dissenting.
While I agree with the majority’s conclusion that Rollins’s “no insurance” conviction does not qualify as a “minor traffic infraction” under § 4A1.2(c)(2), I disagree strongly with its conclusion that the conditional discharge of a fine is equivalent to a sentence of probation, such that the conviction should count under § 4A1.2(c)(l).
The conditional discharge in this case is not “the functional equivalent of ‘unsupervised probation.’ ” Maj. op. at 579, quoting United States v. Miller, 56 F.3d 719, 722 (6th Cir.1995). Both cases that the majority cites, Miller and Harris v. United States, 204 F.3d 681, 682-83 (6th Cir.2000), dealt with conditional discharge of a prison sentence. See Miller, 56 F.3d at 721 (“whereby he was given a sentence of thirty days imprisonment conditionally discharged for two years”); Harris, 204 F.3d at 682 (discharge at issue in case is “a condition on which a sentence of imprisonment is suspended”). Here, the conditional discharge is of a fine, and all that the Kentucky courts would have done had Rollins violated the conditions of the discharge would be to impose punishment of the balance of the fine, plus court costs. The majority responds to this key distinction by arguing that it is the conditional nature of the discharge that is important: any time, then, that a state places conditions on a misdemeanant, the sentence will count, even if the full punishment the state could impose after a violation of those conditions is well below the threshold level otherwise to trigger the provision. The total illogic of this position — that a defendant fined $1,000,000 on the spot receives no criminal history points, but one whose $100 fine is conditionally discharged receives a point, or that a defendant whose fine for a nonsufficient funds check is discharged on the condition that she not shop at a particular mall for a year receives a point — is acknowledged by the majority, but does not lead it to conclude that perhaps the designers of the Sentencing Guidelines did not anticipate this result. I do not believe that the determinant of “probation” is “conditions” on a defendant, but instead I believe that “probation” is determined from the ultimate punishment that could be visited on the defendant who violates those conditions. Therefore, I would conclude that the nonsensical results that follow from the majority’s reading of the provision are ample evidence that that reading is incorrect.
By transforming Rollins’s fine into a term of probation, the majority also creates an odd result when contrasted with Application Note 4 to § 4A1.2, which states:
Sentences Imposed in the Alternative: A sentence which specifies a fine or other non-incareerative disposition as an alternative to a term of imprisonment (fi.g., $1,000 fine or ninety days’ imprisonment) is treated as a non-imprisonment sentence.
Thus, had Rollins been sentenced to payment of his $500 fine or ninety days in prison for his infraction, a possible sentence under the Kentucky statute and surely a more severe sentence than payment of $500, conditionally discharged to $50, his conviction would not count. I believe Rollins’s actual sentence for driving without insurance, which could only have resulted in a fine, is not properly counted in his criminal history under § 4A1.2(c)(l).
Finally, the majority alludes to the possibility of downward departure under § 4A1.3 in cases like the one before us. Of course, no downward departure occurred in this case, and Rollins is unable to appeal the district court’s failure to make one. By relocating this issue from the definite terms of § 4A1.2(c)(l) to the dis*583cretionary “safety valve” of § 4A1.8, the majority insulates the district court’s decision from review and further limits the ability of wrongfully sentenced defendants to appeal to this court for legal correction. I think this is entirely unwarranted, when the proper route is so clear. I respectfully dissent.