" with "exhaustive penalties.""No person shall operate a motor vehicle while the persons's ability to operate such motor vehicle is imparied by the consumption of alcohol."Culpable if alcohol consumption impairs the ability to operate motor vehicle.Culpable if alcohol consumption impairs ability to operate motor vehicle.
DWAI statute targes inherently addictive behavior.Drove through a steady red light while impaired by alcohol.
One-year term of unsupervised conditional discharge, a 90-day suspension of his driver's license, treatment for alcohol abuse, and a $500 fine.
Find of up to $300 and/or maximum 30 days imprisonment.
For second-time offeners, maximum term of 90 days.
No mandatory suspension of one's driver's license.A reckless driving offender who commits the same offense within 18 months faces increased penalties."Reckless driving [is] driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliace or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway."Culpable only if driving creates "an actual and apparent, as opposed to a theoretical danger to the person or property of another."To be culpable, a person must not only drive recklessly, but must also find themselves in circumstances that interfere with or endanger others' use of public roads.
After considering the above factors, the Court concludes that the DWAI offense is not categorically (i.e., without qualification or reservation) more serious than a reckless driving offense.
First and most significantly, a DWAI offense is a "traffic infraction," and is not a crime. By contrast, one who drives recklessly in New York commits a misdemeanor, a criminal offense. A non-criminal traffic infraction cannot be said to be "categorically (without qualification) more serious" than a criminal misdemeanor.
Second, the Government, in arguing that a DWAI offense is categorically more serious than a reckless driving offense, cites certain alcohol-related crimes with which Defendant was not charged, such as the increased penalty under the DWAI statute for driving a "special vehicle" while impaired, and the increased sentence for second-time DWAI offenders. However, the Court considers whether Defendant's actual conduct-driving through a steady red light while impaired by alcohol-is "categorically more serious" than the crime of reckless driving. Ubiera, 486 F.3d at 75. Defendant neither drove a special vehicle nor committed the offense more than once, and thus those circumstances have little bearing on the present analysis.
The Government emphasizes that a DWAI offender who recidivates within five years of his first offense faces increased penalties, whereas a reckless driver faces such increased penalties only if he recidivates within eighteen months. The Government suggests that this supports the conclusion that a DWAI offense is "categorically more serious" than a reckless driving offense. However, (1) Defendant's DWAI offense was his first and only offense; (2) the increased penalty that attaches to a secnd DWAI offense is a maximum of 30 days' imprisonment, which is the same maximum sentence for a first-time reckless driving offender; and (3) a second-time DWAI offender is still guilty of a traffic infraction and not a crime. See N.Y. VTL § 1193(1).
For the foregoing reasons, the Court finds that a DWAI offense cannot be said to be "categorically more serious" than a reckless driving offense. Accordingly, Defendant's DWAI offense is excluded from Defendant's criminal history calculation, pursuant to section 4A1.2(c)(1).
Counsel are directed to confer concerning a date for re-sentencing and dates for pre-sentence submissions, and to advise the Court's deputy of those dtaes by Friday, October 28, 2011. The parties' pre-sentence submissions must address, inter alis,: (1) whether the Court should impose a two-level increase in Defendant's offense level calculation for obstruction of justice, citing facts that support the position (see Remand Order at 4 n.1), and (2) Defendant's eligibility for safety-valve relief.