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 22, 2011—Pasadena, California
Filed November 30, 2011
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Susan P. Graber, M. Margaret McKeown,
Kim McLane Wardlaw, William A. Fletcher,
Richard A. Paez, Johnnie B. Rawlinson, Milan D. Smith, Jr.,
Sandra S. Ikuta, and N. Randy Smith, Circuit Judges.
Opinion by Judge Judge N. Randy Smith;
Concurrence by Judge McKeown;
Dissent by Judge Rawlinson
20497
20500 UNITED STATES v. LEAL-FELIX
COUNSEL
Michael Tanaka, Deputy Federal Public Defender, Los Ange-
les, California, for the defendant-appellant.
Michael J. Raphael, Assistant United States Attorney, Los
Angeles, California; and Bryan F. Boutwell, Special Assistant
United States Attorney, Riverside, California, for the plaintiff-
appellee.
OPINION
N.R. SMITH, Circuit Judge:
In this appeal, we are asked to interpret the United States
Sentencing Guidelines § 4A1.2(a)(2). The United States Sen-
tencing Commission (the “Commission”) has authority to
define the terms in the Sentencing Guidelines. See 28 U.S.C.
§ 994(p). However, until it does, we consider the context and
purpose of the Sentencing Guidelines as a whole in interpret-
ing them. Cf. Dolan v. U.S. Postal Serv., 546 U.S. 481, 486
(2006). In Sentencing Guidelines § 4A1.2(a)(2), we interpret
the term “arrest” to require that the individual be formally
arrested; the mere issuance of a citation, even if considered an
arrest under state law, is insufficient. Therefore, we vacate the
sentence imposed by the district court and remand for resen-
tencing.
FACTS
At all times relevant to this case, Israel Leal-Felix was a
citizen of Mexico and an alien, as defined by United States
immigration law. On April 20, 2009, Leal-Felix was charged
with violating 8 U.S.C. § 1326(a) and § 1326(b)(2), because
he was found in the United States after having been removed
or deported from the United States and without permission to
UNITED STATES v. LEAL-FELIX 20501
reapply for admission following removal or deportation. In
the charging information, the Government alleged that the
previous removal or deportation occurred after a conviction
for an aggravated felony.
Leal-Felix entered into a binding plea agreement with the
Government. The plea agreement required that, in exchange
for the entry of a guilty plea by Leal-Felix, the Government
would recommend that he be sentenced at the lower end of
the applicable Guidelines range, as determined by a total
offense level of nine. Both parties waived their right to appeal
the sentence, provided that the district court imposed a sen-
tence in accordance with the plea agreement. However, Leal-
Felix reserved the right to appeal the calculation of his crimi-
nal history category.
Relevant to this appeal, Leal-Felix’s criminal history
included two citations for driving with a suspended license.
The citations were received on November 17, 1998, and
November 19, 1998 (the November citations).1 Leal-Felix was
sentenced for both citations on January 19, 2000, receiving
concurrent sentences of 36 months’ probation on the condi-
tion that he serve 180 days in the county jail.
On June 8, 2009, Leal-Felix entered his plea of guilty in the
present case, pursuant to the plea agreement. The PSR calcu-
lated that Leal-Felix was in criminal history category VI with
14 criminal history points, including two points for each of
the November citations. Leal-Felix objected to counting the
second citation separately under Sentencing Guidelines
§ 4A1.2(a)(2), because the two violations were sentenced on
the same day and were not separated by an intervening arrest.
At the sentencing hearing, Leal-Felix argued that the sec-
ond violation should not be counted in the criminal history,
1
The Presentence Report (PSR) originally showed that both citations
were received on November 17, 1998.
20502 UNITED STATES v. LEAL-FELIX
because he had not been arrested for the first violation, but
only cited. The district court disagreed. The court held that a
citation for a traffic violation was the same as an arrest under
§ 4A1.2(a)(2), meaning that the first citation was “an inter-
vening arrest.” Using this interpretation, the court calculated
that Leal-Felix had 13 criminal history points, placing him in
criminal history category VI. In accordance with the plea
agreement, the district court sentenced Leal-Felix to 21
months (the low end of the Guidelines range for category VI)
on August 10, 2009.
PROCEDURAL HISTORY
Leal-Felix timely appealed his sentence on August 25,
2009. A divided panel affirmed on November 1, 2010. The
majority concluded: “We agree with the Seventh Circuit in
[United States v. Morgan, 354 F.3d 621 (7th Cir. 2003)] that
treatment of Leal-Felix’s traffic violations as arrests comports
with the Sentencing Guidelines.” United States v. Leal-Felix,
625 F.3d 1148, 1151 (9th Cir. 2010). We granted Leal-Felix’s
petition for review en banc on April 19, 2011. United States
v. Leal-Felix, 641 F.3d 1141 (9th Cir. 2011).
ANALYSIS
[1] The applicable Guidelines sentencing range is deter-
mined by both the calculated offense level and the criminal
history category. Prior sentences are counted in determining
the criminal history category, but may be counted separately
or as a single sentence, depending (in part) on whether there
was an intervening arrest. U.S.S.G. § 4A1.2(a)(2).
If the defendant has multiple prior sentences,
determine whether those sentences are counted sepa-
rately or as a single sentence. Prior 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
UNITED STATES v. LEAL-FELIX 20503
offense prior to committing the second offense). If
there is no intervening arrest, prior sentences are
counted separately unless (A) the sentences resulted
from offenses contained in the same charging instru-
ment; or (B) the sentences were imposed on the
same day. Count any prior sentence covered by (A)
or (B) as a single sentence. See also § 4A1.1(e).
Id. The definition of an “intervening arrest” is the subject of
our interpretation here. Under this Guideline, if a citation is
equivalent to an arrest, then Leal-Felix’s two citations for
driving with a suspended license must be counted separately.
Counting each citation as an arrest, and adding two points for
each, would place him in criminal history category VI, with
a Guidelines range of 21-27 months. However, if a citation is
not an intervening arrest, his citations would be counted
together and he would be included in criminal history cate-
gory V, with a Guidelines range of 18-24 months.
“We review de novo the district court’s interpretation of the
Sentencing Guidelines (because it is a pure question of law).”
United States v. Laurienti, 611 F.3d 530, 551 (9th Cir. 2010),
cert. denied, 131 S. Ct. 969 (2011).
[2] The Sentencing Guidelines do not define the term “ar-
rest” in the context of § 4A1.2(a)(2). Although the Commis-
sion may define any terms used in the Guidelines, see United
States v. LaBonte, 520 U.S. 751, 754-55 (1997), it has not
defined “arrest.” Because the Commission has not defined the
term, we must interpret this provision in order to resolve the
present appeal. If, after applying the normal rules of statutory
interpretation, the Sentencing Guideline is still ambiguous,
the rule of lenity requires us to interpret the Guideline in favor
of Leal-Felix. See DePierre v. United States, 131 S. Ct. 2225,
2237 (2011).
[3] To begin, we may not rely on California law to define
an arrest. Although California may consider a citation the
20504 UNITED STATES v. LEAL-FELIX
equivalent of an arrest, see Cal. Penal Code § 4030, we do not
look to state law to determine the meaning of the Sentencing
Guidelines. “[A] federal sentencing enhancement provision
. . . is interpreted according to a uniform, national definition,
not dependent upon the vagaries of state law.” United States
v. Martinez, 232 F.3d 728, 732 (9th Cir. 2000) (citing Taylor
v. United States, 495 U.S. 575, 591-92 (1990)). In Taylor, the
Supreme Court refused to define predicate offenses using
state law, holding that the same conduct could not result in a
sentencing enhancement in California, but not in Michigan,
depending solely on how the state defined the offense. 495
U.S. at 590-91. Similarly, in this case, what constitutes an
arrest cannot vary between states based on state law, but must
have “a uniform, national definition.” See Martinez, 232 F.3d
at 732.
[4] For the purpose of the Sentencing Guidelines, an arrest
is a “formal arrest.” A formal arrest may be indicated by
informing the suspect that he is under arrest,2 transporting the
suspect to the police station,3 and/or booking the suspect into
jail.4 Limiting “arrest” to a formal arrest (rather than a mere
citation) is consistent with common usage, case law,5 and the
context and purposes of the Sentencing Guidelines.
2
See Brendlin v. California, 551 U.S. 249, 252 (2007) (one suspect was
declared “under arrest;” another was “formally arrested” after a patdown
revealed syringes and suspected drug paraphernalia).
3
United States v. Robinson, 414 U.S. 218, 234-35 (1973) (formal arrest
involves more danger to police because it involves “taking . . . a suspect
into custody and transporting him to the police station”).
4
Atwater v. City of Lago Vista, 532 U.S. 318, 324 (2001). In this case,
Atwater was handcuffed, placed in the squad car and taken to the local
police station. Id. She was then photographed, placed in a jail cell, and
eventually taken before a magistrate and released on bond. Id.
5
The dissent relies on Dunaway v. New York, 442 U.S. 200, 212 (1979),
to argue that Supreme Court precedent does not support our definition of
a formal arrest. Dissenting Op. 20516. The dissent observes that in
Dunaway, the Court “cautioned against relying on ‘technical arrests’ to
invoke constitutional protections.” Dissenting Op. 20516 (quoting
UNITED STATES v. LEAL-FELIX 20505
[5] Arrest is commonly used as it is defined: “the taking or
detainment (of a person) in custody by authority of law; legal
restraint of the person; custody; imprisonment.” Webster’s
Third New International Dictionary 121 (unabridged ed.,
1993); accord Black’s Law Dictionary 109-10 (6th ed. 1990)
(“Taking, under real or assumed authority, custody of anoth-
er . . . .”). While this common understanding creates a clear
and usable definition, “[t]he definition of words in isolation
. . . is not necessarily controlling in statutory construction.”
Dolan, 546 U.S. at 486. “Interpretation of a word or phrase
[in a statute] depends upon reading the whole statutory text,
considering the purpose and context of the statute, and con-
sulting any precedents or authorities that inform the analysis.”
Id.
Dunaway, 442 U.S. at 213). However, Dunaway dealt with a defendant
who had been seized by the police, transported to a police station in a
police car, and placed in an interrogation room where he was subjected to
investigatory questioning after being given Miranda warnings. Dunaway,
442 U.S. at 203, 212. This situation constituted a quintessential formal
arrest under our definition. Indeed, the Court in Dunaway noted that “the
detention of petitioner was in important respects indistinguishable from a
traditional arrest.” Id. at 212. We agree that a formal arrest may take place
whether or not a police officer “technically characterize[s his actions] as
an arrest.” Id. at 214.
As we have explained, a formal arrest also includes situations in which
the suspect has been transported to the police station or booked into jail.
These are traditional hallmarks of arrest that have historically triggered
heightened constitutional concern and—more importantly for our case—
are more likely to trigger an awareness that an arrest is taking place. This
awareness then suggests higher culpability should the same defendant
engage in another crime shortly thereafter.
The Court in Dunaway made a clear distinction between the seizure that
occurs during a “formal arrest” and the “substantially less intrusive” sei-
zure that takes place when a police officer makes a traffic stop. Id. at 210.
In reference to a Terry-type stop, the Court explained that “the intrusion
involved in a ‘stop and frisk’ was so much less severe than that involved
in traditional ‘arrests.’ ” Id. at 209. Thus, contrary to the dissent’s argu-
ments, Dunaway squarely supports the majority’s position and illustrates
that a traffic-stop seizure does not constitute a formal arrest.
20506 UNITED STATES v. LEAL-FELIX
There is little precedent in case law addressing
§ 4A1.2(a)(2) to assist us in making this decision. The Sev-
enth Circuit’s opinion in Morgan is the only other circuit
opinion that has defined arrest in this context. The Seventh
Circuit held that “[a] traffic stop is an ‘arrest’ in federal par-
lance.” Morgan, 354 F.3d at 624 (citing Whren v. United
States, 517 U.S. 806 (1996)). However, Morgan’s reasoning
seems in error and rests on questionable authority. Morgan’s
reliance on Whren and Atwater is misplaced. Morgan fails to
cite where in Whren it establishes that a traffic stop is an “ar-
rest,” likely because Whren does not address whether a traffic
stop constitutes an arrest at all; rather, the opinion held that
a traffic stop is a “seizure” and therefore must be reasonable.
517 U.S. at 809-10.6
Atwater contradicts Morgan’s position that a citation is an
arrest. In Atwater, there was no question that Atwater was
arrested: she was not only handcuffed, she was taken into cus-
tody and booked into jail. 532 U.S. at 324. Although Atwater
uses the terms “arrest” and “custodial arrest,”7 it does not con-
sider whether a citation is either form of arrest. Instead, it
clearly differentiates between any type of arrest and a citation.
6
The dissent argues that the Court in Whren described the traffic stop
as “a traffic-violation arrest.” Dissenting Op. 20514-15 (citing Whren, 517
U.S. at 813). But there, the court was merely describing the arrest that
occurred some time after the traffic stop, and not the traffic stop itself. See
Whren, 517 U.S. at 808-09, 812 (comparing the facts of “a case which,
like this one, involved a traffic stop as the prelude to a plain-view sighting
and arrest” (emphasis added)). Indeed, in the case that Whren cites when
discussing a traffic violation-arrest, the arrest at issue was not the traffic
stop itself. Rather, it was a formal arrest occurring immediately after the
stop, when the officer explicitly “informed [the defendant] that he was
under arrest for ‘operating after revocation and obtaining a permit by mis-
representation.’ ” Robinson, 414 U.S. at 220-21.
7
These terms are frequently used interchangeably, without any apparent
distinction. See, e.g., Robinson, 414 U.S. at 235 (“It is the fact of the law-
ful arrest which establishes the authority to search, and we hold that in the
case of a lawful custodial arrest a full search [is reasonable].” (emphasis
added)).
UNITED STATES v. LEAL-FELIX 20507
See id. at 353 n.23 (noting a police department revised its pol-
icy “to provide for citation in lieu of custodial arrest” (empha-
sis added)).
[6] Contrary to Morgan’s reasoning that it is the act of
apprehension that identifies a recidivist worthy of additional
punishment, 354 F.3d at 623-24, Atwater aptly noted that an
arrest has a stronger deterrent effect than a citation, 532 U.S.
at 349 (contrasting the likelihood of reoffending of a chronic
speeder who is arrested versus one released with “a citation
in his pocket”). Thus, one who is subjected only to a momen-
tary detention and later reoffends is less culpable than the
defendant who is subjected to the greater deterrence of an arrest,8
yet still reoffends. Imposing a higher sentence on the defen-
dant who was arrested, rather than merely cited, is therefore
consistent with the Sentencing Guidelines’ goal of imposing
a just punishment.
Moreover, Supreme Court case law provides ample support
in other contexts for distinguishing an arrest from a citation.
In Berkemer v. McCarty, 468 U.S. 420 (1984), the Court clar-
ified that custody is the distinguishing characteristic of an
arrest. In Berkemer, the driver of a car was stopped, ques-
tioned, and asked to perform a field sobriety test. Id. at 423.
Thereafter, the police officer placed Berkemer under arrest
and transported him to jail, where he was again questioned.
Id. at 423-24. The Court concluded that Berkemer’s state-
ments prior to his arrest were not subject to the exclusionary
rule for violating Miranda, because he was not in custody at
the time. Id. at 442. During a traffic stop, a motorist expects
“that he may . . . be given a citation, but . . . most likely will
8
For this reason, we limit our definition of arrest for Guidelines’ pur-
poses to a “formal arrest.” Although a defendant may be in custody for
Miranda purposes prior to a formal arrest, here, the key inquiry is not
whether a reasonable person would have felt free to leave, see Thompson
v. Keohane, 516 U.S. 99, 112 (1995), but whether the defendant knew he
was under arrest.
20508 UNITED STATES v. LEAL-FELIX
be allowed to continue on his way,” id. at 437, but someone
under arrest has no such expectation. The Court repeatedly
drew a parallel between “arrest” and “being in custody” in
holding that “[t]here can be no question that respondent was
‘in custody’ at least as of the moment he was formally placed
under arrest.” Id. at 434. While a defendant may be in custody
prior to a formal arrest, see id. at 440, an arrest clearly consti-
tutes placing the defendant in custody. The Court further
underscored the distinction between a citation and an arrest in
Knowles v. Iowa, 525 U.S. 113, 114 (1998), noting that the
police stopped Knowles, “but issued him a citation rather
than arresting him.” (emphasis added).
[7] The Sentencing Guidelines as a whole also suggest that
citations are not arrests. The purpose of the criminal history
score is to approximate “the seriousness of the defendant’s
criminal history and the danger that the defendant presents to
the public.” U.S.S.G. § 4A1.2 cmt. n.3. A citation, where the
defendant is not taken into custody, would ordinarily mean
both that the defendant presents little danger to the public and
that the crime is less serious. See Berkemer, 468 U.S. at 437
n.26 (noting that “no State requires that a detained motorist be
arrested unless he is accused of a specified serious crime.”).
The Sentencing Guidelines generally exclude from the crimi-
nal history calculation sentences imposed for driving with a
suspended license, further indicating the Commission’s judg-
ment that such offenses are relatively minor. U.S.S.G.
§ 4A1.2(c)(1).9
9
Sentences for all felony offenses are counted. Sentences for misdemea-
nor and petty offenses are counted except as follows:
(1) Sentences for the following prior offenses and offenses simi-
lar to them, by whatever name they are known, are counted only
if (A) the sentence was a term of probation of more than one year
or a term of imprisonment of at least thirty days, or (B) the prior
offense was similar to an instant offense:
. . . Driving without a license or with a revoked or suspended
license . . . .
U.S.S.G. § 4A1.2(c).
UNITED STATES v. LEAL-FELIX 20509
As indicated, the context of the Sentencing Guidelines pro-
vides support for our interpretation. However, if we inter-
preted “arrest” within the meaning of Sentencing Guidelines
to include a citation (as suggested by the dissent), then “ar-
rest” would be tantamount to being charged with an offense.
See Black’s Law Dictionary 277 (9th ed. 2009) (defining “ci-
tation” as “[a] police-issued order to appear before a judge on
a given date to defend against a stated charge”). If we substi-
tute the word “charge” for “arrest” in § 4A1.2(a)(2), then
every offense becomes an “intervening arrest.” See Black’s
Law Dictionary 265 (9th ed. 2009) (defining “charge” as “to
accuse (a person) of an offense”). If this were the case, it
would render the last two sentences of § 4A1.2(a)(2) mean-
ingless, because there would never be a situation in which
there was no intervening arrest. Such an interpretation would
violate a fundamental rule of statutory construction. See
United States v. Ramirez-Sanchez, 338 F.3d 977, 979 (9th Cir.
2003) (reasoning that the Sentencing Guidelines should not be
read in such a way that would render part of the Guidelines
meaningless).
Federal sentencing standards, and the Guidelines them-
selves, require that a defendant’s sentence and criminal his-
tory not be overstated. See 18 U.S.C. § 3553(a) (requiring
courts to impose “a sentence sufficient, but not greater than
necessary” to effect the goals of sentencing); United States v.
Cruz-Gramajo, 570 F.3d 1162, 1170 (9th Cir.) (noting that
§ 4A1.2 ensures “that a defendant’s criminal history is not
overstated”), cert. denied, 103 S. Ct. 646 (2009). When the
criminal history score underrepresents the danger the defen-
dant poses or the seriousness of the crimes, the Sentencing
Guidelines permit an upward departure. U.S.S.G.
§ 4A1.3(a)(1); see also § 4A1.2 cmt. n.3. This provision fur-
ther supports defining arrest narrowly, as it permits the district
court to use its discretion to apply an upward departure when
warranted, rather than considering all citations to be arrests.
Finally, Sentencing Guideline § 4A1.2(c)(1) includes “resist-
20510 UNITED STATES v. LEAL-FELIX
ing arrest” as an offense. But one cannot “resist” a citation,
indicating that the two terms are not synonymous.
[8] Even if the above-cited cases and Guideline provisions
did not warrant differentiating between a citation and an
arrest, the rule of lenity produces the same result. If neither
the context and purpose of the Sentencing Guidelines nor
Supreme Court precedent clarifies the meaning of “arrest,” it
must be interpreted in Leal-Felix’s favor—that is, to exclude
citations. See DePierre, 131 S. Ct. at 2237. Therefore, under
either the rule of lenity or Supreme Court precedent, Leal-
Felix’s November citations should not be considered arrests
for the purpose of calculating his criminal history score.
Conclusion
[9] Nothing in the record suggests Leal-Felix was ever for-
mally arrested for driving with a suspended license. He was
not told he was “under arrest,” he was not transported to the
police station, and he was not booked into jail. Absent one of
these hallmarks of a formal arrest, the district court erred in
finding that he had been “arrested” for purposes of the Sen-
tencing Guidelines. Therefore, his sentence is vacated. The
case is remanded for resentencing in accordance with this
opinion.
VACATED and REMANDED.
McKEOWN, Circuit Judge, joined by KOZINSKI, Chief
Judge, and GRABER and WARDLAW, Circuit Judges, con-
curring:
I join the majority’s opinion, but write separately to high-
light the most compelling reason for concluding that a traffic
citation is not an arrest for the purposes of the Sentencing
Guidelines: the common understanding of the term arrest does
UNITED STATES v. LEAL-FELIX 20511
not include being pulled over and ticketed for a traffic viola-
tion. It is a bedrock principle of statutory construction that
“unless otherwise defined, words will be interpreted as taking
their ordinary, contemporary, common meaning.” Perrin v.
United States, 444 U.S. 37, 42 (1979). I am confident that an
average citizen—with or without a law degree—would not
believe he had been arrested if pulled over, briefly detained
and issued a traffic ticket. Indeed, if a traffic citation consti-
tuted an arrest in ordinary parlance, then aspiring police offi-
cers and prison guards might have a lot more to disclose on
their job applications.1 Young drivers would need to be more
concerned about getting into college,2 and those filling out
employment applications,3 background checks,4 visa applica-
tions,5 and adoption papers6 would need to employ an entirely
different “truth-o-meter” than commonly understood. It seems
unlikely, however, that police departments, prisons, colleges,
government agencies and adoption organizations mean—or
are even concerned about—speeding tickets when they ask if
1
See San Diego Police Department, Personal History Statement,
http://www.sandiego.gov/police/recruiting/pdf/phs.pdf (Question 41);
State of California, Department of Corrections and Rehabilitation, Correc-
tional Officer Supplemental Application, http://www.cdcr.ca.gov/
career_opportunities/por/docs/CO%20Supplemental%20Application%209
_20_10.pdf (Question 27).
2
See Santa Fe College, Office of the Registrar Disciplinary Disclosure,
http://dept.sfcollege.edu/records/content/docs/disciplinaryform.pdf.
3
Jenna Greene, From Jail to Jobless: Background Checks Draw Scru-
tiny, The National Law Journal, Aug. 8, 2011, http://www.law.com/jsp/nlj/
PubArticleNLJ.jsp?id=1202509696653&From_jail_to_jobless (noting that
Census Bureau required all applicants to provide arrest history and dis-
qualified one applicant due to an arrest for a minor infraction).
4
See Office of Personnel Management, Questionnaire for National
Security Positions, http://www.opm.gov/forms/pdf_fill/sf86.pdf (question
22b).
5
See Embassy of the Russian Federation to the United States of Amer-
ica, Visa Application, http://www.russianembassy.org/ Embassy_eng/
Consulate/AppFormVisa_USA.pdf (question 33).
6
Across the World Adoptions, Application, http://atwakids.org/atwa-
application.pdf (page 3).
20512 UNITED STATES v. LEAL-FELIX
applicants have ever been arrested. In other words, treating an
ordinary traffic ticket as an arrest defies our common experi-
ence and would be a paradigmatic shift.
It is true that most traffic stops involve a brief period of
detention while the officer checks the driver’s credentials and
issues the ticket. But just as we would not say that an under-
sized fish is illegally in a fisherman’s “custody” during the
brief period between being caught and thrown back into the
river, we would not claim that a detained driver is in police
custody while waiting to receive a ticket. As the majority
points out, the Supreme Court differentiates between a traffic
stop and custody. See Berkemer v. McCarty, 468 U.S. 420,
437 n.26 (1984) (“State laws governing when a motorist
detained pursuant to a traffic stop may or must be issued a
citation instead of taken into custody vary significantly.”)
(emphasis added); Knowles v. Iowa, 525 U.S. 113, 114 (1998)
(“An Iowa police officer stopped petitioner Knowles for
speeding, but issued him a citation rather than arresting
him.”) (emphasis added).
In distinguishing a traffic stop from an arrest in Berkemer,
the Court relied on an ordinary “motorist’s expectations”
when being pulled over, namely “that he will be obliged to
spend a short period of time answering questions and waiting
while the officer checks his license and registration . . . but
that in the end he most likely will be allowed to continue on
his way.” Berkemer, 468 U.S. at 437. The ordinary person’s
expectations when being taken into police custody, on the
other hand, include hearing phrases like “you’re under arrest”
or “you’ll need to come to the station” and perhaps being
handcuffed and spending some time in the back of a squad
car, if not in jail. That brief, embarrassing moment when a
driver is stopped and given a ticket for speeding or driving
with a broken tail light surely is not perceived as an arrest.
Accordingly, I have no trouble concluding that the average
driver in the United States does not believe he’s in custody
when he is pulled over and asked for his license, and the “or-
UNITED STATES v. LEAL-FELIX 20513
dinary, contemporary, common meaning” of the term arrest
does not include a traffic citation.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion which, in
my view, improperly imports Fourth Amendment analysis
into calculation of a sentence under the Sentencing Guide-
lines, and unnecessarily creates a circuit split.
I agree with the majority that the term arrest as it is com-
monly used denotes taking or detaining an individual into cus-
tody by authority of law. I do not agree that the concept of
custody for the purpose of criminal history calculation is co-
extensive with a formal arrest that includes Miranda warn-
ings, handcuffs and a trip to the police station.
It is important to remember that we are considering the def-
inition of arrest for the purpose of assessing recidivism as part
of the criminal history calculation. We are not assessing
whether a Fourth Amendment violation occurred, whether
Miranda warnings were required, or whether some different
constitutional right was triggered. There is nothing new or
unusual about recognizing that the process of imposing a sen-
tence does not invoke the same protections as those proce-
dures governed by various provisions of the United States
Constitution. Indeed, we have routinely eschewed constitu-
tional protection for various aspects of the sentencing process.
See, e.g., United States v. Mercado, 474 F.3d 654, 656-57 (9th
Cir. 2007) (holding that a sentencing court’s consideration of
acquitted conduct did not violate the Constitution); United
States v. Barragan-Espinoza, 350 F.3d 978, 983 (9th Cir.
2003) (rejecting a constitutional challenge to the consider-
ation of uncharged conduct in applying a sentencing enhance-
ment); United States v. Vanderwerfhorst, 576 F.3d 929, 935
(9th Cir. 2009) (“A sentencing judge may appropriately con-
20514 UNITED STATES v. LEAL-FELIX
duct an inquiry broad in scope, largely unlimited as to the
kind of information he may consider, or the source from
which it may come . . . .”) (citation, alteration and internal
quotation marks omitted). Rather than being co-extensive
with the contours of the Fourth, Fifth or Sixth Amendment
principles, parameters for sentencing are intentionally broad.
See id. And as the Supreme Court has noted, “recidivism is
as typical a sentencing factor as one might imagine.” Ewing
v. California, 538 U.S. 11, 25 (citation and internal quotation
marks omitted).
Considering the broad scope of information that a sentenc-
ing judge may consider and the importance of the recidivism
factor in fashioning an appropriate sentence, I am persuaded
that the Seventh Circuit’s interpretation of “intervening
arrest” comports more closely with the permissibly broad
scope of sentencing considerations than the restrictive defini-
tion advanced by my colleagues.
In United States v. Morgan, 354 F.3d 621 (7th Cir. 2003),
the Seventh Circuit ruled that the term “intervening arrest”
encompassed a traffic citation. See id. at 623. The Seventh
Circuit noted that Morgan “was halted and prevented from
leaving until the officer released him . . . .” Id. The Seventh
Circuit reasoned that a traffic citation, unlike a complaint and
identical to a custodial arrest, is predicated on probable cause.
See id. at 624. The Seventh Circuit concluded that classifying
a traffic stop followed by a citation as an arrest comported
with the intent of the United States Sentencing Guidelines
“because it is the apprehension followed by a new offense that
identifies the recidivist . . . .” Id.
The Seventh Circuit relied on Whren v. United States, 517
U.S. 806 (1996) and United States v. Childs, 277 F.3d 947
(7th Cir. 2002) (en banc) to supports its conclusion. See id.
In Whren, the United States Supreme Court described “the
temporary detention of a motorist who the police have proba-
UNITED STATES v. LEAL-FELIX 20515
ble cause to believe has committed a civil traffic violation,”
517 U.S. at 808, as “a traffic violation-arrest . . .” Id. at 813.
Other Supreme Court decisions lend support to that descrip-
tion. See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318,
352, 353 n.25 (2001) (seeming to make a distinction between
custodial arrest and a citation, a non-custodial arrest, but an
arrest nevertheless); Thompson v. Keohane, 516 U.S. 99, 112
(1995) (defining custody as an encounter with law enforce-
ment where the detainee would not feel at liberty to terminate
the encounter).
In Berkemer v. McCarty, 468 U.S. 420 (1984), the Supreme
Court struggled with the application of Miranda in the context
of a traffic stop. See id. at 437. The Supreme Court acknowl-
edged that “few motorists would feel free either to disobey a
directive to pull over or to leave the scene of a traffic stop
without being told they might do so . . . .” Id. at 436 (footnote
reference omitted). The Court noted that it had “long
acknowledged that stopping an automobile and detaining its
occupants constitute a seizure within the meaning of the
Fourth Amendment . . .” Id. at 436-37 (citation, alteration and
internal quotation marks omitted). Although the Court ulti-
mately concluded that a traffic detention did not trigger
Miranda protections, it stopped far short of labeling a traffic
detention a non-arrest. See id. at 439 n.29 (“We of course do
not suggest that a traffic stop supported by probable cause
may not exceed the bounds set by the Fourth Amendment on
the scope of a Terry stop.”). In a similar vein, Knowles v.
Iowa, 525 U.S. 113, 117 (1998) made a distinction between
a “formal arrest” and, presumably, an “informal arrest” and
between a “custodial arrest” and presumably, a “non-custodial
arrest.” However, this distinction, like the ones made in
Whren, Atwater, Thompson and Berkemer were all made in
the context of deciding whether violations of the Fourth, Fifth
or Sixth Amendments had occurred. No similar constitutional
implications arise in the much broader context of making a
recidivism determination for the purpose of sentencing. In
20516 UNITED STATES v. LEAL-FELIX
sum, no Supreme Court case compels the cabined definition
of arrest formulated by the majority.
In fact, the Supreme Court has specifically cautioned
against the approach taken by the majority. In Dunaway v.
New York, 442 U.S. 200, 212 (1979), the Court observed that
“[t]he mere facts that petitioner was not told he was under
arrest, was not ‘booked’ and would not have had an arrest
record” did not negate the custodial nature of the seizure. See
also id. at 213 (cautioning against relying on “technical
arrests” to invoke constitutional protections); id. at 214 (clas-
sifying detention as requiring probable cause “whether or not
it is technically characterized as an arrest . . .” ); id. (noting
that although the arrest in Brown v. Illinois, 422 U.S. 590
(1975) “had more of the trappings of a technical formal arrest
than petitioner’s, such differences in form must not be exalted
over substance . . . .” (footnote reference omitted).
The discussion in the majority opinion equating a traffic
citation arrest to a charged offense, see Majority Opinion p.
20509, proves absolutely nothing. Precisely the same argu-
ment can be made regarding a traditional custodial arrest,
which also results in charges. See, e.g., Ewing v. City of
Stockton, 588 F.3d 1218, 1223 n.5 (9th Cir. 2009) (referring
to an “arrest on . . . charges”); see also, United States v.
Gallegos, 613 F.3d 1211, 1213 (9th Cir. 2010) (noting that
Gallego was arrested on an “illegal reentry charge”); Luchtel
v. Hagemann, 623 F.3d 975, 981 (9th Cir. 2010) (“A person
does not have the right to resist arrest even if the charges are
false . . .” ) (citation and alteration omitted).
The Seventh Circuit in Childs read the Supreme Court pre-
cedent as not precluding the inclusion of traffic stops within
the definition of arrest. See Childs, 277 F.3d at 953. The Sev-
enth Circuit subsequently relied on Childs to hold explicitly
that a traffic stop resulting in detention constituted an arrest
for the purpose of applying the sentencing guidelines. See
Morgan, 277 F.3d at 624. In my view, the majority creates an
UNITED STATES v. LEAL-FELIX 20517
unnecessary circuit split with its contrary determination. I
agree with the majority that a defendant’s criminal history
should not be overstated. But neither should it be understated.
See U.S.S.G. § 4A1.2 cmt. 3 (2009) (providing for an upward
departure if the criminal history score underrepresents the
seriousness of defendant’s past crimes). Treating a traffic cita-
tion as a non-event seriously undermines the recidivism con-
sideration of the guidelines and understates the criminal
history of repeat offenders. I would follow the Seventh Cir-
cuit’s analysis and affirm the sentence imposed by the district
court.