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United States v. Smith

United States Court of Appeals, Fifth Circuit

October 4, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
JAMES B. SMITH, Defendant-Appellant

          Appeal from the United States District Court for the Northern District of Texas

          Before WIENER, GRAVES, and OLDHAM, Circuit Judges.

          WIENER, CIRCUIT JUDGE:

         Defendant-Appellant James B. Smith appeals his 71-month prison sentence for violation of 18 U.S.C. § 922(g)(1). Smith alleges that the district court erred by increasing his criminal history level based on his prior state court conviction for use of methamphetamine in violation of California Health and Safety Code § 11550(a). Smith contends that this conviction is similar to a conviction for "public intoxication" and should have been exempt under Sentencing Guideline § 4A1.2(c)(2). We disagree.

         I. Facts and Proceedings

         Smith was charged with two counts of being a felon in possession of a firearm and pleaded guilty to one of those counts. In the presentence report's ("PSR") calculation of Smith's criminal history level, one point was added for a California misdemeanor conviction for Use/Under the Influence of a Controlled Substance in violation of § 11550(a). Smith had been convicted on that charge in 2011 for using methamphetamine. He timely objected to inclusion of that conviction in his criminal history calculation. At sentencing, the district court overruled that objection. Smith now appeals the district court's inclusion of the 2011 California misdemeanor conviction in determining his sentence for the instant conviction.

         II. Discussion

         Smith challenges the district court's application of the U.S. Sentencing Guidelines. We review the district court's interpretation and application of the Guidelines de novo and its factual findings for clear error.[1] Guideline § 4A1.1(c) states that one point should be added to a defendant's criminal history level "for each prior sentence not counted in [subsections] (a) or (b), up to a total of 4 points for this subsection."[2] These additions are limited by the instructions in § 4A1.2(c):

Sentences for misdemeanor and petty offenses are counted, except as follows: . . . . Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are never counted:
Fish and game violations
Hitchhiking
Juvenile status offenses and truancy
Local ordinance violations (except those violations that are also violations under state criminal law)
Loitering
Minor traffic infractions (e.g., speeding)
Public intoxication
Vagrancy.[3]

         Smith argues that his California misdemeanor conviction for Use/Under the Influence of a Controlled Substance, in violation of § 11550(a), is similar to "public intoxication," and should therefore be excluded from the calculation of his criminal history level. This is an issue of first impression for the Fifth Circuit, but, other circuits have considered this or similar issues.[4]

         The Sentencing Guidelines application note on § 4A1.2 instructs that:

In determining whether an unlisted offense is similar to an offense listed . . ., 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.[5]

         For factors (i) and (ii), the Fifth Circuit compares the unlisted offense, here California Health and Safety Code § 11550(a), [6] to the "equivalent [of the listed] offense under the relevant State's law."[7] California's version of public intoxication is California Penal Code § 647(f).[8]

         At the time of Smith's conviction in California, violation of § 11550(a) carried a mandatory minimum sentence of 90 days in jail.[9] The current law has a maximum jail sentence of one year, but has no mandatory minimum.[10]In contrast, § 647(f) states that a person "[w]ho is found in any public place under the influence of intoxicating liquor . . . [is] to be placed . . . in civil protective custody [by] a peace officer, if he or she is reasonably able to do so."[11]However, "[t]his subdivision does not apply to . . . [a] person who is under the influence of any drug, or under the combined influence of intoxicating liquor and any drug."[12] A person who is under the influence of a drug is subject to the general punishment for committing a California misdemeanor, which is up to 6 months in jail and a $1000 fine.[13]

         The punishments for these two offenses are different. California has codified the classic "public intoxication" offense in a separate statute and punishes use of illegal drugs more severely under both laws than it punishes public intoxication by alcohol. Thus, in California the perceived seriousness of any use of illegal drugs is greater than abuse of alcohol. Additionally, at the time of Smith's conviction, use of methamphetamine carried a mandatory-minimum jail sentence.

         We next consider the elements of the California offenses. California Health and Safety Code § 11550(a): (1) "use, or . . . under the influence of [(2)] any [of a number of referenced] controlled substance[s]."[14] Smith suggests comparison of the elements of "public intoxication" under the Model Penal Code and the Texas Penal Code. The Model Penal Code defines "Public Drunkenness; Drug Intoxication" as: (1) "appear[ance] in any public place [(2)] manifestly under the influence of [(3)] alcohol, narcotics or other drug, . . . [(4)] to the degree [of danger or annoyance]."[15] The Texas Penal Code defines Public Intoxication as: (1) "appear[ance] in a public place [(2)] while intoxicated [(3)] to the degree that the person may [cause danger]."[16]

         The Texas and Model "public intoxication" laws differ from § 11550(a) because they have additional elements requiring that the defendant (1) be in public and (2) cause some damage or disturbance. Unlike § 11550, the elements of § 647(f) are closely aligned with those of the public intoxication laws in the Model Penal Code and Texas Penal Code: (1) being "found in any public place [(2)] under the influence of [(3)] intoxicating liquor, any drug, [or] controlled substance . . . [(4)] in a condition [that causes danger or obstructs a public way]."[17]

         We next address the level of culpability involved in the offense. Other circuits that have considered this factor have reasoned that the level of culpability for violating § 11550(a) is greater than that of public intoxication because § 11550(a) always requires use, and thus acquisition, of an illegal substance. By contrast, classic "public intoxication" usually involves abuse of alcohol, which is a legal substance.[18] "Being under the influence of a controlled substance is almost universally regarded as culpable, is widely criminalized, and offers a substantial basis for predicting future significant criminal activity. By contrast, public intoxication is rarely criminalized and may involve the use of alcohol, a non-controlled substance."[19]

         We turn finally to the "degree to which the commission of the offense indicates a likelihood of recurring ...


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