CA9: A traffic citation is not an “arrest” for U.S.S.G. § 4A1.2(a)(2)

A traffic citation is not an “arrest” for U.S.S.G. § 4A1.2(a)(2). The majority does not cite the Fourth Amendment arrest cases, but the concurrence and dissent does. United States v. Leal-Felix, 09-50426 (9th Cir. November 30, 2011) (en banc):

In this appeal, we are asked to interpret the United States Sentencing Guidelines § 4A1.2(a)(2). The United States Sentencing Commission (the “Commission”) has authority to define the terms in the Sentencing Guidelines. See 28 U.S.C. § 994(p). However, until it does, we consider the context and purpose of the Sentencing Guidelines as a whole in interpreting them. Cf. Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006). In Sentencing Guidelines § 4A1.2(a)(2), we interpret the term “arrest” to require that the individual be formally arrested; the mere issuance of a citation, even if considered an arrest under state law, is insufficient. Therefore, we vacate the sentence imposed by the district court and remand for re-sentencing.

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[9] Nothing in the record suggests Leal-Felix was ever formally arrested for driving with a suspended license. He was not told he was “under arrest,” he was not transported to the police station, and he was not booked into jail. Absent one of these hallmarks of a formal arrest, the district court erred in finding that he had been “arrested” for purposes of the Sentencing Guidelines. Therefore, his sentence is vacated. The case is remanded for resentencing in accordance with this opinion.

Concurrence:

I join the majority’s opinion, but write separately to highlight the most compelling reason for concluding that a traffic citation is not an arrest for the purposes of the Sentencing Guidelines: the common understanding of the term arrest does not include being pulled over and ticketed for a traffic violation.

It is a bedrock principle of statutory construction that “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979). I am confident that an average citizen—with or without a law degree—would not believe he had been arrested if pulled over, briefly detained and issued a traffic ticket. Indeed, if a traffic citation constituted an arrest in ordinary parlance, then aspiring police officers and prison guards might have a lot more to disclose on their job applications. Young drivers would need to be more concerned about getting into college, and those filling out employment applications, background checks, visa applications, and adoption papers would need to employ an entirely different “truth-o-meter” than commonly understood. It seems unlikely, however, that police departments, prisons, colleges, government agencies and adoption organizations mean—or are even concerned about—speeding tickets when they ask if applicants have ever been arrested. In other words, treating an ordinary traffic ticket as an arrest defies our common experience and would be a paradigmatic shift.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent from the majority opinion which, in my view, improperly imports Fourth Amendment analysis into calculation of a sentence under the Sentencing Guidelines, and unnecessarily creates a circuit split.

Law.com: 9th Circuit, in Reversal, Says Traffic Stops Aren’t ‘Arrests’, Ginny LaRoe:

Is a traffic stop an “arrest” for sentencing purposes in federal court?

The Ninth Circuit U.S. Court of Appeals on Wednesday in an en banc ruling said no, reversing itself and creating a circuit split.

The court, by a 10-1 vote, said a traffic citation is not the same as a formal arrest, which would include informing the suspect he was under arrest and taking him to jail or a police station.