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U.S. v. POTES-CASTILLO

Docket No. 07-5518-cr.

638 F.3d 106 (2011)

UNITED STATES of America, Appellee, v. Johnny POTES-CASTILLO, Jorge Valencia, Juan Lopez, Martha Bohorquez, Ana Patricia Cortes-Vargas, Carlos A. Mera and Sonia Diaz, Defendants, Walter Gonzalez-Rivera, Defendant-Appellant.

United States Court of Appeals, Second Circuit.

Decided: March 14, 2011.

Attorney(s) appearing for the Case

Gary G. Becker , Gary G. Becker L.L.C., New York, NY, for Defendant-Appellant.

Rita M. Glavin , Assistant United States Attorney ( Kevin R. Puvalowski , Assistant United States Attorney, of counsel), for Michael J. Garcia , United States Attorney's Office for the Southern District of New York, for Appellee.

Before: STRAUB and HALL, Circuit Judges, and UNDERHILL, District Judge.

UNDERHILL, District Judge:

This appeal raises the question whether a conviction for driving while ability impaired in violation of New York law must categorically be counted when calculating a defendant's criminal history score. Because we conclude that Walter Gonzalez-Rivera's prior sentence for violating New York's driving while ability impaired law should not be counted toward his criminal history calculation if it is similar to an offense listed in United States...

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