            RECOMMENDED FOR FULL-TEXT PUBLICATION
                 Pursuant to Sixth Circuit Rule 206                        2    United States v. Rollins                     No. 03-5006
         ELECTRONIC CITATION: 2004 FED App. 0253P (6th Cir.)
                     File Name: 04a0253p.06                                                    _________________
                                                                                                    COUNSEL
UNITED STATES COURT OF APPEALS
                                                                           ON BRIEF: James E. Hibbard, London, Kentucky, for
                   FOR THE SIXTH CIRCUIT                                   Appellant. Charles P. Wisdom, Jr., John Patrick Grant,
                     _________________                                     ASSISTANT UNITED STATES ATTORNEYS, Lexington,
                                                                           Kentucky, for Appellee.
 UNITED STATES OF AMERICA , X
                                                                              SUTTON, J., delivered the opinion of the court, in which
             Plaintiff-Appellee, -                                         FRIEDMAN, J., joined. MOORE, J. (pp. 10-12), delivered
                                   -
                                   -   No. 03-5006                         a separate dissenting opinion.
            v.                     -
                                    >                                                          _________________
                                   ,
 GARY BURGESS ROLLINS,             -                                                               OPINION
         Defendant-Appellant. -                                                                _________________
                                  N
      Appeal from the United States District Court                           SUTTON, Circuit Judge. Gary Burgess Rollins pleaded
     for the Eastern District of Kentucky at London.                       guilty to possession of less than 50 kilograms of marijuana
    No. 02-00089—Danny C. Reeves, District Judge.                          with intent to distribute, a violation of 21 U.S.C. § 841(a)(1).
                                                                           At sentencing, this violation translated into a base offense
                    Submitted: March 11, 2004                              level of twelve, which the district court reduced to ten in view
                                                                           of Rollins’ acceptance of responsibility. The district court
                 Decided and Filed: May 3, 2004*                           next attributed to Rollins a criminal history category of II
                                                                           based on his previous state-court convictions for
  Before: MOORE, SUTTON, and FRIEDMAN, Circuit                             (1) possession of marijuana and (2) driving without insurance.
                    Judges.**                                              After combining the vertical requirements of Rollins’ base
                                                                           offense level with the horizontal requirements of his criminal
                                                                           history category, the district court determined that he faced a
                                                                           sentencing range of eight to fourteen months, then sentenced
                                                                           him to an eight-month prison term.
                                                                              On appeal, Rollins challenges the district court’s inclusion
    *
      This decision was originally issued as an “unpublished decision”
                                                                           of his conviction for driving without insurance—a
filed on M ay 3, 2004. On June 8, 2004, the court designated the opinion   misdemeanor under Kentucky law—in its calculation of his
as one recommend ed for full-text publication.                             criminal history. His argument is unavailing.
    **                                                                       Under the Sentencing Guidelines, a defendant’s criminal
     Daniel M. Friedman, Circuit Judge of the U nited S tates Court of
Appeals for the Federal Circuit, sitting by designation.                   history category includes all prior misdemeanors, unless they

                                   1
No. 03-5006                     United States v. Rollins      3    4     United States v. Rollins                     No. 03-5006

are specifically excluded in one of two subsections. U.S.S.G.      offenses with an authorized term of more than five days are
§ 4A1.2(c) (2002).          First, misdemeanors listed in          not “minor traffic infractions.” 922 F.2d at 1239. Because in
§ 4A1.2(c)(1) or “offenses similar to” those listed are            Kingston Tennessee law authorized a 90-day prison term for
excluded from the criminal history calculation unless “(A) the     reckless driving, the court determined that reckless driving
sentence was a term of probation of at least one year or a term    was not a “minor traffic infraction.” Id. And in view of the
of imprisonment of at least thirty days, or (B) the prior          established meaning of “infraction,” the court concluded that
offense was similar to an instant offense.” Misdemeanors on        the authorization of a 90-day prison term under Tennessee
this list include, among other offenses, careless or reckless      law ended the inquiry—as the Guidelines do “not intend
driving, driving without a license or with a revoked or            courts to weigh the relative seriousness of traffic offenses
suspended license and leaving the scene of an accident.            when deciding which convictions to exclude from criminal
Second, § 4A1.2(c)(2) separately excludes other prior              history calculations.” Id.
misdemeanors—including juvenile status offenses, loitering
and “[m]inor traffic infractions (e.g., speeding)”—and                These conclusions in Kingston more than suffice to respond
“offenses similar to them” from a defendant’s relevant             to Rollins’ first objection to his sentence. Because Kentucky
criminal history.                                                  law authorizes up to a 90-day prison term for violation of the
                                                                   State’s car insurance requirements, see Ky. Rev. Stat.
   Rollins initially argues that his Kentucky-law “no              § 304.99-060, not unlike the Tennessee law in Kingston, a
insurance” conviction constitutes a “minor traffic infraction”     conviction for “no insurance” in Kentucky does not constitute
under § 4A1.2(c)(2), making it non-countable in his criminal       a “minor traffic infraction” under § 4A1.2(c)(2). Accord
history assignment. Although this Circuit has yet to               United States v. Perez de Dios, 237 F.3d 1192, 1199 (10th
determine whether driving without insurance is a “minor            Cir. 2001) (determining that driving without proof of
traffic infraction” within the meaning of § 4A1.2(c)(2), our       insurance is not a minor traffic infraction under
decision in United States v. Kingston, 922 F.2d 1234 (6th Cir.     § 4A1.2(c)(2)). Given this unchallenged aspect of Kentucky
1990), takes us a good way toward the conclusion that it is        law and given our decision in Kingston, we reject Rollins’
not. Kingston holds that “infraction” in the phrase “minor         invitation to “to weigh the relative seriousness” of this traffic
traffic infractions” of § 4A1.2(c)(2) represents a “term of art”   offense in “deciding which convictions to exclude from
derived from U.S.S.G. § 1B1.9 and 18 U.S.C. § 3559. 922            criminal history calculations.” Kingston, 922 F.2d at 1239.
F.2d at 1239; see also United States v. Aichele, 912 F.2d
1170, 1171 (9th Cir. 1990). These provisions in turn each             Nor may this offense be excluded under the other provision
define an “infraction” as “any offense for which the               that lists non-countable misdemeanor
maximum authorized term of imprisonment is not more than           offenses—§ 4A1.2(c)(1). In accordance with that provision,
five days.” U.S.S.G. § 1B1.9 cmt. n.1; see 18 U.S.C.               recall, “driving without a license or with a revoked or
§ 3559(a) (“An offense . . . is classified [as an infraction] if   suspended license” (or a “similar” offense) may be excluded
the maximum term of imprisonment authorized is . . . five          if “the sentence was a term of probation” of less than a year.
days or less, or if no imprisonment is authorized.”).              In this case, however, the state court imposed a two-year
                                                                   conditional discharge for his insurance violation—a sentence
 On the basis of this language, Kingston concluded that            that this Court has previously determined to be the
misdemeanor offenses with an authorized prison term of “not        “functional equivalent of ‘unsupervised probation.’” See
more than five days” are “minor traffic infractions” while         United States v. Miller, 56 F.3d 719, 722 (6th Cir. 1995)
No. 03-5006                     United States v. Rollins     5    6    United States v. Rollins                    No. 03-5006

(“We thus hold that conditional discharge [under Kentucky            While it is true that probation frequently will occur in the
law] is the ‘functional equivalent’ of an unsupervised            context of the suspension of a jail sentence, the function of
probation under U.S.S.G. § 4A1.1(d).”); Harris v. United          probation (and of conditional discharge under Kentucky law)
States, 204 F.3d 681, 682–83 (6th Cir. 2000) (determining         is by no means restricted to that setting. The overriding
that Ohio’s equivalent of a “conditional discharge” sentence      objective of probation is to place court-imposed conditions on
qualifies as a term of probation of at least one year under       the defendant. See, e.g., Ky. Rev. Stat. § 533.020(1)
§ 4A1.2(c)(1)); see also Pedigo v. Commonwealth, 644              (“Conditions of probation shall be imposed.”); id.
S.W.2d 355, 358 (Ky. Ct. App. 1982) (noting that aside from       § 533.020(3) (“Conditions of conditional discharge shall be
supervision, “there is no difference between conditional          imposed.”); see generally 5 Wayne R. LaFave et al., Criminal
discharge and probation”).                                        Procedure § 26.1(d) (2004) (“[T]he traditional definition of
                                                                  probation . . . assumes release pursuant to one or more
  Rollins has offered no explanation why a term of                conditions and some degree of supervision to ensure
“unsupervised probation” should not be treated as a term of       adherence to those conditions.”). It is these court-imposed
“probation” under the provision. Nor can we think of one.         restrictions on the defendant’s behavior that distinguish
Other courts, it bears adding, have reached the same              sentences of probation or conditional discharge from mere
conclusion, holding that “conditional discharge” and              fines. See U.S.S.G. § 4A1.1 cmt. n.4 (“[A] term of
“unsupervised probation” alike constitute “probation” for         unsupervised probation would be included [as a criminal
purposes of § 4A1.2(c)(1). See United States v. Lloyd, 43         justice sentence under § 4A1.1(d)]; but a sentence to pay a
F.3d 1183, 1188 (8th Cir. 1994); United States v. Caputo, 978     fine, by itself, would not be included.”). And it is these
F.2d 972, 977 (7th Cir. 1992); United States v. McCrudden,        restrictions that render the sentences serious, see 9 Leslie W.
894 F.2d 338, 339 (9th Cir. 1990) (“The guidelines make no        Abramson, Kentucky Practice Series: Criminal Practice &
provision for treating ‘unsupervised’ probation as less than      Procedure § 31:131 (2004), and presumably what makes
probation.”).                                                     them countable under this Guideline. Whether the conditions
                                                                  imposed on Rollins in this instance (which the record does not
  Lastly, this Guideline provision cannot be construed to         describe) were minimal—e.g., that he merely avoid further
apply only to probation sentences given in connection with a      offenses during his conditional discharge—or quite onerous,
suspended jail sentence, as opposed to probation sentences        the fact that his sentence entailed court-mandated restrictions
given in connection with a fine. By its terms, the provision      on his behavior is enough to draw it within the meaning of
prohibits excluding a sentence if “the sentence was a term of     “probation” in the Sentencing Guidelines. See, e.g., United
probation” of a year or more. U.S.S.G. § 4A1.2(c)(1).             States v. Gorman, 312 F.3d 1159, 1164–67 (10th Cir. 2002)
Neither the provision nor the commentary draws any                (determining that requirements of maintaining good behavior,
distinction between probation involving a suspended jail          refraining from violating the law, and paying a $300 fee,
sentence on the one hand and probation involving a fine,          constituted “probation” under U.S.S.G. § 4A1.1(d)).
community service or indeed probation alone on the other.
The very next clause of the provision, moreover, plainly            That Rollins’ conditional discharge involved the partial
covers fines, as it indicates that a misdemeanor offense is not   discharge of a modest fine ($500) in exchange for two years
excludable if it is “similar to an instant offense,”              of court-imposed restrictions, moreover, does not warrant
§ 4A1.2(c)(1)(B), a rule that necessarily includes                differential treatment from other sentences of conditional
misdemeanors that resulted in a fine alone.                       discharge or probation. Although Kentucky law requires that
No. 03-5006                     United States v. Rollins     7    8     United States v. Rollins                      No. 03-5006

a sentence of a prison term or a fine (or both) be imposed           It is true, as Judge Moore points out, that this interpretation
before a conditional discharge is given, Commonwealth v.          has one seemingly odd consequence. Had Rollins paid the
Tiryung, 709 S.W.2d 454, 456 (Ky. 1986), other States allow       fine, his sentence would not have been countable. But when
for sentences of probation (or their equivalent) independent of   most of the fine was suspended and he received a two-year
any other sentence, see, e.g., 730 Ill. Comp. Stat. 5/5-5-3(b);   conditional discharge, the sentence became countable. It is
N.Y. Penal Law § 60.01; see generally Daniel E. Feld,             not clear whether the Sentencing Commission anticipated this
Annotation, State Court’s Power to Place Defendant on             specific development when it imposed this bright-line rule
Probation Without Imposition of Sentence, 56 A.L.R.3d 932         about sentences of probation of a year or more. It is clear,
(1974). Consistent with the language of the relevant              however, that the Commission realized that the criminal-
provisions, the federal courts (to our knowledge) have never      history rules in this section could lead to criminal-history
considered a stand-alone sentence of probation or conditional     outcomes that fail to square with the realities of an
discharge, or a sentence of probation or conditional discharge    individual’s criminal record. Section 4A1.3 addresses that
coupled with a fine, to be anything other than a term of          problem, however, by allowing district court judges to grant
“probation” under § 4A1.2(c) and § 4A1.1(d), even though          downward and upward departures when an application of the
the defendant does not face the threat of a suspended jail        Guidelines generates an inequitable result, and it makes more
sentence. See, e.g., Gorman, 312 F.3d at 1166–67 (sentence        sense in our view to rely on that safety-valve provision than
of unsupervised probation plus a fine is a criminal justice       to disregard the unyielding terms of § 4A1.2(c)(1). See
sentence under § 4A1.1(d)); United States v. Castro, 279 F.3d     McCrudden, 894 F.2d at 339 (The Guidelines “resolve this
30, 35 (1st Cir. 2002) (one-year sentence of probation counts     potential inequity by permitting departures from the
under § 4A1.2(c)); United States v. Boyd, 146 F.3d 499, 502       prescribed sentence if a resulting history score ‘significantly
(7th Cir. 1998) (one year of court supervision and a              over-represents’ the seriousness of a defendant’s criminal
fine—where the supervision was vacated and the full fine          history.”). In this instance, Rollins did not invoke this safety-
imposed—is “probation” under § 4A1.2(c)); United States v.        valve provision, which indeed would have been difficult for
Baker, 116 F.3d 870, 873–74 (11th Cir. 1997) (term of             him to do in view of his other prior criminal conduct.
probation for one year or until the fine is paid in full counts
under § 4A1.2(c)); United States v. Labella-Szuba, 92 F.3d          Rollins lastly argues that the inclusion of a “no insurance”
136, 138 (2d Cir. 1996) (one-year conditional discharge           conviction in his sentencing calculations violates the
sentence, as unsupervised probation, qualifies as a criminal      Guidelines’ policy of creating “reasonable uniformity in
justice sentence).                                                sentencing” by treating violators of similar offenses in a like
                                                                  manner. U.S.S.G. ch. 1, pt. A (policy statement). No such
  Application Note 4 of § 4A1.2 does not undermine this           uniformity occurred here, he urges, because the inclusion of
conclusion or the above court decisions. See U.S.S.G.             this conviction in his criminal history boosted his sentence
§ 4A1.2 cmt. n.4. (“A sentence which specifies a fine or other    above the sentences of similar offenders solely because the
non-incarcerative disposition as an alternative to a term of      Kentucky judge who sentenced him for the “no insurance”
imprisonment . . . is treated as a non-imprisonment               violation conditionally discharged his fine rather than
sentence.”). That a defendant’s choice between a “fine or         suspending the fine or requiring him to pay it in full—in
other non-incarcerative disposition” and a term of                contrast to what Rollins’ lawyer asserts is common practice
imprisonment is a “non-imprisonment sentence” does not say        by Kentucky judges. But this characterization of the actions
anything about whether a sentence constitutes “probation.”        of the responsible Kentucky judge has no support in the
No. 03-5006                    United States v. Rollins    9    10   United States v. Rollins                     No. 03-5006

record and is incompatible with the provisions of Kentucky                           ________________
law that specifically authorize just such a sentence.
                                                                                         DISSENT
     For the foregoing reasons, the district court correctly                         ________________
included Rollins’ conviction for driving without insurance in
its calculation of his criminal history. We affirm.               KAREN NELSON MOORE, Circuit Judge, dissenting.
                                                                While I agree with the majority’s conclusion that Rollins’s
                                                                “no insurance” conviction does not qualify as a “minor traffic
                                                                infraction” under § 4A1.2(c)(2), I disagree strongly with its
                                                                conclusion that the conditional discharge of a fine is
                                                                equivalent to a sentence of probation, such that the conviction
                                                                should count under § 4A1.2(c)(1).
                                                                   The conditional discharge in this case is not “the functional
                                                                equivalent of ‘unsupervised probation.’” Maj. op. at 4,
                                                                quoting United States v. Miller, 56 F.3d 719, 722 (6th Cir.
                                                                1995). Both cases that the majority cites, Miller and Harris
                                                                v. United States, 204 F.3d 681, 682-83 (6th Cir. 2000), dealt
                                                                with the conditional discharge of a prison sentence. See
                                                                Miller, 56 F.3d at 721 (“whereby he was given a sentence of
                                                                thirty days imprisonment conditionally discharged for two
                                                                years”); Harris, 204 F.3d at 682 (discharge at issue in case is
                                                                “a condition on which a sentence of imprisonment is
                                                                suspended”). Here, the conditional discharge is of a fine, and
                                                                all that the Kentucky courts would have done had Rollins
                                                                violated the conditions of the discharge would be to impose
                                                                punishment of the balance of the fine, plus court costs. The
                                                                majority responds to this key distinction by arguing that it is
                                                                the conditional nature of the discharge that is important: any
                                                                time, then, that a state places conditions on a misdemeanant,
                                                                the sentence will count, even if the full punishment the state
                                                                could impose after a violation of those conditions is well
                                                                below the threshold level otherwise to trigger the provision.
                                                                The total illogic of this position — that a defendant fined
                                                                $1,000,000 on the spot receives no criminal history points,
                                                                but one whose $100 fine is conditionally discharged receives
                                                                a point, or that a defendant whose fine for a nonsufficient
                                                                funds check is discharged on the condition that she not shop
                                                                at a particular mall for a year receives a point — is
No. 03-5006                     United States v. Rollins     11    12   United States v. Rollins                     No. 03-5006

acknowledged by the majority, but does not lead it to              this is entirely unwarranted, when the proper route is so clear.
conclude that perhaps the designers of the Sentencing              I respectfully dissent.
Guidelines did not anticipate this result. I do not believe that
the determinant of “probation” is “conditions” on a defendant,
but instead I believe that “probation” is determined from the
ultimate punishment that could be visited on the defendant
who violates those conditions. Therefore, I would conclude
that the nonsensical results that follow from the majority’s
reading of the provision are ample evidence that that reading
is incorrect.
 By transforming Rollins’s fine into a term of probation, the
majority also creates an odd result when contrasted with
Application Note 4 to § 4A1.2, which states:
  Sentences Imposed in the Alternative: A sentence which
  specifies a fine or other non-incarcerative disposition as
  an alternative to a term of imprisonment (e.g., $1,000
  fine or ninety days’ imprisonment) is treated as a non-
  imprisonment sentence.
Thus, had Rollins been sentenced to payment of his $500 fine
or ninety days in prison for his infraction, a possible sentence
under the Kentucky statute and surely a more severe sentence
than payment of $500, conditionally discharged to $50, his
conviction would not count. I believe Rollins’s actual
sentence for driving without insurance, which could only have
resulted in a fine, is not properly counted in his criminal
history under § 4A1.2(c)(1).
  Finally, the majority alludes to the possibility of downward
departure under § 4A1.3 in cases like the one before us. Of
course, no downward departure occurred in this case, and
Rollins is unable to appeal the district court’s failure to make
one. By relocating this issue from the definite terms of
§ 4A1.2(c)(1) to the discretionary “safety valve” of § 4A1.3,
the majority insulates the district court’s decision from review
and further limits the ability of wrongfully sentenced
defendants to appeal to this court for legal correction. I think
