United States v. Kohl

Kohl was convicted of three federal controlled substance offenses, 21 U.S.C. 841 and 846. The court assigned Kohl criminal history category IV, including one criminal history point for a 2016 Wisconsin conviction for operating a vehicle with a detectable amount of a restricted controlled substance in his blood. Kohl argued that a first violation of the Wisconsin statute does not carry a criminal penalty and should not have been counted. The Seventh Circuit affirmed the 36-month sentence. 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), but an Application Note qualifies that exclusion by requiring that convictions for driving under the influence and similar offenses are always counted. Although the Wisconsin statute does not require proof that the offender was impaired or under the influence, Kohl’s offense was sufficiently similar to driving while intoxicated or under the influence to qualify for inclusion. The court noted that the sentence was well below the Guideline range for category IV (77-96 months) and was also below the Guideline range for category III (63-78 months), the category to which Kohl would have been assigned if the disputed conviction was not included. View "United States v. Kohl" on Justia Law