MARGO K. BRODIE, District Judge.
On June 26, 2014, a grand jury returned a five-count superseding indictment against Defendant Tushar Walia, charging him with conspiracy to distribute and possess with intent to distribute a controlled substance, attempted possession with intent to distribute a controlled substance, possession with intent to distribute a controlled substance, conspiracy to import a controlled substance, and importation of a controlled substance, which substance contained XLR11, in violation of Title 21, United States Code, Sections 841(a)(1), 846, 952(a), 960(a)(1), 963, and Title 18, United States Code Sections 2 and 3551 et seq. (Superseding Indictment ("S-1"), Docket Entry No. 24.) After a jury trial, on September 17, 2014, Defendant was convicted of all counts. (Minute Entry dated Sept. 17, 2014.)
Currently before the Court is Defendant's motion to challenge the determination by the United States Probation Department (the "Probation Department") that Defendant should be assigned a criminal history point for his conviction of driving while intoxicated and two criminal history points for committing the instant drug trafficking offense while under a conditional discharge sentence. (Letter re Criminal History Calculation ("Def. Mot.") 1, Docket Entry No. 139.) If the three criminal history points are properly assigned to Defendant, he will be ineligible to receive a safety-valve credit pursuant to Title 18, United States Code, section 3553(f) and the United States Sentencing Guidelines section 5C1.2. (Id.) For the reasons discussed below, the Court grants Defendant's motion to correct his criminal history calculation.
In the early hours of May 5, 2011, Defendant was arrested and charged with "operating a motor vehicle while under the influence of alcohol or drugs" (the "2011 offense") in violation of New York Vehicle & Traffic Law ("VTL") § 1192. (Def. Mot. 2.) Neither party appears to dispute that, at the time of his arrest, Defendant was not driving the car, but was instead asleep with the keys in the ignition and the engine running. (Def. Mot. 2; Letter in Opp'n to Def. Mot. ("Gov't Opp'n") 2, Docket Entry No. 141.)
On September 19, 2013, Defendant appeared in Bronx Criminal Court and admitted that he violated VTL § 1192.1. (Def. Mot. 2.) Pursuant to his plea agreement, Defendant was sentenced to a one-year conditional discharge, a $500 fine, and a $225 surcharge. (Id.) Defendant's license was suspended for 90 days, and he was required to use an ignition interlock device in his car for six months. (Id.)
In the Presentence Investigation Report ("PSR"), the Probation Department assigned Defendant one criminal history point for the 2011 offense, subtitled "Driving While Intoxicated," but noted that Defendant was not driving but had "f[allen] asleep behind the wheel of an automobile" while "the engine was running and the key was in the ignition."
Defendant argues that the Probation Department assigned three criminal history points in misplaced reliance on Application Note 5 of Guidelines § 4A1.2 ("Application Note 5"), which states that "[c]onvictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are always counted, without regard to how the offense is classified." (Def. Mot. 2 (quoting Guidelines § 4A1.2 cmt. n.5).) Defendant contends that the plain text, history, case law and policy supporting and surrounding Application Note 5 demonstrate that a conviction for operating a vehicle while intoxicated should count toward a defendant's criminal history only when the conviction involves driving. (Letter in further Supp. of Correction ("Def. Reply") 1, Docket Entry No. 142.) Because Defendant was not driving, he argues that Application Note 5 should not apply to the 2011 offense and, instead, the Court must determine whether the 2011 offense constituted, or was similar to, those offenses that are sometimes counted under Guidelines § 4A1.2(c)(1) or those that are "never counted" under Guidelines § 4A1.2(c)(2). (Def. Reply 2.)
The Government argues that the 2012 Sentencing Commission amendments to Application Note 5 evinced an intent to capture a broader set of traffic infractions, including Defendant's, in criminal history calculations. (Gov't Opp'n 3.) The Government also argues that VTL § 1192.1 proscribes conduct that the New York legislature deemed to pose the same risk as driving while intoxicated.
Section 4A1.2(c) of the Guidelines addresses those prior sentences that (1) are always counted toward a criminal history calculation, (2) are counted subject to possible exception, and (3) are never counted. Under this section of the Guidelines, only prior felonies always count toward a criminal history calculation. Certain misdemeanor and petty offenses listed in § 4A1.2(c)(1), "and offenses similar to them, by whatever name they are known," are counted 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."
The first issue the Court must address is whether Defendant's operation of the vehicle, although in violation of § 1192.1,
Section 1192.1 of the VTL 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." VTL § 1192.1. Both state and federal courts in New York have recognized that to "operate" under § 1192 captures a broader range of conduct than to "drive." See, e.g., Dalton v. Ashcroft, 257 F.3d 200, 205-06 (2d Cir. 2001) (citing state law for the proposition that "the definition of operation is broader than that of driving and that a person operates a motor vehicle within the meaning of the statute when, in the vehicle, he intentionally does any act or makes any use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle" and noting that "[a]n intention to drive is not the same as driving"); United States v. Gonzalez-Rivera, No. 05-CR-402, 2011 WL 4916395, at *3 n.9 (S.D.N.Y. Oct. 17, 2011) ("New York courts have held that the term `operating' . . . is broader than the term `driving.'"); People v. Litto, 8 N.Y.3d 692, 705-06 (2007) (noting that "a prosecutor must show impairment by alcohol to prove a violation of [§ 1192] subdivision 1 — resulting in a traffic infraction," and that "[s]ubdivision 1 is a lesser-included offense of subdivisions 2 and 3").
Consistent with this understanding, the broader definition of "operate" has been used to reach offenders who did not "drive" while intoxicated. See, e.g., People v. Cosimano, 975 N.Y.S.2d 368 (App. Div. 2013) (charging the defendant with a violation of § 1192 where he was found sleeping in his car with the engine running); Prudhomme v. Hults, 278 N.Y.S.2d 67 (App. Div. 1967) (same); People v. Membrino, 695 N.Y.S.2d 865, 867 (N.Y. Crim. Ct. 1999) (same).
The New York Court of Appeals has also noted that "[i]n 1960, the Legislature added section 1192(1) to assure that not all drivers who were under the influence of alcohol would be criminally liable."
Defendant pled guilty to a violation of § 1192.1, which section does not require driving and is a lesser-included offense of §§ 1192.2 and 1192.3. Nothing in his arrest record or criminal complaint suggests that he was driving the vehicle in which he was sleeping. (See Arrest Report & Criminal Compl., annexed to Def. Mot. as Exs. 1 & 2, Docket Entry Nos. 139-1 & 139-2.)
More significant than the State's intention in enacting VTL § 1192 is the Sentencing Commission's intention in passing and amending Application Note 5. See United States v. Mendoza-Morales, 347 F.3d 772, 776 (9th Cir. 2003) ("[H]ow a state characterizes its own offenses and sentences generally is not relevant to a federal sentence calculation. . . . [I]n deciding whether a prior state conviction should be counted for purposes of a federal criminal history calculation, a district court must examine federal law."); see also United States v. Servin-Acosta, 534 F.3d 1362, 1355 (10th Cir. 2008) ("When applying the Guidelines, we have rejected the notion that whether a state conviction was for an enumerated but undefined crime depends on how the crime is characterized under state law.").
"The starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof." Ret. Bd. of the Policemen's Annuity & Benefit Fd. V. Bank of N.Y. Mellon, 775 F.3d 154, 165 (2d Cir. 2014) (quoting Kuhne v. Cohen & Slamowitz, LLP, 579 F.3d 189, 193 (2d Cir. 2009)). The text of Application Note 5 states: "Convictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are always counted, without regard to how the offense is classified." Guidelines § 4A1.2 cmt. n.5. In United States v. Potes-Castillo, 638 F.3d 106, 114 (2d Cir. 2011), the Second Circuit addressed a "driving while ability impaired" conviction under VTL § 1192.1, but held more broadly that Application Note 5 treated alcohol-related driving offenses like other offenses under § 4A1.2(c)(1). Id. ("We hold that non-felony driving while ability impaired convictions should be treated like any other misdemeanor or petty offense sentences not excluded by section 4A1.2(c)(2). Such sentences are counted . . . unless section 4A1.2(c)(1) operates to exclude the particular sentence at issue."). Potes-Castillo did not address whether Application Note 5 applies to violations of § 1192.1. It did, however, hold that when Application Note 5 applies, DWAI infractions may be excluded under § 4A1.2(c). See Potes-Castillo, 638 F.3d at 112.
In 2012, after the Potes-Castillo decision further highlighted the split among various circuit courts of appeal surrounding Application Note 5, the Sentencing Commission amended Application Note 5 to clarify that, "without regard to how the offense is classified," convictions for "driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are always counted," and that "[p]aragraphs (1) and (2) of § 4A1.2(c) do not apply." Guidelines § 4A1.2 cmt. n.5.
Amendment 766 to the Guidelines (effective Nov. 1, 2012) changed Application Note 5 to its current text. The Commission explained the split among the circuits as follows:
Guidelines Amend. 766 at 16. The Commission explained that the amendment "reflects the Commission's view that convictions for driving while intoxicated and other similar offenses are sufficiently serious to always count toward a defendant's criminal history score." Id.
From the plain language of Application Note 5, it is unclear whether the Sentencing Commission intended to address the conduct of driving while intoxicated or the offense of driving while intoxicated, assuming, perhaps, that offenses termed "driving while intoxicated" involved driving. The text of the Amendment, however, specifies "driving" while intoxicated or under the influence approximately ten times and cites cases that address driving-related offenses, but never uses the term "operating." Guidelines Amend. 766 at 17-19 (emphasis added). It stands to reason that the Sentencing Commission was aware that numerous states use some form of the verb "to operate" in their DWI/DWAI statutes, although not all define "operate" more broadly than they define "drive."
There is no Second Circuit authority to instruct the district courts on this matter, and the Court has located no other federal district or appellate case in the country that has applied Application Note 5 when a defendant was not driving.
In a recent decision, Judge Weinstein decided a case with facts similar to the instant case. See United States v. Paredes, ___ F. Supp. 3d ___, ___, 2016 WL 2619856 (E.D.N.Y. May 6, 2016). In Paredes, the defendant was being sentenced for a drug crime that carried a ten-year mandatory minimum if his prior plea to a § 1192.1 violation was counted toward his criminal history calculation. Id. at *1. Judge Weinstein held that Application Note 5 did not apply to the case before him because the Note refers to "convictions," and the defendant's offense did not result in a criminal conviction (a fact of which the defendant likely was informed during his plea). Id. at *7. He also held that Application Note 5 did not apply because it only applies to convictions for driving, and "[the defendant's] DWAI infraction is not necessarily a `driving' offense."
In the absence of any evidence that Application Note 5 was intended to cover non-driving conduct, and finding persuasive Judge Weinstein's reasoning that Application Note 5 was intended to cover only driving-related convictions, the Court concludes that Application Note 5 does not mechanically apply to Defendant's 2011 offense.
Because Application Note 5 does not mechanically apply to Defendant's 2011 traffic infraction,
Under § 4A1.2(c)(1), certain misdemeanor and petty offenses, or offenses similar to them, are counted 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." Guidelines § 4A1.2(c)(1). Defendant was sentenced to 15 days of imprisonment and a year of conditional discharge, neither of which brings the 2011 offense within the ambit of § 4A1.2(c)(1), provided his 2011 offense is not "categorically more serious" than the offenses such as careless or reckless driving.
By contrast, § 4A1.2(c)(2) specifies that sentences for certain petty offenses, most relevantly, "minor traffic infractions (e.g., speeding)" and "public intoxication," are "never counted [toward criminal history]." Guidelines § 4A1.2(c)(2).
A first-time DWAI offense in New York is a traffic infraction punishable by a term of imprisonment not to exceed fifteen days, and/or a fine between $300 and $500. See VTL § 1193.1(a). A first-time reckless driving offense is a misdemeanor punishable by a term of imprisonment not to exceed 30 days and/or a fine not to exceed $300. Id. § 1801. Where a driver exceeds the speed limit in New York by more than ten miles per hour but less than thirty miles per hour, the traffic infraction is punishable by a term of imprisonment not to exceed fifteen days, and/or a fine between $90 and $300. Id. § 1180.1. While New York state has no law prohibiting public intoxication, violations of the New York law prohibiting public annoyance under the influence of drugs carry a fine of no more than $250 and/or a term of imprisonment up to fifteen days. See N.Y. Penal Law §§ 70.15, 80.05, 240.4.
Based on a comparison of punishments, the severity of a DWAI offense in New York appears to fall between that of speeding, a "minor traffic infraction" categorically excluded under § 4A1.2(c)(2), and reckless driving, an offense only counted if a defendant's then-sentence or current conviction are of a particular length or nature not before the Court, § 4A1.2(c)(1). Further, in considering the "actual conduct involved" and the "actual penalty imposed," Potes-Castillo, 638 F.3d at 113-14, discussed above, the Court finds that the 2011 offense under § 1192.1 must be excluded from Defendant's criminal history calculation.
For the foregoing reasons, the Court grants Defendant's motion for a correction of his criminal history calculation.
SO ORDERED.
People v. Litto, 8 N.Y.3d 692, 705-06 (2007) (holding, before the statute was amended, that § 1192.3 does not proscribe driving while under the influence of drugs).
Id. at *1. Because the Commentary "would lead to an absurd result," and because "[Guidelines] commendatory is not binding in all instances," Judge Weinstein declined to count the defendant's prior traffic infraction toward his criminal history calculation. Id. at *2 (internal quotations and citations omitted).
