                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2718
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of North Dakota.
Michael David Tomac,                    *
also known as Einstein,                 *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: March 9, 2009
                                Filed: May 20, 2009
                                 ___________

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       Michael David Tomac pleaded guilty to conspiracy to distribute and to possess
with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
846. The district court1 sentenced him to ninety months’ imprisonment. The United
States appeals, alleging that the district court committed procedural error in
calculating Tomac’s sentence. We affirm.



      1
       The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota.
       Following Tomac’s guilty plea to the above-described offenses, the parties
stipulated to a drug quantity of greater than fifteen kilograms of a mixture or
substance containing methamphetamine and a base offense level of 38 under the U.S.
Sentencing Guidelines. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(1) (2007).
The Presentence Investigation Report (“PSR”) recommended a two-level downward
adjustment for acceptance of responsibility for a total offense level of 36. See id. §
3E1.1(a). The PSR also calculated three criminal-history points for a 2003 “reckless
driving” conviction, a 2006 conviction for “driving under the influence of liquor or
drugs,” and a 2007 “reckless driving” conviction. Considering these three state
misdemeanor convictions, the PSR established a Category II criminal history. The
resulting recommended Guidelines range was 210 to 262 months’ imprisonment.
Tomac objected to the criminal-history-points calculation, arguing that at least two of
the convictions could not be used in that calculation, and that, at most, he had a
Category I criminal history based on one criminal-history point.

       At sentencing, the district court found that the 2003 reckless-driving conviction
was not alcohol related and further concluded that there was no evidence that Tomac
had properly waived his right to counsel with regard to the 2003 and 2006
convictions. As such, the district court concluded that those convictions could not
properly be considered in the criminal-history-points analysis, in part, pursuant to
United States v. Stapleton, 316 F.3d 754, 756–57 (8th Cir. 2003) (assigning no points
for an uncounseled conviction). With the elimination of these two criminal-history
points, the court reduced Tomac’s criminal-history category to I, thus making him
eligible for a two-level, safety-valve adjustment and excusing Tomac from the ten-
year statutory minimum under 21 U.S.C. § 841(b)(1)(A)(viii). See 18 U.S.C. §
3553(f); USSG § 5C1.2. With a resulting total offense level of 34 and a Category I
criminal history, the advisory range was 151 to 188 months. The district court
sentenced Tomac to ninety months’ imprisonment. The United States appeals,
arguing that the district court committed procedural error in calculating the Guidelines
range. It claims that the court erred in concluding that Tomac’s 2003 and 2006


                                          -2-
misdemeanor convictions were not countable under the Guidelines, and that when
properly counting the 2003 and 2006 convictions, Tomac had a Category II criminal
history.

      In evaluating a sentence, we must “‘first ensure that the district court committed
no significant procedural error, such as failing to calculate (or improperly calculating)
the Guidelines range.’” United States v. Aguilera, 523 F.3d 876, 877 (8th Cir. 2008)
(quoting Gall v. United States, 128 S. Ct. 586, 597 (2007)). “A failure to properly
calculate the advisory Guidelines range is a significant procedural error, and a
non-harmless error in calculating the [G]uidelines range requires a remand for
resentencing.” United States v. Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008)
(quotation and alteration omitted). “We review for clear error the district court’s
findings of fact and apply de novo review to the district court’s interpretation and
application of the Guidelines.” Id.

       Section 4A1.2(c) of the U.S. Sentencing Guidelines “governs which prior
sentences are counted as criminal history points.” United States v. Pando, 545 F.3d
682, 683 (8th Cir. 2008) (quotation omitted). Section 4A1.2(c)(1) provides that a
conviction for misdemeanor “reckless driving” is countable “only if (A) the sentence
was a term of probation of more than one year or a term of imprisonment of at least
thirty days, or (B) the prior offense was similar to an instant offense.” USSG §
4A1.2(c)(1). We conclude that neither Tomac’s 2003 nor 2006 conviction for
“reckless driving” is countable under § 4A1.2(c)(1), and, as a result, the district court
did not commit procedural error in its calculation of the Guidelines range.

      As an initial matter, both “reckless driving” convictions resulted in a sentence
below the threshold required by the provision. Tomac’s 2003 conviction only resulted
in a sentence of “10 days suspended for 1 year” and “unsupervised probation.”
Likewise, for his 2007 conviction, the state court sentenced Tomac to “30 days with
25 days suspended” and “1 year unsupervised probation.” A “sentence of
imprisonment” under the Guidelines, “refers only to a portion that was not

                                          -3-
suspended,” id. § 4A1.2(b)(2), which results in Tomac having received a five-day
sentence in 2007 for the purposes of the provision.

        Nor can we conclude that Tomac’s 2003 and 2007 convictions for “reckless
driving” were “similar” to a countable offense. See id. § 4A1.2, cmt. (n.5)
(“Convictions for driving while intoxicated or under the influence (and similar
offenses by whatever name they are known) are counted.”). We have held that “the
reference in Application Note 5 to ‘similar offenses’ means offenses involving driving
and alcohol impairment.” Pando, 545 F.3d at 684 (quotation omitted). To determine
whether “reckless driving” is an offense “involving driving and alcohol impairment”
we look to North Dakota’s definition of Tomac’s offense. See id. (analyzing Colorado
state law for an offense definition in determining similarity under § 4A1.2, cmt. (n.5)).
The North Dakota Century Code’s definition of “reckless driving” contains no
reference to alcohol. See N.D. Cent. Code § 39-08-03. In fact, the Government even
concedes on appeal that the “district court may have had a legal basis for excluding
the 2003 . . . conviction based upon the finding that it was not alcohol related” and has
“not rais[ed] the issue in this appeal.” There is no basis in the record to conclude that
Tomac’s 2003 reckless-driving conviction differed at all from his 2007 conviction
under the same North Dakota statute. It is thus inconsistent for the Government to
argue in its reply brief that, while it does not appeal the district court’s failure to count
the 2003 conviction, it believes that the 2007 conviction should be counted because
“reckless driving” is similar to a countable offense. In sum, we conclude that Tomac’s
two “reckless driving” convictions are not countable for criminal-history-points
purposes under § 4A1.2(c).

       As we find that the district court properly refused to assign a criminal-history
point for Tomac’s 2003 conviction, and the record provides no basis for differing
treatment of the 2007 conviction, the resulting Category I criminal history would
support the district court’s Guidelines calculation regardless of whether the 2006



                                            -4-
conviction were counted. We thus need not reach the other arguments raised on
appeal.

     For the foregoing reasons, we affirm Tomac’s sentence.
                     ______________________________




                                     -5-
