FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10429
Plaintiff-Appellee,
v. D.C. No.
5:09-cr-00096-JF-3
BALDEMAR LANDA,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted
July 14, 2010—San Francisco, California
Filed June 15, 2011
Before: Ferdinand F. Fernandez, William A. Fletcher, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman;
Dissent by Judge W. Fletcher
8103
8106 UNITED STATES v. LANDA
COUNSEL
Steve Emery Teich (argued), San Francisco, California, for
defendant-appellant Baldemar Landa.
Merry Jean Chan (argued), Assistant U.S. Attorney, San Fran-
cisco, California; Grant P. Fondo, Assistant U.S. Attorney,
San Jose, California, for plaintiff-appellee United States of
America.
OPINION
TALLMAN, Circuit Judge:
Defendant-Appellant Baldemar Landa pled guilty to violat-
ing the Controlled Substances Act and received the mandatory
minimum sentence of five years. Landa argues that in com-
puting his sentence, the district court improperly calculated
his criminal history score by counting his prior conviction
under California Vehicle Code section 23140(a), which makes
it unlawful for a person younger than twenty-one years of age
to drive with a blood-alcohol content (BAC) of .05% or
greater.
The district court determined that Landa’s conviction was
similar to a conviction for driving while intoxicated or under
the influence and thus counted as a criminal history point pur-
suant to Note 5 of United States Sentencing Guidelines Man-
UNITED STATES v. LANDA 8107
ual (U.S.S.G.) § 4A1.2.1 Landa’s position is that his violation
was actually more like a juvenile status offense, which is
never counted under § 4A1.2(c)(2). Applying a “common
sense” interpretation to the guidelines and the statute at issue,
we conclude that a violation of section 23140(a) is not similar
to a juvenile status offense and was properly counted in the
calculation of Landa’s criminal history score.
I
In August 2003, a little more than one month after Landa’s
eighteenth birthday, California Highway Patrol traffic officers
arrested him on suspicion of driving under the influence in
violation of California Vehicle Code sections 23152(a) and (b).2
Landa provided two Breathalyzer tests, which reflected blood-
alcohol levels of .086% and .087%. Landa pled nolo con-
tendere to a violation of California Vehicle Code section
23140(a), a lesser charge classified as an infraction, which
penalizes driving with a blood-alcohol content of .05% or
greater if the driver is younger than twenty-one years of age.
He was sentenced to eighteen months of probation with the
option of terminating his probation early by paying a $655
fee. Landa finished paying the fee more than one year later,
during his probationary period.
Six years thereafter, Landa was arrested in Sunnyvale, Cali-
fornia, on suspicion of violating the federal Controlled Sub-
stances Act. He pled guilty to one count of conspiracy to
possess with intent to distribute cocaine, 21 U.S.C. §§ 846,
841(a)(1), and (b)(1)(B)(ii); one count of possession with
1
Unless otherwise indicated, all references to the United States Sentenc-
ing Guidelines Manual are to the November 1, 2008 version thereof.
2
Section 23152(a) makes it unlawful for “any person who is under the
influence of any alcoholic beverage or drug, or under the combined influ-
ence of any alcoholic beverage and drug, to drive a vehicle.” Section
23152(b) makes it unlawful for “any person who has 0.08 percent or more,
by weight, of alcohol in his or her blood to drive a vehicle.”
8108 UNITED STATES v. LANDA
intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B)(ii); and aiding and abetting, 18 U.S.C. § 2. At his
sentencing hearing, the district court considered whether
Landa qualified for “safety valve” relief through 18 U.S.C.
§ 3553(f). Under that provision, the statutory minimum sen-
tence for violations of certain provisions of the Controlled
Substances Act does not apply if the defendant meets five
requirements.
Landa’s argument concerns the first requirement: that the
defendant does not have more than one criminal history point
as determined by the sentencing guidelines. He does not chal-
lenge the inclusion of one criminal history point for his 2006
misdemeanor conviction of driving with a suspended license.
He does, however, challenge the inclusion of a criminal his-
tory point for his conviction under California Vehicle Code
section 23140(a) prohibiting “a person under the age of 21
years who has 0.05 percent or more, by weight, of alcohol in
his or her blood to drive a vehicle.”
Landa’s argument turns on whether section 23140(a) is
similar to a “juvenile status offense.” The guidelines specify
that “juvenile status offenses and truancy” and “offenses simi-
lar to them, by whatever name they are known, are never
counted.” § 4A1.2(c)(2) (emphasis added). However, Note 5,
an Application Note in the commentary section of § 4A1.2,
further instructs that “[c]onvictions for driving while intoxi-
cated or under the influence (and similar offenses by whatever
name they are known) are counted. Such offenses are not
minor traffic infractions within the meaning of § 4A1.2(c).”
U.S.S.G. § 4A1.2 cmt. n.5 (emphasis added).
The district court held that Landa’s conviction was not sim-
ilar to a juvenile3 status offense, but was instead similar to a
3
We cannot ignore the fact that Landa was not a juvenile at the time that
California Highway Patrol officers arrested him. He had recently cele-
brated his eighteenth birthday. Under California law, he was an adult
offender. Cal. Fam. Code §§ 6500, 6501.
UNITED STATES v. LANDA 8109
conviction for driving under the influence or while intoxi-
cated. Accordingly, the court counted the conviction and
denied him “safety valve” relief from the five-year mandatory
minimum. Landa appeals.
II
We review de novo the district court’s inclusion of a prior
conviction in the Sentencing Guidelines criminal history cal-
culation. United States v. Grob, 625 F.3d 1209, 1212-13 (9th
Cir. 2010) (citing United States v. Bays, 589 F.3d 1035, 1037
(9th Cir. 2009)).
III
[1] Prior to 2007, we applied different approaches to deter-
mining whether an offense not listed under U.S.S.G.
§ 4A1.2(c) is “similar to” a listed offense. See United States
v. Sandoval, 152 F.3d 1190, 1192 (9th Cir. 1998) (observing
that “[t]his court has taken two different approaches to deter-
mining whether an offense is ‘similar to’ those listed in
§ 4A1.2(c)(2)”); see also Grob, 625 F.3d at 1213 (“Before
2007, there was disagreement among the circuits (and even
within our own circuit) about what test courts should apply in
this context.”). Then in 2007, the Sentencing Commission
provided clearer guidance. Application Note 12 to § 4A1.2
states:
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 punish-
ment; (iii) the elements of the offense; (iv) the level
of culpability involved; and (v) the degree to which
8110 UNITED STATES v. LANDA
the commission of the offense indicates a likelihood
of recurring criminal conduct.
U.S.S.G. § 4A1.2 cmt. n.12 (2007). We have since embraced
this “common sense” approach. Grob, 625 F.3d at 1214.
Landa argues that his driving conviction under section
23140(a) is “similar to” a juvenile status offense and that the
district court erred in concluding that the conviction was simi-
lar to a conviction for driving while intoxicated or under the
influence. The Government counters that Landa’s conviction
is not similar to a juvenile status offense, and is, in fact, a con-
viction for driving while intoxicated or under the influence or
—at a minimum—similar to such an offense.
The “juvenile status offense” exception is listed in the text
of the guidelines, while the “driving while intoxicated or
under the influence” provision is included in the commentary
interpreting those guidelines. Because Note 5 states that con-
victions similar to a “driving while intoxicated or under the
influence” offense are counted and the text of (c)(2) states
that juvenile status offenses are never counted, a potential
conflict exists between the text and the commentary. In such
circumstances, the text of the guidelines governs. Stinson v.
United States, 508 U.S. 36, 43 (1993). That means that if
Landa’s conviction is similar to a juvenile status offense, it is
not counted, regardless of whether it is also similar to a “driv-
ing while intoxicated or under the influence” offense. We
therefore begin by determining whether Landa’s offense is
“similar to” a juvenile status offense.
A
Landa—an adult now and at the time of his arrest—argues
that his conviction under California’s vehicle code is similar
to a juvenile status offense because section 23140 penalizes
conduct of persons younger than twenty-one for conduct that,
if not for the person’s age, would otherwise be legal. Landa
UNITED STATES v. LANDA 8111
suggests that a juvenile status offense is “a non-serious
offense that is . . . illegal only because of the offender’s age
being under 18.” He notes that other circuits have recognized
as “non-serious” juvenile status offenses the purchasing of
alcohol or cigarettes. See, e.g., United States v. Ward, 71 F.3d
262, 263 (7th Cir. 1995) (describing the purchase of alcohol
or cigarettes as conduct that is unlawful “solely by virtue of
the defendant’s juvenile status”). Such activities, Landa
claims, are similar to driving with a BAC of at least .05% in
that none of the activities are serious, and they are illegal only
because the actor is a juvenile.
Landa’s argument hinges in large part on the definition of
“serious.” He argues that under the second prong of Note 12’s
“common sense” test, we should consider only the degree of
punishment in determining the seriousness of his offense and
not the dangerous nature of the underlying conduct. He argues
that because imprisonment was not an available punishment
for Landa’s violation, his violation was not serious, making it
similar to a juvenile status offense.
[2] One significant problem with this argument—and the
dissent’s analysis—is that it confuses two separate inquiries.
It is true that Note 12 instructs us to compare sentences
imposed to help determine whether an offense is serious. But
it is also true that Note 12 requires us to consider the “ele-
ments” of the two offenses and, as we explain below, serious-
ness is an element of a “juvenile status offense.”
Note 12 does not define “juvenile status offense” or what
it means to be “serious” for purposes of that term. To deter-
mine what constitutes a juvenile status offense for purposes of
§ 4A1.2(c), and whether Landa’s conviction is “non-serious”
in the same way that a juvenile status offense is “non-
serious,” we look not to Note 12, but to federal law. United
States v. Kemp, 938 F.2d 1020, 1023-24 (9th Cir. 1991); see
also United States v. Martinez, 905 F.2d 251, 253 (9th Cir.
1990). Once the term is defined, we consider whether it
8112 UNITED STATES v. LANDA
encompasses the conduct underlying Landa’s offense. Grob,
625 F.3d at 1217.
We have not yet defined “juvenile status offense.” Doing
so, as the Sixth Circuit has noted, is particularly difficult
because the term encompasses not a single type of offense,
but a group of offenses. See United States v. Cole, 418 F.3d
592, 599 (6th Cir. 2005). Black’s Law Dictionary defines a
status offense as “a minor’s violation of the juvenile code by
doing some act that would not be considered illegal if an adult
did it, but that indicates that the minor is beyond parental con-
trol.” Black’s Law Dictionary, 1188 (9th ed. 2009). Examples
include running away from home, truancy, and incorrigibility.
Id. Other circuits considering the definition in the context of
§ 4A1.2(c) seem to have recognized that the term “juvenile
status offense” depends on both the “age” of the defendant
and the “non-serious” nature of the offense.
For example, the Sixth Circuit defines a juvenile status
offense as “an offense which is illegal only because of the
offender’s age (under eighteen) and which is not serious.”
Cole, 418 F.3d at 599. To help gauge whether an offense is
“serious,” the court in Cole considered the severity of avail-
able punishments. Id. at 600 n.4. In deciding that being a
minor in possession was similar to a juvenile status offense
where the defendant was nineteen years old at the time of the
violation, the Sixth Circuit observed that “[a] jail sentence is
not available under Michigan law for a minor in possession of
alcohol conviction” except in limited circumstances. Id.
Considering whether being a minor in possession of a gun
was a juvenile status offense, the Seventh Circuit held that
“[t]he obvious meaning [of juvenile status offense] is conduct
that would be lawful for an adult and is unlawful solely by
virtue of the defendant’s juvenile status.” Ward, 71 F.3d at
263. In assessing whether an offense falls into that category,
the court observed that it may be necessary to consider the
“gravity” of the underlying conduct. Id. at 264 (noting that
UNITED STATES v. LANDA 8113
mere underage possession of a gun may be a juvenile status
offense, but using that gun in connection with the commission
of an adult felony would not be).
The First Circuit has concluded that a juvenile status
offense must have three elements: (1) the defendant was
younger than eighteen years of age, (2) the conduct would
have been lawful if engaged in by an adult, and (3) the
offense is not serious. United States v. Correa, 114 F.3d 314,
318-19 (1st Cir. 1997). The court determines whether an
offense is “serious” by appraising the “gravity” of a given
crime and making what is “quintessentially a judgment call.”
Id. at 319. In Correa, the court found it significant that the
illustrations of exempted offenses supplied by the Sentencing
Commission in § 4A1.2(c) (e.g., truancy, hitchhiking, loiter-
ing, vagrancy, and minor traffic infractions) “all possess a
bland quality that helps to distinguish them from more sub-
stantial transgressions.” Id.
In adopting that approach as its own, the Eighth Circuit rea-
soned that it “fits well with the goals of ‘certainty and fairness
in meeting the purposes of sentencing, avoiding unwarranted
sentencing disparities among defendants with similar records
. . . while maintaining . . . flexibility.’ ” United States v.
Webb, 218 F.3d 877, 880 (8th Cir. 2000) (quoting 28 U.S.C.
§ 991(b)(1)(B)). Rejecting the argument that being a minor in
possession of alcohol is a juvenile status offense, the Eighth
Circuit noted that juvenile status offenses tend to punish
offenders based solely on their current state or status while
prohibitory offenses “involve a defendant who affirmatively
violates a regulatory scheme.” Id. at 881. The court observed
that offenses such as “minor in possession” represent “a viola-
tion of a specific liquor control law, rather than being merely
reflective of a status crime such as juvenile delinquency or an
offense against the public peace.” Id.
[3] We agree with our sister circuits and hold that to qual-
ify as a juvenile status offense, an offense must be (1) com-
8114 UNITED STATES v. LANDA
mitted by a person younger than eighteen years of age, (2)
involve conduct that would be lawful if engaged in by an
adult, and (3) be non-serious in nature. We compare those ele-
ments to Landa’s offense to determine whether they are simi-
lar. While Landa was an adult at the time of his arrest, he was
underage for purposes of California’s drinking laws, which
set the minimum age for legal acquisition of alcohol at
twenty-one. See Cal. Const. art. XX, § 22. Furthermore, sec-
tion 23140 makes it illegal to drive with a BAC as low as
.05%, conduct that is arguably legal for most adults (although
depending on the facts could also be evidence of reckless
driving in violation of California Vehicle Code section
23103(a)).
[4] Those two elements strike us as similar to the first two
elements of a juvenile status offense. Therefore, our inquiry
into the elements of the offenses focuses mostly on their seri-
ousness. See Grob, 625 F.3d at 1216 (noting that “a compari-
son of the elements of the prior offense with the elements of
the exempted offense shows both similarity and difference”
(quotation and markings omitted)). In measuring “serious-
ness,” we look at more than just the severity of punishment
available; like our sister circuits, we also consider the conduct
underlying the offense. See United States v. Lichtenberg, 631
F.3d 1021, 1026 (9th Cir. 2011) (“The distinction between the
two crimes is reflected in [the defendant]’s actual offense
conduct.” (citing Grob, 625 F.3d at 1217)).
[5] It is obvious to us that driving a vehicle after drinking
alcohol presents entirely different risks than the act of pur-
chasing alcohol or cigarettes, running away from home, tru-
ancy, or incorrigibility. This distinction is underscored by the
fact that a conviction under California’s vehicular manslaugh-
ter laws may be predicated on a violation of section 23140.
See Cal. Penal Code § 191.5 (“Gross vehicular manslaughter
while intoxicated is the unlawful killing of a human being
without malice aforethought, in the driving of a vehicle,
where the driving was in violation of Section 23140 . . .”).
UNITED STATES v. LANDA 8115
Thus, California lawmakers have expressly recognized that
driving in violation of section 23140 can and sometimes does
lead directly to the death of others.
In deciding that a BAC of .05% was adequate to support a
conviction for vehicular manslaughter “while intoxicated,”
state lawmakers noted the alarming statistic that “[t]he alcohol
involvement rate for young drivers, based on the total licensed
driver population, is about twice that of the over 21 age driv-
er,” and that, despite the effectiveness of tough drinking laws,
“young people under age 21 are still greatly over-represented
in alcohol-related crashes and fatalities.” Bill Analysis, AB
321: Hearing Before the Assemb. Comm. on Pub. Safety,
1993-1994 Reg. Sess., 1-2 (as amended March 3, 1994).
To support his position that his conviction was not serious,
Landa cites Cole, 418 F.3d 592, where, as noted above, the
Sixth Circuit held that a nineteen-year-old’s conviction for
possessing alcohol was similar to a juvenile offense in part
because the offense was not “serious.” Id. at 599-600. But,
aside from the fact that Cole seems to have placed more
weight on the severity of available punishments than we do,
Cole is virtually inapplicable to the facts here, where Landa
was convicted for driving a vehicle after consuming alcohol
and having a BAC of more than .05%.
The California legislature did not impose a more severe
BAC restriction on drivers younger than twenty-one merely
because they are too young to drink—that’s the purpose of
drinking laws. The legislature imposed this special restriction
on driving because—like commercial vehicle drivers, who are
prohibited from driving with a BAC of .04% under section
23152(d) of the vehicle code—young drivers pose special
risks. See, e.g., People v. Goslar, 70 Cal. App. 4th 270, 278
(Cal. Ct. App. 1999) (observing that in amending the vehicu-
lar homicide laws to incorporate section 23140, the California
legislature considered the fact that “younger drivers, less
experienced in driving and in the use of alcoholic beverages,
8116 UNITED STATES v. LANDA
were more likely to be involved in accidents at lower blood-
alcohol levels than older drivers”); see also Senate Floor
Analyses, SB 1295, Reg. Sess. 1993-1994, 2 (“Alcohol is by
far the most frequently found drug in fatally injured drivers.
No other single drug—not even all other drugs combined—
comes close to alcohol. And, of course, young drivers are a
major problem in this area.” (statement of the Personal Insur-
ance Federation)); see also Cal. Veh. Code § 23510(a) (find-
ing that “[y]oung drivers often do not realize the
consequences of drinking alcohol or ingesting any other
drugs, whether legal or not, and driving a motor vehicle while
their physical capabilities to drive safely are impaired by
those substances”).
As for Landa’s argument that the punishment imposed on
him was not serious, the guidelines themselves suggest that it
was severe enough to distinguish it from a “minor” offense.
In § 4A1.2, subsection (c)(1) distinguishes between certain
minor offenses that are not counted and offenses where the
sentence imposed was a term of probation of more than one
year or a term of imprisonment of at least thirty days. While
“juvenile status offense” is not listed in subsection (c)(1), the
guidelines clearly recognize that certain types of petty
offenses are only counted where the defendant received a sen-
tence of more than one year’s probation, as occurred here.
[6] Landa argues that because juvenile status offenses are
never counted under the plain language of subsection (c)(2),
it is irrelevant that subsection (c)(1) recognizes that sentences
involving probationary periods of more than one year should
be counted. Landa would be correct if we were trying to
determine whether a juvenile status offense with a probation-
ary period of eighteen months should be counted. But that is
not our task. It is uncontested that Landa is not a juvenile and
was not convicted of a juvenile status offense. The question
before us is whether his conviction is “similar” to such an
offense. To answer that question, it is appropriate to consider
the language in (c)(1) to help gauge whether the punishment
UNITED STATES v. LANDA 8117
imposed on Landa indicates a serious offense or whether,
instead, it is an offense of “minor significance to the goals of
sentencing.” Martinez, 905 F.2d at 253 (9th Cir. 1990). Landa
was sentenced to probation for eighteen months, terminable
upon payment of a fee, which he paid more than one year into
his probationary period. His sentence is more suggestive of a
serious offense than a minor offense. See § 4A1.2(c)(1).
Neither does the fact that a conviction under section 23140
is an infraction that results in probation instead of imprison-
ment establish that it is a non-serious offense. See Sandoval,
152 F.3d at 1192-93 (finding that petty theft is not “similar
to” the offenses listed in § 4A1.2(c)(2) even though it “was
charged as an infraction, resulting in a relatively light penal-
ty”).
[7] We also think it relevant that many of the conse-
quences flowing from a conviction under section 23140 are
exactly the same as those assigned to “driving under the influ-
ence” sections of the vehicle code. See, e.g., Cal. Veh. Code
§ 1808 (specifying that conviction records for violations of
section 23140, 23152 (driving under the influence), or 23153
(driving under the influence and causing bodily injury to
another person) are available for ten years). Section 14602.8
of the vehicle code also allows for immediate removal and
seizure of vehicles driven by persons suspected of being
under the influence of alcohol or drugs if those persons have
been convicted of violating section 23140, 23152, or 23153.
Cal. Veh. Code § 14602.8(a)(1). Additionally, section 13353
of the code allows the State to suspend a person’s privilege
to operate a motor vehicle for up to three years where the per-
son refuses to complete a chemical test, is suspected of drink-
ing and driving, and has a prior conviction under section
23140, 23152, or 23153. Cal. Veh. Code § 13353(a). We also
note that the penalties for violations of 23140, 23152, and
23153 are all included in a division of the vehicle code enti-
tled “Sentencing for Driving While Under the Influence,” Cal.
Veh. Code Div. 11.5, and that all three offenses share as an
8118 UNITED STATES v. LANDA
available punishment completion of an educational “driving
under the influence” program. See Cal. Veh. Code
§§ 23502(a), 23538(b), 23556(b)(1).
[8] That California’s lawmakers so frequently lump
together consequences for driving under the influence and
violations of section 23140 suggests that the legislature per-
ceives a violation of that section as more serious than a juve-
nile status offense. It also suggests that section 23140 is not
a mere status offense, but part of the state’s scheme for regu-
lating driving under the influence. See also United States v.
Gomez-Leon, 545 F.3d 777, 785 (9th Cir. 2008) (recognizing
that under California law, violating section 23140 is equiva-
lent to “driving a vehicle while under the influence of drugs
or alcohol in violation of the California vehicle code”);
Review of 1986 Selected California Legislation, 18 Pac. L.J.
433, 738-39 (explaining that enactment of section 23140 and
other sections of the vehicle code “expands existing law
[which prohibits any person from driving a vehicle while
under the influence of alcohol or with a specified blood-
alcohol level] by prohibiting a minor from driving a vehicle
with a blood alcohol level of 0.05% or more, by weight”
(emphasis added)).
Turning to culpability and whether Landa’s violation of
section 23140 predicts future criminality, we overlook for the
moment that in order to violate section 23140, a person has
already broken two laws: drinking alcohol under age and driv-
ing with a BAC of at least .05%. We think it telling that
Landa’s conduct would have been illegal regardless of his
age. See Ward, 71 F.3d at 264 (noting that it is proper to con-
sider the defendant’s underlying conduct where the offense in
question “can be committed by conduct that varies from the
trivial to the grave [because] the significance of the prior con-
viction as a predictor of recidivist potential—the primary rea-
son for using criminal history to increase a defendant’s
sentence . . . cannot be determined” (internal citations omit-
ted)); see also Grob, 625 F.3d at 1217 (considering “the cir-
UNITED STATES v. LANDA 8119
cumstances present” to determine whether a prior conviction
suggested a likelihood of recurring criminal conduct).
Landa was convicted of driving with a BAC of at least
.05%. His Breathalyzer tests revealed that he actually drove
with a BAC of well over .08%. Even if we agreed that ille-
gally consuming alcohol and then driving with a BAC of
.05% was not predictive of future criminality, the fact that
Landa far exceeded this limit supports our conclusion that the
culpability of his actions are not similar to a juvenile status
offense and that his conduct is indicative of future criminal
behavior.
The fact that, with section 23140, state lawmakers
attempted to address a public safety threat by imposing more
severe restrictions on a known risk group does not minimize
the serious nature of the targeted activity. If anything, it
underscores it. A violation of section 23140 amounts to sig-
nificantly more than a “relatively minor breach of the peace.”
See Grob, 625 F.3d at 1216. Getting behind the wheel of a car
and taking to the road after consuming alcohol is more serious
than running away from home, truancy, incorrigibility, or the
purchasing of alcohol or cigarettes. We conclude that Landa’s
conduct lacks the “bland quality” of other offenses listed in
§ 4A1.2(c)(2) (i.e., fish and game violations, hitchhiking,
local ordinance violations, loitering, minor traffic infractions,
public intoxication, and vagrancy) and rises to the level of a
substantial transgression.
[9] We hold that Landa’s conviction is not similar to a
juvenile status offense for purposes of § 4A1.2(c)(2). Landa
does not argue that his offense falls under any other excep-
tion. Therefore, the district court properly counted the convic-
tion in calculating Landa’s criminal history score. See
U.S.S.G. § 4A1.2(c) (stating that “[s]entences for misdemea-
nor and petty offenses are counted” unless an exception listed
in subsection (c)(1) or subsection (c)(2) applies).
8120 UNITED STATES v. LANDA
IV
We are not convinced that Landa’s violation of section
23140 is similar to a juvenile status offense. Indeed, it would
defy common sense to conclude that a law designed to pre-
vent young and inexperienced drivers from taking to the roads
after consuming alcohol is similar to a juvenile status offense
simply because it properly targets the most dangerous demo-
graphic group.4
Because Landa does not argue that his offense falls under
any other applicable exception, our task is complete.5 In light
of our disposition that Landa cannot meet all five require-
ments for “safety valve” relief, we need not decide whether
his failure to timely debrief before sentencing also renders
him ineligible. AFFIRMED.
W. FLETCHER, Circuit Judge, dissenting:
Defendant Landa appeals a five-year mandatory minimum
4
We do not foreclose the possibility that other offenses committed by
those older than eighteen years may be “similar to” a juvenile status
offense. We merely disagree with the dissent, for the reasons we have
articulated, that “[t]he only difference between Landa’s offense and true
juvenile status offense is that the age threshold is 21 rather than 18.” See
Dissent at 8129.
5
The dissent states that in summarizing the district court’s approach and
the Government’s arguments we somehow suggest that we agree with the
Government that Landa’s violation must be counted because it is a
driving-under-the-influence offense within the meaning of Application
Note 5. See Dissent at 8130. To be clear, we do not reach that question
because, as we explain supra, the only exception the appellant argues
applies is the “similar to a juvenile status offense” exception in the Guide-
lines themselves, and that exception trumps Application Note 5. If Landa’s
offense is similar to a juvenile status offense, it is not counted. If it is not
similar to a juvenile status offense, it is. The lengthy discourse by the dis-
sent regarding Application Note 5 is simply irrelevant.
UNITED STATES v. LANDA 8121
sentence imposed following his guilty plea to violations of the
federal Controlled Substances Act. He argues that the district
court should not have assigned a criminal history point for his
earlier conviction of an infraction under California law for
driving a vehicle while under the age of 21 and having a
blood alcohol level of 0.05% or more. If that criminal history
point had not been assigned, the district court would not have
been required to impose the mandatory minimum sentence.
The majority concludes that the district court was correct in
assigning the additional point. I disagree and respectfully dis-
sent.
I. Discussion
Chapter Four of the Sentencing Guidelines Manual sets
forth a detailed scheme for determining a defendant’s criminal
history category. Points are assigned for sentences imposed
for prior convictions, sentences of probation, and certain other
factors. See U.S.S.G. § 4A1.1. Some prior convictions, either
because they are too minor or too remote in time, or because
of some other reason, are not counted.
The district court assigned Landa one criminal history point
for his prior conviction for violating California Vehicle Code
§ 23140(a). It did so under U.S.S.G. § 4A1.1(c), which pro-
vides for the addition of one point for each “prior sentence”
of probation. See U.S.S.G. § 4A1.1 cmt. background. Under
U.S.S.G. § 4A1.2(c)(1) and (2), however, sentences for cer-
tain minor offenses are not counted.
A. Section 4A1.2(c)(1)
Section 4A1.2(c)(1) of the Guidelines lists a series of mis-
demeanor and petty offenses. Those listed offenses and “of-
fenses similar to them” are generally not counted, but they are
counted when a term of probation of more than a year or a
term of imprisonment of at least thirty days was imposed, or
when the prior offense was similar to the “instant offense.”
8122 UNITED STATES v. LANDA
The listed misdemeanor offenses include several driving-
related offenses: “Careless or reckless driving,” “Driving
without a license or with a revoked or suspended license,” and
“Leaving the scene of an accident.”
The government argues that Landa’s violation of
§ 23140(a) is sufficiently similar to the listed offenses in
§ 4A1.2(c)(1) that he should receive a point. Landa was sen-
tenced to 18 months’ probation, which he could have termi-
nated at any time by paying $655. He paid the full amount,
but not until he had already been on probation for more than
a year. Because Landa’s actual term of probation (rather than
the term of probation he could have served if he had paid the
$655 earlier) was more than a year, I am willing to assume
that his sentence of probation was over a year for purposes of
§ 4A1.2(c)(1). However, his violation of § 23140(a) was not
sufficiently similar to any of the listed offenses to come
within the guideline. A conviction under § 23140(a) requires
only proof of a blood alcohol content over .05% and an age
under 21. Careless or reckless driving is not established by
such a conviction beyond what may be inferred from blood
alcohol content and age. The offenses of driving without a
license or a revoked or suspended license and leaving the
scene of an accident have no similarity to a violation of
§ 23140(a).
B. Section 4A1.2(c)(2)
Section 4A1.2(c)(2) of the Guidelines presents a closer
case. That section provides that “[s]entences for the following
prior offenses and offenses similar to them, by whatever name
they are known, are never counted,” regardless of the sen-
tence or term of probation imposed. Id. (emphasis added). The
list of never-counted offenses in § 4A1.2(c)(2) includes “juve-
nile status offenses and truancy,” “minor traffic infractions,”
and offenses “similar to” them. Because of the “similar to”
clause, an offense need not appear on the list by name in order
UNITED STATES v. LANDA 8123
for it to be excluded. Id. I address in turn “juvenile status
offenses” and offenses “similar” to them.
1. Juvenile Status Offenses
The Guidelines do not define “juvenile status offenses,”
and we have not previously adopted a definition of the term.
Other circuits have grappled with questions concerning the
term’s meaning, including the question we face here —
whether the term applies to a conviction for a crime that
includes as an element the defendant’s youth, but was com-
mitted when the defendant was 18 or older. The majority has
adopted the First Circuit’s definition of “juvenile status
offenses” articulated in United States v. Correa, 114 F.3d
314, 318-19 (1st Cir. 1997). I agree with the majority that this
is the appropriate definition. I agree, further, that Landa’s
conviction under § 23140(a) was not a conviction for a “juve-
nile status offense” under this definition.
2. “Similar To”
The critical question is whether Landa’s offense was “simi-
lar to” a juvenile status offense. In the years after the adoption
of the Guidelines, the courts of appeals developed different
approaches for determining the meaning of “similar to” in
§ 4A1.2(c). See United States v. Grob, 625 F.3d 1209, 1213-
14 (9th Cir. 2010) (discussing approaches used in different
circuits). In 2007, the Sentencing Commission promulgated a
test in an Application Note to § 4A1.2 for determining simi-
larity:
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 punish-
8124 UNITED STATES v. LANDA
ment; (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.
U.S.S.G. Supp. to app. C amend. 709 (codified at § 4A1.2
cmt. n.12). We have held that the “common sense approach”
in Application Note 12 is now the governing test for similar-
ity. Grob, 625 F.3d at 1213-14; see also United States v. Lich-
tenberg, ___ F.3d ___, 2011 U.S. App. LEXIS 1698 (9th Cir.
Jan. 27, 2011). Our common sense evaluation is guided by the
factors enumerated in the Application Note. Grob, 625 F.3d
at 1215-19.
The first factor in determining similarity under the Applica-
tion Note to § 4A1.2 is a “comparison of punishments
imposed for the listed and unlisted offenses.” For purposes of
comparing a listed offense and a potentially similar unlisted
offense, we look first to any federal definition of the listed
offense. Grob, 625 F.3d at 1215. If there is no federal defini-
tion, we look to either the Model Penal Code or state defini-
tion. Id. However, none of those sources contains a single
definition of “juvenile status offense.” California law does,
however, specify certain prototypical juvenile status offenses,
including underage possession of tobacco and truancy by
minors. Cf. United States v. Ward, 71 F.3d 262, 263 (7th Cir.
1995) (purchase of cigarettes is prototypical juvenile status
offense); United States v. Miller, 987 F.2d 1462, 1465-66
(10th Cir. 1993) (truancy and loitering are juvenile status
offenses). Given that we are asked to determine the similarity
of a California offense to juvenile status offenses, we should
primarily rest our analysis on a comparison of Landa’s
offense to these California offenses. Following our recent
decision in Grob, we should focus on the punishment actually
imposed for the unlisted offense, rather than the maximum
possible punishment, because “the level of punishment
imposed for a particular offense serves as a reasonable proxy
for the perceived severity of the crime.” 625 F.3d at 1216
UNITED STATES v. LANDA 8125
(internal quotation marks and alteration omitted). The defen-
dant in Grob had been convicted of an act of criminal mis-
chief, which ordinarily carried potential penalties of $1,500
and six months’ imprisonment. The question was whether
criminal mischief was similar to the offense of disorderly con-
duct, which ordinarily carried a possible sentence of $100 and
ten days imprisonment under state law. Because Grob himself
had actually been fined only $130 for his act of criminal mis-
chief, the court held that the two offenses were similar,
despite the large difference in the available maximum sen-
tences. Id. at 1216.
The maximum penalty for a violation of California Vehicle
Code § 23140(a) is a fine ($100 for a first offense, $200 for
a second offense, and $300 thereafter), loss of the offender’s
driver’s license for one year, and the requirement that the
offender attend a driving-under-the-influence program. Cal.
Veh. Code §§ 13202.5, 23140, 23502, 42001.25. A violation
of § 23140(a) is not punishable by imprisonment. Cal. Penal
Code § 19.6. The penalty actually imposed on Landa was 18
months’ probation, to terminate immediately upon the pay-
ment of $665. Because Landa was a first-time offender, his
fine should have been $100. The record does not give any
indication how the court arrived at $665. I assume that $555
of that amount was attributable to court fees. The record does
not reflect whether Landa’s license was suspended or whether
he was ordered to attend a remedial program, but since those
penalties are automatic it is likely that they were imposed.
Cal. Veh. Code §§ 13202.5, 23502(a).
By comparison, the penalty for underage tobacco posses-
sion is a $75 fine or 30 hours of community service. Cal.
Penal Code. § 308(b). The maximum penalties for truancy,
after repeated violations, are a $100 fine, suspension of the
student’s driver’s license, compulsory attendance at a truancy
prevention program, 20-40 hours of community service, or
adjudication as a ward of the court. Cal. Educ. Code
§ 48264.5.
8126 UNITED STATES v. LANDA
The penalties imposed on Landa suggest that the California
court regarded his offense of violating § 23140(a) as similar
to true juvenile status offenses under California law. The fine
is in the same range as the fines for those offenses. Driver’s
license suspension and attendance in a corrective program is
a part of the punishment for one of those offenses. The pun-
ishment actually imposed on Landa thus falls into the normal
range for juvenile status offenses.1 I note, by comparison, that
the penalty for a single violation of California Vehicle Code
§ 23152, which criminalizes driving by an adult with a blood
alcohol content greater than .08%, is jail time of at least 96
hours and up to 6 months, attendance at a corrective program,
a 6-month driver’s license suspension, a fine of up to $1000
(plus court fees), and probation up to 5 years. Cal. Veh. Code
§§ 23536, 23600, 13352(a)(1). Repeated offenses under Cali-
fornia Vehicle Code § 23152 are punished by up to three
years in prison, a $5,000 fine, and a five-year driver’s license
suspension. Cal. Veh. Code §§ 23566, 13352(a)(6). Landa’s
punishment is well below that range.
The second factor is the seriousness of the offense. The rel-
atively light sentence imposed — probation that could be ter-
minated upon payment of a small fine made larger by court
fees — indicates that Landa’s violation was not regarded by
the California sentencing court as a serious offense. See Grob,
625 F.3d at 1216 (“By imposing such a light sentence, more-
over, the Montana court deemed Grob’s crime fairly minor.”).
I emphasize that driving under the influence of alcohol is not
a trivial matter. But Application Note 12 directs us to consider
the seriousness of the particular offense as indicated by the
punishment chosen by the court, not by an assessment of the
1
I do not compare Landa’s offense with underage possession or pur-
chase of alcohol because the age cutoff for that offense is 21 rather than
18. I note, however, that the penalty for those offenses is $250 or 24-32
hours of community service “at an alcohol or drug treatment program”
(for a second or subsequent offense, $500 or 36-48 hours of community
service), in addition to a mandatory one-year driver’s license suspension.
Cal. Bus. & Prof. Code § 25662.
UNITED STATES v. LANDA 8127
dangerousness or gravity of the behavior divorced from the
defendant who was before the sentencing court.
The third factor is the elements of the offense. There is no
generic “juvenile status offense” that is defined by a single list
of elements. However, all juvenile status offenses share one
defining element: they criminalize behavior that would not be
criminal if the offender were older. As we have just held, true
juvenile status offenses are those that are committed by per-
sons under 18. Driving with blood alcohol content greater
than .05% but less than .08% is criminal only for drivers
under 21. Driving with blood alcohol content over .08%, on
the other hand, is criminal regardless of the offender’s age.
In criminalizing driving with a blood alcohol content over
.05% and choosing a cutoff age of 21, the legislature criminal-
ized a risky activity because it judged that people under that
age were less mature, and less able to handle alcohol, than
those over the age of 21. So while Landa’s offense is not a
juvenile status offense because he was over 18, its elements
are conceptually similar to those of a juvenile status offense.
Its similarity is highlighted by the fact that § 23140(a) is con-
tained in an article entitled “Juvenile offenses involving alco-
hol.”
The majority assumes that it has been established, for pur-
poses of sentencing, that Landa’s blood alcohol content was
in excess of .08%. It writes, “We think it telling that Landa’s
conduct would have been illegal regardless of his age.” Maj.
op. at 8118. The police reported that Landa’s Breathalyzer
measurements were .086% and .087%, but Landa never
admitted that those measurements were correct. Landa pled
guilty only to driving with a blood alcohol content in excess
of .05%. It is established law that for purposes of sentencing,
when applying the modified categorical test, we cannot con-
sider information that merely appears in a police report as
having been established as true. Shepard v. United States, 544
U.S. 13, 22-26 (2005).
8128 UNITED STATES v. LANDA
The fourth factor is the offender’s culpability. The fact that
§ 23140(a) is an infraction, the least serious type of criminal
offense, indicates that the legislature viewed the culpability of
someone violating this provision as relatively minor. Drinking
and driving may nonetheless be properly regarded as a more
culpable activity than other juvenile status offenses. In most
of those offenses, the offender puts only himself at risk. But
a young and inexperienced driver who is intoxicated, even
though to a lesser degree than would violate the law for an
adult, puts others at risk. See People v. Goslar, 70 Cal. App.
4th 270, 278 (1999) (noting that the California legislature has
recognized that “younger drivers, less experienced in driving
and in the use of alcoholic beverages, were more likely to be
involved in accidents at lower blood-alcohol levels than older
drivers”).
The fifth factor is “the degree to which the commission of
the offense indicates a likelihood of recurring criminal con-
duct.” The Grob court explained that this inquiry is forward-
looking. “[R]ather than employing hindsight in light of the
instant offense, when determining whether a prior offense
demonstrated a risk of recurring criminal conduct, courts
should look only to the circumstances present at the time of
that prior offense.” 625 F.3d at 1217. There is no evidence
that a violation of § 23410(a) is anything more than weakly
predictive of Landa’s later offenses.
In my view, the five factors slightly favor Landa. The com-
parison of punishments, the seriousness of the offense, and
the elements of the offense favor Landa. The level of culpa-
bility disfavors him. The predictiveness of the offense is
unclear. As a matter of common sense — the ultimate touch-
stone of the inquiry — I am persuaded that Landa’s offense
in violation of § 23140(a) is “similar to” a juvenile status
offense. Section 23140(a) criminalizes behavior that would be
legal if engaged in by a person above 21, and Landa pled
guilty only to a violation of that section. He did not plead
guilty to an offense of driving with a blood alcohol level that
UNITED STATES v. LANDA 8129
would be illegal for someone over 21. The only difference
between Landa’s offense and true juvenile status offense is
that the age threshold is 21 rather than 18. In my view, those
three years do not make § 23140(a) substantially different
from other juvenile status offenses. Indeed, if offenses with an
age cutoff of 21 rather than 18 are not similar to juvenile sta-
tus offenses, the “similar to” category for juvenile status
offenses may turn out to be a null set.
My holding would be consistent with, though not com-
pelled by, the limited caselaw of our sister circuits. In United
States v. Cole, 418 F.3d 592, 598-600 (6th Cir. 2005), the
Sixth Circuit reasoned that a 19-year-old’s conviction for pos-
sessing alcohol, when the legal drinking age was 21, was sim-
ilar to a “juvenile status offense” and therefore could not be
counted as a criminal history point. In Whitney, 229 F.3d
1296, 1309-10 (10th Cir. 2000) the Tenth Circuit hypothe-
sized that a similar conviction could meet the definition of
“juvenile status offense” and concluded that the state of the
law was “unsettled,” although it declined to reverse a district
court’s contrary conclusion on plain error review.
The Eighth Circuit has left open the possibility that
offenses committed by those over 18 may be “similar to”
juvenile status offenses. In Webb, 218 F.3d 877, 880 (8th Cir.
2000), that court held that the conviction of a 19-year-old for
underage possession of alcohol was not a “juvenile status
offense,” but it did not consider whether it was similar to a
juvenile status offense, apparently because the defendant had
not made that argument. In the later case United States v.
Johnston, 533 F.3d 972, 977-78 (8th Cir. 2008), the Eighth
Circuit noted that Webb had not decided the “similar to” ques-
tion and quoted the Sixth Circuit’s analysis in Cole, but
declined to reach the question because any error would have
been harmless.
8130 UNITED STATES v. LANDA
C. DUI Offenses
Application Note 5 in the Commentary to the Guidelines
provides that ordinary drinking and driving convictions are
counted:
Sentences for Driving While Intoxicated or Under
the Influence.— Convictions for driving while intox-
icated or under the influence (and similar offenses by
whatever name they are known) are counted. Such
offenses are not minor traffic infractions within the
meaning of § 4A1.2(c).
U.S.S.G. § 4A1.2 cmt. n.5. The government argues under
Note 5 that Landa’s violation of § 23140(a) must be counted
because it is a driving-under-the-influence (“DUI”) offense
within the meaning of the Note. The majority suggests its
agreement with the government’s argument. See Maj. op. at
8108.
The government’s argument proves too much. It is uncon-
tested that if a violation of § 23140(a) is committed by some-
one under 18, the violation is a true juvenile status offense. If
such a violation of § 23140(a) were a DUI under Application
Note 5, there would be a conflict between the Guidelines and
the Commentary because juvenile status offenses are explic-
itly excluded by the text of § 4A1.2(c)(2) while DUI offenses
are counted under Note 5. When the text of the Guidelines
and a portion of the Commentary conflict, the text controls.
Stinson v. United States, 508 U.S. 36, 45 (1993). Therefore,
the textual command that juvenile status offenses “are never
counted” trumps any potentially conflicting provision in the
Commentary.
Excluding such a violation of § 23140(a) from the scope of
Note 5 is also a logical reading of the commentary. Note 5
makes clear that DUIs are not “minor traffic infractions” and
for that reason should be counted. By contrast, the rationale
UNITED STATES v. LANDA 8131
for not counting juvenile status offenses is that they are minor
infractions. If the drafters had intended to include underage
drinking-and-driving within its definition of DUI, they would
likely have given us additional language explicitly so provid-
ing.
I do not conclude that DUIs based on a blood alcohol con-
tent of .08% or over — which are violations of California
Vehicle Code § 23152 rather than § 23140(a) — are excluded
if committed by a juvenile. A violation of § 23152 is not a
juvenile status offense. Rather, it is adult felony, even if com-
mitted by someone under 18, because it depends entirely on
blood alcohol content; the age of the offender is irrelevant.
A true juvenile status offense — a violation of § 23140(a)
committed by someone under 18 — is excluded from the
scope of § 4A1.2(c)(2). The Guideline text does not distin-
guish between true juvenile status offenses and “similar to”
offenses. The text states only that “prior offenses and offenses
similar to them . . . are never counted.” That is, § 4A1.2(c)(2)
prescribes the same treatment for juvenile status and for
offenses “similar to” them. Since the true juvenile status
offense is always excluded from criminal history category
computation, “similar to” offenses must be excluded as well.
D. Harmless Error
We reverse and remand for resentencing on the basis of an
error in calculating the Guidelines only when the error
affected the sentence imposed. See Cruz-Gramajo, 570 F.3d
at 1167. The government argues that even if Landa’s violation
of § 23140(a) is not countable as a criminal history point, the
error is harmless because Landa is in any event ineligible for
the safety valve because he has not debriefed the government.
I disagree that the error was harmless.
A defendant bears the burden of proving that he is eligible
for safety valve relief. United States v. Diaz-Cardenas, 351
8132 UNITED STATES v. LANDA
F.3d 404, 409 (9th Cir. 2003). The fifth requirement for safety
valve relief provides that the defendant may be eligible for
relief if
not later than the time of the sentencing hearing the
defendant has truthfully provided to the Government
all information and evidence the defendant has con-
cerning the offense or offenses that were part of the
same course of conduct or of a common scheme or
plan, but the fact that the defendant has no relevant
or useful other information to provide or that the
Government is already aware of the information
shall not preclude a determination by the court that
the defendant has complied with this requirement.
18 U.S.C. § 3553(f)(5).
We have interpreted this provision several times. As we
have explained, the purpose of the safety valve statute is not,
like 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 (the coopera-
tion provisions), to “provid[e] the government a means to
reward a defendant for supplying useful information,” nor,
like U.S.S.G. § 3E1.1 (the acceptance of responsibility provi-
sions), to “spar[e] the government the trouble of preparing for
and proceeding with trial.” United States v. Shrestha, 86 F.3d
935, 940 (9th Cir. 1996). Rather, its purpose is to enable a
sentencing court to go below a statutory minimum in sentenc-
ing a defendant who played a minor role and who “made a
good-faith effort to cooperate with the government.” Id.
We expounded on the meaning of “good-faith effort to
cooperate” in United States v. Meija-Pimental. In that case,
the defendant was sentenced to 210 months, but his sentence
was reversed on direct appeal because of the district court’s
failure to resolve significant objections to the Pre-Sentence
Report. The district court imposed the same sentence on
remand, and the court of appeals again reversed and remanded
for resentencing in light of Booker and Ameline. United States
UNITED STATES v. LANDA 8133
v. Mejia-Pimental, 477 F.3d 1100 (9th Cir. 2007). Before his
third sentencing hearing, and after all the relevant information
had already been revealed, the defendant sought for the first
time to provide a safety valve proffer. The government
refused the proffer. Mejia-Pimental wrote a letter to the gov-
ernment anyway, detailing his involvement and his knowl-
edge of others’ involvement.
We reversed the district court’s finding in Mejia-Pimental
that the defendant had not satisfied the debriefing require-
ment. We held that “to demonstrate ‘good faith,’ a defendant
need only show that by the time of sentencing he has ‘truth-
fully provided to the Government all information and evi-
dence [he] has concerning the offense or offenses.’ ” Id. at
1102 (quoting 18 U.S.C. § 3553(f)(5)). As long as the “ulti-
mate proffer is truthful and complete,” the defendant “has sat-
isfied the fifth safety valve criterion, regardless of his timing
or motivations.” Id. at 1106. We explained that the district
court may consider tardiness or reluctance in cooperation in
tailoring an individual’s sentence under 18 U.S.C. § 3553(a),
but that “early and consistent cooperation is ‘not a precondi-
tion for safety valve relief.’ ” Id. at 1108 (quoting United
States v. Tournier, 171 F.3d 645, 647 (8th Cir. 1999)).
Mejia-Pimental makes clear that the requirement that the
defendant provide information “not later than the time of the
sentencing hearing” does not refer only to the initial sentenc-
ing in a case where multiple sentencings take place. Mejia-
Pimental initially declined to debrief and instead appealed his
sentence on other grounds. When the court of appeals
reversed and remanded for resentencing on other grounds,
Mejia-Pimental obtained another opportunity to debrief prior
to his resentencing. Landa should be entitled to the same
opportunity.
Conclusion
Because Landa’s offense under California Vehicle Code
§ 23140(a) is “similar to” a “juvenile status offense,” it should
8134 UNITED STATES v. LANDA
not have been counted as a criminal history point. I would
remand the case so that Landa may, if he chooses, debrief the
government. At that point, the district court would be able to
determine his eligibility for safety valve relief.
I respectfully dissent.