Meet U.S.S.G. §2X5.2, the New Offense Guideline for Class A Misdemeanors That Aren't Listed in the Guidelines Manual's Statutory Index

So you sit down to calculate a client's guidelines. Step One? Figure out which Chapter 2 offense guideline applies to the offense of conviction. To do that, all you need to do is refer to Appendix A of the Guidelines Manual (otherwise known as the Statutory Index) and see which offense guideline is listed for the applicable statutory provision.

But what about unlisted offenses, i.e., those in which the statute of conviction isn't listed in the Statutory Index? Up until recently, guideline §2X5.1 directed courts to use the offense guideline that is most analogous to the offense of conviction.

However, as of November 1, 2006, that's no longer the case for unlisted Class A misdemeanors. The Sentencing Commission revised guideline §2x5.1 effective November 1st so that it now applies only to unlisted felony offenses. See U.S.S.G. §2X5.1 & comment. (n.3); U.S.S.G. App. C, amend. 685. The Commission also adopted a new offense guideline for unlisted Class A misdemeanors: §2X5.2. This new guideline establishes a base offense level of 6, and has no specific offense characteristics.

So as of November 1st, use §2X5.2 to calculate the offense level for unlisted Class A misdemeanors, not the most-analogous-guideline approach. Remember that this change applies to all Class A misdemeanants sentenced on or after November 1, 2006, regardless of whether the offense was committed before that date (unless applying the new guideline would present an ex post facto problem). See U.S.S.G. §1B1.11.