United States v. Justin Webb , 218 F.3d 877 ( 2000 )

MORRIS SHEPPARD ARNOLD, Circuit Judge,

dissenting.

I dissent from the court’s conclusion that the district court did not err in assessing Mr. Webb a criminal history point for possessing alcohol when he was 19 years old. I agree, and for the reasons that the court sets out, that Mr. Webb’s crime was not a “juvenile status offense,” but, with respect, I cannot concur in the court’s holding that his offense was not “similar to” public intoxication and to the other offenses listed in U.S.S.G. § 4A1.2(c)(2). Although the court strives mightily to make Mr. Webb’s offense look more like ones that should count for sentencing purposes than ones that should not, its effort ultimately fails.

The court concludes that Mr. Webb’s conviction for possessing alcohol when he was 19 must be counted because he violated a regulatory scheme. But what the court omits to notice is that there are violations of regulatory schemes, e.g., minor traffic offenses like speeding, that are never counted because U.S.S.G. § 4A1.2(c)(2) specifically excludes them from consideration when determining a sentence. It is therefore hard to see how anything can follow from a characterization of Mr. Webb’s offense as a violation of a regulatory scheme.

What differentiates U.S.S.G. § 4A1.2(c)(l) from U.S.S.G. § 4A1.2(c)(2), and therefore what determines whether an offense is going to be counted for sentencing purposes, it seems to me, is not some artificial distinction between regulatory and status crimes (the distinction is impossible to maintain anyway), but rather the seriousness of the offense conduct. A simple glance at the two lists demonstrates this clearly: “Minor traffic offenses” do not count, but “careless or reckless driving” does; “loitering” does not count, but “trespassing” does; and “vagrancy” does not count, but “non-support” does. That being so, it seems to me that Mr. Webb’s offense ought not to count for sentencing purposes because it is trivial, barely a crime, like a minor traffic offense, and bears a close resemblance to the offense of public intoxication, which the guidelines specifically exempt from the sentencing calculus.

There is, however, a larger point here, or at least another one. Even if the court’s interpretation of the guideline is a reasonable one, and even if my proposed construction is wrong in the abstract, Mr. Webb is entitled to the benefit of the doubt. That is because the construction that I propose is not unreasonable and no less reasonable than the court’s. That being so, Mr. Webb is entitled to the protection of the rule of lenity. “[W]here text, structure, and history fail to establish that the Government’s position is unambiguously correct ... we apply the rule of lenity and resolve the ambiguity in [the defendant’s] favor.” United States v. Granderson, 511 U.S. 39, 54, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994). See also United States v. Hasan, 205 F.3d 1072, 1075 (8th Cir.2000). This policy embodies “‘the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.’ ” United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks ch. 10, at 196, 209 (1967).

I would therefore reverse the judgment and remand the case to the district court for resentencing.