and eleven this court held that the proper inquiry is the actual conduct underlying the prior conviction not the general nature of the crime and based on this guidance the facts of this case are important here's what we know from page one hundred and thirty one of the record on may th two thousand and eleven deputies responded to a call of individuals armed with guns the defendant was encountered in the area in which questioned while speaking to the defendant deputies observed signs that mr smith was under the influence of a controlled substance he admitted he had received recently used methamphetamine in was taken into custody then on june th two thousand and eleven he pleaded guilty the judge deferred judgment in ordered mr smith to participate in drug court your honor section four a one two c two of the u s hits in guidelines manual lists five factors to consider when weighing the similarity of two off and says before i get to the five factors specifically i would like to comment on the general nature of the case law in this area there is a small sea of cases comparing statute to one of the offices on the list here in the guidelines but they just kind of in a hierarchy in the two most detailed explanations and analyses are both in cases from this court united states versus hardiman in  and ninety one in united states versus hernandez in two thousand and eleven in there's a reason why this court opinions have taken priority over other core and that's because in united states versus hard this court was the st court to articulate the five factors that the sitting commission ultimately adopted expressly in two thousand and seven in amendment seven hundred and nine so before two thousand and seven you see most courts just looking at the elements in drawing an inference from that what the culpability is but only this court has consistently applied the five factors and only has done so really in great detail the listed in unlisted often says i think this is the only factor that's treated categorically where you look at the range of punishments available in this case the california legislature and then comparing that t typical off since of public intoxication in california the range of vailable punishments is probation up to one year in county jail based on my survey of public intoxication that would be on the high end of the available range the only state i could find that pump punishes public intoxication is the state of georgia which is also up to one year in prison but i would that if mr smith committed this exact same conduct standing on a street corner high on meth amphetamine unable to properly communicate with the police officer if he had done so in the state of texas he could only be charged with one off events in that as public intoxication now that said based on the high range of this california office i would say this is the only factor that does in fact w alcohol is not illegal but drugs or well i would if a size in response your honor the mistake many of the courts and other circuits have made is to treat public intoxication as an alcohol specific statute public intoxication includes not only our hall but also controlled substances and that's expressly stated in the language of the public intoxication from the model penal code from black's law dictionary in the state of texas so i think it's a bit of a red herring to say well public intoxication is less culpable because it also includes  when the reverse is also true it also includes controlled substances and i also think that the conclusion that alcohol culpability is somehow doesn't pose the same risk direct risk to other individuals is also misguided the nd factor that the citizen commission put forth from hardiman is the perceived seriousness of the often set as indicated by the level of punishment now as this court made clear in hernandez and in hardeman this is fact pacific so we evaluate the actual punishment imposed in that case based on that in this case deferred adjudication ordered to appear in drug court on page one hundred and thirty one dollars of the record the perceived seriousness by the judge is very very low i would contrast that to united states versus hernandez for this court held that there is in fact no similarity between obstructing a highway and loitering in this court observed well the defendant in the obstruction case had been sentenced to one hundred and fifty days in jail so that showed i higher level of seriousness that's code is similar to public public intoxication and i guess i have a two part question one is are there in courts on the other side interpret in this provision of the california penal code and assuming you do that is no is there any court that said that the use of methamphetamine is quote similar to loitering or vagrancy or getting a speeding ticket no your honor so would we be the st court that would say that in order to agree with you this would be the st court to hold that this california statute so questions should civically under the hole that this california statute is similar to under these factors public intoxication i would comment however that this would be  the st court to consider all five factors when making that evaluation but in order to do the st thing you said that is similar to public intoxication would we also i mean it's a less straights would we have to in subsection c would we also have to say it's similar to hitch hiking fishing game violations to unseat cetera you know your honor every case listed in all of the briefing that i've read always do a one to one comparison  i know the government has discussed the canon of construction associates which says that you evaluate something based on its companion that's not necessary here because we don't have an ambiguity in this particular provision you would only reach for that if we don't know how to figure out what public intoxication is but we know how to this court has held that when trying to find the generic version of it all fits you look to the model penal code you look to black's law dictionary and it times this court has substituted the texas version of the office in place of the generic but we don't need to worry about fish and game violations to know what public intoxication means and i haven't seen a court that really approaches it that way so i think that's going a bit in the wrong direction it appears and the government not you for your question of course the under the california penal code provision that or if you if you look at it that there's a penalty provision in what it says is if you're encountered by an officer the officer shall take you to treatment for seventy two hours but then it says  punishment up to six months in jail plus a one thousand dollars fine and with an alternative there and i don't have the list for that i wrote that at the bottom here so there is an or under certain circumstances where you may just have to and i'm not sure what those are but there is an alternative that was my reading of it now i do want to come back to your question of that judge oldham so there are three cases that have done this comparison between a drug often it's and public intoxication they're all in the government's brief also in my brief in part martinez roy in law clear these cases particularly martinez was criticized by this forty united states versus hardiman for doing a truncated version of the analysis and if i were to summarize those three cases they all say the same thing this includes drugs not just alcohol therefore it's more culpable and the analysis is slim and the analysis is also flawed in here's what i mean by that when we look to culpability the culpability involved in your typical public intoxication statute is higher than was involved in this california statute but because your typical public intoxication statute poses as an element a direct response to another individual here's what i mean by that in california penal code six hundred and forty seven f the one you are referencing judge i'm one of the things that you have to do to commit this crime is to be unable to exercise care for your safety or the safety of others or interfere with or obstruct or perfect the free use of a street sidewalk or other public way the guidance here is united states versus lamb before this court where this court held that shoplifting is worse than not similar to passing a bad check because there's an increased risk of confrontation in shoplifting that you don't have with passing a bad check the same is true with all of these generic versions of the public intoxication statute where you have to be not just drunk or high you have to also be causing trouble to commit that statute but if you look at the california oftens that mr smith was convicted under you don't have to be causing any trouble in fact you can be sitting in your own home all it says is a person shall not use or be under the influence of any controlled substance i would like to emphasize this judge told me you referred to six hundred and forty seven f as the california public intoxication statute my view is a little bit different  i'm sorry i thought we just said that eleven thousand five hundred and fifty is not public intox it's just intoxication by use of controlled substances whereas the other one is literally says public place under the influence that's right so i take your point your honor that you can be at home therefore it may not be considered public it's better than public intoxication in that sense because it presents less risk and i think it would be a mistake to say oh well it's not it's not similar to this list of petty offices because it requires less culpability then this list all the cases that i've read that that reject a similarity analysis have concluded will it presents more risk more culpability different elements worse elements in this case the elements are the same or better the risk the direct risk to another individual is the same or better but it does look like i'm curious about your explanation of the six months in jail because what i see in and forty seven is actually in which talks about a violation of subsection is that a person has been placed in civil protective custody under subsection of shall not there be after be subject to any criminal prosecution based on the facts giving rise to the placement that is the public intoxication so if there's perhaps there's a different version of the statute or or i'm not sure exactly what it is but i at least the version i have been the one that i can see on westlaw says says no there's no criminal prosecution for that petty often so it's a lesser offense than using controlled substances in your honor i don't have the full stash in for me if you would at least permit me to say do a supplemental brief just on that particular question it would be about two sentences and if i'm wrong towards his criminal history score as a result of this court should not create a circuit split by treating a california statute that prohibits the public or private use of methamphetamine heroin cocaine as being somehow akin to public intoxication sentencing guidelines group with less serious offices like fish and game violations truancy and speeding now before i get to my presentation i would like to clear up i hope something concerning judge all in question on california and forty seven because judge ruled and you are correct that under certain circumstances a police officer in her own discretion may choose rather than taking someone who is intoxicated to the point where they can't control themselves to civil commitment that said there is a nother subsection below that that sort of circumscribed that ability and it has to do with whether or not someone is under the influence of drugs versus being under the influence of alcohol so an officer does not have the discretion to take that sort of person into a civil custody situation and not prosecute that particular person that said in a moment i hope to get to why the two officers and offices in their punishments diverge significantly but before i do that i'd like to talk just a pretty clearly more serious than the ones listed in c two they involve things like disorderly conduct disturbing the peace gambling prostitution trespassing now the purpose of talking about the placement of public intoxication among the less serious of done in order to give a sense of what the drafters of the sensing guidelines believed the seriousness of public intoxication to be it is among offices that are relatively on serious local ordinance violations hitchhiking truancy moving violations so by doing that and you know the drafters could have listed something about controlled substances within that c to list and they didn't do so and i think that was a deliberate choice and when it comes to defining public intoxication i disagree with my friend that it is a easy task it is not an easy task there are huge number of definitions across jurisdictions across secondary sources and the only two common features that i have taken away from all of those sources are that a person must be in public and that they must be under the influence of at least alcohol and by placing public intoxication among the less serious often says i take from it that the sentencing guideline drafters meant to have its plain and ordinary meaning of being only under the influence of alcohol and not something more aggravated than that but that's not what the statutes always say is it i mean they don't draw any distinction between public intoxication from alcohol for spoken intoxication from some kind situation and i'd like to before getting to that talk about just briefly what the th circuit in th circuits did because i also disagree with my friend that the th circuit martinez didn't go through the commonsense factors they did go through a number of the commonsense factors not all of them but they compared the statute to the california public intoxication statute they noted that public intoxication is not widely criminalized which i believe is generally the case they noted that the conduct underline the events in mr martinez's case which was the use of heroin is much more widely culpable it's widely criminalized and that is drawn in contrast to something like the use of alcohol which is otherwise legal which is the same conclusion that the th circuit reached because the substance issue there cocaine is always criminalized while something like alcohol is not but turning to the commonsense factors i'd like to talk to about the st two which is a comparison of the punishments and he perceived seriousness of the oftens when it comes to punishments this is a very bad fact for mr smith because the punishments with respect to the california statute are much more serious than any punishment for any public intoxication only oftens i've seen anywhere in the country i'll talk about georgia in a moment but just when it comes to the california statute for which mr smith was convicted that carries a maximum sentence of three hundred and sixty five dollars days in jail versus the california public intoxication maximum which is one hundred and eighty dollars days that carries a potential five year term probation whereas the california public intoxication statute has no similar term of probation and it also has a potential mandatory minimum sentence if a person for example has been convicted of this office more than two times in a seven year time span and then upon a rd conviction they refuse drug treatment judge is capable of giving that person a one hundred and eighty dollars day mandatory minimum sentence so in california at the very least they take the statute fo mr smith was convicted much more seriously than six hundred and forty seven dollars f and the distinction i think is even starker when you compare the punishments to public intoxication or their analogues in other states the most serious punishment i've seen in any state for something that is only public intoxication related is one hundred and eighty dollars days and that's in indiana in a place like iowa it's thirty days in a place like texas it is a five hundred dollars fine and then there's the rash of states that don't criminalize public intoxication whatsoever i think there's at least a dozen of which i'm aware now my friend talked about the georgia statute but i don't think the georgia statute can be fairly characterized as being public intoxication because it goes more into the realm of being disorderly conduct to to be convicted under that georgia statute someone has to both be intoxicated and act in a way that's boisterous or loud or aggravating to others around them which is one of the which i believe takes it in the realm of disorderly conduct which is something that this court counts  criminal history score so long as the minimum punishment threshold has been met with respect to the rd element of the commonsense test a comparison of the elements again this is a situation where this particular the open to be convicted for that particular crime and so i think what we're dealing with here are just simply two different offices and as a result this is another element that cuts against mr smith's contention now as far as the  relative culpability of the off chance and the predictive value it has for somebody's criminal future will in terms of the perceived seriousness i think the th circuit put it best even though is with respect to marijuana less serious substance than methamphetamine and indicated that to obtain marijuana simply someone is engaging in more culpable criminal conduct than somebody who is merely over indulging in an otherwise illegal substance like alcohol a to hear to obtain methamphetamine what a person has to put themselves inside the drug economy they have to fund the drug economy it is much more culpable conduct and simply over indulging in something like alcohol which you can legally buy all over the place but you deal with that with the position sharks go well it is possible your honor although in a case like mr spence he did not have possession of the methamphetamine at the time he was arrested he was just under the influence of the methamphetamine that time  and finally the th commonsense factor also cuts against mr smith because after he was convicted for this particular office in california he was engaging in a wide variety of criminal conduct even before he got against mr smith's argument and i would like to just say that if mr smith had his way the outcome would be such that if somebody were convicted of a trespassing oftens and they received a one year term of probation and no incarceration whatsoever they would receive a criminal history point but if somebody like mr smith broke the law in california again and they under eleven thousand and fifty five dollars and they took methamphetamine and they got a one year sentence of incarceration that person would receive no criminal history points i do not believe by placing public intoxication among crimes like fish and game violations and local ordinance violations and speeding and truancy the drafters of the sentencing guidelines had in mind that particular outcome please the court your honors for short short points on rebuttal the way the government defines public intoxication is alcohol plus in public plus no other conduct under that definition the model penal codes definition of public intoxication would not be public intoxication blocks all dictionary definition would not be public intoxication the texas definition would not be public intoxication it's far too narrow i've never seen a public intoxication statute that says alcohol plus public plus no other conduct perhaps a common law i'm not sure but that's a very very narrow narrower than generic public  intoxication nd as to martinez the government said that martinez used all the factors are most of the factors this court criticized martinez and united states versus hardiman for having too restrictive of an approach saying we conclude that the sentencing courts should not be restricted either by the method by either method suggested by the parties or by the approach adopted by the majority in martinez which simply concluded in one paragraph this includes drugs therefore more culpable rd i want to talk about culpability this court consistently in the united states versus lamb united states versus sanchez cortez hernandez and hardiman four cases has assessed culpability based on the direct risk posed to the public this court further said and i think this is getting lost that this is a fact specific inquiry so what is the risk to the public when we look at what mr smith actually did he stood on the street corner high on something which he later admitted to be methamphetamine and the point i want to make is this you know i travel a lot to major cities and i walk down the street past a lot of people who were on thing and i ask myself the question what raises my blood pressure more walking past someone who's high on something minding their own business or walking past someone who's drunk on alcohol causing trouble and the level of culpability that james smith exhibited here is very very low based on the actual facts on page one hundred and thirty one th the last factor dealing with future conduct or predictability i think the way that the sentencing commission chose the language the degree to which the commission indicates a likelihood of recurring future conduct  narrows the focus and it's not enough just to say well now we know he did more things therefore we know in the past that that was predictive of future conduct certainly intoxication often says will will be predictive of future conduct a person who's addicted to alcohol can can carry that addiction their entire life mr smith has dealt with narcotics addiction  for his adult life starting when he was eighteen years old and the same is true for public intoxication so high on the street corner on drugs drunk on the street corner causing trouble i don't see a huge difference between the two if there is a difference mr smith posed less of a risk to the harm of others i would like to add a th point since i have a little bit more time the government has characterized this as at least related to the buying and selling of narcotics the obvious inference there the common sense inference is if you're going to do drugs you've got to get them from somewhere  we do have we don't have any evidence on page one hundred and thirty one dollars of how that happened we do have a little bit of evidence a few pages later in the pre sentence report dealing with other offices that were not charged  the same year when he also when he was eighteen years old there was another incident where he called the police fearful that someone was going to harm him when the police encountered him they didn't see anyone else he seemed to be out of it and he told police that he was high on methamphetamine in that a person he knew how to injected him so based on that if that's true it was a drug buddy situation not a being a drug dealer being a drug buyer in the way that poses the risk perhaps of the government is suggesting so it's for these reasons that at least four out of the five way in favor of mr smith that we asked this court to