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.
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, Leal-Felix 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 Leal-Felix 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 Leal-Felix'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
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 "[c]alling 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 stationhouse, 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 (i.e., 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, § 4A1.1(b), a sentencing court must "[a]dd 2 points for each prior sentence of imprisonment of at least sixty days." U.S.S.G. § 4A1.1(b). Because there were prison
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.
BENNETT, District Judge, dissenting:
TABLE OF CONTENTS
I. THE DECISION IN MORGAN ...........................................1152
II. THE MAJORITY'S DECISION ..........................................1153
III. PLAIN AND ORDINARY MEANING .......................................1154
A. Rules Of Interpretation And Construction .......................1154
B. "Arrest" Plainly Does Not Include "Citation" ...................1155
C. The Purpose Of U.S.S.G. § 4A1.2(a)(2) .....................1157
D. A Split Does Not Create Ambiguity ..............................1158
IV. POTENTIAL AMBIGUITY ...............................................1159
A. "Arrest" In Other Contexts .....................................1159
1. Dictionary definitions ......................................1159
2. Common law definitions ......................................1160
3. State statutory definitions .................................1160
B. Context And Purpose ............................................1161
C. The Rule Of Lenity .............................................1161
V. CONCLUSION ........................................................1162
With all due respect, because whether a "citation" is an "arrest" within the meaning of U.S.S.G. § 4A1.2(a)(2) is an issue of second impression across the breadth of the federal courts, it deserves more serious analysis than the judicial sleight of hand performed by the United States Court of Appeals for the Seventh Circuit in Morgan and adopted by this court today. Like the classic street shell game, Thimblerig,
More specifically, I do not find the decision of the Seventh Circuit Court of Appeals
I agree with the majority that the only other federal court to decide this question, the United States Court of Appeals for the Seventh Circuit, held that the word "arrest" in U.S.S.G. § 4A1.2(a)(2) includes a "citation." United States v. Morgan, 354 F.3d 621, 623-624 (7th Cir.2003) (finding that a traffic stop for continuing to drive with a revoked license, which resulted in the issuance of a citation, but not a trip to jail, was an "arrest"). However, unlike the majority, I do not find Morgan in the least persuasive.
In concluding that "arrest" within the meaning of § 4A1.2(a)(2) includes "citations," Judge Easterbrook, now Chief Judge, writing for the Seventh Circuit Court of Appeals, began his analysis by concluding, without reasoning or citation to authority, that "[c]alling the traffic stop an `arrest' implements the Sentencing Commission's goal." Morgan, 354 F.3d at 623. The court then stated that a defendant who "commits a crime, is arrested for that offense, and then commits another crime, is a recidivist whose criminal record should be tallied in full." Morgan, 354 F.3d at 623 (citing to United States v. Coleman, 38 F.3d 856, 860 (7th Cir.1994)). The court determined that the same is true of one who only receives a "citation."
Next, the court in Morgan stated that "[a]t all events, there is no ambiguity. A traffic stop is an `arrest' in federal parlance." Id. at 624. (citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). This conclusory statement is troubling, because I do not believe that Whren stands for that proposition at all. I understand Whren to stand for the unremarkable proposition that "[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons' " within the meaning of the Fourth Amendment. Id. at 809, 116 S.Ct. 1769 (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). Whren does cite to United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), stating that "we held [in Robinson] that a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was `a mere pretext for a narcotics search.'" Whren, 517 U.S. at 813, 116 S.Ct. 1769 (emphasis added). However, the traffic stop in Robinson involved a full custody arrest, not a brief stop, citation, and release. Robinson, 414 U.S. at 221, 94 S.Ct. 467. Further, the court in Morgan did not fully reconcile its ruling with the earlier pronouncement of the Seventh Circuit Court of Appeals in United States v. Joseph, 50 F.3d 401 (7th Cir.1995), that the court would not "rewrite
The persuasiveness of Morgan is further undermined by the fact that the entire analysis of the issue of whether an "arrest" includes a "citation" is limited to a single paragraph of the opinion. Two points, in particular, that the court emphasized are perplexing and troubling. First, the court emphasized that "Morgan was caught red-handed driving after his license's revocation." Morgan, 354 F.3d at 623. Second, the court observed that "Morgan could have been taken to the stationhouse." Id. at 624. While both points are no doubt true, I do not think that either the weight of the evidence against Morgan nor a hypothetical trip to the stationhouse is remotely relevant to the issue of the meaning of "arrest" as that term is used in this guideline. Indeed, Judge Easterbrook agreed with this latter proposition in his prior decision in United States v. Childs, 277 F.3d 947 (7th Cir.2002) (en banc), in which he pointedly stated, "The reasonableness of a seizure depends on what the police do, not on what they might have done." Childs, 277 F.3d at 953 (emphasis in the original). Why should what officers might have done have any more significance in the context of the Sentencing Guidelines than it does in the context of the Fourth Amendment?
This case should not turn on either what might have, but did not happen, or on the sentence imposed at a later time, but instead should turn on whether there was as "intervening arrest" within the meaning of § 4A1.2(a)(2) when Leal-Felix received a "citation."
While I agree with the majority that the 2007 amendment to § 4A1.2(a)(2) did remove considerations of "relatedness," I do not believe that it eliminated the likelihood of recidivism as a consideration in the calculation of a defendant's criminal history, as discussed in more detail below. See U.S.S.G. Chapter Four, Part A, Introductory Commentary (noting that the purpose of the Guidelines sections addressing a defendant's criminal history, generally, is to address the likelihood of recidivism, taking into account the notion that "[r]epeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation"). However, if the amendment did render the relatedness and recidivism reasoning of Morgan irrelevant, then in relying on Morgan, the majority must rely on two unsupportable rationales. The first is that "arrest" includes "citations" because it does so in "federal parlance," an assertion that relies on nothing more than a bare assertion in Whren that this is so, see Morgan, 354 F.3d at 624, which, in turn, relies on Whren's misreading of the circumstances in Robinson, as explained above. The second is that the defendant "could have been taken to the stationhouse," Morgan, 354 F.3d at 624, but again, for the reasons explained above, why should what officers might have done have any significance to the determination of whether a "citation" is an "arrest" within the meaning of the Sentencing Guidelines?
Rather than adding any clarity to the question of whether a "citation" is an "intervening arrest" within the meaning of § 4A1.2(a)(2), the majority—again apparently relying on Morgan—introduces two new, undefined concepts into the mix, a "street arrest" and a "mere citation." The majority suggests, as did the court in Morgan, 354 F.3d at 624, that a "street arrest," whatever that may be, counts as an "intervening arrest," because it "can turn quickly into a full custodial arrest, depending on the conduct of the defendant." Does
What we do seem to know from the majority opinion is that, if a defendant receives a prison sentence in excess of sixty days for each offense, "the court properly calculate[s]
The majority's opinion not only fails to answer the question presented, that is, whether a "citation" is an "arrest" within the meaning of § 4A1.2(a)(2), but introduces new unanswered questions about the calculation of a defendant's criminal history, including whether § 4A1.2(a)(2) has any significance at all. David Copperfield's spectacular illusion of making the Statue of Liberty disappear has nothing over the majority's wave of its judicial magic wand, which makes § 4A1.2(a)(2) and its plain meaning vanish.
In order to determine whether Leal-Felix's criminal history points were correctly calculated—and more specifically, whether his intervening "citations" were "intervening arrests" within the meaning of U.S.S.G. § 4A1.2(a)(2)—it is necessary, in my view, to determine the meaning of the term "arrest" as it appears in § 4A1.2(a)(2). "When interpreting the Sentencing Guidelines, [a court] applies the general rules of statutory construction." United States v. Cruz-Gramajo, 570 F.3d 1162, 1167 (9th Cir.2009).
Very recently, the United States Supreme Court reiterated that "courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the statutory language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms." Carr v. United States, ___ U.S. ___, 130 S.Ct. 2229, 2242, 176 L.Ed.2d 1152 (2010). Similarly, this court has observed, "[O]ur inquiry begins with the statutory text, and ends there as well if the text is unambiguous." Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951(9th Cir.2009). This court
In assessing plain meaning, "`unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.'" United States v. Gonzalez, 492 F.3d 1031, 1041 (9th Cir.2007); see also Bailey v. Hill, 599 F.3d 976, 980 (9th Cir.2010) ("The United States Supreme Court has declared that where a statute does not define its terms ... we are to give such a [term] its ordinary or natural meaning.") (citing Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 1269, 176 L.Ed.2d 1 (2010)); Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). "[T]he structure and purpose of a statute may also provide guidance in determining the plain meaning of its provisions." Bailey, 599 F.3d at 980. "An omission at the time of enactment, whether careless or calculated, cannot be judicially supplied, however much later wisdom may recommend the inclusion." Doyon, Ltd. v. Bristol Bay Native Corp., 569 F.2d 491, 498 (9th Cir. 1978).
We apply these well-settled first principles of statutory construction to the term "arrest" within the meaning of U.S.S.G. § 4A1.2(a)(2) below.
An inquiry into the ordinary, contemporary, common meaning of the word "arrest" should begin and end with recognition of the way that a thousand ordinary citizens (without law degrees) would answer the question of whether they had been "arrested," if they had been stopped, briefly detained, issued a citation for a traffic or driving offense, and sent on their way. I posit that virtually all would unequivocally answer no. Indeed, I am confident that virtually all would believe that the term "arrest" includes either being told you are under arrest or being physically taken to jail, or both. That is the "plain meaning" of the term "arrest" in the United States.
More than two decades ago, the Supreme Court described the ordinary expectations of a motorist who receives a "citation," as follows:
Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (footnote omitted). The Supreme Court then observed,
Berkemer, 468 U.S. at 437 n. 26, 104 S.Ct. 3138 (emphasis added). The Supreme Court in Berkemer recognized, as any ordinary citizen would, that being arrested required something more than simply receiving a "citation." Even if the use of a
In Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), the Court pointed out, in the first sentence of the opinion, that "[a]n Iowa police officer stopped petitioner Knowles for speeding, but issued him a citation rather than arresting him." Knowles, 525 U.S. at 114, 119 S.Ct. 484 (1998) (emphasis added). The Court then observed that a routine traffic stop, for which a citation was issued, was deemed to be "a relatively brief encounter" and "more analogous to a so-called `Terry stop' ... than to a formal arrest." Knowles, 525 U.S. at 117, 119 S.Ct. 484 (citing Berkemer, 468 U.S. at 439, 104 S.Ct. 3138). Again, the Supreme Court perceived immediately the difference between being "arrested" and receiving a "citation." It would be odd for a unanimous Supreme Court to distinguish so readily between "arrest" and "citation" for Fourth Amendment purposes, but not to do so for purposes of the Sentencing Guidelines.
This court has also recognized the difference between an "arrest" and a "citation" in the perceptions of persons stopped for a traffic or driving offense. In Karam v. City of Burbank, 352 F.3d 1188 (9th Cir.2003), this court held that an individual who was charged with a misdemeanor and, in lieu of jail, was allowed to sign an agreement to appear in court and ordered not to leave the State of California without first obtaining court permission, was not "seized" for Fourth Amendment purposes. This court reasoned, "[T]hese requirements are no more burdensome than the promise to appear [that] a motorist makes when issued a traffic citation." Id. at 1194. Also, somewhat recently, this court held that "detention [does] not become an arrest until [a] defendant [is] moved to a locked detention cell." United States v. Bravo, 295 F.3d 1002 (9th Cir.2002) (being handcuffed and walked 30 to 40 yards to a security office did not turn a detention into an "arrest," when the individual was told the handcuffs would be removed when he reached the security office).
The Sentencing Commission would have been aware of the use of "citations" in lieu of "arrest" when § 4A1.2(a)(2) was drafted. As early as 1968, the American Bar Association (ABA) suggested standards for the pretrial use of the citation procedure, stating, "It should be the policy of every law enforcement agency to issue citations in lieu of arrest or continued custody to the maximum extent consistent with the effective enforcement of the law." ABA, Project on Standards for Criminal Justice, Standards Relating to Pretrial Release, 31-38 (1968). In 1984, Debra Whitcomb published her study for the National Institute of Justice, finding that the field citation was the "speediest arrest alternative" for street police officers. Debra Whitcomb, Bonnie Lewin & Margaret J. Levine, Citation Release, 2(National Institute of Justice 1984). If the Sentencing Commission had meant to treat "intervening citations" the same way that it treated "intervening arrests," for purposes of counting multiple sentences, it could simply have said "intervening arrests or citations." "Our task [here] is to apply the text, not to improve upon it." Harbison v. Bell, ___ U.S. ___, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009). "A decision to use one word over another ... is material ... and is a decision that is imbued with legal significance and should not be presumed to be random or devoid of meaning." United States v. Gonzales, 506 F.3d 940, 949 (9th Cir.2007). Reading "arrest" as not including "citations" gives effect to the language actually used by the Sentencing Commission.
Interpreting the term "arrest" as not including "citation" provides the most continuity between both the purpose of the specific guideline section at issue here, and the overall purpose and structure of the whole guidelines scheme. See United States v. Lewis, 67 F.3d 225, 228-29 (9th Cir.1995) ("Particular phrases must be construed in light of the overall purpose and structure of the whole statutory scheme."); see also Bailey, 599 F.3d at 980 ("[T]he structure and purpose of a statute may also provide guidance in determining the plain meaning of its provisions."). "[T]he purpose of § 4A1.2 is `to reflect the seriousness of a defendant's criminal history,' while, at the same time, avoiding `overstat[ing] the seriousness of the defendant's criminal conduct.'" United States v. Cruz-Gramajo, 570 F.3d 1162, 1169-70 (9th Cir. 2009). The purpose of the Guidelines sections addressing a defendant's criminal history, generally, is to address the likelihood of recidivism, taking into account the notion that "[r]epeated criminal behavior is an indicator of a limited likelihood of successful
Interpreting the term "arrest" to exclude a "citation" comports with the purpose of avoiding "overstat[ement] [of] the seriousness of the defendant's criminal conduct." Cruz-Gramajo, 570 F.3d at 1169-70. An individual who is taken into custody pursuant to the traditional meaning of "arrest," who then subsequently commits another offense, could arguably be said to be likely to re-offend in the future regardless of the discomfort of a custodial arrest. The United States Supreme Court has noted, however, that a traffic stop involves a "temporary and relatively nonthreatening detention." Maryland v. Shatzer, ___ U.S. ___, 130 S.Ct. 1213, 1224, ___ L.Ed.2d ___ (2010) (holding that a Miranda warning is not necessary in such a situation). A pattern of receiving citations for minor offenses, thus, may not indicate that there is an increased probability that an individual will commit serious crimes in the future.
Interpreting the word "arrest" as not including "citation" is also consistent with the over-all scheme of computing criminal history, as demonstrated by Application Note 3 to the Commentary to this section. Note 3 specifically recognizes that "[c]ounting multiple prior sentences as a single sentence may result in a criminal history score that under-represents the seriousness of the defendant's criminal history and the danger that the defendant presents to the public. In such a case, an upward departure may be warranted." If a court determines, that a defendant's criminal history is underrepresented, after counting prior sentences as a single sentence rather than separate sentences on the basis that a "citation" was not an "intervening arrest," the court can make an appropriate adjustment.
Further, "[t]he Sentencing Commission has a mandate to establish sentencing practices that impose punishments which are just in relation to the social costs a convict has imposed on society." See United States v. Zakhor, 58 F.3d 464, 465-66 (9th Cir.1995) (U.S.S.G. § 5E1.2(i); reflects society's costs of punishment by requiring the convict to reimburse the federal government for the cost of his own incarceration or supervisory detention.). Given that there is little cost to society associated with a run-of-the-mill traffic stop and issuance of a "citation," it would arguably be unjust to conclude that "citations" for traffic stops are "intervening arrests" which justify the imposition of additional criminal history points. In light of the purpose of § 4A1.2(a)(2), my reading of "arrest" as not including "citation" is not absurd.
Finally, the mere fact that I disagree with the court in Morgan about the meaning of "arrest" in § 4A1.2(a)(2) does not mean that the term is ambiguous. Language in a statute or a guideline does not automatically become ambiguous every time two courts disagree as to its meaning. For example, the Supreme Court in Carr determined the "plain meaning" of "travels" in the Sex Offender Registration and Notification Act, even though there was a "division" among the Circuit Courts of Appeals as to the meaning of the term. See Carr, 130 S.Ct. at 2234 & 2241-42. Thus, a split in the circuits on the plain meaning of "arrest" does not mean that the guideline cannot simply be enforced according to its terms. See id. at 2242 (where a statute is plain and unambiguous, the court must "enforce it according to its terms").
Therefore, I would hold that the plain and ordinary meaning of "arrest" in U.S.S.G. § 4A1.2(a)(2) is that an "arrest" does not include being given a "citation."
Although I would interpret the word "arrest" based on its plain and ordinary meaning, as unambiguously not including "citation", I, nevertheless, recognize that "arrest" is a word frequently used by courts, practitioners, and legal scholars in various contexts. Indeed, "arrest" has a "chameleon" quality in legal usage, depending upon its context. Compare Kucana v. Holder, ___ U.S. ___, 130 S.Ct. 827, 835, ___ L.Ed.2d ___ (2010) ("The word `under' is chameleon; it `has many dictionary definitions and must draw its meaning from its context.'"). Although I now explore how "arrest" has evolved away from its common, plain, ordinary meaning as understood by the average person, even this alternative analysis of the potential ambiguity of the word leads to the conclusion that "arrest" in § 4A1.2(a)(2) does not include a "citation," because the policies and purposes of the Guidelines support a finding that "arrest" does not include "citations."
The following non-exhaustive discussion of the word "arrest," as used in a legal sense, illustrates that the word has become a "chameleon," frequently defined by the context in which it is used. For example, much of the search and seizure jurisprudence is concerned with officer safety and the protection of evidence with "arrest" interpreted accordingly. See Knowles, 525 U.S. at 117, 119 S.Ct. 484 (observing, "The threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a custodial arrest," and refusing to extend the "search incident to arrest exception" to allow searches "incident to a citation"). In Miranda cases, the definition of "arrest" is influenced by whether or not the action of the law enforcement authorities is sufficient to lead to the threat of coerced statements. See Berkemer v. McCarty, 468 U.S. at 438, 104 S.Ct. 3138 ("Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced `to speak where he would not otherwise do so freely....'"). A few other contexts deserve somewhat more detailed discussion.
"[D]ictionary definitions are cognizable as tools for determining the ordinary meaning of words used in a statute." United States v. Maciel-Alcala, 598 F.3d 1239, 1242(9th Cir.2010). Dictionary definitions of "arrest," however, do not lead to one clear meaning of "arrest" for purposes of interpretation of the Sentencing Guideline in question. While many dictionary definitions include the taking of an individual into "custody," see Black's Law Dictionary, 116 (8th ed. 2004) ("Arrest" means "a seizure or forcible restraint" or "the taking or keeping of a person in custody by legal authority, especially in response to a criminal charge."); Webster's New World Law Dictionary (2010) (an "arrest" is "[t]he intentional deprivation, whether actual or constructive, of a person's freedom by legal authorities using forcible restraint, seizure, or otherwise taking the individual into custody, especially in response to a warrant or a suspicion based on probable cause that the person being arrested has committed a crime."); The Random House Dictionary of the English Language, 83 (1979) ("arrest" is defined as "to seize (a person) by legal authority or warrant; take into custody."), others do not. See John Bouvier, A Law Dictionary (1856) (an "arrest" has been defined as "the apprehending or detaining of the person, in order to be forthcoming to answer an alleged or suspected crime."); Dictionary of American History (2003) ("An arrest occurs when a public officer acting under legal authority detains an individual to answer for a criminal offense."); Merriam-Webster's Dictionary of Law, (1999)
There is some support in English common law for the view that "arrest" includes custody. "[A] constable, having reasonable cause to suspect a person has committed a felony may detain such person until he can be brought before a justice of the peace to have his conduct investigated." Horace L. Wilgus, Arrest Without a Warrant, 22 Mich. L.Rev. 673, 689 (1924) (quoting Beckwith v. Philby, 108 Eng. Repr. 585 (1827)). However, common law commentators have reached "divergent conclusions" with respect to the definition of an "arrest" under English common law. See Atwater v. City of Lago Vista, 532 U.S. 318, 328, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001).
Neither has traditional American common law developed a consistent definition of the term "arrest." The state of Maryland, as one of the original colonies, and the first of the colonies to be a proprietary government (the proprietor and the freemen are allowed to make laws independent of England). See Henry William Elson, History of the United States of America Chapter IV, 75-83 (The MacMillan Company, New York, 1904), provides a particularly instructive example of the imprecision of a common law definition of "arrest." See Thomas K. Clancy, What Constitutes An "Arrest" Within The Meaning Of The Fourth Amendment, 48 Vill. L.Rev. 129, FN 27 (2003). Maryland courts have defined "arrest" in a variety of ways determined by the context in which the term was used. See Little v. State, 300 Md. 485, 479 A.2d 903, 915-16 (1984) (concluding that brief stop at sobriety checkpoint was not "arrest"); Morton v. State, 284 Md. 526, 397 A.2d 1385, 1388 (1979) ("arrest" occurred when there was "manual seizure" of suspect and subsequent restraint on his liberty); Bouldin v. State, 276 Md. 511, 350 A.2d 130, 133-34 (1976) (citing several formulations of common law definition of "arrest"). Maryland common law is but one example of a body of American common law that has not developed one consistent definition for "arrest."
"[H]ow a state characterizes its own offenses and sentences generally is not relevant to a federal sentence calculation." United States v. Mendoza-Morales, 347 F.3d 772, 776(9th Cir.2003). For example, "[t]his Court has ruled that in deciding whether a prior state conviction should be counted for purposes of a federal criminal history calculation, a district court must examine federal law." Id. However, a review of the relevant California statutes in this case further illustrates the potentially ambiguous nature of the term "arrest," as it has evolved in the legal sense.
California Penal Code § 834 provides that "[a]n arrest is taking a person into custody, in a case and in the manner authorized by law." However, the specific section of the California Penal Code pursuant to which Leal-Felix received his citations, § 40303, provides a procedure by which the "arresting officer" in lieu of taking the individual before a magistrate, may give the "arrested person" a 10 days' notice to appear (a "citation"). The interaction of these two sections may be read to create an ambiguity by providing that an
Even if I were to accept that the "chameleon" quality of the word "arrest" in various legal contexts meant that the word was ambiguous, that conclusion would simply lead us back to a consideration of the canons of construction and the overall purpose of the guideline in question to resolve the matter. See, e.g., Rouse v. Law Offices of Rory Clark, 603 F.3d 699, 705 (9th Cir.2010) (also recognizing that "legislative history" may be helpful to construe an ambiguous statute). For the reasons stated above, in Sections IV.B. and C., consideration of the canons of construction and the overall purpose of U.S.S.G. § 4A1.2(a)(2) leads to the conclusion that "arrest" within the meaning of that guideline does not include "citation."
Finally, even if "arrest" within the meaning of U.S.S.G. § 4A1.2(a)(2) could be construed to be ambiguous, the Rule of Lenity provides additional support for holding that "arrest" within the meaning of that guideline does not include "citation." The Rule of Lenity states that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity to the defendant. See United States v. LeCoe, 936 F.2d 398, 402 (9th Cir.1991); United States v. Crandall, 98 F.3d 1347, 1996 WL 518095, *3 (9th Cir.1996) (court chose interpretation that comported with Rule of Lenity where two interpretations were consistent with the purpose of the statute, and both comported with common sense). The Rule of Lenity applies to the Sentencing Guidelines as well as to penal statutes. United States v. Fuentes-Barahona, 111 F.3d 651, 653 (9th Cir.1997). The United States Supreme Court has identified two policies underlying this rule. United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) (quoting McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931)). First, concerns of fairness suggest that "warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed." Id. Second, "because of the seriousness of criminal penalties and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity." Id. Here, concerns of fairness suggest that the ordinary person is fairly warned of the meaning of the guideline only if the definition of "arrest" is determined to be what the common world would understand it, that is, as not including "citation." Id.
I would reverse the decision of the district court and hold that the word "arrest" as used in U.S.S.G. § 4A1.2(a)(2) unambiguously does not include "citation." In the alternative, I would hold that even if the word "arrest" as used in this Guideline is ambiguous, the policies, purposes and overall scheme of the Guidelines require "arrest" to be interpreted as not including "citation." This is especially so in light of the Rule of Lenity.
