{"id":6345,"date":"2011-12-02T12:34:25","date_gmt":"2011-12-02T12:33:57","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-12-02T12:33:57","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6345","title":{"rendered":"CA9: A traffic citation is not an \u201carrest\u201d for U.S.S.G. \u00a7 4A1.2(a)(2)"},"content":{"rendered":"

A traffic citation is not an \u201carrest\u201d for U.S.S.G. \u00a7 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<\/a>, 09-50426 (9th Cir. November 30, 2011) (en banc):<\/p>\n

In this appeal, we are asked to interpret the United States Sentencing Guidelines \u00a7 4A1.2(a)(2). The United States Sentencing Commission (the \u201cCommission\u201d) has authority to define the terms in the Sentencing Guidelines. See 28 U.S.C. \u00a7 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 \u00a7 4A1.2(a)(2), we interpret the term \u201carrest\u201d 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. <\/p>\n

. . .<\/p>\n

[9] Nothing in the record suggests Leal-Felix was ever formally arrested for driving with a suspended license. He was not told he was \u201cunder arrest,\u201d 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 \u201carrested\u201d for purposes of the Sentencing Guidelines. Therefore, his sentence is vacated. The case is remanded for resentencing in accordance with this opinion.\n<\/p><\/blockquote>\n

Concurrence:<\/p>\n

I join the majority\u2019s 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.<\/p>\n

It is a bedrock principle of statutory construction that \u201cunless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.\u201d Perrin v. United States, 444 U.S. 37, 42 (1979). I am confident that an average citizen\u2014with or without a law degree\u2014would 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 \u201ctruth-o-meter\u201d than commonly understood. It seems unlikely, however, that police departments, prisons, colleges, government agencies and adoption organizations mean\u2014or are even concerned about\u2014speeding 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.<\/p>\n<\/blockquote>\n

RAWLINSON, Circuit Judge, dissenting:<\/p>\n

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.<\/p><\/blockquote>\n

Law.com: 9th Circuit, in Reversal, Says Traffic Stops Aren’t ‘Arrests’<\/a>, Ginny LaRoe:<\/p>\n

Is a traffic stop an “arrest” for sentencing purposes in federal court?<\/p>\n

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

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.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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