United States v. Eric James Thornton, Jr., AKA Seal B

This case requires us to decide whether a conviction under California Vehicle Code section 23152(b) for driving with a blood alcohol level of 0.08 or higher is a conviction for an offense “similar” to driving under the influence, such that it must be included in a defendant’s criminal history calculation pursuant to U.S.S.G. § 4A1.2 cmt. n. 5. We hold that it is.

I. Background

Eric James Thornton, Jr. pleaded guilty to violating 21 U.S.C. § 846 (conspiracy to distribute a controlled substance). Thornton signed a written plea agreement that contemplated, but did not guarantee, application of U.S.S.G. § 5C1.2, known as the “safety valve” provision. Pursuant to this provision, “in the case of an offense under 21 U.S.C. § ... 846 ..., the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets” certain criteria. U.S.S.G. § 5C1.2(a). One of those criteria is that “the defendant does not have more than 1 criminal history point.” Id. § 5C1.2(a)(l). If Thornton did not satisfy the criteria for application of the safety valve, he faced a mandatory minimum sentence of 120…