In U.S. v. Garcia-Sandobal, No. 11-12196 (Jan. 3, 2013), the Court held that a prior conviction for “disorderly intoxication,” in violation of Fla. Stat. § 856.011, counts for purposes of increasing a defendant’s criminal history category under the Sentencing Guidelines.
Garcia-Sandobal pled guilty to unlawful re-entry, in violation of 8 U.S.C. § 1326(b)(2). The Court rejected Garcia-Sandobal’s argument that he had not committed a “crime of violence” prior to his illegal re-entry, noting that during his plea colloquy Garcia-Sandobal unequivocally pleaded guilty to violating § 1326(b)(2), thereby waiving his right to appellate review of this issue.
The Court rejected the argument that Garcia-Sandobal’s prior conviction for disorderly intoxication should not have caused a two point increase in his Guidelines criminal history score. Applying the Guidelines’ five-factor “common sense approach” to this issue, the Court noted that the Florida offense carried a maximum penalty of 60 days in jail, and Garcia-Sandobal was initially sentenced to 50 days, and then an additional 60 days when probation was revoked. “It is difficult to imagine a scenario where an individual spends nearly one-third of a year in jail for endangering the public or causing a disturbance, yet his conviction is not considered serious enough to count toward his criminal history score.”
The Court emphasized that under Florida law, as opposed to the law in other states, disorderly intoxication “requires proof that the defendant endangered someone or created a public disturbance.” The Court also noted Garcia-Sandobal’s underlying conduct: “someone who gets drunk and walks in the middle of a public road at 2:36 a.m., nearly causing a collision with an oncoming vehicle, engages in conduct that suggests the likelihood of recurring criminal conduct.”