Appeal from the United States District Court for the Northern District of Indiana, South Bend Division.
No. 3:95-CR-0020 RM Robert L. Miller, Jr., Judge.
Before EASTERBROOK, MANION, and KANNE, Circuit Judges.
DECIDED SEPTEMBER 29, 1997
Patrick C. Roy pleaded guilty to conspiracy to distribute marijuana in excess of 100 kilograms, in violation of 21 U.S.C. sec. 846. Based on the information provided by the presentence investigation report, the district court determined that Roy had a base offense level of 20 and a criminal history category of IV (seven criminal history points), placing him in a sentencing range of 51 to 63 months. Upon the recommendation of the government, the district court sentenced Roy to 51 months' imprisonment, three years' supervised release, and community service.
In calculating Roy's criminal history, the district court, over Roy's objection, assessed one criminal history point for a December 17, 1982 Michigan conviction for marijuana use. This conviction, the only penalty for which was a $130 fine, raised Roy's criminal history from a category III (41-51 months) to a category IV (51-63 months). Roy argued that it was improper to include this conviction as part of his criminal history because the use of marijuana is a minor offense similar to the offense of public intoxication, which is excluded from the calculation of a defendant's criminal history under sec. 4A1.2(c)(2) of the United States Sentencing Guidelines. The district court disagreed. Relying on United States v. Martinez, 956 F.2d 891 (9th Cir. 1992), the district court reasoned that overuse of a legal substance is not comparable to the use of an illegal substance. This appeal followed.
Roy challenges the district court's application of sec. 4A1.1 and sec. 4A1.2 of the Guidelines from a variety of angles. The central issue, however, is whether a misdemeanor conviction for marijuana use is similar to public intoxication and thus excludable from Roy's criminal history calculation. sec. 4A1.2(c)(2). We review the district court's interpretation of the Guidelines de novo, and its factual findings for clear error. United States v. Booker, 71 F.3d 685, 688 (7th Cir. 1995); United States v. Linnear, 40 F.3d 215, 218 (7th Cir. 1994).
Section 4A1.1 of the Guidelines outlines the method for assessing criminal history points that reflect the defendant's prior criminal conduct. Section 4A1.2 describes which prior sentences are counted in determining a Guidelines sentence.
sec. 4A1.2(c) Sentences Counted and Excluded
Sentences for all felony offenses are counted. Sentences for misdemeanor and petty offenses are counted, except as follows:
(2) Sentences for the following prior offenses and offenses similar to them, by whatever name they ...