UNITED STATES of America, Plaintiff-Appellee, v. Israel LEAL-FELIX, Defendant-Appellant, 625 F.3d 1148

Opinion by Judge GOODWIN; Dissent by Judge BENNETT. OPINION GOODWIN, Senior Circuit Judge: Israel Leal-Felix, a previously deported Mexican citizen, appeals his sentence after pleading guilty to violating 8 U.S.C. § 1326(a), unlawful reentry into the United States of a removed alien, because of an alleged miscalculation in his criminal history. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Leal-Felix was deported to Mexico in February, 2005, after pleading guilty to the aggravated felony of possessing a firearm by a convicted felon.

In March, 2009, Leal-Felix reentered the United States and was found in the Central District of California without having applied for admission to the United States following his removal. Under a plea agreement, LealFelix pled guilty to a single-count information for violating 8 U.S.C. § 1326(a), which subjected him to a potential imprisonment term of 20 years. 8 U.S.C. § 1326(b)(2). The plea agreement provided that LealFelix would be sentenced at the low end of the Sentencing Guidelines range, determined by a total offense level of 9 and his calculated criminal history.

The Probation Office calculated LealFelix’s criminal history at 14 points, including in the calculation his pleading guilty to charges for burglary in 2001 and importing controlled substances, methamphetamine, in 2008 for sale and distribution. Among those points were 2 points allotted for each of Leal-Felix’s arrests or citations for driving with a suspended license on November 17, 1998, and November 19, 1998. On the condition that he serve 180 days in the county jail for both traffic violations, Leal-Felix was sentenced to concurrent sentences of 36 months of probation for the traffic violations.

In accordance with the plea agreement, the district court calculated the imprisonment sentence at the low end of the Sentencing Guidelines range of 21 to 27 months, with an offense level of 9 and Criminal History Category VI, and sentenced Leal-Felix to 21 months of imprisonment. DISCUSSION We review a district court’s

interpretation of the Sentencing Guidelines de novo. United States v. Medina-Villa, 567 F.3d 507, 511 (9th Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 1545, 176 L.Ed.2d 138 (2010). The only issue on appeal is whether a citation for a traffic violation is an arrest countable for criminal history under the Sentencing Guidelines.

Leal-Felix argues that, because he was cited but not arrested for the November 17,1998, traffic violation, the two violations were not separated by an intervening arrest under U.S.S.G. § 4A1.2(a)(2), and the 2 points added for the November 19, 1998, traffic violation should not have been counted. The difference to Leal-Felix would be that the subtraction of the 2 points would put him in Criminal History Category V, where the low-end imprisonment term would be 18 months instead of 21 months under Criminal History Category VI, or 3 months of imprisonment.

On similar facts, concerning whether two violations of driving after the defendant’s license had been revoked that occurred 15 days apart should have been counted separately under U.S.S.G. § 4A1.2(a)(2), the only circuit court to address this issue is the Seventh Circuit. United States v. Morgan, 354 F.3d 621 (7th Cir.2003) (Easterbrook, J.). The Morgan court recognized that “Mailing the traffic stop an ‘arrest’ implements the Sentencing Commission’s goal” and that “[a] traffic stop is an ‘arrest’ in federal parlance,” as opposed to state law. Id. at 623, 624(citing Whren v.

United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); United States v. Childs, 277 F.3d 947 (7th Cir.2002) (en banc); cf. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). The Seventh Circuit also noted that “Morgan was halted and prevented from leaving until the officer released him,” although he “could have been taken to the station-house, converting a street arrest to a full custodial arrest.” Id. at 624, 111 S.Ct. 1547 (emphasis added). Since the Seventh Circuit’s analysis in Morgan, the Sentencing Commission amended § 4A1.2 in 2007.

Rather than the “related” or recidivism reasoning of the guideline in Morgan, § 4A1.2(a)(2) provides that “[p]rior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (ie., the defendant is arrested for the first offense prior to committing the second offense).” U.S.S.G. § 4A1.2(a)(2) (emphasis added); see United States v. Rooks, 596 F.3d 204, 212-13 (4th Cir.2010). Excepting the relatedness/recidivism reasoning of Morgan, the “arrest” analysis still holds.

Implicit in a street arrest is that it can turn quickly into a full custodial arrest, depending on the conduct of the defendant. This was true of both of Leal-Felix’s street arrests for traffic violations. Moreover, he was sentenced to a concurrent sentence of 180 days in the county jail for these offenses, or 90 days per traffic violation. Imprisonment for his traffic violations shows that, for Guidelines purposes, they represent more than mere citations that Leal-Felix asserts should be disregarded in calculating his criminal history.

Under Criminal History Category, § 4Al.l(b), a sentencing court must “[a]dd 2 points for each prior sentence of imprisonment of at least sixty days.” U.S.S.G. § 4Al.l(b). Because there were prison sentences for each of Leal-Felix’s prior traffic violations, the court properly calculated 2 points for each guilty-plea conviction under § 4Al.l(b). CONCLUSION The district court correctly calculated Leal-Felix’s criminal history. We agree with the Seventh Circuit in Morgan that treatment of Leal-Felix’s traffic violations as arrests comports with the Sentencing Guidelines. AFFIRMED.