AWOL Not Similar to Truancy, So It Can Count For Criminal History Points Under U.S.S.G. §4A1.2(c)(2)

United States v. Sanchez-Cortez, No.05-41130 (5th Cir. June 6, 2008) (per curiam) (Jones, Wiener, Clement)

Sanchez was convicted of PWID cocaine. At sentencing, the district court concluded that Sanchez's prior AWOL conviction---for which he was sentenced to 114 days' confinement and forfeited $670 in pay per month for six months---counted for two criminal history points. Those two points disqualified him from safety valve relief, as the AWOL conviction was his only prior.

Sanchez unsuccessfully challenged that determination on appeal. The court held that the AWOL conviction couldn't be excluded from the criminal history calculation under guideline §4A1.2(c)(1) because, even if it was similar to the crimes listed under that provision, his sentence was longer than 30 days. The court also rejected Sanchez's argument that AWOL is similar to truancy, an offense that never counts under §4A1.2(c)(2) regardless of the sentence. Using a "common sense approach which relies on all possible factors of similarity[,]" the court found AWOL and truancy dissimilar:

• truancy is a Class C misdemeanor in Texas,* punishable by a fine of up to $500, whereas Sanchez's AWOL conviction resulted in 114 days' confinement and a loss of over $4000 in pay
• "truancy laws apply to juveniles who fail to attend school, not adult members of the military who fail to report for duty"
• truancy only affects the truant, while being AWOL "may hinder orderly military operations," and
• an adult AWOL is more likely to recidivate than a juvenile truant

*The court doesn't explain it relies solely on Texas' truancy statute as the basis for comparison.