United States v. Leon-Alvarez

BRIGHT, Circuit Judge,

concurring.

I agree with the majority that we should reverse and remand for resentencing. I write separately to highlight certain matters that the district court may consider in determining whether a defendant’s prior conviction is similar to an offense listed in U.S.S.G. § 4A1.2(c)(l).

For the benefit of the district court and the parties, I begin by briefly recounting Leon-Alvarez’s conviction and the district court’s Guidelines’ calculation. On August 10, 2006, Leon-Alvarez pled guilty to two counts of a ten-count indictment: (1) conspiring to distribute 50 grams or more of methamphetamine mixture in 1997 (Count 1); and (2) fraud and misuse of an employment eligibility verification form in 2005 (Count 10). Using the 2005 edition of the Sentencing Guidelines, the district court sentenced Leon-Alvarez on April 12, 2007 to concurrent terms of thirty-seven months on each count — a sentence below the mandatory minimum of sixty months.5 The district court was able to do this because it concluded that Leon-Alvarez qualified for “safety valve” relief under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. A prerequisite for such relief, however, is a finding that Leon-Alvarez does not have more than one criminal history point. Thus, the crucial sentencing issue before the district court and on appeal is whether Leon-*820Alvarez’s prior conviction in 1993 for contributing to the delinquency of a minor should be included as part of his criminal history calculation. See Slip Op. at 816 & n. 3. If this prior offense is not counted, Leon-Alvarez’s criminal history would be in category I, making him eligible for safety valve relief.

On remand, the district court’s calculation of Leon-Alvarez’s criminal history will turn on it properly applying § 4A1.2(e). Leon-Alvarez’s 1993 conviction will not count toward his criminal history if it is “similar to” one of the fifteen offenses listed in § 4A1.2(c)(l).6

At the time of Leon-Alvarez’s original sentencing, the rule in this Circuit for determining whether a prior offense is “similar to” an offense listed in § 4A1.2(c)(l) had been re-stated in United States v. Borer, 412 F.3d 987 (8th Cir.2005). In Borer, we reiterated: “To determine whether two crimes are similar for purposes of § 4A1.2(c), [district courts must] compare the resemblance and character of the offenses.” Id. at 992 (internal quotations and citation omitted). We recognized, however, that our “elements” or “essential characteristics” approach conflicted with the “multi-factor” approach employed by other circuits to determine whether a prior offense has the requisite similarity to an offense listed in § 4A1.2(c).

We thus decline Borer’s suggestion that we adopt a multi-factor approach championed by the Fifth Circuit and others, which also considers the underlying facts of the defendant’s offense, as well as such matters as a “comparison of punishments imposed for the listed and unlisted offenses, the perceived seriousness of the offense as indicated by the level of punishment, ... the level of culpability involved, and the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.” United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991); see also United States v. Martinez-Santos, 184 F.3d 196, 205-06 (2d Cir.1999); United States v. Booker, 71 F.3d 685, 689 (7th Cir.1995). We share the concern of the Fourth Circuit that some of the factors used in these multi-factor tests are vague, subjective, or lacking in unifying principle, such that they “leave the law indeterminate.” See Harris, 128 F.3d at 854-55.

Id. at 992.

Recently, however, the United States Sentencing Commission (“Commission”) adopted Amendment 709. In that Amendment, the Commission expressly rejected our “elements” approach in favor of the “multi-factor” approach for determining whether a prior offense is “similar to” one of the enumerated offenses in § 4A1.2(c). In effect, Amendment 709 clarified the approach courts should use in determining the “similarity” of offenses for the purposes of § 4A1.2(c) thus trumping our decision in Borer. Specifically, the Commission amended the application notes to § 4A1.2(c) as follows:

(A) In General.— 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 *821consideration of relevant factors such as (i) a comparison of punishments imposed for the listed and unlisted offenses; (ii) the perceived seriousness of the offense as indicated by the level of punishment; (iii) the elements of the offense; (iv) the level of culpability involved; and (v) the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.

U.S.S.G. § 4A1.2, comment, (n. 12(A)) (2007) (adopted by Amendment 709, effective November 1, 2007).

The Commission explained the reasons for the Amendment as follows:

The amendment resolves a circuit conflict over the manner in which a court should determine whether a non-listed offense is “similar to” an offense listed as § 4A1.2(c)(l) or (2). Some courts have adopted a “common sense approach,” first articulated by the Fifth Circuit in United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991). This common sense approach includes consideration of all relevant factors of similarity such as “punishments imposed for the listed and unlisted offenses, the perceived seriousness of the offenses as indicated by the level of punishment, the elements of the offense, the level of culpability involved, and the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.” Id.See also United States v. Martinez-Santos, 184 F.3d 196, 205-06 (2d Cir.1999) (adopting Hardeman approach); United States v. Booker, 71 F.3d 685, 689 (7th Cir.1995) (same). Other courts have adopted a strict “elements” test, which involves solely a comparison between the elements of the two offenses to determine whether or not the offenses are similar. See United States v. Elmore, 108 F.3d 23, 27 (3d Cir.1997); United States v. Tigney, 367 F.3d 200, 201-02 (4th Cir.2004); United States v. Borer, 412 F.3d 987, 992 (8th Cir.2005). This amendment, at Application Note 12(A), adopts the Hardeman “common sense approach” as a means of ensuring that courts are guided by a number of relevant factors that may help them determine whether a non-listed offense is similar to a listed one.

Supplement to App. C, Amendment 709.

Amendment 709 appears to be a clarifying amendment with respect to § 4A1.2(c). Cf. United States v. Larson, 110 F.3d 620, 627-28 n. 8 (8th Cir.1997) (“Because amendment 345 only clarifies the interpretation of § 3B1.1, it is not a substantive change in the guideline.”) (emphasis added, citations omitted).7 And as such, Amendment 709 may be given retroactive effect at sentencing and override contrary circuit precedent. See United States v. Douglas, 64 F.3d 450, 453 (8th Cir.1995) (indicating that clarifying changes or amendments to the Guidelines operate retroactively, even if not designated as such by the Commission in § IB 1.10(c)); see also United States v. Renfrew, 957 F.2d 525, 527 (8th Cir.1992) (“We may rely on a post-sentence clarifying amendment in interpreting [an] unamended Guideline.”).

On remand, the district court will determine whether Leon-Alvarez’s prior convic*822tion is similar to an offense listed in § 4A1.2(c)(l). In doing so, the district court should consider whether Amendment 709 operates retroactively in this case.

. During the sentencing hearing, both the court and the parties referred to the 2006 version of the Sentencing Guidelines as evidenced by their reference to various page numbers that correspond to that version. For my purposes, this mistake is inconsequential because the Sentencing Commission did not modify the relevant Guidelines’ provision (U.S.S.G. § 4A1.2) between 2005 and 2006.

. In order for a prior offense not to count under § 4A1.2(c)(l), a defendant must also show that his prior offense did not result in a term of probation of more than one year or a term of imprisonment of at least thirty days. The Government does not dispute that Leon-Alvarez meets this condition. Section 4A1.2(c)(2) enumerates six types of prior offenses (and those "similar to” them) that are never included as part of a defendant’s criminal history calculation. Leon-Alvarez did not argue, however, that his prior offense of contributing to the delinquency of a minor is "similar to” any of these (c)(2) offenses.

. Amendment 709 also modified the operative text of § 4A1.2(a)(2) with respect to determining whether multiple prior sentences are counted separately or as a single sentence. The Third and Ninth Circuits have concluded that this aspect of Amendment 709 effected a substantive change to § 4A1.2(a)(2). See United States v. Wood, 526 F.3d 82, 87-88 (3d Cir.2008); United States v. Marler, 527 F.3d 874, 878 n. 1 (9th Cir.2008). These cases have no bearing on the effect of Amendment 709 as making a clarifying change with respect to § 4A1.2(c), which can be applied retroactively-