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Date: 11-22-2017

Case Style:

United States of America v. John Francis Ley

Third Circuit Court of Appeals - Philadelphia, Pennsylvania

Case Number: 16-3793

Judge: Fisher

Court: United States Court of Appeals for the Third Circuit on appeal from the Western District of Pennsylvania (Allegheny County)

Plaintiff's Attorney: Soo C. Song and Laura S. Irwin

Defendant's Attorney: Lisa B. Freeland and W. Penn Hackney - FPD

Description: This case concerns the criminal history provisions of the
Sentencing Guidelines. A defendant’s criminal history is
calculated by assigning points for prior sentences. The
Guidelines instruct that prior sentences “always are counted
separately if the sentences were imposed for offenses that were
separated by an intervening arrest.” United States Sentencing
Commission, Guidelines Manual
§ 4A1.2(a)(2) (USSG). The
question presented here is whether a traffic stop, followed by
the issuance of a summons, constitutes an intervening arrest in
the context of the criminal history Guidelines.
I
John Francis Ley pleaded guilty in the United States
District Court for the Western District of Pennsylvania to a
single count of being a convicted felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).
According to the presentence investigation report prepared by
the United States Probation Office, Ley sustained a 2006
conviction for felony aggravated assault in Pennsylvania. The
report classified this conviction as a “crime of violence” under
the career-offender Guideline, USSG § 4B1.2(a)(1), and
recommended a base offense level of 20. See Id. §
2K2.1(a)(4)(A). Various adjustments produced a total offense
level of 19.
The criminal history Guidelines require the cumulative
counting of sentences for offenses that are separated by an
intervening arrest. Id. § 4A1.2(a)(2). If there is no intervening
arrest, however, prior sentences are counted as a single
sentence if those sentences were imposed on the same day. Id.
Ley’s long criminal record earned him seven criminal history
points with a criminal history category of IV. Two of those
seven points were based on prior convictions for possession of
drug paraphernalia. The first offense stemmed from a traffic
4
stop on September 28, 2015; the second from a traffic stop the
following day. After each, the police released Ley from the
scene and advised him that the case would proceed via
summons. Ley pleaded guilty and was sentenced for both
offenses on the same day in May 2016. His total offense level
and criminal history category together produced a Guidelines
sentencing range of 46 to 57 months of imprisonment.
Ley objected to the presentence report, arguing that his
two prior drug paraphernalia sentences should be treated as a
single sentence because they were imposed on the same day
and were separated not by an intervening arrest, but by a traffic
stop, followed by the issuance of a summons to appear. Had
the sentences been treated as a single sentence, Ley argued, he
would have only been assessed six criminal history points,
resulting in a criminal history category of III, rather than IV,
and a sentencing range of 36 to 47 months.
The District Court tentatively overruled Ley’s
objection. Two days later, the Probation Office filed a
supplemental addendum standing by its position in the
presentence report. Ley was eventually sentenced to 46
months’ imprisonment, the lowest end of the applicable
Guidelines range. This appeal followed.
II
The District Court had jurisdiction under 18 U.S.C. §
3231. This Court has jurisdiction under 18 U.S.C. § 3742(a)
and 28 U.S.C. § 1291. We exercise plenary review over the
District Court’s interpretation of the Sentencing Guidelines,
and review its factual findings for clear error. United States v.
Georgiou, 777 F.3d 125, 146 (3d Cir. 2015).
III
The central issue to be discussed requires the Court to
5
determine whether the word “arrest,” as it appears in USSG §
4A1.2(a)(2), includes a traffic stop, followed by a summons to
appear. If it does not, the District Court miscalculated Ley’s
criminal history and, by extension, his sentencing range.
Before considering that question, we first address the
Government’s contention that the record establishes that Ley
was subject to an intervening arrest.
A
The Government asserts that the supplemental
addendum to the presentence report shows that, as a factual
matter, Ley was arrested on September 28, 2015. Responding
to Ley’s objection to the presentence report’s treatment of his
drug paraphernalia convictions as separate sentences, the
supplemental addendum states: “In this case, the defendant was
arrested for the first offense . . . on September 28, 2015. [This]
not only is supported by the narrative in [the presentence
report], but also [by] the Magisterial District Court Docket
Sheet, the defendant’s sentencing order, and the defendant’s
rap sheet, all of which list the defendant’s arrest date as
‘September 28, 2015.’” But the supplemental addendum also
forthrightly adds that “[d]efense counsel is correct that the
defendant was released from the scene on September 28, 2015,
and [advised] that the case would proceed via summons.” Id.
(emphasis added).
Nothing in the documents cited in the supplemental
addendum indicates in any way that Ley was arrested on
September 28, 2015. The narrative for that offense in the
presentence report says not one word about an arrest. Nor can
we say the listing of Ley’s “arrest date” in the state court
records—which were never produced in the District Court—
demonstrates that Ley was in fact arrested. For all we know,
those records treat the date of the issuance of a summons as an
6
“arrest date.” Of course, we can only speculate—and
speculation is all the Government has to work with here.
In our view, the supplemental addendum merely
restates the legal dispute between the Government and Ley; it
does not create a new factual one. As the District Court
described the supplemental addendum at sentencing, the
document serves as “the Probation Office’s retort to [Ley’s]
position that the two arrests or two experiences with law
enforcement in September [2015] that followed one day after
another were not being treated as one offense,” thus
demonstrating the Probation Office’s “agree[ment] with the
[District] Court’s finding that a [traffic stop, followed by a]
summons counts as an arrest.” App. 36. We agree with the
District Court, and find it difficult to accept that the
supplemental addendum stands for the factual proposition the
Government ascribes to it.
The Government nonetheless insists that we should not
entertain any of Ley’s arguments concerning the supplemental
addendum. Since Ley never raised an objection to the
supplemental addendum either at sentencing or in his opening
brief in this Court, the Government asserts that Ley waived any
challenge to the facts set forth in that document. See United
States v. Joseph, 730 F.3d 336, 342 (3d Cir. 2013) (“[T]o
preserve an argument and avoid waiver, the argument
presented in the Court of Appeals must depend on both the
same legal rule and the same facts as the argument presented
in the District Court.”); United States v. Pelullo, 399 F.3d 197,
222 (3d Cir. 2005) (“It is well settled that an appellant’s failure
to identify or argue an issue in his opening brief constitutes
waiver of that issue on appeal.”). At the same time, the
Government concedes that Ley has clearly preserved the legal
issue of whether a traffic stop, followed by a summons, is an
intervening arrest. The Government’s claim of waiver
7
therefore rises or falls on the import of the supplemental
addendum.
Our precedent on waiver draws a distinction between
“issues” and “arguments”—“an issue can be broader in scope
than an argument in that an issue may be addressed by multiple
arguments, which are the most basic building blocks of legal
reasoning.” Joseph, 730 F.3d at 337. To preserve an argument
for appeal, a party “must have raised the same argument in the
District Court—merely raising an issue that encompasses the
appellate argument is not enough.” Id. (emphasis in original).
As we have explained, the supplemental addendum adds no
factual controversy to the pure legal dispute over the
interpretation of the word “arrest.” It follows that the
Government’s attempt to manufacture waiver must be rejected.
B
The Court now turns to the parties’ dispute over the
District Court’s interpretation of the Sentencing Guidelines.
Chapter 4 of the Guidelines contains provisions detailing the
manner in which district courts are to compute a defendant’s
criminal history. Section 4A1.1 assigns various point values
to prior sentences. The term “prior sentence” is defined as “any
sentence previously imposed upon adjudication of guilt,
whether by guilty plea, trial, or plea of nolo contendere, for
conduct not part of the instant offense.” USSG § 4A1.2(a)(1).
Section 4A1.2(a)(2) sets forth what is known as the “single
sentence” rule. In relevant part, it provides:
If the defendant has multiple prior sentences,
determine whether those sentences are counted
separately or treated as a single sentence. Prior
sentences always are counted separately if the
sentences were imposed for offenses that were
separated by an intervening arrest (i.e., the
8
defendant is arrested for the first offense prior to
committing the second offense). If there is no
intervening arrest, prior sentences are counted
separately unless (A) the sentences resulted from
offenses contained in the same charging
instrument; or (B) the sentences were imposed
on the same day. Treat any prior sentence
covered by (A) or (B) as a single sentence.
USSG § 4A1.2(a)(2) (emphasis added). The Sentencing
Commission first added the “intervening arrest” language in
1991 as an application note to section 4A1.2. USSG app. C,
amend. 382 (effective Nov. 1, 1991). It was later moved to the
body of section 4A1.2(a)(2) in 2011. Id. App. C, amend. 709
(effective Nov. 1, 2011).
Counting prior sentences as a single sentence can have
significant consequences for a defendant. For Ley, it would
mean one fewer criminal history point, resulting in a lower
criminal history category and, in turn, a lower recommended
sentencing range. The single sentence rule also applies to other
aspects of the Guidelines, including classification as a career
offender, id. § 4B1.2 cmt. n.3, and computation of the base
offense level for certain crimes, e.g., id. § 2K1.3 cmt. n.9
(offenses involving explosive materials); id. § 2K2.1 cmt. n.10
(offenses involving firearms or ammunition); id. § 2L1.2 cmt.
n.3 (unlawful entering or remaining in the U.S.).
As with statutory interpretation, we “read Guidelines
provisions for their plain meaning.” United States v. Stinson,
734 F.3d 180, 184 (3d Cir. 2013) (internal quotation marks
omitted); see also Perrin v. United States, 444 U.S. 37, 42
(1979) (“It is a fundamental canon” of textual interpretation
that “unless otherwise defined, words will be interpreted as
9
taking their ordinary, contemporary, common meaning.”). In
ordinary usage, an “arrest” is “the taking or detainment (of a
person) in custody by authority of law” or “legal restraint of
the person; custody, imprisonment.” Webster’s Third New
International Dictionary 109-10 (unabridged ed. 1993)
(Webster’s Third); see also Black’s Law Dictionary 124 (9th
ed. 2009) (Black’s) (“The taking or keeping of a person in
custody by legal authority, [especially] in response to a
criminal charge . . . .”). A “summons,” by contrast, is “a
warning or citation to appear in court,” such as “an order to
appear to answer a criminal charge [usually] for a minor
offense where arrest of the defendant is not regarded as
appropriate or necessary.” Webster’s Third 2290; see also
Black’s 1574 (“A writ or process commencing the plaintiff’s
action and requiring the defendant to appear and answer.”).
The ordinary usage of the term arrest does not sensibly
include the issuance of a summons. Consider the everyday
example of jaywalking. Out of concern for the safety of
pedestrians and drivers alike, many states and municipalities—
including every jurisdiction in the Third Circuit—make
jaywalking unlawful. See, e.g., Del. Code Ann. tit. 15 §§ 4108-
09, 4141; N.J. Stat. Ann. §§ 39:4-32 to -34; 75 Pa. Cons. Stat.
§ 3543; V.I. Code Ann. tit. 23 §§ 410, 413-14, 416, 420. The
Government confirmed its position at oral argument that a
jaywalking summons would count as an arrest for purposes of
the criminal history Guidelines. But were a summons actually
treated as an arrest in the real world, the changes in settled
expectations would be far-reaching. Government agencies ask
about arrest records when hiring for jobs ranging from
sensitive national security positions to police officers to prison
guards. Similar examples abound, including private-sector
employment applications, college admissions, visa
applications, and background checks. See United States v.
10
Leal-Felix, 665 F.3d 1037, 1045 (9th Cir. 2011) (en banc)
(McKeown, J., concurring). Treating a summons as an arrest,
it is safe to say, “defies our common experience and would be
a paradigmatic shift.” Id.
It should come as no surprise, then, that constitutional
criminal procedure jurisprudence has long distinguished
arrests and summonses (and the summons’s close sibling, the
citation). Under the Fourth Amendment, for example,
concerns for officer safety and preservation of evidence permit
the police to conduct a warrantless search of an individual
incident to arresting him. See United States v. Robinson, 414
U.S. 218 (1973). But in Knowles v. Iowa, 525 U.S. 113 (1998),
the Supreme Court held that such authority does not extend to
the issuance of a citation following a traffic stop. In so
concluding, Knowles declined to analogize the issuance of a
traffic citation to a formal, custodial arrest. See id. at 117 (“The
threat to officer safety from issuing a traffic citation . . . is a
good deal less than in the case of a custodial arrest.”).
In the context of damages actions brought under 42
U.S.C. § 1983 for violations of the Fourth Amendment, this
Court has refused to treat the issuance of a summons as a
seizure, much less an arrest. In DiBella v. Borough of
Beachwood, 407 F.3d 599 (3d Cir. 2005), we explained that the
plaintiffs there “were only issued a summons; they were never
arrested; they never posted bail; they were free to travel; and
they did not have to report to Pretrial Services.” Id. at 603.
Like this Court, the First, Second, and Seventh Circuits
have determined that a summons requiring the appearance in
court does not amount to a Fourth Amendment seizure. See
Britton v. Mahoney, 196 F.3d 24, 30 (1st Cir. 1999); Burg v.
Gosselin, 591 F.3d 95, 98 (2d Cir. 2010); Bielanski v. County
of Kane, 550 F.3d 632, 642 (7th Cir. 2008). The Sixth and
11
Tenth Circuits have reached the same conclusion when it
comes to traffic citations. See DePiero v. City of Macedonia,
180 F.3d 770, 789 (6th Cir. 1999); Martinez v. Carr, 479 F.3d
1292, 1298-99 (10th Cir. 2007) (Gorsuch, J.); see also
Technical Ordnance, Inc. v. United States, 244 F.3d 641, 651
(8th Cir. 2001) (“This circuit has never held that pretrial
restrictions such as [a summons to appear in court] constitute a
Fourth Amendment seizure.”); 3 Wayne R. LaFave, Search
and Seizure § 5.1(i), at p. 104 (5th ed. 2012) (“Resort to the
citation or summons alternative is not in and of itself an arrest
or, for that matter, any variety of Fourth Amendment
seizure.”).
A similar understanding of arrest is reflected in caselaw
regarding Miranda warnings that the police must give suspects
under custodial interrogation. A suspect is “in custody” for
Miranda purposes when there is “a formal arrest or restraint on
freedom of movement of the degree associated with a formal
arrest.” Thompson v. Keohane, 516 U.S. 99, 112 (1995)
(internal quotation marks omitted). The Supreme Court has
held, however, that a roadside interrogation of a motorist
pulled over during a traffic stop is not a “formal arrest” because
a motorist is not “completely at the mercy of the police,” but
instead expects a “presumptively temporary and brief”
encounter in which “he may . . . be given a citation” and “in
the end . . . most likely will be allowed to continue on his way.”
Berkemer v. McCarty, 468 U.S. 420, 437-38 (1984); see also
Maryland v. Shatzer, 559 U.S. 98, 113 (2010) (“[T]he
temporary and relatively nonthreatening detention involved in
a traffic stop or Terry stop does not constitute Miranda
custody.” (citation omitted)). This is so notwithstanding “the
aura of authority surrounding an armed, uniformed officer”
during a traffic stop “and the knowledge that the officer has
some discretion in deciding whether to issue a citation.”
12
Berkemer, 468 U.S. at 438. Miranda instead comes into play
during a traffic stop “as of the moment [the suspect is] formally
placed under arrest.” Id. at 434.
The foregoing considerations, it is fair to conclude, all
point in one direction: a traffic stop, followed by the issuance
of a summons, is not an arrest. The Court therefore holds that,
for purposes of section 4A1.2(a)(2) of the Sentencing
Guidelines, an arrest is a formal, custodial arrest. This accords
with the view of three other courts of appeals. The Sixth
Circuit has held that the issuance of a summons for a felony
aggravated assault charge is not an intervening arrest, see
United States v. Powell, 798 F.3d 431, 436-40 (6th Cir. 2015),
and the Ninth and Eleventh Circuits have held the same for the
issuance of a traffic citation for driving with a suspended
license. See Leal-Felix, 665 F.3d at 1040-44; United States v.
Wright, 862 F.3d 1265, 1281-83 (11th Cir. 2017).
Only the Seventh Circuit sees things differently. In
United States v. Morgan, 354 F.3d 621, 623-24 (7th Cir. 2003),
a decision handed down when the Guidelines were still
mandatory and binding on federal courts, the Seventh Circuit
held that the issuance of a traffic citation counts as an
intervening arrest under section 4A1.2(a)(2) of the Guidelines.
Morgan observed that “[a] traffic stop is an ‘arrest’ in federal
parlance.” Id. at 624. But for reasons already discussed, that
statement is incorrect. A traffic stop is not an arrest in federal
parlance; it is “a relatively brief encounter and ‘is more
analogous to a so-called “Terry stop” than to a formal arrest.’”
Knowles, 525 U.S. at 117 (quoting Berkemer, 468 U.S. at 439).
Indeed, the Seventh Circuit later recognized as much with
regard to summonses. See Bielanski, 550 F.3d at 642 (“No
court has held that a summons alone constitutes a seizure, and
we conclude that a summons alone does not equal a seizure for
Fourth Amendment purposes.”).
13
The two primary cases Morgan cites—Whren v. United
States, 517 U.S. 806 (1996), and Atwater v. City of Lago Vista,
532 U.S. 318 (2001)—cannot bear the weight the Seventh
Circuit places on them. The question confronted in Whren had
nothing to do with the authority of the police to arrest; the
Supreme Court instead determined that the temporary
detention of a motorist upon probable cause that a traffic
violation occurred is objectively reasonable under the Fourth
Amendment. 517 U.S. at 809-10. To be sure, while Atwater
recognized that the Fourth Amendment does not prohibit a
police officer from arresting an individual for a misdemeanor
offense that could otherwise be answerable by a summons, 532
U.S. at 354, its holding does not ipso facto turn all such police
encounters into an arrest. Atwater itself acknowledged that
“there is a world of difference between making that judgment
in choosing between the discretionary leniency of a summons
in place of a clearly lawful arrest, and making the same
judgment when the question is the lawfulness of the
warrantless arrest itself.” Id. at 350. And for good reason. As
the Tenth Circuit aptly put it, equating the issuance of a traffic
citation with a Fourth Amendment seizure might
“disincentivize the use of citations, at least to a certain degree,
a result inconsistent with the desire to mitigate intrusiveness on
private citizens and recent efforts to encourage the use of
citation in lieu of arrest procedure.” Martinez, 479 F.3d at
1297 (footnote omitted).
The Seventh Circuit also rested its decision on the
contention that “[c]alling a traffic stop an ‘arrest’ implements
the Sentencing Commission’s goal” of identifying recidivists.
Morgan, 354 F.3d at 623. Again, we disagree. Both the
sentencing statute and the Guidelines require that a defendant’s
sentence and criminal history not be overstated. See 18 U.S.C.
§ 3553(a) (“The court shall impose a sentence sufficient, but
14
not greater than necessary . . . .”); United States v. Fries, 796
F.3d 1112, 1116 (9th Cir. 2015) (“The purpose of [section]
4A1.2 is to reflect the seriousness of a defendant’s criminal
history, while, at the same time, avoiding overstating the
seriousness of the defendant’s criminal conduct.” (internal
quotation marks and alterations omitted)). By treating an
intervening custodial arrest for a serious offense the same as
the issuance of a summons for jaywalking or possession of
drug paraphernalia, the Seventh Circuit’s reading of section
4A1.2(a)(2) risks substantially overstating a defendant’s
criminal history.
While section 4A1.2(a)(2)’s single sentence rule may at
times also understate the seriousness of a defendant’s criminal
history and the danger he presents to the public, the Guidelines
advise district courts that in such a case “an upward departure
may be warranted.” USSG § 4A1.2 cmt. n.3(B). The
Sentencing Commission has thus shown itself fully capable of
responding to concerns about application of the single sentence
rule. If the issuance of a summons should be treated as an
arrest under the criminal history Guidelines, the Commission
knows how to do so. That is its role. Ours is a more modest
one: to faithfully take account of the Guidelines validly
promulgated by the Commission, and to interpret the text of
those Guidelines according to its plain meaning.
IV
Ley raises two other issues for our consideration. First,
he contends that the District Court inappropriately enhanced
his sentence when it determined that his prior Pennsylvania
aggravated assault conviction was a “crime of violence.” And
second, Ley says that the District Court improperly fixed his
term of imprisonment based upon his need for rehabilitation,
in contravention of 18 U.S.C. § 3582(a). See Tapia v. United
15
States, 564 U.S. 319 (2011). Since our disposition on the
intervening arrest question is sufficient on its own to require
resentencing, we do not address these additional arguments.
The judgment of the District Court will be vacated, and
the case will be remanded for further proceedings consistent
with this opinion.

Outcome: Vacated and remanded.

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