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United States v. Martinez

filed: April 22, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
VICTOR M. MARTINEZ, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. D.C. No. 90-381-ER. Edward Rafeedie, District Judge, Presiding. Original Opinion Reported at,

Before: James R. Browning, Robert Boochever and Stephen Reinhardt, Circuit Judges Per Curiam

Per Curiam: Victor M. Martinez appeals the imposition of a 70-month sentence of incarceration following his plea of guilty to one count of armed bank robbery. Martinez contends that the district court erroneously increased his criminal history score based upon his prior misdemeanor convictions for being "under the influence of a controlled substance" in violation of California Health and Safety Code Section 11550(a).*fn1 Martinez argues that these prior convictions are equivalent to convictions for "public intoxication" and should not have been counted in the computation of his criminal history score.

We review de novo the district court's determination that a prior conviction falls within the scope of the Sentencing Guidelines. See United States v. Gross, 897 F.2d 414, 416 (9th Cir. 1990), rev'd on other grounds, United States v. Anderson, 942 F.2d 606 (9th Cir. 1991). When computing criminal history, the Sentencing Guidelines state that: (2) Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are never counted: Hitchhiking Juvenile status offenses and truancy Loitering Minor traffic infractions (e.g., speeding) Public intoxication Vagrancy. U.S.S.G. § 4A1.2(c)(2). Martinez contends that California Health and Safety Code Section 11550(a) is similar to California Penal Code Section 647(f), which states in relevant part that any person "who is found in any public place under the influence of intoxicating liquor, any drug, [or] controlled substance" is guilty of a misdemeanor. Martinez argues that both statutes similarly punish individuals who are under the influence of a controlled substance in a public place, and hence that a conviction for being "under the influence of a controlled substance" is similar to "public intoxication" and should not have been counted in the computation of his criminal history score. "The offenses listed in U.S.S.G. § 4A1.2(c)(2) are excluded from the defendant's criminal history because they are of such minor significance to the goals of sentencing, see 18 U.S.C. § 3553(a)(20), that inclusion would more likely distort than improve the process established by the guidelines for determining an appropriate sentence. The listed offenses offer no basis for predicting future significant criminal activity by the defendant; the conduct they involve is not uniformly criminalized, and when it is, the penalty is usually light." United States v. Martinez, 905 F.2d 251, 253 (9th Cir. 1990). Martinez's convictions for being under the influence of a controlled substance are not "similar" to public intoxication in this regard. Being under the influence of a controlled substance is almost universally regarded as culpable, is widely criminalized, and offers a substantial basis for predicting future significant criminal activity.*fn2 By contrast, public intoxication is rarely criminalized and may involve the use of alcohol, a non-controlled substance. The district court thus properly included these offenses when calculating Martinez's criminal history score.*fn3

Accordingly, the decision of the district court is AFFIRMED.

Order The opinion filed on February 11, 1992, is amended in the following manner: The words "first" and "by two points" in the second sentence of the opinion, slip op. at 1444-45, are deleted. The penultimate paragraph of the opinion the first paragraph on page 1447 of the opinion ("Martinez also contends . . . . (quoting Morris, 827 F.2d at 1350).") is also ...


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