     Case: 18-11155   Document: 00515146519        Page: 1   Date Filed: 10/04/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                    No. 18-11155                   October 4, 2019
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


             Plaintiff - Appellee

v.

JAMES B. SMITH,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before WIENER, GRAVES, and OLDHAM, Circuit Judges.
WIENER, Circuit Judge:
      Defendant-Appellant James B. Smith appeals his 71-month prison
sentence for violation of 18 U.S.C. § 922(g)(1). Smith alleges that the district
court erred by increasing his criminal history level based on his prior state
court conviction for use of methamphetamine in violation of California Health
and Safety Code § 11550(a). Smith contends that this conviction is similar to a
conviction for “public intoxication” and should have been exempt under
Sentencing Guideline § 4A1.2(c)(2). We disagree.
                          I. FACTS AND PROCEEDINGS
      Smith was charged with two counts of being a felon in possession of a
firearm and pleaded guilty to one of those counts. In the presentence report’s
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                                      No. 18-11155
(“PSR”) calculation of Smith’s criminal history level, one point was added for a
California misdemeanor conviction for Use/Under the Influence of a Controlled
Substance in violation of § 11550(a). Smith had been convicted on that charge
in 2011 for using methamphetamine. He timely objected to inclusion of that
conviction in his criminal history calculation. At sentencing, the district court
overruled that objection. Smith now appeals the district court’s inclusion of the
2011 California misdemeanor conviction in determining his sentence for the
instant conviction.
                                     II. DISCUSSION
      Smith challenges the district court’s application of the U.S. Sentencing
Guidelines. We review the district court’s interpretation and application of the
Guidelines de novo and its factual findings for clear error. 1 Guideline § 4A1.1(c)
states that one point should be added to a defendant’s criminal history level
“for each prior sentence not counted in [subsections] (a) or (b), up to a total of
4 points for this subsection.” 2 These additions are limited by the instructions
in § 4A1.2(c):
            Sentences for misdemeanor and petty offenses are counted,
      except as follows: . . . . Sentences for the following prior offenses
      and offenses similar to them, by whatever name they are known,
      are never counted:

      Fish and game violations
      Hitchhiking
      Juvenile status offenses and truancy
      Local ordinance violations (except those violations that are also
      violations under state criminal law)
      Loitering
      Minor traffic infractions (e.g., speeding)
      Public intoxication



      1   United States v. Perez, 585 F.3d 880, 883 (5th Cir. 2009).
      2   U.S. Sentencing Guidelines Manual § 4A1.1(c) (U.S. Sentencing Comm’n 2018).
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                                         No. 18-11155
       Vagrancy. 3

       Smith argues that his California misdemeanor conviction for Use/Under
the Influence of a Controlled Substance, in violation of § 11550(a), is similar to
“public intoxication,” and should therefore be excluded from the calculation of
his criminal history level. This is an issue of first impression for the Fifth
Circuit, but, other circuits have considered this or similar issues. 4
       The Sentencing Guidelines application note on § 4A1.2 instructs that:
             In determining whether an unlisted offense is similar to an
       offense listed . . . , the court should use a common sense approach
       that includes consideration of relevant factors such as (i) a
       comparison of punishments imposed for the listed and unlisted
       offenses; (ii) the perceived seriousness of the offense as indicated
       by the level of punishment; (iii) the elements of the offense; (iv) the
       level of culpability involved; and (v) the degree to which the
       commission of the offense indicates a likelihood of recurring
       criminal conduct. 5

       For factors (i) and (ii), the Fifth Circuit compares the unlisted offense,
here California Health and Safety Code § 11550(a), 6 to the “equivalent [of the
listed] offense under the relevant State’s law.” 7 California’s version of public




       3 Id. § 4A1.2(c) (emphasis added).
       4 See United States v. Martinez, 956 U.S. 891 (9th Cir. 1992) (per curium); United
States v. Roy, 126 F.3d 953 (7th Cir. 1997); United States v. Locklear, 26 F. App’x 371 (4th
Cir. 2002) (per curium).
       5 U.S. Sentencing Guidelines Manual § 4A1.2(c) cmt. n.12(A).
       6 “A person shall not use, or be under the influence of any [of a number of referenced]

controlled substance[s] . . . , or (2) a narcotic drug classified in Schedule III, IV, or V, except
when administered by or under the direction of a person licensed by the state to dispense,
prescribe, or administer controlled substances. . . . A person convicted of violating this
subdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not more
than one year in a county jail. The court may also place a person convicted under this
subdivision on probation for a period not to exceed five years.” Cal. Health and Safety Code
§ 11550(a).
       7 United States v. Lamm, 392 F.3d 130, 132 (5th Cir. 2004).

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intoxication is California Penal Code § 647(f). 8
       At the time of Smith’s conviction in California, violation of § 11550(a)
carried a mandatory minimum sentence of 90 days in jail. 9 The current law
has a maximum jail sentence of one year, but has no mandatory minimum. 10
In contrast, § 647(f) states that a person “[w]ho is found in any public place
under the influence of intoxicating liquor . . . [is] to be placed . . . in civil
protective custody [by] a peace officer, if he or she is reasonably able to do so.” 11
However, “[t]his subdivision does not apply to . . . [a] person who is under the
influence of any drug, or under the combined influence of intoxicating liquor
and any drug.” 12 A person who is under the influence of a drug is subject to the
general punishment for committing a California misdemeanor, which is up to
6 months in jail and a $1000 fine. 13




       8  “[E]very person who commits . . . the following act[] is guilty of disorderly conduct, a
misdemeanor:
        ....
        (f) Who is found in any public place under the influence of intoxicating liquor, any
drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug,
controlled substance, or toluene, in a condition that he or she is unable to exercise care for
his or her own safety or the safety of others, or by reason of his or her being under the
influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination
of any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free
use of any street, sidewalk, or other public way.
        (g) If a person has violated subdivision (f), a peace officer, if he or she is reasonably
able to do so, shall place the person, or cause him or her to be placed, in civil protective
custody. The person shall be taken to a facility . . . for the 72-hour treatment and evaluation
of inebriates. . . . A person who has been placed in civil protective custody shall not thereafter
be subject to any criminal prosecution or juvenile court proceeding based on the facts giving
rise to this placement. This subdivision does not apply to the following persons:
        (1) A person who is under the influence of any drug, or under the combined influence
of intoxicating liquor and any drug.” Cal. Penal Code § 647(f)–(g).
        9 Cal. Health and Safety Code § 11550(a) (2002).
        10 Cal. Health and Safety Code § 11550(a) (2015).
        11 Cal. Penal Code § 647(f)–(g).
        12 Id. § 647(g).
        13 Id. § 19.

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                                     No. 18-11155
      The punishments for these two offenses are different. California has
codified the classic “public intoxication” offense in a separate statute and
punishes use of illegal drugs more severely under both laws than it punishes
public intoxication by alcohol. Thus, in California the perceived seriousness of
any use of illegal drugs is greater than abuse of alcohol. Additionally, at the
time of Smith’s conviction, use of methamphetamine carried a mandatory-
minimum jail sentence.
      We next consider the elements of the California offenses. California
Health and Safety Code § 11550(a): (1) “use, or . . . under the influence of [(2)]
any [of a number of referenced] controlled substance[s].” 14 Smith suggests
comparison of the elements of “public intoxication” under the Model Penal
Code and the Texas Penal Code. The Model Penal Code defines “Public
Drunkenness; Drug Intoxication” as: (1) “appear[ance] in any public place [(2)]
manifestly under the influence of [(3)] alcohol, narcotics or other drug, . . . [(4)]
to the degree [of danger or annoyance].” 15 The Texas Penal Code defines Public
Intoxication as: (1) “appear[ance] in a public place [(2)] while intoxicated [(3)]
to the degree that the person may [cause danger].” 16
      The Texas and Model “public intoxication” laws differ from § 11550(a)
because they have additional elements requiring that the defendant (1) be in
public and (2) cause some damage or disturbance. Unlike § 11550, the elements
of § 647(f) are closely aligned with those of the public intoxication laws in the
Model Penal Code and Texas Penal Code: (1) being “found in any public place
[(2)] under the influence of [(3)] intoxicating liquor, any drug, [or] controlled




      14 Cal. Health and Safety Code § 11550(a).
      15 Model Penal Code § 250.5.
      16 Tex. Penal Code § 49.02(a).

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                                       No. 18-11155
substance . . . [(4)] in a condition [that causes danger or obstructs a public
way].” 17
       We next address the level of culpability involved in the offense. Other
circuits that have considered this factor have reasoned that the level of
culpability for violating § 11550(a) is greater than that of public intoxication
because § 11550(a) always requires use, and thus acquisition, of an illegal
substance. By contrast, classic “public intoxication” usually involves abuse of
alcohol, which is a legal substance. 18 “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.
By contrast, public intoxication is rarely criminalized and may involve the use
of alcohol, a non-controlled substance.” 19
       We turn finally to the “degree to which the commission of the offense
indicates a likelihood of recurring criminal conduct.” 20
             It is apparent         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 . . . 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. 21

       Smith argues that both Use/Under the Influence of a Controlled



       17  Cal. Penal Code § 647(f).
       18  See Martinez, 956 U.S. at 893; Roy, 126 F.3d at 955 (“An individual’s decision to use
an illicit drug is more culpable and involves more criminal intent than an individual’s
overindulgence in what is typically meant by intoxication, namely, alcohol─a non-controlled
substance.”); Locklear, 26 F. App’x at 372.
        19 Martinez, 956 U.S. at 893.
        20 U.S. Sentencing Guidelines Manual § 4A1.2(c) cmt. n.12(A).
        21 United States v. Martinez, 905 F.2d 251, 253 (9th Cir. 1990).

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Substance and “public intoxication” are predictors of recidivism because they
involve the use of addictive substances. Both statutes provide treatment
programs, thereby acknowledging that addiction is a correlated problem for
defendants who use either alcohol or illegal drugs. 22 However, only § 11550
expressly provides for repeat offenders. 23 Additionally, the procuring of
methamphetamine is itself significant criminal conduct and likely to recur in
drug addicted individuals as is other statistically correlated criminal
conduct. 24 That is not necessarily true of alcohol.
                                    III. CONCLUSION
       Because (1) all of the common-sense factors show differences between (a)
Use/Under the Influence of a Controlled Substance and (b) “public intoxication”
laws; (2) other circuits have rejected Smith’s arguments regarding the instant
statute; and (3) California has an offense that is more similar to “public
intoxication,” we AFFIRM the district court’s holding that Smith’s conviction
for violation of California Health and Safety Code § 11550(a) was appropriately
used to increase his criminal history level.




       22 Cal. Penal Code § 647(g); Cal. Health and Safety Code § 11550(c).
       23 Cal. Health and Safety Code § 11550(b).
       24 See Michael C. Gizzi and Patrick Gerkin, Methamphetamine Use and Criminal

Behavior, 54 Int’l J. Offender Therapy & Comp. Criminology 915 (2010) (“A content analysis
of criminal records demonstrates that meth users have more extensive criminal records and
are more likely than other drug users to commit property crimes.”); Mary-Lynn Brecht and
Diane Herbeck, Methamphetamine Use and Violent Behavior: User Perceptions and
Predictors, 43 Drug Issues 468 (2013); but see Presley Center for Crime and Justice Studies
and Department of Sociology, Alcohol and violence: connections, evidence and possibilities for
prevention, Supp. 2 Psychoactive Drugs 157 (2004) (“[There is] substantial empirical evidence
that alcohol policy can be an effective crime prevention tool.”).
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                                  No. 18-11155
JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      I disagree with the majority’s conclusion that James Smith’s California
conviction was not similar to a conviction for “public intoxication.” Because I
would vacate and remand, I respectfully dissent.
      Pursuant to a traffic stop in Lubbock, Texas, Smith pleaded guilty to one
count of convicted felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1). Smith’s presentence report (PSR) set out a criminal history of ten,
placing Smith in criminal history category V. Those ten points included the
addition of one point for a 2011 misdemeanor conviction in California under
U.S.S.G. § 4A1.1(c).
      Smith objected to the calculation on the basis that the California
conviction was similar to “public intoxication” and, thus, did not count toward
his history.   U.S.S.G. §4A1.2(c)(2).    The district court overruled Smith’s
objection for the reasons set forth in the PSR. The district court sentenced
Smith at the top of the guidelines range to 71 months. Without the California
conviction, Smith’s criminal history category would have been IV and the top
of the guideline range would have been 57 months.          Smith subsequently
appealed.
      On appeal, Smith asserts that the district court erred by including his
California misdemeanor conviction on the basis that it was not similar to public
intoxication. I agree.
      The commentary to the sentencing guidelines states that §§ 4A1.1 and
4A1.2 must be read together.       The sentencing guidelines also set out the
following:
             In determining whether an unlisted offense is similar to an
      offense listed in subsection (c)(1) or (c)(2), the court should use a
      common sense approach that includes consideration of relevant
      factors such as (i) a comparison of punishments imposed for the
      listed and unlisted offenses; (ii) the perceived seriousness of the

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                                  No. 18-11155
      offense as indicated by the level of punishment; (iii) the elements
      of the offense; (iv) the level of culpability involved; and (v) the
      degree to which the commission of the offense indicates a
      likelihood of recurring criminal conduct.

U.S.S.G. § 4A1.2, Application Note 12(A).
      Smith’s misdemeanor California conviction involved a violation of
California Health and Safety Code § 11550(a), which at the time of Smith’s
offense said:
      No person shall use, or be under the influence of any controlled
      substance which is (1) specified in subdivision (b), (c), or (e), or
      paragraph (1) of subdivision (f) of Section 11054, specified in
      paragraph (14), (15), (21), (22), or (23) of subdivision (d) of Section
      11054, specified in subdivision (b) or (c) of Section 11055, or
      specified in paragraph (1) or (2) of subdivision (d) or in paragraph
      (3) of subdivision (e) of Section 11055, or (2) a narcotic drug
      classified in Schedule III, IV, or V, except when administered by
      or under the direction of a person licensed by the state to dispense,
      prescribe, or administer controlled substances. It shall be the
      burden of the defense to show that it comes within the exception.
      Any person convicted of violating this subdivision is guilty of a
      misdemeanor and shall be sentenced to serve a term of not less
      than 90 days or more than one year in a county jail. The court may
      place a person convicted under this subdivision on probation for a
      period not to exceed five years and, except as provided in
      subdivision (c), shall in all cases in which probation is granted
      require, as a condition thereof, that the person be confined in a
      county jail for at least 90 days. Other than as provided by
      subdivision (c), in no event shall the court have the power to
      absolve a person who violates this subdivision from the obligation
      of spending at least 90 days in confinement in a county jail.
Cal. Health and Safety Code § 11550(a) (2002). The statute was later
amended to remove the mandatory minimum. Cal. Health and Safety
Code §11550(a) (2011).
      As the majority states, the issue of whether Smith’s California
misdemeanor conviction is similar to “public intoxication” is one of first

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                                   No. 18-11155
impression for this court. The majority concludes that this statute is not
similar and points to California Penal Code §647(f) as being more
similar.    Section 647(f) states that a person is guilty of disorderly
conduct, a misdemeanor:
               Who is found in any public place under the influence of
        intoxicating liquor, any drug, controlled substance, toluene, or any
        combination of any intoxicating liquor, drug, controlled substance,
        or toluene, in a condition that he or she is unable to exercise care
        for his or her own safety or the safety of others, or by reason of his
        or her being under the influence of intoxicating liquor, any drug,
        controlled substance, toluene, or any combination of any
        intoxicating liquor, drug, or toluene, interferes with or obstructs or
        prevents the free use of any street, sidewalk, or other public way.

Cal. Penal Code §647(f).
        While this may appear to be more similar, the sentencing
guidelines were not written with the California statute in mind.
Moreover, there is no prohibition against more than one California
statute being similar.
        The majority stresses the difference in punishments for violations
under the relevant statutes. At the time of Smith’s conviction, a violation
of Section 11550(a) included a mandatory minimum of 90 days in jail to
a maximum of one year in jail. However, Smith’s judgment was deferred,
and he was ordered to participate in drug court.
        A violation of Section 647(f) involving liquor involves placement in
civil protective custody for 72-hour treatment and evaluation. Cal. Penal
Code §647(g).      Whereas, a violation involving a person under the
influence of any drug or a combination of drugs and alcohol falls under
the     general   punishment      of   a   California   misdemeanor,      i.e.,
“imprisonment in the county jail not exceeding six months, or by fine not
exceeding one thousand dollars ($1,000), or by both.” Cal. Penal Code

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                                 No. 18-11155
§19. The majority interprets this to mean that California punishes use
of illegal drugs more severely than public intoxication by alcohol. But
the majority offers no support for such an interpretation. Also, Section
19, by use of “or” and as quoted above, clearly allows for the possibility
of no jail time for those under the influence of drugs.
      The majority next concludes that the elements of the offenses are
different. Specifically, the majority concludes that the Texas and Model
“public intoxication” laws differ from section 11550(a) because they have
additional requirements of being in public and causing some damage or
disturbance. Again, the majority concludes that California Penal Code
Section 647(f) is more similar to the Texas and Model public intoxication
laws. Again, I disagree.
      The Model Penal Code states:
      A person is guilty of an offense if he appears in any public place
      manifestly under the influence of alcohol, narcotics or other drug,
      not therapeutically administered, to the degree that he may
      endanger himself or other persons or property, or annoy persons in
      his vicinity. An offense under this Section constitutes a petty
      misdemeanor if the actor has been convicted hereunder twice
      before within a period of one year. Otherwise the offense
      constitutes a violation.

Model Penal Code §250.5 (emphasis added). Contrary to the majority’s
characterization, this section does not require the defendant to cause
some damage or disturbance.         The requirement is only that the
defendant be intoxicated “to the degree that he may endanger . . . or
annoy.”
      Likewise, the Texas Penal Code does not require any damage or
disturbance.   Rather, the Texas section also requires only that the
defendant “appears in a public place while intoxicated to the degree that
the person may endanger” himself or another.          Tex. Penal Code §
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                                  No. 18-11155
49.02(a). As for “public place,” it is likely that a person would not be
found in violation of section 11550(a) if not located in a public place.
      The majority next concludes that the level of culpability for a
violation of section 11550(a) is greater than that of public intoxication
because section 11550(a) requires the use of an illegal substance. The
majority states that “classic public intoxication” involves only the use of
alcohol, a legal substance. I disagree. Additionally, the majority cites
no authority for its statement that section 11550(a) requires the
acquisition of an illegal controlled substance.     As quoted above, the
statute includes no such requirement.
      Section 647(f), which the majority states is more similar to public
intoxication, explicitly includes “any drug, controlled substance.” This
contradicts the majority’s characterization of public intoxication
involving only alcohol. Further, the Model Penal Code, other states
including Texas, and Black’s Law Dictionary include drugs and/or
alcohol in public intoxication.
      With regard to public intoxication, the Model Penal Code states that:
            A person is guilty of an offense if he appears in any public
      place manifestly under the influence of alcohol, narcotics or other
      drug, not therapeutically administered, to the degree that he may
      endanger himself or other persons or property, or annoy persons
      in his vicinity. An offense under this Section constitutes a petty
      misdemeanor if the actor has been convicted hereunder twice
      before within a period of one year. Otherwise the offense
      constitutes a violation.

Model Penal Code § 250.5.
      Black’s Law Dictionary (11th ed. 2019) defines “intoxication” as “A
diminished ability to act with full mental and physical capabilities
because of alcohol or drug consumption; drunkenness. See Model Penal
Code § 2.08” and “public intoxication” as “The quality, state, or condition
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                                 No. 18-11155
of a person who is under the influence of drugs or alcohol in a place open
to the general public.” Older versions of Black’s Law Dictionary (9th ed.
2009) define “public intoxication” as “[t]he condition of a person who is
under the influence of drugs or alcohol in a place open to the general
public.”   California has a unique statutory scheme with a separate
statute for being under the influence of a controlled substance.
      Moreover, the nonbinding authority relied upon by the majority
here, United States v. Martinez, 956 F.2d 891, 892 (9th Cir. 1992), was
decided in 1992, which was prior to the adoption of the five-factor
common sense approach that we are applying today.             Additionally,
Martinez was decided prior to the mandatory minimum being removed
from California section 11550, indicating a lessening in seriousness.
      For these reasons, I conclude that the district court erred in finding
that Smith’s California conviction was not similar to a conviction for
public intoxication.     Because I would vacate and remand for
resentencing, I respectfully dissent.




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