### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 2548

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

J USTIN K OHL

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:17

‐ cr

‐ 00060

‐ 1

— William M. Conley

, Judge

.

____________________

A RGUED N OVEMBER 8, 2018

— D ECIDED D ECEMBER 12, 2018

____________________

Before F LAUM

, M ANION

, and S T

. E VE

, Circuit Judges

.

M ANION

, Circuit Judge

. Justin Kohl was convicted of three

federal controlled substance offenses. At sentencing, the dis

‐

trict court assigned Kohl criminal history category IV. The

district court included one criminal history point for a 2016

conviction in Wisconsin for operating a vehicle with a detect

‐

able amount of a restricted controlled substance in his blood.

Kohl argues that the district court erred by including the 2016

conviction because a first violation of the Wisconsin statute at2 No. 18

‐ 2548

issue does not carry a criminal penalty and should not have

been counted. We disagree with Kohl’s interpretation of the

Sentencing Guidelines and affirm the district court’s sentence.

I. Background

Kohl was indicted in June 2017 for one count of conspiracy

to distribute methamphetamine and two counts of possessing

methamphetamine with intent to distribute in violation of 21

U.S.C. §§ 841 and 846. He was found guilty of all three charges

in a bench trial conducted in April 2018 and was sentenced in

July 2018.

Kohl’s Presentence Investigation Report (PSIR) calculated

his criminal history score as seven, placing him in criminal

history category IV. The PSIR gave one criminal history point

based on Kohl’s 2016 conviction in Wisconsin for operating a

vehicle with a detectable amount of a restricted controlled

substance in his blood. W IS

. S TAT

. § 346.63(1)(am). Wisconsin

law punishes a first violation of this offense as merely a civil

violation and not as a criminal act. Id. §§ 346.65(2)(am), 939.12.

Kohl objected to the inclusion of the 2016 conviction be

‐

cause the Sentencing Guidelines provide that certain listed

misdemeanors and petty offenses, including local ordinance

violations that are not also violations of state criminal law, are

not to be counted. U.S.S.G. § 4A1.2(c)(2). He acknowledged an

Application Note in the Guidelines (“Note 5”) that qualifies

the above exclusion by requiring that convictions for driving

under the influence and similar offenses are always counted.

Id. at cmt. n.5. He argued, however, that his Wisconsin con

‐

viction is not a “similar offense” within the meaning of Note

5 because the offense does not include intoxication or impair

‐

ment as an element.No. 18

‐ 2548 3

Although the district court recognized that the Wisconsin

statute at issue does not require proof that the offender was

impaired or under the influence, the court disagreed with

Kohl’s interpretation of Note 5, holding that Kohl’s offense

was sufficiently similar to driving while intoxicated or under

the influence to qualify for inclusion. The district court also

stated, however, that category IV “probably overstates

[Kohl’s] criminal history,” and ultimately imposed a sentence

of 36 months. This sentence was well below the Guideline

range for category IV (77 to 96 months) and was also below

the Guideline range for category III (63 to 78 months), the cat

‐

egory to which Kohl would have been assigned if the dis

‐ puted conviction was not included. Kohl appeals the district

court’s sentence.

II. Discussion

We review the district court’s interpretation of the Guide

‐

lines de novo

. United States v. Grzegorczyk

, 800 F.3d 402, 405 (7th

Cir. 2015). Our interpretation of the Guidelines “begin[s] with

the text of the provision and the plain meaning of the words

in the text.” United States v. Hill

, 645 F.3d 900, 907 (7th Cir.

2011) (quoting United States v. Arnaout

, 431 F.3d 994, 1001 (7th

Cir. 2005)). We additionally consider the Guidelines’ Applica

‐

tion Notes “as part of the Guidelines themselves, and not

mere commentary on them.” Id. at 908 (quoting Arnaout

, 431

F.3d at 1001).

The calculation of a defendant’s criminal history score and

category is governed by U.S.S.G. §§ 4A1.1 and 4A1.2. Subsec

‐

tion 4A1.2(c) clarifies which kinds of prior convictions are to

be counted for purposes of calculating the criminal history

score. It provides that “[s]entences for misdemeanor and

petty offenses are counted, except” for certain listed offenses,4 No. 18

‐ 2548

including “ordinance violations” that are not also violations

of state criminal law. Id. § 4A1.2(c)(2). Note 5 to § 4A1.2 states,

however, that “[c]onvictions for driving while intoxicated or

under the influence (and similar offenses by whatever name

they are known) are always counted, without regard to how

the offense is classified. Paragraphs (1) and (2) of § 4A1.2(c)

do not apply.” Id. § 4A1.2 cmt. n.5. We have held that

§ 4Al.2(c) and Note 5, when read together, require even local

ordinance violations to be counted as prior convictions when

the violation falls within the scope of Note 5. United States v.

LeBlanc

, 45 F.3d 192, 194–95 (7th Cir. 1995).

Section 346.63 of the Wisconsin Statutes, labeled “Operat

‐ ing under in fl uence of intoxicant or other drug,” prohibits op

‐ erating a motor vehicle while “[u]nder the in fl uence of an in

‐

toxicant,” while “[t]he person has a prohibited alcohol con

‐

centration,” or while “[t]he person has a detectable amount of

a restricted controlled substance in his or her blood.” W IS

.

S TAT

. § 346.63(1)(a)–(b). A fi rst violation of any of the three of

‐

fenses prohibited by § 346.63(1) is penalized only by a forfei

‐

ture of $150 to $300, and therefore is not a crime under Wis

‐

consin law. W IS

. S TAT

. § 346.65(2)(am); id. § 939.12 (“Conduct

punishable only by a forfeiture is not a crime.”); see also State

v. Albright

, 298 N.W.2d 196, 201–02 (Wis. 1980) (recognizing

that “a ‘ fi rst’ violation of § 346.63(1) is not a criminal act”).

Kohl argues that the district court erred by interpreting

Note 5 to allow inclusion of his 2016 conviction in his criminal

history score. He asserts that since his fi rst o ff ense was not a

criminal act under Wisconsin law it is excluded under

§ 4A1.2(c), likening his o ff ense to an ordinance violation that

is not also a violation of state criminal law. He further asserts

that Note 5 does not apply because operating a vehicle with aNo. 18

‐ 2548 5

detectable amount of a restricted controlled substance does

not include an impairment or intoxication element, and there

‐

fore it is not a “similar o ff ense” to “driving while intoxicated

or under the in fl uence.” U.S.S.G. § 4A1.2 cmt. n.5. 1

We disagree. The plain language of Note 5 does not explic

‐ itly or implicitly require any level of impairment to be an ele

‐

ment of the o ff ense. It covers all o ff enses that are “similar to”

driving while intoxicated or under the in fl uence. The conclu

‐

sion that Kohl’s o ff ense is “similar to” driving under the in

‐

fl uence is supported by the inclusion of the o ff ense in Wiscon

‐

sin’s “Operating under in fl uence of intoxicant or other drug”

statute and within the same subsection as driving under the

in fl uence. See W IS

. S TAT

. § 346.63(1).

The issue in this case is similar to an issue examined by the

Ninth Circuit in United States v. Thornton

, 444 F.3d 1163 (9th

Cir. 2006). In Thornton

, the defendant was previously con

‐

victed in California of driving with a 0.08 percent blood alco

‐

hol level. Id. at 1164. This was a strict liability o ff ense that re

‐ quired no proof of impairment, although the o ff ense was

listed as a subsection of California’s “driving under the in fl u

‐

ence” statute. Id. at 1165–66. Thornton, like Kohl, argued that

1 The government pointed out in its briefing that even though the offense

does not include an impairment element, the factual allegations contained

in the PSIR suggest that Kohl was in fact impaired: he was allegedly found

unconscious in a running vehicle on the side of the road, with red and

glossy eyes, green foam around his lips, and dried blood beneath his nose.

In determining whether the offense for which he was convicted is a “sim

‐

ilar offense” to driving while intoxicated or under the influence, however,

we focus on the elements of the offense rather than the allegations con

‐

tained in the PSIR.6 No. 18

‐ 2548

because his “conviction, on its face, [did] not permit the con

‐

clusion that he drove while under the in fl uence,” it should not

be counted as a similar o ff ense under Note 5. Id. at 1166. The

Ninth Circuit held instead that “[a]lthough

... the State did

not need to prove that his driving was impaired to convict

him,” it was clear that the o ff ense at issue “proscribe[d] con

‐

duct ‘similar’ to driving under the in fl uence.” Id. The court

found additional support for this conclusion in the fact that

the penalty for violating any subsection of California’s driv

‐ ing under the in fl uence statute “is the same, regardless of the

subsection under which a defendant is convicted.” Id.

Kohl argues that Thornton is distinguishable because the

case involved “a presumption of impairment based on the

quantity of alcohol in the driver’s system” and that the Ninth

Circuit focused on the presumption of impairment in reach

‐ ing its conclusion. It is true that the Ninth Circuit noted that

under California law operating a vehicle with a blood alcohol

level of 0.08 percent or higher creates a presumption that the

driver was under the in fl uence. Id. But the court did not base

its holding on the presumption of impairment. Instead, the

court concluded that the o ff ense on its face “falls squarely

within the language of” Note 5, even though it required no

proof of impairment. Id. The court then went further to state

that “[a]side from the inherent logic of this conclusion, we

fi nd support for it” in California’s rebu tt able presumption of

impairment. Id. Thus, while the presumption of impairment

provided additional support, it was not the focus of the

court’s holding that the o ff ense in question was logically

“similar to” driving under the in fl uence even absent proof of

impairment. Id. at 1167 (“Because we hold that [Thornton’s

prior conviction] is ‘similar’ to a conviction for driving under

the in fl uence, the district court did not need to fi nd thatNo. 18

‐ 2548 7

Thornton’s driving was impaired

... in order to include that

o ff ense in calculating his criminal history score.”).

We conclude that the same “inherent logic” noted by the

Ninth Circuit supports the conclusion that Kohl’s conviction

is a “similar o ff ense” within the meaning of Note 5. Just like

the o ff ense at issue in Thornton

, this o ff ense is included within

the State’s “[o]perating under the in fl uence” statute, which

logically suggests that the o ff ense is “similar” to driving un

‐

der the in fl uence. Also as in Thornton

, the fact that a fi rst of

‐

fense of operating a vehicle with a detectable amount of a re

‐

stricted controlled substance is subject to the same penalty as

a fi rst o ff ense of operating a vehicle “[u]nder the in fl uence of

an intoxicant” further demonstrates that these o ff enses are

similar. See W IS

. S TAT

. § 346.63(1); id. § 346.65(2)(am) (de fi ning

the penalties for fi rst o ff enses under § 346.63(1)).

We conclude that Kohl’s conviction for operating a vehicle

with a detectable amount of a restricted controlled substance

in his blood quali fi es as a similar o ff ense under Note 5, and

therefore the district court properly included that o ff ense in

Kohl’s criminal history score. 2

III. Conclusion

For the reasons stated above, we AFFIRM the sentence.

2 The government also raised the alternative argument that any error was

harmless since the district judge selected a sentence well below the Guide

‐

line range. Because we hold that the district court committed no error by

including the Wisconsin offense in Kohl’s criminal history score, we need

not address the harmless error question.