Rule 206 ELECTRONIC CITATION: 2004 FED App. 0253P (6th Cir.) File Name: 04a0253p.06… v. Gary Burgess Rollins

*This decision was originally issued as an “unpublished decision”
filed on M ay 3, 2004. On June 8, 2004, the court designated the opinion
as one recommend ed for full-text publication.
**Daniel M. Friedman, Circuit Judge of the U nited States Court of
Appeals for the Federal Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0253P (6th Cir.)
File Name: 04a0253p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GARY BURGESS ROLLINS,
Defendant-Appellant.
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No. 03-5006
Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 02-00089—Danny C. Reeves, District Judge.
Submitted: March 11, 2004
Decided and Filed: May 3, 2004*
Before: MOORE, SUTTON, and FRIEDMAN, Circuit
Judges.**
2 United States v. Rollins No. 03-5006
_________________
COUNSEL
ON BRIEF: James E. Hibbard, London, Kentucky, for
Appellant. Charles P. Wisdom, Jr., John Patrick Grant,
ASSISTANT UNITED STATES ATTORNEYS, Lexington,
Kentucky, for Appellee.
SUTTON, J., delivered the opinion of the court, in which
FRIEDMAN, J., joined. MOORE, J. (pp. 10-12), delivered
a separate dissenting opinion.
_________________
OPINION
_________________
SUTTON, Circuit Judge. Gary Burgess Rollins pleaded
guilty to possession of less than 50 kilograms of marijuana
with intent to distribute, a violation of 21 U.S.C. § 841(a)(1).
At sentencing, this violation translated into a base offense
level of twelve, which the district court reduced to ten in view
of Rollins’ acceptance of responsibility. The district court
next attributed to Rollins a criminal history category of II
based on his previous state-court convictions for
(1) possession of marijuana and (2) driving without insurance.
After combining the vertical requirements of Rollins’ base
offense level with the horizontal requirements of his criminal
history category, the district court determined that he faced a
sentencing range of eight to fourteen months, then sentenced
him to an eight-month prison term.
On appeal, Rollins challenges the district court’s inclusion
of his conviction for driving without insurance—a
misdemeanor under Kentucky law—in its calculation of his
criminal history. His argument is unavailing.
Under the Sentencing Guidelines, a defendant’s criminal
history category includes all prior misdemeanors, unless they

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No. 03-5006 United States v. Rollins 3
are specifically excluded in one of two subsections. U.S.S.G.
§ 4A1.2(c) (2002). First, misdemeanors listed in
§ 4A1.2(c)(1) or “offenses similar to” those listed are
excluded from the criminal history calculation unless “(A) the
sentence was a term of probation of at least one year or a term
of imprisonment of at least thirty days, or (B) the prior
offense was similar to an instant offense.” Misdemeanors on
this list include, among other offenses, careless or reckless
driving, driving without a license or with a revoked or
suspended license and leaving the scene of an accident.
Second, § 4A1.2(c)(2) separately excludes other prior
misdemeanors—including juvenile status offenses, loitering
and “[m]inor traffic infractions (e.g., speeding)”—and
“offenses similar to them” from a defendant’s relevant
criminal history.
Rollins initially argues that his Kentucky-law “no
insurance” conviction constitutes a “minor traffic infraction”
under § 4A1.2(c)(2), making it non-countable in his criminal
history assignment. Although this Circuit has yet to
determine whether driving without insurance is a “minor
traffic infraction” within the meaning of § 4A1.2(c)(2), our
decision in United States v. Kingston, 922 F.2d 1234 (6th Cir.
1990), takes us a good way toward the conclusion that it is
not. Kingston holds that “infraction” in the phrase “minor
traffic infractions” of § 4A1.2(c)(2) represents a “term of art”
derived from U.S.S.G. § 1B1.9 and 18 U.S.C. § 3559. 922
F.2d at 1239; see also United States v. Aichele, 912 F.2d
1170, 1171 (9th Cir. 1990). These provisions in turn each
define an “infraction” as “any offense for which the
maximum authorized term of imprisonment is not more than
five days.” U.S.S.G. § 1B1.9 cmt. n.1; see 18 U.S.C.
§ 3559(a) (“An offense . . . is classified [as an infraction] if
the maximum term of imprisonment authorized is . . . five
days or less, or if no imprisonment is authorized.”).
On the basis of this language, Kingston concluded that
misdemeanor offenses with an authorized prison term of “not
more than five days” are “minor traffic infractions” while
4 United States v. Rollins No. 03-5006
offenses with an authorized term of more than five days are
not “minor traffic infractions.” 922 F.2d at 1239. Because in
Kingston Tennessee law authorized a 90-day prison term for
reckless driving, the court determined that reckless driving
was not a “minor traffic infraction.” Id. And in view of the
established meaning of “infraction,” the court concluded that
the authorization of a 90-day prison term under Tennessee
law ended the inquiry—as the Guidelines do “not intend
courts to weigh the relative seriousness of traffic offenses
when deciding which convictions to exclude from criminal
history calculations.” Id.
These conclusions in Kingston more than suffice to respond
to Rollins’ first objection to his sentence. Because Kentucky
law authorizes up to a 90-day prison term for violation of the
State’s car insurance requirements, see Ky. Rev. Stat.
§ 304.99-060, not unlike the Tennessee law in Kingston, a
conviction for “no insurance” in Kentucky does not constitute
a “minor traffic infraction” under § 4A1.2(c)(2). Accord
United States v. Perez de Dios, 237 F.3d 1192, 1199 (10th
Cir. 2001) (determining that driving without proof of
insurance is not a minor traffic infraction under
§ 4A1.2(c)(2)). Given this unchallenged aspect of Kentucky
law and given our decision in Kingston, we reject Rollins’
invitation to “to weigh the relative seriousness” of this traffic
offense in “deciding which convictions to exclude from
criminal history calculations.” Kingston, 922 F.2d at 1239.
Nor may this offense be excluded under the other provision
t h a t l i s t s n o n - c o u n t a b l e m i s d e m e a n o r
offenses—§ 4A1.2(c)(1). In accordance with that provision,
recall, “driving without a license or with a revoked or
suspended license” (or a “similar” offense) may be excluded
if “the sentence was a term of probation” of less than a year.
In this case, however, the state court imposed a two-year
conditional discharge for his insurance violation—a sentence
that this Court has previously determined to be the
“functional equivalent of ‘unsupervised probation.’” See
United States v. Miller, 56 F.3d 719, 722 (6th Cir. 1995)

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No. 03-5006 United States v. Rollins 5
(“We thus hold that conditional discharge [under Kentucky
law] is the ‘functional equivalent’ of an unsupervised
probation under U.S.S.G. § 4A1.1(d).”); Harris v. United
States, 204 F.3d 681, 682–83 (6th Cir. 2000) (determining
that Ohio’s equivalent of a “conditional discharge” sentence
qualifies as a term of probation of at least one year under
§ 4A1.2(c)(1)); see also Pedigo v. Commonwealth, 644
S.W.2d 355, 358 (Ky. Ct. App. 1982) (noting that aside from
supervision, “there is no difference between conditional
discharge and probation”).
Rollins has offered no explanation why a term of
“unsupervised probation” should not be treated as a term of
“probation” under the provision. Nor can we think of one.
Other courts, it bears adding, have reached the same
conclusion, holding that “conditional discharge” and
“unsupervised probation” alike constitute “probation” for
purposes of § 4A1.2(c)(1). See United States v. Lloyd, 43
F.3d 1183, 1188 (8th Cir. 1994); United States v. Caputo, 978
F.2d 972, 977 (7th Cir. 1992); United States v. McCrudden,
894 F.2d 338, 339 (9th Cir. 1990) (“The guidelines make no
provision for treating ‘unsupervised’ probation as less than
probation.”).
Lastly, this Guideline provision cannot be construed to
apply only to probation sentences given in connection with a
suspended jail sentence, as opposed to probation sentences
given in connection with a fine. By its terms, the provision
prohibits excluding a sentence if “the sentence was a term of
probation” of a year or more. U.S.S.G. § 4A1.2(c)(1).
Neither the provision nor the commentary draws any
distinction between probation involving a suspended jail
sentence on the one hand and probation involving a fine,
community service or indeed probation alone on the other.
The very next clause of the provision, moreover, plainly
covers fines, as it indicates that a misdemeanor offense is not
excludable if it is “similar to an instant offense,”
§ 4A1.2(c)(1)(B), a rule that necessarily includes
misdemeanors that resulted in a fine alone.
6 United States v. Rollins No. 03-5006
While it is true that probation frequently will occur in the
context of the suspension of a jail sentence, the function of
probation (and of conditional discharge under Kentucky law)
is by no means restricted to that setting. The overriding
objective of probation is to place court-imposed conditions on
the defendant. See, e.g., Ky. Rev. Stat. § 533.020(1)
(“Conditions of probation shall be imposed.”); id.
§ 533.020(3) (“Conditions of conditional discharge shall be
imposed.”); see generally 5 Wayne R. LaFave et al., Criminal
Procedure § 26.1(d) (2004) (“[T]he traditional definition of
probation . . . assumes release pursuant to one or more
conditions and some degree of supervision to ensure
adherence to those conditions.”). It is these court-imposed
restrictions on the defendant’s behavior that distinguish
sentences of probation or conditional discharge from mere
fines. See U.S.S.G. § 4A1.1 cmt. n.4 (“[A] term of
unsupervised probation would be included [as a criminal
justice sentence under § 4A1.1(d)]; but a sentence to pay a
fine, by itself, would not be included.”). And it is these
restrictions that render the sentences serious, see 9 Leslie W.
Abramson, Kentucky Practice Series: Criminal Practice &
Procedure § 31:131 (2004), and presumably what makes
them countable under this Guideline. Whether the conditions
imposed on Rollins in this instance (which the record does not
describe) were minimal—e.g., that he merely avoid further
offenses during his conditional discharge—or quite onerous,
the fact that his sentence entailed court-mandated restrictions
on his behavior is enough to draw it within the meaning of
“probation” in the Sentencing Guidelines. See, e.g., United
States v. Gorman, 312 F.3d 1159, 1164–67 (10th Cir. 2002)
(determining that requirements of maintaining good behavior,
refraining from violating the law, and paying a $300 fee,
constituted “probation” under U.S.S.G. § 4A1.1(d)).
That Rollins’ conditional discharge involved the partial
discharge of a modest fine ($500) in exchange for two years
of court-imposed restrictions, moreover, does not warrant
differential treatment from other sentences of conditional
discharge or probation. Although Kentucky law requires that

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No. 03-5006 United States v. Rollins 7
a sentence of a prison term or a fine (or both) be imposed
before a conditional discharge is given, Commonwealth v.
Tiryung, 709 S.W.2d 454, 456 (Ky. 1986), other States allow
for sentences of probation (or their equivalent) independent of
any other sentence, see, e.g., 730 Ill. Comp. Stat. 5/5-5-3(b);
N.Y. Penal Law § 60.01; see generally Daniel E. Feld,
Annotation, State Court’s Power to Place Defendant on
Probation Without Imposition of Sentence, 56 A.L.R.3d 932
(1974). Consistent with the language of the relevant
provisions, the federal courts (to our knowledge) have never
considered a stand-alone sentence of probation or conditional
discharge, or a sentence of probation or conditional discharge
coupled with a fine, to be anything other than a term of
“probation” under § 4A1.2(c) and § 4A1.1(d), even though
the defendant does not face the threat of a suspended jail
sentence. See, e.g., Gorman, 312 F.3d at 1166–67 (sentence
of unsupervised probation plus a fine is a criminal justice
sentence under § 4A1.1(d)); United States v. Castro, 279 F.3d
30, 35 (1st Cir. 2002) (one-year sentence of probation counts
under § 4A1.2(c)); United States v. Boyd, 146 F.3d 499, 502
(7th Cir. 1998) (one year of court supervision and a
fine—where the supervision was vacated and the full fine
imposed—is “probation” under § 4A1.2(c)); United States v.
Baker, 116 F.3d 870, 873–74 (11th Cir. 1997) (term of
probation for one year or until the fine is paid in full counts
under § 4A1.2(c)); United States v. Labella-Szuba, 92 F.3d
136, 138 (2d Cir. 1996) (one-year conditional discharge
sentence, as unsupervised probation, qualifies as a criminal
justice sentence).
Application Note 4 of § 4A1.2 does not undermine this
conclusion or the above court decisions. See U.S.S.G.
§ 4A1.2 cmt. n.4. (“A sentence which specifies a fine or other
non-incarcerative disposition as an alternative to a term of
imprisonment . . . is treated as a non-imprisonment
sentence.”). That a defendant’s choice between a “fine or
other non-incarcerative disposition” and a term of
imprisonment is a “non-imprisonment sentence” does not say
anything about whether a sentence constitutes “probation.”
8 United States v. Rollins No. 03-5006
It is true, as Judge Moore points out, that this interpretation
has one seemingly odd consequence. Had Rollins paid the
fine, his sentence would not have been countable. But when
most of the fine was suspended and he received a two-year
conditional discharge, the sentence became countable. It is
not clear whether the Sentencing Commission anticipated this
specific development when it imposed this bright-line rule
about sentences of probation of a year or more. It is clear,
however, that the Commission realized that the criminal-
history rules in this section could lead to criminal-history
outcomes that fail to square with the realities of an
individual’s criminal record. Section 4A1.3 addresses that
problem, however, by allowing district court judges to grant
downward and upward departures when an application of the
Guidelines generates an inequitable result, and it makes more
sense in our view to rely on that safety-valve provision than
to disregard the unyielding terms of § 4A1.2(c)(1). See
McCrudden, 894 F.2d at 339 (The Guidelines “resolve this
potential inequity by permitting departures from the
prescribed sentence if a resulting history score ‘significantly
over-represents’ the seriousness of a defendant’s criminal
history.”). In this instance, Rollins did not invoke this safety-
valve provision, which indeed would have been difficult for
him to do in view of his other prior criminal conduct.
Rollins lastly argues that the inclusion of a “no insurance”
conviction in his sentencing calculations violates the
Guidelines’ policy of creating “reasonable uniformity in
sentencing” by treating violators of similar offenses in a like
manner. U.S.S.G. ch. 1, pt. A (policy statement). No such
uniformity occurred here, he urges, because the inclusion of
this conviction in his criminal history boosted his sentence
above the sentences of similar offenders solely because the
Kentucky judge who sentenced him for the “no insurance”
violation conditionally discharged his fine rather than
suspending the fine or requiring him to pay it in full—in
contrast to what Rollins’ lawyer asserts is common practice
by Kentucky judges. But this characterization of the actions
of the responsible Kentucky judge has no support in the

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No. 03-5006 United States v. Rollins 9
record and is incompatible with the provisions of Kentucky
law that specifically authorize just such a sentence.
For the foregoing reasons, the district court correctly
included Rollins’ conviction for driving without insurance in
its calculation of his criminal history. We affirm.
10 United States v. Rollins No. 03-5006
________________
DISSENT
________________
KAREN NELSON MOORE, Circuit Judge, dissenting.
While I agree with the majority’s conclusion that Rollins’s
“no insurance” conviction does not qualify as a “minor traffic
infraction” under § 4A1.2(c)(2), I disagree strongly with its
conclusion that the conditional discharge of a fine is
equivalent to a sentence of probation, such that the conviction
should count under § 4A1.2(c)(1).
The conditional discharge in this case is not “the functional
equivalent of ‘unsupervised probation.’” Maj. op. at 4,
quoting United States v. Miller, 56 F.3d 719, 722 (6th Cir.
1995). Both cases that the majority cites, Miller and Harris
v. United States, 204 F.3d 681, 682-83 (6th Cir. 2000), dealt
with the conditional discharge of a prison sentence. See
Miller, 56 F.3d at 721 (“whereby he was given a sentence of
thirty days imprisonment conditionally discharged for two
years”); Harris, 204 F.3d at 682 (discharge at issue in case is
“a condition on which a sentence of imprisonment is
suspended”). Here, the conditional discharge is of a fine, and
all that the Kentucky courts would have done had Rollins
violated the conditions of the discharge would be to impose
punishment of the balance of the fine, plus court costs. The
majority responds to this key distinction by arguing that it is
the conditional nature of the discharge that is important: any
time, then, that a state places conditions on a misdemeanant,
the sentence will count, even if the full punishment the state
could impose after a violation of those conditions is well
below the threshold level otherwise to trigger the provision.
The total illogic of this position — that a defendant fined
$1,000,000 on the spot receives no criminal history points,
but one whose $100 fine is conditionally discharged receives
a point, or that a defendant whose fine for a nonsufficient
funds check is discharged on the condition that she not shop
at a particular mall for a year receives a point — is

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No. 03-5006 United States v. Rollins 11
acknowledged by the majority, but does not lead it to
conclude that perhaps the designers of the Sentencing
Guidelines did not anticipate this result. I do not believe that
the determinant of “probation” is “conditions” on a defendant,
but instead I believe that “probation” is determined from the
ultimate punishment that could be visited on the defendant
who violates those conditions. Therefore, I would conclude
that the nonsensical results that follow from the majority’s
reading of the provision are ample evidence that that reading
is incorrect.
By transforming Rollins’s fine into a term of probation, the
majority also creates an odd result when contrasted with
Application Note 4 to § 4A1.2, which states:
Sentences Imposed in the Alternative: A sentence which
specifies a fine or other non-incarcerative disposition as
an alternative to a term of imprisonment (e.g., $1,000
fine or ninety days’ imprisonment) is treated as a non-
imprisonment sentence.
Thus, had Rollins been sentenced to payment of his $500 fine
or ninety days in prison for his infraction, a possible sentence
under the Kentucky statute and surely a more severe sentence
than payment of $500, conditionally discharged to $50, his
conviction would not count. I believe Rollins’s actual
sentence for driving without insurance, which could only have
resulted in a fine, is not properly counted in his criminal
history under § 4A1.2(c)(1).
Finally, the majority alludes to the possibility of downward
departure under § 4A1.3 in cases like the one before us. Of
course, no downward departure occurred in this case, and
Rollins is unable to appeal the district court’s failure to make
one. By relocating this issue from the definite terms of
§ 4A1.2(c)(1) to the discretionary “safety valve” of § 4A1.3,
the majority insulates the district court’s decision from review
and further limits the ability of wrongfully sentenced
defendants to appeal to this court for legal correction. I think
12 United States v. Rollins No. 03-5006
this is entirely unwarranted, when the proper route is so clear.
I respectfully dissent.

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