Ninth Circuit Reconsiders Whether a “Citation” Is an “Arrest”

Michael Stephan

On Tuesday, the Ninth Circuit Court of Appeals decided to hear United States v. Leal-Felix en banc.  When a case is reheard en banc, the three-judge panel opinion is stripped of precedential force and—in the Ninth Circuit—a new, eleven-judge panel rehears the case.  En banc hearings are relatively uncommon and are typically reserved for cases of particular importance, many of which are later heard by the Supreme Court.  Leal-Felix, therefore, is a case to watch.  It presents the following issue: “[W]hether a citation for a traffic violation is an arrest countable for criminal history under the Sentencing Guidelines.”

In Leal-Felix, this question was important in determining Leal-Felix’s criminal history category, which is a major part of the sentencing calculus under the Guidelines.  The Sentencing Guidelines provide judges with an advisory range of incarceration time for each convicted defendant.  Leal-Felix was convicted of violating 8 U.S.C. § 1326(a) by illegally entering the U.S. after having been deported.  Given the seriousness of his crime and his criminal history category, the Sentencing Guidelines advised that he be incarcerated for 21 to 27 months.  Accordingly, the trial judge sentenced Leal-Felix to 21 months of imprisonment.

Leal-Felix’s criminal history score was based, in part, on the number of prior arrests he had.  This number included a citation he received for driving with a suspended license.  Leal-Felix argued that his traffic citation should not count as an arrest for sentencing purposes, but the majority of the original Ninth Circuit panel disagreed and affirmed the sentence.  Had Leal-Felix’s citation not been treated as an arrest, his Guidelines range would have been three months lower and he would likely have received a sentence of only 18 months of imprisonment.

The Ninth Circuit’s laconic opinion relies on a Seventh Circuit case that characterizes a citation as a “street arrest” but not a “full custodial arrest.”  The 4-page majority opinion is challenged by a 25-page dissent, which points out that the plain meaning of being “arrested” does not include being “stopped, briefly detained, issued a citation for a traffic or driving offense, and sent on [one’s] way.”

Now that Leal-Felix has been taken en banc, a larger panel of Ninth Circuit judges will reconsider whether a citation is an arrest.  The answer to this question will dictate the penal futures of countless federal defendants whose sentences are affected by the Guidelines.  What’s more, the definition of “arrest” in the sentencing context has potential to reshape our understanding of arrests, searches, and seizures in criminal procedure law.


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