United States v. Davis.
No. 24-5018. 2/25/2025. N.D.Okla. Judge Kelly. US Sentencing Guidelines § 4A1.2(c)(2)—Prior Conviction for Underage Drinking—Conviction Similar to a Juvenile Status Offense—Common Sense Approach to Similarity Analysis.
February 25, 2025
Davis was convicted of aggravated sexual abuse in Illinois in 2011 and was required to register as a sex offender. In 2012, when Davis was 20 years old, he was convicted in Illinois of illegal consumption of liquor by a person under 21 after he was caught drinking at a private residence. In 2013, Davis moved to Oklahoma, and US marshals could not verify that he complied with the sex offender registration requirements. The Oklahoma Department of Human Services began investigating allegations that Davis was sexually abusing his wife’s 11-year-old sister while in failure-to-register status. Davis pleaded guilty to failing to register as a sex offender. The presentence investigation report (PSR) included two points for his underage drinking conviction and assigned Davis a criminal history score of 13, giving him a criminal history category of VI and a US Sentencing Guidelines (USSG) range of 51 to 63 months’ imprisonment. At sentencing, defense counsel argued that Davis’s conviction was similar to a juvenile status offense and should thus be excluded from his criminal history score under a common sense approach. The district court adopted the PSR’s factual findings, varied upward, and sentenced Davis to 87 months’ imprisonment followed by 10 years’ supervised release.
On appeal, Davis argued that his underage drinking conviction is “similar to” a juvenile status offense under USSG § 4A1.2(c)(2), so the district court erroneously added two criminal history points for that conviction, which raised his criminal history category from category V to category VI. USSG § 4A1.2(c)(2) provides that, when calculating a defendant’s criminal history score, sentences for certain prior offenses—including juvenile status offenses—and similar offenses are not counted. The USSG do not define an offense “similar to” a juvenile status offense, but Comment 12(A) to § 4A1.2 directs courts to adopt a “common sense approach” to the similarity analysis. The Tenth Circuit thus applied a common sense approach and concluded that (1) Davis’s conviction and the conduct underlying that conviction renders it similar to a juvenile status offense, because had he engaged in the same conduct when he was a few years younger, the offense would constitute a juvenile status offense; (2) the purpose of § 4A1.2(c)(2) is to exclude offenses that are minor relative to sentencing goals, so § 4A1.2(c)(2)’s “similar to” category is meant to include offenses like Davis’s, which would constitute a juvenile status offense but for the defendant’s greater age; and (3) § 4A1.2(c)(2) excludes sentences for public intoxication. The district court thus erred in adding two criminal history points for Davis’s underage drinking conviction.
The case was remanded with instructions to vacate Davis’s sentence and resentence him.