Full Opinion

25-437-cr United States v. Turnick UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10th day of November, two thousand twenty-six. PRESENT: RAYMOND J. LOHIER, JR., Chief Judge, BARRINGTON D. PARKER, MYRNA PÉREZ, Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA, Appellee, v. No. 25-437-cr JUSTIN TURNICK, Defendant-Appellant. ------------------------------------------------------------------ FOR DEFENDANT-APPELLANT: BENJAMIN WELIKSON, Benjamin Welikson PLLC, Albany, NY (Lucas Anderson, Of Counsel, Rothman, Schneider, Soloway & Stern, LLP, New York, NY, on the brief) FOR APPELLEE: RYAN W. ALLISON (Nathan Rehn, on the brief), Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY Appeal from a judgment of the United States District Court for the Southern District of New York (Philip M. Halpern, Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED. Defendant Justin Turnick appeals from the February 20, 2025 judgment of conviction of the United States District Court for the Southern District of New York (Halpern, J.) upon his plea of guilty pursuant to a plea agreement to a single count of conspiring to distribute 40 grams and more of fentanyl, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(vi). Turnick was sentenced principally to a term of imprisonment of 262 months. On appeal, Turnick challenges the District Court’s addition of one criminal history point for his prior 2 sentence of 15 days’ imprisonment arising from his 2023 offense for driving while ability impaired (“DWAI”), in violation of New York Vehicle & Traffic Law § 1192(1). Turnick contends that (1) in counting his 2023 DWAI offense, the District Court erred in applying Application Note 5 to § 4A1.2 of the United States Sentencing Guidelines; and (2) the Government breached the plea agreement by failing to object to the Guidelines range calculation of 210 to 262 months set forth in the Presentence Investigation Report (“PSR”), thereby causing the District Court to reject the agreement’s stipulated Guidelines range of 188 to 235 months. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to affirm. I. Turnick’s DWAI Offense Under Application Note 5 to U.S.S.G. § 4A1.2 Because the state DWAI statute at issue in this case punishes a range of similar misconduct, see People v. Dondorfer, 45 N.Y.3d 481, 486 (2026) (explaining that “impaired,” as used in New York Vehicle & Traffic Law § 1192, means “when an individual’s driving abilities are affected to any extent by the voluntary consumption of alcohol” (citation modified)), and the District Court considered Turnick’s particular conduct, we “give due deference to” its 3 “application of the Guidelines to the facts,” United States v. Valente, 915 F.3d 916, 921 (2d Cir. 2019) (citation modified). Relevant here, § 4A1.2(c)(1) of the Guidelines provides that certain “misdemeanor and petty offenses”—including, in some circumstances, offenses “similar to” “[c]areless or reckless driving”— should be excluded from the calculation of a defendant’s criminal history. Application Note 5, however, instructs that “[c]onvictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are always counted, without regard to how the offense is classified,” and that “[p]aragraphs (1) and (2) of § 4A1.2(c) do not apply” to such convictions. Turnick contends that, notwithstanding Application Note 5, the District Court erred in adding one criminal history point for his DWAI offense because that offense is “similar to” “[c]areless or reckless driving.” U.S.S.G. § 4A1.2(c)(1). Specifically, Turnick relies on United States v. Potes-Castillo, 638 F.3d 106 (2d Cir. 2011), to argue that Application Note 5, even as amended after Potes-Castillo, 1 “is 1 Since Potes-Castillo, the Sentencing Commission has clarified that DWAI convictions “always count” toward criminal history and that neither § 4A1.2(c)(1) nor § 4A1.2(c)(2) applies to such convictions. U.S. Sent’g Comm’n, Supplement to Appendix C: Amendments to the Guidelines Manual 15–17 (2012) (emphasis added). 4 inconsistent with, or a plainly erroneous reading of, th[e] Guideline.” United States v. Rainford, 110 F.4th 455, 475 (2d Cir. 2024) (quoting Stinson v. United States, 508 U.S. 36, 38 (1993)). 2 Turnick alternatively submits that Application Note 5 by its terms does not apply to his DWAI offense because (1) that offense is not a “conviction” within the meaning of New York state law, and (2) the DWAI statute punishes the operation—beyond the mere driving—of a vehicle while impaired. Application Note 5 applies not only to “[c]onvictions for driving while intoxicated or under the influence” but also to “similar offenses by whatever name they are known.” U.S.S.G. § 4A1.2 cmt. n.5 (emphasis added). We have said that “the classification of offenses as ‘similar’ to the offenses listed in § 4A1.2(c)” is “a matter of federal law, even though the prior offenses are defined and the sentences imposed under state law.” United States v. Martinez-Santos, 184 F.3d 196, 198 (2d Cir. 1999). While New York classifies a DWAI offense as “a traffic infraction,” N.Y. Veh. & Traf. Law § 1193(1)(a), which “is not a crime,” N.Y. Veh. 2 Noting that the Supreme Court is considering, in Beaird v. United States, No. 25-5343, whether Stinson v. United States, 508 U.S. 36 (1993), correctly states the level of deference owed to Guidelines commentary, Turnick asks us to hold this appeal in abeyance pending a decision in Beaird. But our decision is unaffected by Beaird’s resolution because the District Court conducted an alternative analysis that would be adequate under Application Note 12—which, as Turnick concedes, is unaffected by Beaird. 5 & Traf. Law § 155, New York punishes that offense with up to 15 days’ imprisonment, N.Y. Veh. & Traf. Law § 1193(1)(a). And while the parties agree that the DWAI statute covers conduct that may not implicate Application Note 5, “the actual conduct involved,” Potes-Castillo, 638 F.3d at 113, as found by the District Court makes clear that Turnick was driving his vehicle while severely impaired. Turnick’s DWAI offense thus fell within the scope of Application Note 5 notwithstanding New York’s offense classification scheme. We would affirm the judgment even assuming that Application Note 5 did not foreclose application of § 4A1.2(c)(1). The District Court distinguished the circumstances of Turnick’s DWAI offense from those offenses that may not be “similar to” careless or reckless driving. See App’x 101. We have no reason to believe that the court failed to consider the factors listed in Application Note 12 that, we have explained, “a district court may consider” when comparing unlisted prior offenses to offenses listed in the Guidelines. Valente, 915 F.3d at 922. In conducting its analysis, the District Court was “not required to explicitly indicate that it considered the . . . listed factors or assign any one of them particular weight.” Id. And the District Court’s adoption of the PSR’s undisputed findings regarding Turnick’s DWAI offense “satisfie[d] its obligation 6 to make findings sufficient to permit appellate review.” Rainford, 110 F.4th at 476 (citation modified). We therefore see no error in the District Court’s conclusion that Turnick’s DWAI offense was “categorically more serious than careless or reckless driving.” See Potes-Castillo, 638 F.3d at 113 (citation modified). II. Alleged Breach of the Plea Agreement Turnick also insists that the Government breached the plea agreement by failing to object at the sentencing hearing to the Guidelines range calculation in the PSR. Reviewing this argument for plain error, see United States v. Rivera, 115 F.4th 141, 146 (2d Cir. 2024), we conclude that Turnick has failed to demonstrate that the Government “advocate[d] for a substantially higher sentence” than that stipulated to in the plea agreement, id. at 144. Indeed, on two occasions, the Government affirmatively advocated for a sentence within the stipulated Guidelines range. Because “the Probation Office [and] the [District] Court . . . contemplate[d] a[] sentence outside of the stipulated Guidelines range,” the plea agreement authorized the parties to “make all appropriate arguments concerning the same.” App’x 52. We recognize that the Government informed the District Court at the sentencing hearing that the Government “w[asn’t] aware of” 7 Turnick’s DWAI infraction at the time the plea agreement was entered. App’x 103. But Turnick has failed to show that the Government’s conceded misstatement and any resulting error by the District Court “affected the outcome of the district court proceedings” and thereby affected his substantial rights. United States v. Tarbell, 728 F.3d 122, 126 (2d Cir. 2013) (quotation marks omitted). 3 CONCLUSION We have considered Turnick’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 3 For the first time in his reply brief, Turnick argues that the Government also breached the plea agreement on appeal by defending the District Court’s sentence. We reject the argument. See United States v. Colon, 220 F.3d 48, 51–53 (2d Cir. 2000). 8