In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2548
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JUSTIN KOHL,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:17‐cr‐00060‐1 — William M. Conley, Judge.
____________________
ARGUED NOVEMBER 8, 2018 — DECIDED DECEMBER 12, 2018
____________________
Before FLAUM, MANION, and ST. EVE, Circuit Judges.
MANION, Circuit Judge. Justin Kohl was convicted of three
federal controlled substance offenses. At sentencing, the dis‐
trict court assigned Kohl criminal history category IV. The
district court included one criminal history point for a 2016
conviction in Wisconsin for operating a vehicle with a detect‐
able amount of a restricted controlled substance in his blood.
Kohl argues that the district court erred by including the 2016
conviction because a first violation of the Wisconsin statute at
2 No. 18‐2548
issue does not carry a criminal penalty and should not have
been counted. We disagree with Kohl’s interpretation of the
Sentencing Guidelines and affirm the district court’s sentence.
I. Background
Kohl was indicted in June 2017 for one count of conspiracy
to distribute methamphetamine and two counts of possessing
methamphetamine with intent to distribute in violation of 21
U.S.C. §§ 841 and 846. He was found guilty of all three charges
in a bench trial conducted in April 2018 and was sentenced in
July 2018.
Kohl’s Presentence Investigation Report (PSIR) calculated
his criminal history score as seven, placing him in criminal
history category IV. The PSIR gave one criminal history point
based on Kohl’s 2016 conviction in Wisconsin for operating a
vehicle with a detectable amount of a restricted controlled
substance in his blood. WIS. STAT. § 346.63(1)(am). Wisconsin
law punishes a first violation of this offense as merely a civil
violation and not as a criminal act. Id. §§ 346.65(2)(am), 939.12.
Kohl objected to the inclusion of the 2016 conviction be‐
cause the Sentencing Guidelines provide that certain listed
misdemeanors and petty offenses, including local ordinance
violations that are not also violations of state criminal law, are
not to be counted. U.S.S.G. § 4A1.2(c)(2). He acknowledged an
Application Note in the Guidelines (“Note 5”) that qualifies
the above exclusion by requiring that convictions for driving
under the influence and similar offenses are always counted.
Id. at cmt. n.5. He argued, however, that his Wisconsin con‐
viction is not a “similar offense” within the meaning of Note
5 because the offense does not include intoxication or impair‐
ment as an element.
No. 18‐2548 3
Although the district court recognized that the Wisconsin
statute at issue does not require proof that the offender was
impaired or under the influence, the court disagreed with
Kohl’s interpretation of Note 5, holding that Kohl’s offense
was sufficiently similar to driving while intoxicated or under
the influence to qualify for inclusion. The district court also
stated, however, that category IV “probably overstates
[Kohl’s] criminal history,” and ultimately imposed a sentence
of 36 months. This sentence was well below the Guideline
range for category IV (77 to 96 months) and was also below
the Guideline range for category III (63 to 78 months), the cat‐
egory to which Kohl would have been assigned if the dis‐
puted conviction was not included. Kohl appeals the district
court’s sentence.
II. Discussion
We review the district court’s interpretation of the Guide‐
lines de novo. United States v. Grzegorczyk, 800 F.3d 402, 405 (7th
Cir. 2015). Our interpretation of the Guidelines “begin[s] with
the text of the provision and the plain meaning of the words
in the text.” United States v. Hill, 645 F.3d 900, 907 (7th Cir.
2011) (quoting United States v. Arnaout, 431 F.3d 994, 1001 (7th
Cir. 2005)). We additionally consider the Guidelines’ Applica‐
tion Notes “as part of the Guidelines themselves, and not
mere commentary on them.” Id. at 908 (quoting Arnaout, 431
F.3d at 1001).
The calculation of a defendant’s criminal history score and
category is governed by U.S.S.G. §§ 4A1.1 and 4A1.2. Subsec‐
tion 4A1.2(c) clarifies which kinds of prior convictions are to
be counted for purposes of calculating the criminal history
score. It provides that “[s]entences for misdemeanor and
petty offenses are counted, except” for certain listed offenses,
4 No. 18‐2548
including “ordinance violations” that are not also violations
of state criminal law. Id. § 4A1.2(c)(2). Note 5 to § 4A1.2 states,
however, that “[c]onvictions for driving while intoxicated or
under the influence (and similar offenses by whatever name
they are known) are always counted, without regard to how
the offense is classified. Paragraphs (1) and (2) of § 4A1.2(c)
do not apply.” Id. § 4A1.2 cmt. n.5. We have held that
§ 4Al.2(c) and Note 5, when read together, require even local
ordinance violations to be counted as prior convictions when
the violation falls within the scope of Note 5. United States v.
LeBlanc, 45 F.3d 192, 194–95 (7th Cir. 1995).
Section 346.63 of the Wisconsin Statutes, labeled “Operat‐
ing under influence of intoxicant or other drug,” prohibits op‐
erating a motor vehicle while “[u]nder the influence of an in‐
toxicant,” while “[t]he person has a prohibited alcohol con‐
centration,” or while “[t]he person has a detectable amount of
a restricted controlled substance in his or her blood.” WIS.
STAT. § 346.63(1)(a)–(b). A first violation of any of the three of‐
fenses prohibited by § 346.63(1) is penalized only by a forfei‐
ture of $150 to $300, and therefore is not a crime under Wis‐
consin law. WIS. STAT. § 346.65(2)(am); id. § 939.12 (“Conduct
punishable only by a forfeiture is not a crime.”); see also State
v. Albright, 298 N.W.2d 196, 201–02 (Wis. 1980) (recognizing
that “a ‘first’ violation of § 346.63(1) is not a criminal act”).
Kohl argues that the district court erred by interpreting
Note 5 to allow inclusion of his 2016 conviction in his criminal
history score. He asserts that since his first offense was not a
criminal act under Wisconsin law it is excluded under
§ 4A1.2(c), likening his offense to an ordinance violation that
is not also a violation of state criminal law. He further asserts
that Note 5 does not apply because operating a vehicle with a
No. 18‐2548 5
detectable amount of a restricted controlled substance does
not include an impairment or intoxication element, and there‐
fore it is not a “similar offense” to “driving while intoxicated
or under the influence.” U.S.S.G. § 4A1.2 cmt. n.5.1
We disagree. The plain language of Note 5 does not explic‐
itly or implicitly require any level of impairment to be an ele‐
ment of the offense. It covers all offenses that are “similar to”
driving while intoxicated or under the influence. The conclu‐
sion that Kohl’s offense is “similar to” driving under the in‐
fluence is supported by the inclusion of the offense in Wiscon‐
sin’s “Operating under influence of intoxicant or other drug”
statute and within the same subsection as driving under the
influence. See WIS. STAT. § 346.63(1).
The issue in this case is similar to an issue examined by the
Ninth Circuit in United States v. Thornton, 444 F.3d 1163 (9th
Cir. 2006). In Thornton, the defendant was previously con‐
victed in California of driving with a 0.08 percent blood alco‐
hol level. Id. at 1164. This was a strict liability offense that re‐
quired no proof of impairment, although the offense was
listed as a subsection of California’s “driving under the influ‐
ence” statute. Id. at 1165–66. Thornton, like Kohl, argued that
1 The government pointed out in its briefing that even though the offense
does not include an impairment element, the factual allegations contained
in the PSIR suggest that Kohl was in fact impaired: he was allegedly found
unconscious in a running vehicle on the side of the road, with red and
glossy eyes, green foam around his lips, and dried blood beneath his nose.
In determining whether the offense for which he was convicted is a “sim‐
ilar offense” to driving while intoxicated or under the influence, however,
we focus on the elements of the offense rather than the allegations con‐
tained in the PSIR.
6 No. 18‐2548
because his “conviction, on its face, [did] not permit the con‐
clusion that he drove while under the influence,” it should not
be counted as a similar offense under Note 5. Id. at 1166. The
Ninth Circuit held instead that “[a]lthough … the State did
not need to prove that his driving was impaired to convict
him,” it was clear that the offense at issue “proscribe[d] con‐
duct ‘similar’ to driving under the influence.” Id. The court
found additional support for this conclusion in the fact that
the penalty for violating any subsection of California’s driv‐
ing under the influence statute “is the same, regardless of the
subsection under which a defendant is convicted.” Id.
Kohl argues that Thornton is distinguishable because the
case involved “a presumption of impairment based on the
quantity of alcohol in the driver’s system” and that the Ninth
Circuit focused on the presumption of impairment in reach‐
ing its conclusion. It is true that the Ninth Circuit noted that
under California law operating a vehicle with a blood alcohol
level of 0.08 percent or higher creates a presumption that the
driver was under the influence. Id. But the court did not base
its holding on the presumption of impairment. Instead, the
court concluded that the offense on its face “falls squarely
within the language of” Note 5, even though it required no
proof of impairment. Id. The court then went further to state
that “[a]side from the inherent logic of this conclusion, we
find support for it” in California’s rebuttable presumption of
impairment. Id. Thus, while the presumption of impairment
provided additional support, it was not the focus of the
court’s holding that the offense in question was logically
“similar to” driving under the influence even absent proof of
impairment. Id. at 1167 (“Because we hold that [Thornton’s
prior conviction] is ‘similar’ to a conviction for driving under
the influence, the district court did not need to find that
No. 18‐2548 7
Thornton’s driving was impaired … in order to include that
offense in calculating his criminal history score.”).
We conclude that the same “inherent logic” noted by the
Ninth Circuit supports the conclusion that Kohl’s conviction
is a “similar offense” within the meaning of Note 5. Just like
the offense at issue in Thornton, this offense is included within
the State’s “[o]perating under the influence” statute, which
logically suggests that the offense is “similar” to driving un‐
der the influence. Also as in Thornton, the fact that a first of‐
fense of operating a vehicle with a detectable amount of a re‐
stricted controlled substance is subject to the same penalty as
a first offense of operating a vehicle “[u]nder the influence of
an intoxicant” further demonstrates that these offenses are
similar. See WIS. STAT. § 346.63(1); id. § 346.65(2)(am) (defining
the penalties for first offenses under § 346.63(1)).
We conclude that Kohl’s conviction for operating a vehicle
with a detectable amount of a restricted controlled substance
in his blood qualifies as a similar offense under Note 5, and
therefore the district court properly included that offense in
Kohl’s criminal history score. 2
III. Conclusion
For the reasons stated above, we AFFIRM the sentence.
2 The government also raised the alternative argument that any error was
harmless since the district judge selected a sentence well below the Guide‐
line range. Because we hold that the district court committed no error by
including the Wisconsin offense in Kohl’s criminal history score, we need
not address the harmless error question.