Pulling over the United States Sentencing Guidelines: Defining 'Arrest' Under Section 4A1.2(a)(2)

• Author: John A. Richter
• Position: J.D. Candidate, The University of Iowa College of Law, 2016; B.B.A., The University of Iowa, 2013
• Pages: 435-463

Pulling over the United States Sentencing Guidelines: Defining “Arrest” Under Section 4A1.2(a)(2) John A. Richter ABSTRACT: The United States Sentencing Commission (“Commission”) created the United States Sentencing Guidelines (“Guidelines”) to bring uniformity and fairness to criminal sentencing in the United States. Since their inception and application by judges in 1987, the Guidelines have lacked a definition for “arrest” in section 4A1.2(a)(2). This absence of a definition developed a circuit split over whether traffic citations fall within the meaning of “arrest” for purposes of determining a defendant’s criminal history, and thus, his criminal sentence. This Note argues that the United States Supreme Court should adopt the Ninth Circuit’s approach to defining “arrest” in the context of section 4A1.2(a)(2), because this approach aligns with current Supreme Court precedent (particularly with relevant Fourth Amendment case law); reflects the goals and purposes of the Guidelines; and matches a defendant’s culpability, likelihood of recidivating, and sentence while decreasing sentencing disparity among similarly situated defendants I. INTRODUCTION ............................................................................. 437 II. HISTORY OF THE SENTENCING GUIDELINES AND THEIR APPLICATION................................................................................. 438 A. ORIGINS AND OPERATION OF THE FEDERAL SENTENCING GUIDELINES ............................................................................ 438 1. Federal Sentencing Reform, Its Purpose, Its Policy Justifications, and the Creation of the Sentencing Commission and Guidelines ........................................ 440  J.D. Candidate, The University of Iowa College of Law, 2016; B.B.A., The University of Iowa, 2013. I would like to thank the editors and writers of Volumes 100 and 101 of the Iowa Law Review for their work on this Note. I am also grateful for the support and encouragement of my parents, brothers, and Isabeau Vilks throughout my law school career. 435 436 IOWA LAW REVIEW B. [Vol. 101:435 2. Sentencing Pursuant to the Guidelines ....................... 442 3. Computing Criminal History Score: Chapter 4, Part A of the Guidelines ............................................................... 443 4. Significance of Section 4A1.2(a)(2) in Computing a Defendant’s Sentence ................................................... 445 TRANSITION FROM MANDATORY TO ADVISORY GUIDELINES ....... 445 III. CIRCUITS DEVELOP DIFFERENT NOTIONS OF THE SCOPE OF “ARREST” FOR PURPOSES OF COMPUTING CRIMINAL HISTORY SCORE UNDER SECTION 4A1.2(A)(2)...................................................... 446 A. THE SEVENTH CIRCUIT APPROACH........................................... 447 B. THE NINTH CIRCUIT APPROACH .............................................. 448 IV. THE SUPREME COURT SHOULD ADOPT THE NINTH CIRCUIT’S DEFINITION OF “ARREST” UNDER SECTION 4A1.2(A)(2) ............ 450 A. THE NINTH CIRCUIT’S APPROACH ACCORDS WITH CURRENT SUPREME COURT CASE LAW THAT DISTINGUISHES ARRESTS FROM CITATIONS .............................................................................. 450 1. Supreme Court Case Law Differentiates Between Citations and Arrests ..................................................... 450 2. “Arrest” as Established by Fourth Amendment Supreme Court Precedent ............................................................ 451 i. Informing a Suspect That He or She Is Under Arrest ... 451 ii. Transporting the Suspect to the Police Station ............. 452 iii. Booking the Suspect into Jail ...................................... 453 iv. Additional Aspects of Fourth Amendment Supreme Court Precedent Supporting the Ninth Circuit Approach ....... 453 3. The Seventh Circuit’s Approach Fails to Account for Supreme Court Precedent That Distinguishes Between “Traffic Citations” and “Arrests” .................................. 456 B. THE NINTH CIRCUIT’S APPROACH BEST EFFECTUATES THE SENTENCING COMMISSION’S GOALS AND ADVANCES IMPORTANT POLICY CONSIDERATIONS......................................................... 457 1. Relationship Between Recidivism and Lower Culpability of Offenders................................................................... 457 2. The Ninth Circuit’s Approach Promotes Reduction of Sentencing Disparity Between Similar Offenders ....... 460 3. Departure from the Sentencing Guidelines................ 462 V. CONCLUSION ................................................................................ 463 2015] PULLING OVER THE U.S. SENTENCING GUIDELINES I. 437 INTRODUCTION Since the passage of the Sentencing Reform Act of 19841 and the creation of the United States Sentencing Commission (“Commission”), courts have used the United States Sentencing Guidelines (“Guidelines”)—either in a prescriptive or advisory capacity—to determine proper sentences for convicted defendants.2 The Guidelines, upon their initial distribution in 1987, were the culmination of a variety of sentencing reform efforts in the decades prior and signaled a more unified view of the country’s goals and processes of sentencing.3 Congress left the word “arrest” in section 4A1.2(a)(2) of the Guidelines undefined, which is a term that is critical in determining a defendant’s criminal history score and the corresponding sentencing range. The United States Courts of Appeals began to address this ambiguity in the early 2000s; the Seventh Circuit, in United States v. Morgan, held that an “arrest” encompasses traffic citations.4 A few years later the Ninth Circuit, in United States v. Leal-Felix, held the exact opposite—that traffic citations and arrests are distinctly different things for purposes of determining a defendant’s prior criminal history score and sentence pursuant to the Guidelines.5 In recent years, the severity of criminal sentences imposed on offenders and the mismatch of an offender’s true culpability and risk of recidivism have resulted in criticism of judges’ discretion in sentencing and the Guidelines’ role in promoting this problem.6 In addition, other factors—such as equating arrests with traffic citations in sentencing decisions—exacerbate the sentence severity issue. This Note argues that the United States Supreme Court should adopt the Ninth Circuit’s approach to defining “arrest” under section 4A1.2(a)(2) of the Guidelines (within the term “intervening arrest”), which does not equate a traffic citation to an arrest, and reject the Seventh Circuit’s definition, which equates the two terms. This Note also addresses several important concerns that the Seventh Circuit implicates in its approach. Part II discusses the history of sentencing reform efforts, the establishment of the Commission and the Guidelines, the operation of the Guidelines when sentencing defendants 1. Sentencing Reform Act of 1984, Pub. L. No. 98–473, 98 Stat. 1987 (codified as amended at 18 U.S.C. §§ 3551–3586 (2012)). 2. See infra Part II. 3. See infra Part II.A. 4. United States v. Morgan, 354 F.3d 621, 623–24 (7th Cir. 2003). 5. United States v. Leal-Felix, 665 F.3d 1037, 1043–44 (9th Cir. 2011). 6. See infra Part IV.B; see also Michael J. Zydney Mannheimer, Cruel and Unusual Federal Punishments, 98 IOWA L. REV. 69, 78–80 (2012); Rachel Myers, Extreme Sentencing, ACLU (Aug. 13, 2012, 6:12 PM), https://www.aclu.org/blog/extreme-sentencing (describing examples of severe sentences being imposed in certain situations, including 45 years in prison for “[s]natching a purse off the arm of an elderly woman,” a 70-year sentence for stealing a tuna sandwich from Whole Foods, and “a 60-year sentence for selling $40 worth of cocaine”). 438 IOWA LAW REVIEW [Vol. 101:435 (specifically section 4A1.2(a)(2)), and the advisory nature of the Guidelines. Part III presents the Seventh and Ninth Circuits’ approaches to defining “arrest” under section 4A1.2(a)(2) of the Guidelines. Part IV argues that the Ninth Circuit’s approach most closely comports with Supreme Court precedent and the Commission’s goals, and that the Ninth Circuit’s approach advances important policy considerations, such as matching an individual’s level of culpability and likelihood of recidivism with the sentences imposed on him and reducing sentencing disparities between individuals in similar circumstances. This Note concludes by recommending uniform application of the Ninth Circuit’s definition of “arrest” under section 4A1.2(a)(2) of the Guidelines. II. HISTORY OF THE SENTENCING GUIDELINES AND THEIR APPLICATION A. ORIGINS AND OPERATION OF THE FEDERAL SENTENCING GUIDELINES While the Guidelines originate from the Sentencing Reform Act of 1984, Congress and legal scholars had recognized federal sentencing as an important reform topic since the first proposal of an official draft of the Model Penal Code (“MPC”) was presented in 1962.7 This draft of the MPC “classif[ied] crimes in an orderly and consistent manner” and did so with reference to the significance of each crime.8 Additionally, the National Commission on Reform of Federal Criminal Laws (also known as the Brown Commission), which Congress established on the heels of its receipt of the proposed official draft of the MPC, further planted the seed of possible federal criminal code reform in the near future.9 Objectives of these early reform concepts included “grad[ation of] criminal offenses in . . . categories; . . . to bring together all sentencing provisions in a distinct part of the code that would set out . . . procedures and . . . punishments for each category of crime; . . . [and] to establish a proportional sentencing structure under which newly enacted penal statutes could be easily integrated.”10 In the early 1970s, former United States District Judge for the Southern District of New York Marvin E. Frankel heavily advocated for sentencing reform and the establishment of sentencing guidelines.11 Judge Frankel criticized judges’ allowance of wide discretion in...