PC World

United States v. Roccisano, No. 10-5237-cr (2d Cir. March 14, 2012) (Katzmann, Parkjer, CJJ, Restani, JCIT) (per curiam)

Guideline section 4A1.1(d) adds two criminal history points if the defendant committed the federal offense while under a criminal justice sentence, e.g., probation, parole or supervised release. The defendant here was deported to Italy in 2006 after completing the prison portion of a federal drug sentence that included a five-year term of supervised release. He was found in the United States in 2010, before the term of supervised release had expired, and the district court assessed those points. On appeal, he argued that this was error, because he had never been actively supervised in light of his deportation.

The circuit rejected this argument, joining at least five other circuits in holding that a term of supervised release is not extinguished by the defendant's deportation. The court also noted that the amended version of U.S.S.G. § 5D1.1 (November 1, 2011), which provides that courts should ordinarily not impose a term of supervised release at all where the defendant is an alien who will likely be deported after imprisonment, had no impact here. That provision does not apply where a term of supervised release is mandated by statute, and this was true in Roccisano's case, since the underlying conviction was for a drug crime.

PC World

United States v. Vallejo, No. 09-1673-cr (2d Cir. June 11, 2010) (Winter, Cabranes, Raggi, CJJ) (per curiam)

This latest per curiam opinion looks at the petty offense exception to the Sentencing Guidelines’ criminal history rules, set out in U.S.S.G. § 4A1.2(c)(1). That provision excludes from the criminal history score prior sentences for certain petty offenses and “offenses similar to them.” On appeal, Vallejo argued that his two prior convictions for unauthorized use of a vehicle in New York State were for an offense “similar to” the listed offense of careless or reckless driving.

But the circuit held that Vallejo had waived the claim. For one of them, a 2001 conviction, after a sentencing hearing he “expressly acknowledged” that the conduct underlying the conviction - stripping parts from a stolen car - warranted the assessment of a criminal history point. For the other, the underlying conduct was identical, so he waived his objection to that one too.

The court then went on - apparently in dicta - to agree with the district court that the criminal history points were warranted. Unauthorized use is higher level misdemeanor than reckless driving and requires a “higher degree of moral culpability” - proof that the defendant knew that he lacked the vehicle owner’s consent. It is also a trespassory offense, and thus poses a high risk that the owner or someone else might end up in a confrontation with the defendant.