United States v. Gary Burgess Rollins

378 F.3d 535, 97 F. App'x 577, 97 Fed. Appx. 577, 2004 U.S. App. LEXIS 8851, 2004 WL 1698044
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 3, 2004
Docket03-5006
StatusPublished
Cited by16 cases

This text of 378 F.3d 535 (United States v. Gary Burgess Rollins) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gary Burgess Rollins, 378 F.3d 535, 97 F. App'x 577, 97 Fed. Appx. 577, 2004 U.S. App. LEXIS 8851, 2004 WL 1698044 (6th Cir. 2004).

Opinions

SUTTON, Circuit Judge.

Gary Burgess Rollins pleaded guilty to possession of less than 50 kilograms of marijuana with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). At sentencing, this violation translated into a base offense level of twelve, which the district court reduced to ten in view of Rollins’ acceptance of responsibility. The district court next attributed to Rollins a criminal history category of II based on his previous state-court convictions for (1) possession of marijuana and (2) driving without insurance. After combining the vertical requirements of Rollins’ base offense level with the horizontal requirements of his criminal history category, the district court determined that he faced a sentencing range of eight to fourteen months, then sentenced him to an eight-month prison term.

On appeal, Rollins challenges the district court’s inclusion of his conviction for driving without insurance — a misdemeanor under Kentucky law — in its calculation of his criminal history. His argument is unavailing.

Under the Sentencing Guidelines, a defendant’s criminal history category includes all prior misdemeanors, unless they are specifically excluded in one of two subsections. U.S.S.G. § 4A1.2(c) (2002). First, misdemeanors listed in § 4A1.2(c)(l) or “offenses similar to” those listed are excluded from the criminal history calculation unless “(A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense.” Misdemeanors on this list include, among other offenses, careless or reckless driving, driving without a license or with a revoked or suspended license, and leaving the scene of an accident. Second, § 4A1.2(e)(2) separately excludes other prior misdemeanors — including juvenile status offenses, loitering and “[mjinor traffic infractions (e.g., speeding)” — and “offenses similar to them” from a defendant’s relevant criminal history.

Rollins initially argues that his Kentucky-law “no insurance” conviction constitutes a “minor traffic infraction” under § 4A1.2(c)(2), making it non-countable in his criminal history assignment. Although this Circuit has yet to determine whether driving without insurance is a “minor traffic infraction” within the meaning of § 4A1.2(c)(2), our decision in United States v. Kingston, 922 F.2d 1234 (6th Cir.1990), takes us a good way toward the conclusion that it is not. Kingston holds that “infraction” in the phrase “minor traffic infractions” of § 4A1.2(e)(2) represents a “term of art” derived from U.S.S.G. § 1B1.9 and 18 U.S.C. § 3559. 922 F.2d at 1239; see also United States v. Aichele, 912 F.2d 1170, 1171 (9th Cir.1990). These provisions in turn each define an “infraction” as “any offense for which the maximum authorized term of imprisonment is not more than five days.” U.S.S.G. § 1B1.9 cmt. n. 1; see 18 U.S.C. § 3559(a) (“An offense ... is classified [as an infraction] if the maximum term of imprisonment authorized is ... five days or less, or if no imprisonment is authorized.”).

On the basis of this language, Kingston concluded that misdemeanor offenses with an authorized prison term of “not more [579]*579than five days” are “minor traffic infractions” while offenses with an authorized term of more than five days are not “minor traffic infractions.” 922 F.2d at 1239. Because in Kingston Tennessee law authorized a 90-day prison term for reckless driving, the court determined that reckless driving was not a “minor traffic infraction.” Id. And in view of the established meaning of “infraction,” the court concluded that the authorization of a 90-day prison term under Tennessee law ended the inquiry — as the Guidelines do “not intend courts to weigh the relative seriousness of traffic offenses when deciding which convictions to exclude from criminal history calculations.” Id.

These conclusions in Kingston more than suffice to respond to Rollins’ first objection to his sentence. Because Kentucky law authorizes up to a 90-day prison term for violation of the State’s car insurance requirements, see Ky.Rev.Stat. § 304.99-060, not unlike the Tennessee law in Kingston, a conviction for “no insurance” in Kentucky does not constitute a “minor traffic infraction” under § 4A1.2(c)(2). Accord United States v. Perez de Dios, 237 F.3d 1192, 1199 (10th Cir.2001) (determining that driving without proof of insurance is not a minor traffic infraction under § 4A1.2(c)(2)). Given this unchallenged aspect of Kentucky law and given our decision in Kingston, we reject Rollins’ invitation to “to weigh the relative seriousness” of this traffic offense in “deciding which convictions to exclude from criminal history calculations.” Kingston, 922 F.2d at 1239.

Nor may this offense be excluded under the other provision that lists non-countable misdemeanor offenses— § 4A1.2(c)(l). In accordance with that provision, recall, “driving without a license or with a revoked or suspended license” (or a “similar” offense) may be excluded if “the sentence was a term of probation” of less than a year. In this case, however, the state court imposed a two-year conditional discharge for his insurance violation — a sentence that this Court has previously determined to be the “functional equivalent of ‘unsupervised probation.’ ” See United States v. Miller, 56 F.3d 719, 722 (6th Cir.1995) (“We thus hold that conditional discharge [under Kentucky law] is the ‘functional equivalent’ of an unsupervised probation under U.S.S.G. § 4Al.l(d).”); Harris v. United States, 204 F.3d 681, 682-83 (6th Cir.2000) (determining that Ohio’s equivalent of a “conditional discharge” sentence qualifies as a term of probation of at least one year under § 4A1.2(c)(l)); see also Pedigo v. Commonwealth, 644 S.W.2d 355, 358 (Ky.Ct. App.1982) (noting that aside from supervision, “there is no difference between conditional discharge and probation”).

Rollins has offered no explanation why a term of “unsupervised probation” should not be treated as a term of “probation” under the provision. Nor can we think of one. Other courts, it bears adding, have reached the same conclusion, holding that “conditional discharge” and “unsupervised probation” alike constitute “probation” for purposes of § 4A1.2(c)(l). See United States v. Lloyd, 43 F.3d 1183, 1188 (8th Cir.1994); United States v. Caputo, 978 F.2d 972, 977 (7th Cir.1992); United States v. McCrudden,

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378 F.3d 535, 97 F. App'x 577, 97 Fed. Appx. 577, 2004 U.S. App. LEXIS 8851, 2004 WL 1698044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gary-burgess-rollins-ca6-2004.