from the United States District Court for the Northern
District of Texas
WIENER, GRAVES, and OLDHAM, Circuit Judges.
WIENER, CIRCUIT JUDGE:
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.
Facts and Proceedings
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.
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. 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." 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
Juvenile status offenses and truancy
Local ordinance violations (except those violations that are
also violations under state criminal law)
Minor traffic infractions (e.g., speeding)
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
Sentencing Guidelines application note on § 4A1.2
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
factors (i) and (ii), the Fifth Circuit compares the unlisted
offense, here California Health and Safety Code §
11550(a),  to the "equivalent [of the listed]
offense under the relevant State's
law." California's version of public
intoxication is California Penal Code §
time of Smith's conviction in California, violation of
§ 11550(a) carried a mandatory minimum sentence of 90
days in jail. The current law has a maximum jail
sentence of one year, but has no mandatory
minimum.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."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." 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
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.
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]." 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]." 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]."
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]."
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. "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
finally to the "degree to which the commission of the
offense indicates a likelihood of recurring ...