United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                   No. 08-1317
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Gabriel E. Pando,                       *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 24, 2008
                                Filed: October 30, 2008
                                 ___________

Before BYE, BEAM, and SHEPHERD, Circuit Judges.
                           ___________

SHEPHERD, Circuit Judge.

       Gabriel E. Pando pled guilty, without a plea agreement, to conspiracy to
distribute and possess with intent to distribute 500 grams or more of a substance
containing methamphetamine, see 18 U.S.C. § 2; 21 U.S.C. § 846, and to a forfeiture
of $2,721 used to facilitate the conspiracy, see 21 U.S.C. § 853. The district court1
sentenced Pando to 151 months of imprisonment, followed by five years of supervised
release. On appeal, Pando makes the single claim that he should not have been



      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
assessed a criminal history point for a prior conviction in Colorado for driving while
ability impaired (“DWAI”). We affirm the sentence.

                                           I.

        The Presentence Report (PSR) prepared by the United States Probation Office
reported that in 1998 Pando was convicted of DWAI in violation of Colorado Revised
Statutes § 42-4-1301 and that he was sentenced to 12 months of probation. The PSR
attributed one criminal history point to Pando based upon this conviction, which when
combined with a criminal history point attributable to a 2003 Nebraska conviction,
gave Pando a total of two criminal history points. This additional point increased
Pando’s criminal history from Category I to Category II. At sentencing, Pando
objected to the scoring of a criminal history point for the DWAI conviction. The
district court overruled the objection. The district court then identified the applicable
advisory guidelines range and sentenced Pando within that range to 151 months
imprisonment, five years supervised release, and forfeiture of the $2,721. Pando
brings this appeal.

                                           II.

       Sentencing Guidelines “[s]ection 4A1.2(c) governs which prior sentences are
counted as criminal history points.” United States v. Postley, 

, 832 (8th
Cir. 2006); see United States Sentencing Commission, Guidelines Manual, § 4A1.2(c)
(Nov. 2007). Generally, this section provides that sentences for misdemeanor and
petty offenses are counted except that certain offenses, including “[c]areless or
reckless driving,” and “offenses similar to them, by whatever name they are known,
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
an instant offense.” USSG § 4A1.2(c)(1). It is undisputed that (1) Pando was not
sentenced to a term of probation of more than one year or a term of imprisonment of

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at least 30 days with respect to the DWAI conviction and (2) DWAI is not similar to
Pando’s instant offense. Further, Pando contends that this offense was “similar” to
reckless driving and that, accordingly, under section 4A1.2(c)(1), he should not have
been assessed a criminal history point for the DWAI conviction. “We review de novo
the district court’s construction and interpretation of the criminal history provisions
of the sentencing guidelines, and we review for clear error the district court’s
application of the guidelines to the facts.” United States v. Borer, 

, 991-
92 (8th Cir. 2005).

      For years, for purposes of Guidelines section 4A1.2(c)(1) we “have opted to
compare the ‘elements’ or ‘essential characteristics’ of the subject offenses to
determine whether they have the requisite similarity.” 

have adhered
to

      [A] multi-factored approach . . . which also considers the underlying
      facts of the defendant’s offense, as well as such matters as a “comparison
      of punishments imposed for the listed and unlisted offenses, the
      perceived seriousness of the offense as indicated by the level of
      punishment, . . . the level of culpability involved, and the degree to
      which the commission of the offense indicates a likelihood of recurring
      criminal conduct.”

States v. Hardeman, 

, 281 (5th Cir. 1991)); see
United States v. Sanders, 

, 552 (2nd Cir. 2000); United States v. Booker,

, 689 (7th Cir. 1995); see also United States v. Leon-Alvarez, 

, 820 (8th Cir. 2008) (Bright, J., concurring) (noting the conflict between the
circuits).

      Effective November 1, 2007, however, the United States Sentencing
Commission adopted Amendment 709 which “clarified the approach courts should use
in determining the ‘similarity’ of offenses for the purposes of § 4A1.2(c) thus


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trumping our decision in Borer.” 

(Bright, J.,
concurring). The amendment added the following application note to address the
application of section 4A1.2(c):

       (A) In General.–In determining whether an unlisted offense is similar to
       an offense listed in subdivision (c)(1) or (c)(2), the court should use a
       common sense approach that includes consideration of relevant factors
       such as (i) a comparison of punishments imposed for the listed and
       unlisted offenses; (ii) the perceived seriousness of the offense as
       indicated by the level of punishment; (iii) the elements of the offense;
       (iv) the level of culpability involved; and (v) the degree to which the
       commission of the offense indicates a likelihood of recurring criminal
       conduct.

USSG § 4A1.2, comment. (n.12).

       An issue is presented as to whether this clarifying amendment may be given
retroactive effect. See 

(Bright, J., concurring).
Further, if retroactively applicable, it is arguable that the district court did not conduct
a comparison which included a consideration of the factors enumerated in Amendment
709. Instead, the district court summarily concluded that the offenses of reckless
driving and DWAI are not “categorically” or “factually” similar, noting Pando’s blood
alcohol content of .143 at the time of the DWAI arrest.

      These issues need not be addressed, however, because the district court’s
scoring of a criminal history point for Pando’s DWAI conviction was proper under
Application Note 5 to section 4A1.2, in effect at the time of Pando’s underlying
crimes. Application Note 5 provides that:

       5. Sentences for Driving While Intoxicated or Under the Influence.
       Convictions for driving while intoxicated or under the influence (and
       similar offenses by whatever name they are known) are counted. Such


                                            -4-
      offenses are not minor traffic infractions within the meaning of §
      4A1.2(c).

USSG § 4A1.2, comment. (n.5) (emphasis added). “States define terms such as ‘under
the influence’ in various ways. In a number of states, the term means simply that an
individual’s ability to drive a vehicle is impaired. Thus, the reference in Application
Note 5 to ‘similar offenses’ means offenses involving driving and alcohol
impairment.” United States v. Walling, 

, 142 (10th Cir. 1992) (internal
citations omitted).

      Colorado law defines the DWAI offense as:

      [D]riving a vehicle when a person has consumed alcohol or one or more
      drugs, or a combination of both alcohol and one or more drugs, which
      alcohol alone, or one or more drugs alone, or alcohol combined with one
      or more drugs, affects the person to the slightest degree so that the
      person is less able than the person ordinarily would have been, either
      mentally or physically, or both mentally and physically, to exercise clear
      judgment, sufficient physical control, or due care in the safe operation of
      a vehicle.

Colo. Rev. Stat. § 42-4-1301(1)(g). Therefore, “[i]n Colorado, DWAI is an offense
involving driving and alcohol impairment.” 

. Accordingly,
“DWAI is clearly a ‘similar offense[ ]’ to ‘driving while intoxicated or under the
influence’” under Application Note 5 to Guidelines section 4A1.2. 

§ 4A1.2, comment. (n.5)). The Walling Court also noted that “[t]he existence of a
more serious offense under Colorado law d[id] not alter [the court’s] analysis.” Id.;
see People v. Swain, 

, 428 (Colo. 1998) (en banc) (stating that, under
Colorado law, the DWAI offense is a lesser included offense of DUI). In sum, the
Colorado offense of “DWAI falls into the category of alcohol-related driving offenses
addressed by Application Note 5.” 

; see United States v.
Jakobetz, 

, 805-06 (2d Cir. 1992) (finding that district court properly

                                         -5-
considered defendant’s prior New York conviction for DWAI in calculating his
criminal history category because DWAI charge was not a “minor traffic infraction[]”
within the meaning of Application Note 5 to section 4A1.2); see also United States v.
Thornton, 

, 1165-67 (9th Cir. 2006) (determining that defendant’s prior
California conviction for driving with a blood alcohol level of .08 or higher was an
offense similar to DUI that must be included in determining defendant’s criminal
history calculation because the offense clearly proscribed conduct similar to DUI);
United States v. Deigert, 

, 918 (4th Cir. 1990) (concluding that district
court correctly counted defendant’s two prior alcohol-related traffic offenses–driving
while impaired and driving under the influence of alcohol–in determining his criminal
history). Because the district court properly included Pando’s DWAI conviction in
the calculation of his criminal history category, his sentence must be affirmed.


                                               III.

      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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