Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1991)

MEMORANDUM^* 

Dannielle Mast was convicted of five counts of bank robbery. The presentence report placed her criminal history category at level II, on the basis of her prior conviction for misdemeanor driving under the influence of alcohol and the fact that the robberies were committed during the period of summary probation imposed for that offense. See U.S.S.G. Sec. 4A1.1(c), (d). The district court declined to sentence Mast based on a category II criminal history, stating:

I don't think much of that category 2, so I'm putting it into Category 1.... Because drunk driving is not that kind of offense, in my view, that the Sentencing Guidelines are meant to reach.

Application Note 5 to section 4A1.2, "Definitions and Instructions for Computing Criminal History," states that " [c]onvictions for driving while intoxicated or under the influence ... are counted. Such offenses are not minor traffic infractions within the meaning of Sec. 4A1.2(c) ['Sentences Counted and Excluded']." U.S.S.G. Sec. 4A1.2, Application Note 5. Thus the district court erred in determining that the Guidelines did not intend Mast's offense to be considered in calculating her criminal history.

Because the district court erred by not sentencing Mast pursuant to criminal history category II, we must remand for resentencing and need not address the government's other contentions. The sentence is REVERSED. The case is REMANDED for new sentencing procedures, including the making of any factual determinations necessary for sentencing.