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Third Circuit: Summons Is Not an Arrest for USSG Criminal History Calculation

by Mark Wilson

The U.S. Court of Appeals for the Third Circuit held that the issuance of a summons to appear on a traffic stop is not an arrest for purposes of calculating criminal history under the United States Sentencing Guidelines (“USSG”). 

John Francis Ley pleaded guilty to a single federal charge of felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(l). Ley’s lengthy criminal record earned him seven criminal history points and a criminal history category of IV. His total sentencing range was 46-57 months imprisonment. 

Ley objected to his criminal history calculation, arguing that he should have been assessed only six criminal history points, placing him in criminal history category III with a sentencing range of 36-47 months. 

Ley challenged two points that he received for two prior convictions for drug paraphernalia possession, stemming from traffic stops on September 28, 2015, and September 29, 2015. In both cases, police issued a summons to appear and released Ley from the scene. He pleaded guilty to both charges on the same day in May 2016. 

Ley argued that those prior sentences should be treated as a single sentence under USSG § 4Al.2(a)(2) because they were imposed on the same day and were not separated by an intervening arrest, but only a traffic stop followed by the issuance of a summons to appear. The district court overruled Ley’s objection and sentenced him to 46 months in prison.

Following an analysis of the ordinary meaning of the words “arrest” and “summons,” the Third Circuit reversed, finding that “a traffic stop, followed by the issuance of a summons, is not an arrest.” Accordingly, the Court rejected the Government’s “position at oral argument that a jaywalking summons would count as an arrest for purposes of the criminal history Guidelines” and held “that, for purposes of section 4Al.2(a)(2) of the Sentencing Guidelines, an arrest is a formal, custodial arrest.” 

The Court concluded that the lower court “miscalculated Ley’s criminal history and, by extension, his sentencing range” by counting the summons as an arrest. Accordingly, the Court vacated the judgment of the district court and remanded for further proceedings consistent with its opinion. See: United States v. Ley, 876 F.3d 103 (3d Cir. 2017). 

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