Leal-Felix

dissenting:

I respectfully dissent from the majority opinion which, in my view, improperly imports Fourth Amendment analysis into calculation of a sentence under the Sentencing Guidelines, and unnecessarily creates a circuit split.

I agree with the majority that the term arrest as it is commonly used denotes taking or detaining an individual into custody by authority of law. I do not agree that the concept of custody for the purpose of criminal history calculation is coextensive with a formal arrest that includes Miranda warnings, handcuffs and a trip to the police station.

It is important to remember that we are considering the definition of arrest for the purpose of assessing recidivism as part of the criminal history calculation. We are not assessing whether a Fourth Amendment violation occurred, whether Miranda warnings were required, or whether some different constitutional right was triggered. There is nothing new or unusual about recognizing that the process of imposing a sentence does not invoke the same protections as those procedures governed by various provisions of the United States Constitution. Indeed, we have routinely eschewed constitutional protection for…

concurring:

I join the majority’s opinion, but write separately to highlight the most compelling reason for concluding that a traffic citation is not an arrest for the purposes of the Sentencing Guidelines: the common understanding of the term arrest does not include being pulled over and ticketed for a traffic violation. It is a bedrock principle of statutory construction that “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United *1045 States, 444 U.S. 37, 42 , 100 S.Ct. 811 , 62 L.Ed.2d 199 (1979). I am confident that an average citizen — with or without a law degree — would not believe he had been arrested if pulled over, briefly detained and issued a traffic ticket. Indeed, if a traffic citation constituted an arrest in ordinary parlance, then aspiring police officers and prison guards might have a lot more to disclose on their job applications. 1 Young drivers would need to be more concerned about getting into college, 2 and those filling out employment applications, 3 background checks, 4 visa applications, 5 and adoption papers 6 would need to employ an entirely different “truth-o-meter” than commonly…

Opinion by Judge N. RANDY SMITH; Concurrence by Judge McKEOWN; Dissent by Judge RAWLINSON.

OPINION

In this appeal, we are asked to interpret the United States Sentencing Guidelines § 4A1.2(a)(2). The United States Sentencing Commission (the “Commission”) has authority to define the terms in the Sentencing Guidelines. See 28 U.S.C. § 994 (p). However, until it does, we consider the context and purpose of the Sentencing Guidelines as a whole in interpreting them. Cf. Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 , 126 S.Ct. 1252 , 163 L.Ed.2d 1079 (2006). In Sentencing Guidelines § 4A1.2(a)(2), we interpret the term “arrest” to require that the individual be formally arrested; the mere issuance of a citation, even if considered an arrest *1039 under state law, is insufficient. Therefore, we vacate the sentence imposed by the district court and remand for resentencing.

FACTS

At all times relevant to this case, Israel Leal-Felix was a citizen of Mexico and an alien, as defined by United States immigration law. On April 20, 2009, Leal-Felix was charged with violating 8 U.S.C. § 1326 (a) and § 1326(b)(2), because he was found in the United States after having been removed or…

Michael Tanaka, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Michael J. Raphael, Assistant United States Attorney, Los Angeles, CA; and Bryan F. Boutwell, Special Assistant United States Attorney, Riverside, CA, for the plaintiff-appellee.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, SUSAN P. GRABER, M. MARGARET McKEOWN, KIM McLANE WARDLAW, WILLIAM A. FLETCHER, RICHARD A. PAEZ, JOHNNIE B. RAWLINSON, MILAN D. SMITH, JR., SANDRA S. IKUTA, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge N. RANDY SMITH; Concurrence by Judge McKEOWN; Dissent by Judge RAWLINSON.

N.R. SMITH, Circuit Judge:

In this appeal, we are asked to interpret the United States Sentencing Guidelines § 4A1.2(a)(2). The United States Sentencing Commission (the "Commission") has authority to define the terms in the Sentencing Guidelines. See 28 U.S.C. § 994 (p). However, until it does, we consider the context and purpose of the Sentencing Guidelines as a whole in interpreting them. Cf. Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 , 126 S.Ct. 1252 , 163 L.Ed.2d 1079 (2006). In Sentencing Guidelines § 4A1.2(a)(2), we interpret the term "arrest" to require that the…