FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50426
Plaintiff-Appellee, D.C. No.
v. 5:09-cr-00067-
ISRAEL LEAL-FELIX, VAP-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
June 11, 2010—Pasadena, California
Filed November 1, 2010
Before: Alfred T. Goodwin and Johnnie B. Rawlinson,
Circuit Judges, and Mark W. Bennett, District Judge.*
Opinion by Judge Goodwin;
Dissent by Judge Bennett
*The Honorable Mark W. Bennett, District Judge for the Northern Dis-
trict of Iowa, sitting by designation.
18001
UNITED STATES v. LEAL-FELIX 18003
COUNSEL
Michael Tanaka, Deputy Federal Public Defender, Los Ange-
les, California, for the defendant-appellant.
Bryan F. Boutwell, Special Assistant United States Attorney,
Riverside, California, for the plaintiff-appellee.
OPINION
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.
18004 UNITED STATES v. LEAL-FELIX
FACTUAL AND PROCEDURAL BACKGROUND
Leal-Felix was deported to Mexico in February, 2005, after
pleading guilty to the aggravated felony of possessing a fire-
arm by a convicted felon. In March, 2009, Leal-Felix reen-
tered 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 violat-
ing 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 his-
tory.
The Probation Office calculated Leal-Felix’s criminal his-
tory at 14 points, including in the calculation his pleading
guilty to charges for burglary in 2001 and importing con-
trolled 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 sus-
pended 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 to
concurrent sentences of 36 months of probation for the traffic
violations. In accordance with the plea agreement, the district
court calculated the imprisonment sentence at the low end of
the Sentencing Guidelines range of 21 to 27 months, with an
offense level of 9 and Criminal History Category VI, and sen-
tenced Leal-Felix to 21 months of imprisonment.
DISCUSSION
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 (2010). The only issue on appeal is whether a cita-
UNITED STATES v. LEAL-FELIX 18005
tion 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 sepa-
rated by an intervening arrest under U.S.S.G. § 4A1.2(a)(2),
and the 2 points added for the November 19, 1998, traffic vio-
lation 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 impris-
onment.
[1] 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’ imple-
ments 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 (1996); United States v. Childs, 277 F.3d 947 (7th Cir.
2002) (en banc); cf. California v. Hodari D., 499 U.S. 621
(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
(emphasis added).
[2] 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 commit-
18006 UNITED STATES v. LEAL-FELIX
ting 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.
[3] Implicit in a street arrest is that it can turn quickly into
a full custodial arrest, depending on the conduct of the defen-
dant. 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 vio-
lations shows that, for Guidelines purposes, they represent
more than mere citations that Leal-Felix asserts should be dis-
regarded 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
sentences for each of Leal-Felix’s prior traffic violations, the
court properly calculated 2 points for each guilty-plea convic-
tion under § 4A1.1(b).
CONCLUSION
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.
AFFIRMED.
UNITED STATES v. LEAL-FELIX 18007
BENNETT, District Judge, dissenting:
TABLE OF CONTENTS
I. THE DECISION IN MORGAN...........................18009
II. THE MAJORITY’S DECISION ...........................18011
III. PLAIN AND ORDINARY MEANING ...............18013
A. Rules Of Interpretation And Construction .......18013
B. “Arrest” Plainly Does Not Include
“Citation” ............................................................18014
C. The Purpose Of U.S.S.G. § 4A1.2(a)(2)............18019
D. A Split Does Not Create Ambiguity ..................18020
IV. POTENTIAL AMBIGUITY..................................18021
A. “Arrest” In Other Contexts................................18021
1. Dictionary definitions ......................................18022
2. Common law definitions .................................18023
3. State statutory definitions ...............................18024
B. Context And Purpose..........................................18025
C. The Rule Of Lenity.............................................18025
V. CONCLUSION........................................................18027
With all due respect, because whether a “citation” is an “ar-
rest” 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,
18008 UNITED STATES v. LEAL-FELIX
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,1 which used
three thimbles or walnut shells and a pea—the so-called
“short con,” because it was quick and easy to pull off—
Morgan palmed the pea, so that plain meaning, a common
sense and legally correct view of the word “arrest,” and fun-
damental fairness are no longer under the shells. Surprisingly,
Morgan managed to pull off this trick with a single paragraph.
I respectfully dissent from falling for the con.
More specifically, I do not find the decision of the Seventh
Circuit Court of Appeals in Morgan to be persuasive on the
question of whether a “citation” is an “arrest” within the
meaning of U.S.S.G. § 4A1.2(a)(2), on either a “recidivism”
rationale or the majority’s “what might have happened” ratio-
nale. Moreover, the fact that U.S.S.G. § 4A1.1(b) requires a
sentencing court to “[a]dd 2 points for each prior sentence of
imprisonment of at least sixty days” simply begs—but does
nothing to resolve—the question of whether Leal-Felix had an
intervening “arrest” within the meaning of § 4A1.2(a)(2), as
the answer to that question determines whether or not Leal-
Felix had one or two prior sentences to “count” pursuant to
§ 4A1.1(b). The majority’s analysis would make the sentences
1
The online version of the Oxford English Dictionary, dictio-
nary.oed.com, defines “thimblerig” as “[a] swindling game usually played
with three thimbles (see THIMBLE 2c) and a pea which was ostensibly
placed under one of them; the sharper then challenging the bystanders to
guess under which the pea had been placed, and to bet on their choice.”
Wikipedia, en.wikipedia.org, as one might expect, provides a rather more
colorful explanation: “The shell game (also known as Thimblerig, three
shells and a pea, the old army game), is portrayed as a gambling game, but
in reality, when a wager for money is made, it is a confidence trick used
to perpetrate fraud. In confidence trick slang, this famous swindle is
referred to as a short-con because it is quick and easy to pull off.”
Wikipedia then traces the origins of the “shell game” back to Ancient
Greece. So old, and yet we still fall for it!
UNITED STATES v. LEAL-FELIX 18009
received on prior offenses the determining factor in the calcu-
lation of a defendant’s criminal history, not whether a defen-
dant had an intervening “arrest,” essentially writing
§ 4A1.2(a)(2) out of the Sentencing Guidelines. In contrast, I
find that excluding “citations” from “arrests” in § 4A1.2(a)(2)
comports with ordinary meaning, common sense, and the pur-
poses of the Sentencing Guidelines.
I. THE DECISION IN MORGAN
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 Mor-
gan 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 cita-
tion 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 “com-
mits 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 par-
lance.” Id. at 624. (citing Whren v. United States, 517 U.S.
806 (1996)). This conclusory statement is troubling, because
18010 UNITED STATES v. LEAL-FELIX
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 ‘per-
sons’ ” within the meaning of the Fourth Amendment. Id. at
809 (citing Delaware v. Prouse, 440 U.S. 648, 653 (1979)).
Whren does cite to United States v. Robinson, 414 U.S. 218
(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 (emphasis added). How-
ever, the traffic stop in Robinson involved a full custody
arrest, not a brief stop, citation, and release. Robinson, 414
U.S. at 221. Further, the court in Morgan did not fully recon-
cile 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
guidelines” by interpreting “arrest” to mean “arrest or charge”
in the “absence of a compelling reason . . . for believing that
the choice of words was a slip of the pen.” Id. at 403.
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 station-
house.” Id. at 624. While both points are no doubt true, I do
not think that either the weight of the evidence against Mor-
gan nor a hypothetical trip to the stationhouse is remotely rel-
evant 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
UNITED STATES v. LEAL-FELIX 18011
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 signifi-
cance 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.”
II. THE MAJORITY’S DECISION
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 defen-
dant’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 defen-
dant “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 signifi-
cance to the determination of whether a “citation” is an “ar-
rest” within the meaning of the Sentencing Guidelines?
18012 UNITED STATES v. LEAL-FELIX
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 sug-
gests, as did the court in Morgan, 354 F.3d at 624, that a
“street arrest,” whatever that may be, counts as an “interven-
ing arrest,” because it “can turn quickly into a full custodial
arrest, depending on the conduct of the defendant.” Does
“street arrest” extend to any “stop” by the police for any rea-
son, as any “stop” has the potential to turn into a full custodial
arrest, depending on the conduct of the defendant? The major-
ity also suggests that the length of Leal-Felix’s sentences
“shows that, for Guidelines purposes, they represent more
than mere citations that Leal-Felix asserts should be disre-
garded in calculating his criminal history.” (emphasis added.)
Are there then “mere citations” that do not count as “interven-
ing arrests” for criminal history purposes, and “citations” that
do count as “intervening arrests” for criminal history pur-
poses, and is the sentence ultimately imposed what deter-
mines whether or not a citation is a “citation” or a “mere
citation”?
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] 2
points for each guilty-plea conviction under § 4A1.1(b).”
However, whether a defendant had an “intervening arrest”
within the meaning of § 4A1.2(a)(2) is supposedly what deter-
mines whether a defendant had one or two prior sentences to
“count” pursuant to § 4A1.1(b). The majority’s analysis
would make the sentences received on prior offenses the
determining factor in the calculation of a defendant’s criminal
history, not whether a defendant had an “intervening arrest,”
essentially writing § 4A1.2(a)(2) out of the Sentencing Guide-
lines.
UNITED STATES v. LEAL-FELIX 18013
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 his-
tory, 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.2
III. PLAIN AND ORDINARY MEANING
A. Rules Of Interpretation And Construction
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 neces-
sary, in my view, to determine the meaning of the term “ar-
rest” 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. Crux-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, 130 S. Ct. 2229, 2242 (2010). Similarly, this
2
Indeed, the majority’s reliance on the length of a defendant’s sentences
as determinative of what counts in his or her criminal history is a rabbit
out of the hat, as the prosecution did not argue for such an analysis in the
district court, in its brief on appeal, or at oral arguments. More impor-
tantly, I am unable to find any authority for this proposition, and the
majority cites none.
18014 UNITED STATES v. LEAL-FELIX
court has observed, “[O]ur inquiry begins with the statutory
text, and ends there as well if the text is unambiguous.” Sat-
terfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.
2009). This court has expressly applied this rule to the inter-
pretation of Sentencing Guidelines. See United States v.
Treadwell, 593 F.3d 990, 1006 (9th Cir. 2010) (“If the text of
a guideline is unambiguous, its plain meaning controls.”); see
also United States v. Crux-Gramajo, 570 F.3d 1162, 1167
(9th Cir. 2009).
In assessing plain meaning, “ ‘unless otherwise defined,
words will be interpreted as taking their ordinary, contempo-
rary, common meaning.’ ” United States v. Gonzalez, 493
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, 130 S. Ct. 1265,
1269 (2010)); Perrin v. United States, 444 U.S. 37, 42 (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 1167. “An omission at the time of enact-
ment, whether careless or calculated, cannot be judicially sup-
plied, 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 con-
struction to the term “arrest” within the meaning of U.S.S.G.
§ 4A1.2(a)(2) below.
B. “Arrest” Plainly Does Not Include “Citation”
An inquiry into the ordinary, contemporary, common
meaning of the word “arrest” should begin and end with rec-
ognition 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,
UNITED STATES v. LEAL-FELIX 18015
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 “cita-
tion,” as follows:
[D]etention of a motorist pursuant to a traffic stop is
presumptively temporary and brief. The vast major-
ity of roadside detentions last only a few minutes. A
motorist’s expectations, when he sees a policeman’s
light flashing behind him, are that he will be obliged
to spend a short period of time answering questions
and waiting while the officer checks his license and
registration, that he may then be given a citation, but
that in the end he most likely will be allowed to con-
tinue on his way.
Berkemer v. McCarty, 468 U.S. 420, 437 (1984) (footnote
omitted). The Supreme Court then observed,
State laws governing when a motorist detained pur-
suant to a traffic stop may or must be issued a cita-
tion instead of taken into custody vary significantly,
but no State requires that a detained motorist be
arrested unless he is accused of a specified serious
crime, refuses to promise to appear in court, or
demands to be taken before a magistrate.
Berkemer, 468 U.S. at 437 n.26 (emphasis added). The
Supreme Court in Berkemer recognized, as any ordinary citi-
zen would, that being arrested required something more than
simply receiving a “citation.” Even if the use of a “citation”
18016 UNITED STATES v. LEAL-FELIX
in lieu of “arrest” has been expanded to encompass more seri-
ous offenses since Berkemer, release on a promise to appear
still reinforces the citation recipient’s reasonable belief that he
or she has not been “arrested.”
In Knowles v. Iowa, 525 U.S. 113 (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 (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 analo-
gous to a so-called ‘Terry stop’ . . . than to a formal arrest.”
Knowles, 525 U.S. at 117 (citing Berkemer, 468 U.S. at 439).
Again, the Supreme Court perceived immediately the differ-
ence betIen 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 Amend-
ment 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 individ-
ual 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 require-
ments are no more burdensome than the promise to appear
[that] a motorist makes when issued a traffic citation.” Id. at
1298. 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
1009 (9th Cir. 2002) (being handcuffed and walked 30 to 40
yards to a security office did not turn a detention into an “ar-
UNITED STATES v. LEAL-FELIX 18017
rest,” 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 con-
tinued custody to the maximum extent consistent with the
effective enforcement of the law.” ABA, Project on Stan-
dards 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 “in-
tervening 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, 129 S. Ct. 1481 (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.
Again, the United States Supreme Court has 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, 130 S. Ct. at
2242; see also Fogerty v. Fantasy, Inc., 510 U.S. 517, 537
(1994) (“When the text of the statute is clear, our interpretive
18018 UNITED STATES v. LEAL-FELIX
inquiry ends.”); Treadwell, 593 F.3d at 1006 (“If the text of
a guideline is unambiguous, its plain meaning controls.”);
United States v. King, 244 F.3d 736, 740 (9th Cir. 2001)
(unless the plain meaning leads to an absurd or unreasonable
result, our “judicial inquiry is at an end”). I cannot find any
way in which interpreting the word “arrest” to exclude “cita-
tions” renders the applicable guideline section absurd or
unreasonable. “It is our task . . . not to enter the minds of the
[Sentencing Commission] — who need have nothing in mind
in order for their votes to be both lawful and effective — but
rather to give fair and reasonable meaning to the text of the
[Sentencing Guidelines]. . . .” Pennsylvania v. Union Gas Co.,
491 U.S. 1, 30 (1989) (Judge Scalia, concurring). In Justice
Jackson’s words, a court should engage in “analysis of the
[Guidelines]” and not be tempted to engage in “psychoanaly-
sis of Congress [or the Sentencing Commission].” United
States v. Public Utilities Commission of Cal. 345 U.S. 295,
319 (1953) (Jackson, concurring). Because it is not a court’s
task to psychoanalyze the Sentencing Commission, and I find
that the plain meaning that I would attribute to the guideline
in question does not lead to an absurd result,3 I conclude that
“arrest” within the meaning of U.S.S.G. § 4A1.2(a)(2) unam-
biguously does not include “citation.” Morever, I find that this
reading of “arrest” comports with the purpose of
§ 4A1.2(a)(2), as explained below.
3
Applicants for employment, credit, renting residential real estate, and
professional licenses are often asked about prior “arrests.” I do not feel a
truthful response would require a listing of citations for faulty mufflers,
broken taillights, or the like. The fact that minor traffic violations such as
these never “count” toward a defendant’s criminal history, see U.S.S.G.
§ 4A1.2(c)(2), while, in some, instances driving with a suspended license
can “count,” see U.S.S.G. § 4A1.2(c)(1), does not change the perception
of ordinary citizens that if, during a traffic stop, they have been cited and
released, they have not been “arrested.”
UNITED STATES v. LEAL-FELIX 18019
C. The Purpose Of U.S.S.G. § 4A1.2(a)(2)
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 pur-
pose and structure of the whole guidelines scheme. See United
States v. Lewis, 67 F.3d 224, 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 1167 (“[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 serious-
ness 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 rehabilitation.” U.S.S.G. Chapter Four, Part A,
Introductory Commentary.
Interpreting the term “arrest” to exclude a “citation” com-
ports 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 argu-
ably 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 deten-
tion.” Maryland v. Shatzer, 130 S. Ct. 1213, 1224 (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.
18020 UNITED STATES v. LEAL-FELIX
Interpreting the word “arrest” as not including “citation” is
also consistent with the over-all scheme of computing crimi-
nal 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 under-
represented, after counting prior sentences as a single sen-
tence rather than separate sentences on the basis that a “cita-
tion” 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 supervi-
sory detention.). Given that there is little cost to society asso-
ciated with a run-of-the-mill traffic stop and issuance of a
“citation,” it would arguably be unjust to conclude that “cita-
tions” 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.
D. A Split Does Not Create Ambiguity
Finally, the mere fact that I disagree with the court in Mor-
gan 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
UNITED STATES v. LEAL-FELIX 18021
“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 mean-
ing of “arrest” in U.S.S.G. § 4A1.2(a)(2) is that an “arrest”
does not include being given a “citation.”
IV. POTENTIAL AMBIGUITY
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, 130 S. Ct. 827, 835 (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 alter-
native 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 Guide-
lines support a finding that “arrest” does not include “cita-
tions.”
A. “Arrest” In Other Contexts
The following non-exhaustive discussion of the word “ar-
rest,” 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
18022 UNITED STATES v. LEAL-FELIX
jurisprudence is concerned with officer safety and the protec-
tion of evidence with “arrest” interpreted accordingly. See
Knowles, 525 U.S. at 117 (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 defi-
nition 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 (“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.
1. Dictionary definitions
“[D]ictionary definitions are cognizable as tools for deter-
mining 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 dictio-
nary definitions include the taking of an individual into “cus-
tody,” 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, espe-
cially 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 free-
dom 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
UNITED STATES v. LEAL-FELIX 18023
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) (“Arrest” is the
“restraining and seizure of a person whether or not by physi-
cal force by someone acting under authority in connection
with a crime in such a manner that it is reasonable under the
circumstances for the person to believe that he or she is not
free to leave.”). These various sources demonstrate that, while
most definitions of “arrest” require restraint, seizure, or deten-
tion, not all specify that “custody” is required, and most are
silent as to how lengthy the period of restraint, seizure, or
detention must be in order to constitute an “arrest.”
2. Common law definitions
There is some support in English common law for the view
that “arrest” includes custody. “[A] constable, having reason-
able 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. Wil-
gus, 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 (2001).
Neither has traditional American common law developed a
consistent definition of the term “arrest.” The state of Mary-
land, as one of the original colonies, and the first of the colo-
nies 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
18024 UNITED STATES v. LEAL-FELIX
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, 479 A.2d 903, 915-16 (Md. 1984)
(concluding that brief stop at sobriety checkpoint was not “ar-
rest”); Morton v. State, 397 A.2d 1385, 1388 (Md. 1979)
(“arrest” occurred when there was “manual seizure” of sus-
pect and subsequent restraint on his liberty); Bouldin v. State,
350 A.2d 130, 133-34 (Md. 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.”
3. State statutory definitions
“[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 decid-
ing 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 Cali-
fornia Penal Code pursuant to which Leal-Felix received his
citations, § 40303, provides a procedure by which the “arrest-
ing officer” in lieu of taking the individual before a magis-
trate, 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 “ar-
rested person” may receive a “citation” when an “arrest” does
UNITED STATES v. LEAL-FELIX 18025
not occur until a person is taken into custody. Further, the
Supreme Court of California has stated that “when the officer
determines there is probable cause to believe that an offense
has been committed and begins the process of citing the viola-
tor to appear in court, an ‘arrest’ takes place at least in the
technical sense.” People v. Superior Court of Los Angeles
County, 496 P.2d 1205, 1213 (Cal. 1972).
B. Context And Purpose
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 69, 705
(9th Cir. 2010) (also recognizing that “legislative history”
may be helpful to construe an ambiguous statute). For the rea-
sons 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 “cita-
tion.”
C. The Rule Of Lenity
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 “cita-
tion.” 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,
1350 (9th Cir. 1996) (court chose interpretation that com-
ported 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 Sen-
18026 UNITED STATES v. LEAL-FELIX
tencing 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
(1971) (quoting McBoyle v. United States, 283 U.S. 25, 27
(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 cer-
tain line is passed.” Id. Second, “because of the seriousness
of criminal penalties and because criminal punishment usually
represents the moral condemnation of the community, legisla-
tures 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.4Second,
4
Recently, in a concurring opinion in the Eleventh Circuit Court of
Appeals in United States of America v. Wright, 607 F.3d 708 (11th Cir.
2010), Judge Pryor questioned the appropriateness of applying the Rule of
Lenity to the Sentencing Guidelines post-Booker, and argues that cases
applying the Rule of Lenity to the Guidelines pre-Booker are not binding.
Id. at 716. The concurrence doubts that the purpose of the Rule of Lenity,
to provide fair warning concerning conduct rendered illegal, may any lon-
ger be served under a system of advisory Guidelines. Id. Taken to an
extreme, however, this reasoning could also call into question the applica-
tion of the rule of plain meaning to the Guidelines, which, like the Rule
of Lenity, is premised not only on loyalty to the choice of words as used
by the drafter, but also on clarity of notice of the meaning of a statute. Fur-
ther, as stated in Mistretta v. United States, 488 U.S. 361, 369 (1989),
although the Guidelines “do not bind or regulate the primary conduct of
the public,” they “are intended to have substantive effects on public
behavior” and “[t]hey do no more than fetter the discretion of sentencing
judges to do what they have done for generations—impose sentences
within the broad limits established by Congress.” Id. The Rule of Lenity
pre-dates the Guidelines and was applied to the sentencing decisions of the
judiciary at a time when judicial sentencing discretion was much more
akin to a post-Booker state. See Bifulco v. United States, 447 U.S. 381,
387 (1980) (applied Rule of Lenity to “plain meaning” of “imprisonment”
in § 406 of the Comprehensive Drug Prevention and Control Act when no
statutory mandatory minimum sentence was provided.). The Rule of Len-
UNITED STATES v. LEAL-FELIX 18027
because of the seriousness of a criminal history calculation in
the determination of a defendant’s sentence, where the Sen-
tencing Commission has failed to include “citation” expressly
within the definition of “arrest” in U.S.S.G. § 4A1.2(a)(2), it
is not for the courts to do so, but to err on the side of lenity.
I believe that the Sentencing Guidelines, like criminal stat-
utes, should be “read with the saving grace of common
sense.” See Bell v. United States, 349 U.S. 81, 84 (1955) (an
early “lenity” case also observing, “When Congress leaves to
the Judiciary the task of imputing to Congress an undeclared
will, the ambiguity should be resolved in favor of lenity.”).
Although I find no ambiguity, if I had, the Rule of Lenity
would require that the meaning of “arrest” be resolved in
favor of lenity to defendant Leal-Felix. This is especially so
because no matter how extensive the shuffle by the thimble-
rigger, or the judicial sleight of hand, the Rule of Lenity
resides under each and every walnut shell.
V. CONCLUSION
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.
ity is “rooted in ‘the instinctive distaste against men languishing in prison
unless the lawmaker has clearly said they should.’ ” United States v. Bass,
404 U.S. 336, 347-348 (1971). “[T]he rule has been applied not only to
resolve issues about the substantive scope of criminal statutes, but to
answer questions about the severity of sentencing.” United States v.
R.L.C., 503 U.S. 291, 305 (1992) (citing Bifulco v. United States, 447 U.S.
at 387).