# Petition for Writ of Certiorari — United States v. Nachtigal > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0359%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 507 U.S. 1 ## Text 92-609 FILED () |) OCT 6 ts92 ; OFFICE OmTHE Chinn @ee. 4 ie, .s « - Iu the Supreme Court of the United States OCTOBER TERM, 1992 UNITED STATES OF AMERICA, PETITIONER Vv. JERRY J. NACHTIGAL PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General PAUL J. LARKIN, JR. Assistant to the Solicitor General VICK! S. MARANI Attorney Department of Justice Washington, D.C. 20530 (202) 514-2217 casas —_————— Se = BEST AVAILABLE COPY! salad QUESTION PRESENTED Whether Art. III, § 2, Cl. 3 of the Constitution or the Jury Trial Clause of the Sixth Amendment re- quires a trial by jury for the offense of driving under the influence of alcohol, where the maximum au- thorized penalty is six months’ imprisonment and a $5,000 fine. (1) TABLE OF CONTENTS Page Opinions below SPE LL ES 1 Jurisdiction Laos iecceacialianant , — 1 Constitutional, statutory, and seaniahers | provisions involved . . a 2 Statement shades LS eee 2 Reasons for granting the petition 6 Conclusion . Niciaciieeteds 17 Appendix A jadianitnies als la Appendix B j . ; ; . 5a Appendix C Si ne a Appendix D Caen 2la Appendix E AES RR eee 22a TABLE OF AUTHORITIES Cases: Baldwin Vv. New York, 399 U.S. 66 (1970) ....B, 4, 12 Blanton v. City of North Las Vegas, 489 U.S. 538 (1989) ............ a ak At SD war passim Callan Vv. Wilson, 127 U. S. 540 (1888) 3 Commissioner V. McCoy, 484 U.S. 3 (1987) ses 17 District of Columbia v. Clawans, 300 U.S. 617 EEE IESE ONS 3 District of Columbia v. Colts, 282 U.S. 63 (1930) 3,11 Dunean V. Louisiana, 391 U.S. 145 (1968) 3, 4, 12 Frank v. United States, 395 U.S. 147 (1969) 3, 10,12 Green V. Bock Laundry Machine Co., 490 U.S. 504 (1989) een 17 Muniz Vv. Hoffman, 422 US. 454 (1975) - | 7 Richter v. Fairbanks, 903 F.2d 1202 (8th Cir. 1990) S Spe ee 14 Rose v. Clark, 478 US. 570° (1986) . sas 17 Schick v. United States, 195 U.S. 65 (1904) 3 Spectrum Sports, Ine. Vv. MeQuillan, cert. granted, No. 91-10 (to be argued Nov. 10, 1992) | 17 (111) 18 U.S.C. 3571 (e) | .-...y 13, 23a IV Vv Cases—Continued: Page State v. Harrison, 792 P.2d 779 (Ariz. Ct. App. Statutes and regulations—Continued : Page 1990) vessseeccnnesseenee sosccsssscetseensnsanseeee WM 18 U.S.C. 3571(7) SOR, ke, P Stevenson V. District of Columbia, 562 A.2d 622 18 U.S.C. 3581(b) (7) oc 2 (D.C. 1989) , 14 16 C.F.R. 4.6 (1980) See sed 11 United States v. Bencheck, 926 F.2d 1512 (10th 36 C.F.R. (1991) : Cir. 1991) 7 10-11, 13, 16 Section 1.3(9) 2 ccccunsnrmernene.., 9, 16, 288 United, States v. Craner, 652 F.2d 23 (9th Cir. ne 9 te PS pe 4,5, 11, 12 Section eae 9 United States v. Garner, 874 F.2d 1510 (11th Cir. ID lite 16 V9BD) nnnnnnnnn- a eeneneneeeeecnnecnennee Scie Guten cea 18 Section 2.15 (a) __ ROPE ene reer > 16 United States v. Harper, 946 F.2d 1373 (8th Cir. cee TTA TTS . 16 1991), cert. denied, 112 S. Ct. 1506 (1992) 12-13 Section 4.23(a)(1) 0 12, 7, 11, 15, 23a United States y. LaValley, 957 F.2d 1309 (6th Section sake igs 2 1992) ieee ser sinlasetinnesseniisiesitmadinl 13 Section 7.96(g) (5) (x)(B)(2).. 13 United States Vv. Musser, 873 F.2d 1513, aff’d on Letnany cg, ee aT agate 12 denial of reh’g, 883 F.2d 84 (D.C. Cir.), cert. Section 261.58(a) 13 denied, 493 U.S. 983 (1989) ss ——s 10, 13 nero emaran. i 12 United States v. Paternostro, 966 F.2d 907 (5th te ee caeenenre, Miscellaneous: United States v. Spivey, 781 F. Supp. 676 (D. Administrative Office of the United States Courts: Haw. 1991) 2 “ 1986 Ann. Rep. of the Director ST 15 Constitution, statutes, and regulations: 1991 Ann. Rep. of the Director SR on 15 U.S. Const. : Frankfurter & Corcoran, Petty Federal Offenses Art. ITI,$2,C1.3 5 mare 2, 3, 6, 22a and the Constitutional Guaranty of Trial by Amend. VI (Jury Trial Clause) 2, 3, 6, 22a Jury, 39 Harv. L. Rev. 917 (1926). is 3 Assimilative Crimes Act, 18 U.S.C. 13 seceancaant 13 16 U.S.C. 3 aaa a 2, 5, 9, 16, 22a 18 U.S.C. 1 (Supp. IV 1986) - 18 U.S.C. 19 a PPh Aah E 8 18 U.S.C. 1382. ioe 13 18 U.S.C. 3559 (a) (1) IE me kt 2 18 U.S.C. 3561 (a) (3) . 2,6 18 U.S.C. 3561 (b) (2) | 2 18 U.S.C. 3563 (b) (10) : 8 18 U.S.C. 3563 (b) (11) ROSE. Bee . 18 U.S.C. 3563 (b) (12) 8 18 U.S.C. 3571 (b) (6) 2, 8, 16, 22a-23a 18 U.S.C. 3571 (b) (7) 16 Iu the Supreme Court of the United States OCTOBER TERM, 1992 No. UNITED STATES OF AMERICA, PETITIONER Uv. JERRY J. NACHTIGAL PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT The Solicitor General, on behalf of the United States, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. OPINIONS BELOW The opinion of the court of appeals, App., infra, la-4a, is unpublished, but the judgment is noted at 953 F.2d 1389 (Table). The opinions of the magis- trate, App., infra, 5a-9a, and the district court, App., infra, 10a-20a, are unreported. JURISDICTION The judgment of the court of appeals was entered on January 27, 1992. A petition for rehearing was denied on July 10, 1992. App., infra, 2la. The juris- diction of this Court is invoked under 28 U.S.C. 1254(1). (1) 2 CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED Article III, § 2, Cl. 3, and the Sixth Amendment of the Constitution; 16 U.S.C. 3; 18 U.S.C. 3571 (b)(6) and (e); and 36 C.F.R. 1.8(a) and 4.23 (a)(1) are reprinted in App., infra, 22a-23a. STATEMENT 1. On February 15, 1990, respondent was charged by information in the United States District Court for the Eastern District of California with operating a motor vehicle in Yosemite National Park while un- der the influence of alcohol, in violation of 36 C.F.R. 4.23(a)(1) and 36 C.F.R. 4.23(a) (2). App., infra, 2a, 6a, 10a-lla & n.1. Those offenses are Class B misdemeanors, see 18 U.S.C. 3559(a) (1); they carry a maximum penalty of six months’ imprisonment, 36 C.F.R. 1.3(a); 18 U.S.C. 3581(b) (7), and a fine of $5,000, 18 U.S.C. 3571(b) (6) and (e). As an alter- native to a term of imprisonment, a term of proba- tion of not more than five years may be imposed. 18 U.S.C. 3561(a) (3) and (b) (2). 2. Respondent moved for a jury trial. A magis- trate denied the motion, reasoning that, under Blan- ton v. City of North Las Vegas, 489 U.S. 538 (1989), the federal driving-under-the-influence (DUI) offense is a “petty offense’—i.e., one for which the Sixth Amendment does not require a jury trial. App., infra, 6a. In Blanton, this Court held that an offense carry- ing a maximum prison term of six months or less is presumed to be a petty offense, and that a defendant can overcome the presumption “only if he can demon- strate that any additional statutory penalties, viewed in conjunction with the maximum authorized period 3 of incarceration, are so severe that they clearly reflect a legislative determination that the offense in ques- tion is a ‘serious’ one.” 489 U.S. at 543.' The mae- istrate rejected respondent’s contention that he faced additional penalties sufficient to elevate his DUI ' This Court’s conclusion in Blanton that Art. IT], § 2, Cl. 3 and the Sixth Amendment should not be read literally, so as to require a jury trial in every “criminal prosecution,” did not state a novel rule of law. The English common law per- mitted a wide range of petty or minor offenses to be resolved summarily before justices of the peace without a jury, and that practice was generally fol'!wed in the American colonies. Frankfurter & Corcoran, Petty Federal Offenses and the Con- stitutioval Guaranty of Trial by Jury, 39 Harv. L. Rev. 917 (1926). In deciding whether a jury trial was constitutionally required, this Court originally looked to the nature and treat- ment of the offense at common law and the gravity of the conduct involved, See Callan v. Wilson, 127 U.S. 540 (1888) : Schick Vv. United States, 195 US. 65 (1904); District of Columba Vv. Colts, 282 U.S. 63 (1930). In its more recent cases, the Court has sought objective criteria for deciding whether a particular offense is “petty” or “serious” for jury trial purposes. In so doing, the Court has focused on the maximum penaliy authorized by law, and has determined that six months’ confinement is the dividing line between “petty” and “serious” offenses. See District of Columbia vy. Clawans, 300 U.S. 617 (1937); Dunean vy. Louisiana, 391 U.S. 145, 159-162 (1968); Baldwin v. New York, 399 U.S. 66, 68-74 (1970) (plurality opinion) ; compare Frank v. United States, 395 U.S. 147, 149 (1969) (“In ordinary criminal prosecutions, the severity of the penalty authorized, not the penalty actually imposed, is the relevant criterion”: in con- tempt cases, however, where there is no statutory maximum sentence, the guide is the penalty actually imposed.). Blanton, this Court’s most recent treatment of the issue, adopted the presumption stated in the text. 4 charge from a petty to a serious offense. App., infra, at Ta-9a. Respondent was tried by the magistrate and was convicted of operating a motor vehicle while under the influence of alcohol; he was acquitted of the other charge. He was fined $750 and placed on unsuper- vised probation for one year. Gov't C.A. Br. 4. 3. Resnondent appealed tc the district court, which reversed. App., infra, 10a-2Ca. The court explained that. in its view, “Blanton represents 2 marked de- parture from prior Supreme Court precedents” such as Duncan vy. Louisiana, 391 U.S. 145 (1968), and Baldwin v. New York, 399 U.S. 66 (1970). App.. infra, 15a-i6a: see id. at 16a-17a. Instead of looking to Blanton, the district court relied on United Stotes v. Crancr, 652 F.2d 23 (1981), a Ninth Cireu't deci- sion predating Blanton. In Craner, the Ninth Circuit held that 2 jury trial was required for a feder:! DUI 2 Respondent argued that interest might be assessed on the £5,000 fine, that restitution might be ordered as a condition of probation, and that up to 4, years of “incarceration” in a federal community treatment center might be ordered as fur- ther conditions of probation. The magistrate ruled that nei- ther interest nor restitution would indicate a determination by Congress that the offense was “serious,” since Congress had legislated such penalties for crimes that it had designated as petty offenses. App., ‘fra, 8a. The magistrate char- acterized respondent's allegation that he faced an additional “inearceration” penalty as “both incorrect and disingenuous, ” noting that respondent had “eitef{d] no authority for the proposition that custodial alcohol or drug treatment may be imposed as a condition of probation for a time period in excess of the [six] month maximum period of incarceration,” and that “a defendant would be entitled to time credits for any such ordered treatment which significantly limited [his] freedom and could be properly termed incarceration.” /d. at 9a. = 5 charge carrying a maximum penalty of six months’ confinement, a $590 fine, payment of costs, and the possible loss of one’s driver's license. App., mfra. 17a, 20a. Although the district court acknowledgec that Blanton was “at variance” with Craner, id. at 17a. the court concluded that it was obliged to follow Craner, since this Court in Blanton “did not expressly overrule” Crener. Id, at 20a. !_ The court of appeals affirmed. App., infra, la- ix. The panel regarded Blanton as “inapposite,”” i. at ta, and held that “Craner remains the law of this Circuit.” ibid., “and controls this case,” id. at 5a. The panel purported to distinguish Blanton on the ground that Blanton involved a legislative determination that the offense was not a serious one, while in this case, as in Craner, “ft}here is no controlling legislative determination,” id. at 3a-4a, because “the six month prisen term is dictated by the Secretary of the In- terior, not Congress,” id. at da. The court also consid- ered it significant that the Secretary, having been vested by Congress under 16 U.S.C. 3 with power to fix six months as the maximum sentence for any offense, chose for DUI “the harshest penalty avail- able to him.” App., infra, 4a. Finally, the panel ob- served that, “to the extent that legislative determina- tions are relevant, Craper points out that the legisla- tures of seven states in our Circuit have determine: that drunk driving is a ‘serious’ offense to which the right to a jury trial attaches.” Jhid. Accordingly, the court held that respondent was entitled to a trial by jury. [bids | ’ The court noted that the DUI charge exposed defendant not only to a maximum confinement term of six months and a maximum fine of $5,000, but also to “a maximum proba- 6 REASONS FOR GRANTING THE PETITION The decision below is irreconcilable with this Court’s unanimous 1989 decision in Blanton v. City of North Las Vegas, 489 U.S. 538. There, this Court held that an offense carrying a maximum prison term of six months or less is presumed to be a “petty of- fense” and hence not subject to the jury trial require- ment of Art. III, $2, Cl. 3 and the Sixth Amend- ment. 489 U.S. at 543. A defendant can overcome that presumption, the Court ruled, ‘only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorize: period of incarceration, are so severe that they clearly reflect a legislative determination that the oifense in question is a ‘serious’ one.” Jhid.!| The Court fur- ther strated that in discerning a legislature’s intent tionary period of five vears during which [he] is subject to a host of possible restrictions and conditions, 18 U.S.C. $$ 3561 (b) (2), 3563(a) (1), (b).” App., infra, 2a. The panel did not cite or discuss 18 U.S.C. 3561 (a) (3), which prohibits imposition of a term of probation in any case in which the defendant “is sentenced at the same time to a term of im- prisonment for the same or a different offense.” In anv event, the court did not purport to distinguish Blanton on the ground that respondent was exposed to more onerous penalties than those at issue in that case. 4This Court found that the presumption had not been overcome with respect to the DUI statute at issue in Blanton, even ‘hough, in addition to a maximum authorized prison term of six months (with an alternative penalty of 48 hours of community service to be performed while the DUI offender was identifiably dressed as such), the statute prescribed » fine of up to $1,000, automatic suspension of the offender’s driver’s license for 99 days, and attendance at an alcoho! abuse education course at the offender’s expense. 489 U.S. at 543-545. 7 under that standard, the intent of other legislatures with respect to similar offenses is irrelevant. /d. at o4o0n.11. In this case, the Ninth Circuit disregarded both the result and the :easoning of Blanton. The Ninth Cir- cuit embraced an approach that this Court rejected in Blanton and that conflicts with the analysis fol- lowed by every other court of appeals to consider this issue since Lbianton was decided. In light of this dis- agreement over a question that arises with consider- able frequency, review by this Court is warranted. Because the Ninth Circuit’s decision is so clearly wrong, the Court may wish to consider summary reversal. 1. The Ninth Circuit did not purport to distin- guish Blanton on the ground that the authorized penalties there were less onerous than those set for violations of 36 C.F.R. 4.23(a) (1); indeed, no such distinction could be drawn. The maximum authorized term of imprisonment both in Blanion and here was six months. The maximum fine for the federal DUI offense is 54,000 greater than the authorized fine in Blanton,’ but that difference is not so significant as to render the federal DUI offense “serious” and thereby to require a jury trial. See United States v. Paternostro, 966 F.2d 907, 913 (Sth Cir. 1992). Incarceration and fines are “intrinsically different,” as the Court explained in Blanton, and a fine “cannot approximate in severity the loss of liberty that a prison term entails.” 489 U.S. at 542 (quoting Muniz v. Hoffman, 422 U.S. 454, 477 (1975)). Indeed, * The maximum fine for the federal DUI offense is $5,000, while the maximum fine for the DUI offense in Blanton was $1,000. 8 Blanton strongly suggested that the $5,000 fine au- thorized by Congress fur petty offenses would not render an offense “serious” for jury trial purposes. 489 U.S. at 544-545; see 18 U.S.C. 19 (defining a “petty offense” in the case of an individual defendant as one for which the maximum fine is no greater than $5,000 (the amount set for petty offenses in 18 U.S.C. 3571(b) (6) (Class B and C misdemeanors) and 3571(7) (infractions) ); 18 U.S.C. 1 (Supp. IV 1986) (same), cited at Blanton, 489 U.S. at 544-545." Instead of distinguishing Bblenton, the Ninth Cir- cuit simply declared that Blanton was ‘“inapposite” to this case, App., infra, 4a, for two reasons: In the court’s view, the legislature had not set the maximum penalty for violations of the federal regulation, and most of the States that make up the Ninth Circuit deem drunk driving sufficiently serious to warrant a “Nor does the alternative possible penalty of probation render the federal DUI offense a “serious” one for jury trial purposes. See United States v. Paternostro, 966 F.2d at 913 (rejecting argument that possibility of five-year probationary period transforms a petty offense into a serious one). Even when probation results in “a significant infringement of personal freedom,” it is not comparable to incarceration, which remains “the most powerful indication of whether an offense is serious.” Blanton, 489 U.S. at 542 (internal cita- tion and quotation marks omitted). The conditions of proba- tion that a court may impose for a federal misdemeanor or infraction—such as residing at an institution offering treat- ment for drug or alcohol dependency, 18 U.S.C. 3563 (b) (10) ; remaining in the custody of the Bureau of Prisons during nights and weekends for a period not exceeding the term of imprisonment authorized for the offense, see 18 U.S.C. 3563 (b) (11); or residing at a community correctional facility, see 18 U.S.C. 3563(b) (12)—are not sufficiently onerous to convert all federal crimes into “serious offenses” for jury trial purposes. 9 jury trial. /d. at 3a-4a. The first rationale is with- out merit, and this Court in Blanion explicitly re- jected the second one. a. The court of appeals concluded that ‘[t]here is no controlling legislative determination here” as to the seriousness of the DUI offense, because the six- month prison term was fixed by the Secretary of the Interior, rather than by Congress. App., infra, 4a. That conclusion, however, ignores Congress’s antece- dent decision to limit to six months the confinement term that the Secretary can set for violations of his regulations. See 16 U.S.C. 3. Although the Ninth Circuit perceived some constitutional significance in the Secretary’s decision to impose ‘the harshest pen- alty available to him,” App., infra, 4a, the maximum penalties chosen by the Secretary simply tracked the maximum penalties fixed by Congress. Moreover, the Secretary did not single out DUI for especially harsh treatment. The six-month maximum term of confine- ment was made applicable generally to virtually ali offenses committed in nations] parks, see 36 C.F.R. 1.5(a), including such offenses as digging for bait, 36 C.F.R. 2.5(d) (6), and camping within 25 feet of a road, 36 C.F.R. 2.10(b) (3). The six-month maximum term of incarceration is constitutionally significant not because the Secretary chose it, but because, as Blanton teaches, that limita- tion triggers the presumption that a jury trial is not required for any offense to which it applies. 489 U.S. at 545. Because the court of appeals did not—and could not—find that any additional authorized pun- ishment was sufficiently onerous to overcome that presumption, respondent was not entitled to a jury trial. See ibid. (when the maximum authorized term of confinement is six months, the Constitution 10 requires a jury trial only in that “rare situation where a legislature packs an offense it deems ‘serious’ with onerous penalties that nonetheless ‘do not punc- ture the 6-month incarceration line.’ ”’).' b. The court of appeals’ second rationale for hold- ing that the federal DUI offense is not a “petty offense’—that “the legislatures of seven states in [the Ninth] Circuit have determined that drunk driving is a ‘serious’ offense to which the right to a jury trial attaches,” App., infra, 4a—is even less tenable than the first. In Blanton, this Court ex- pressly declined to review the statutory penalties for drunk driving in other States as a basis for deter- mining whether Nevada’s DUI offense was “serious.” 489 U.S. at 545 n.11. As the Court explained, “[t]he question is not whether other States consider drunken driving a ‘serious’ offense, but whether Nevada does.” Ihid.; accord United States vy. Bencheck, 926 F.2d 7In any event, Blanton suggests that if the legislature has not itself established a maximum sentence, as in a prosecution for criminal contempt, “the severity of the penalty actually imposed is the best indication of the seriousness of the par- ticular offense.” 489 U.S. at 542 n.6 (quoting Frank v. United States, 395 U.S. 147, 149 (1969)): see United States v. Musser, 873 F.2d 1513, aff’d on denial of reh’g, 883 F.2d 84, 85 (D.C. Cir.) (even if the six-month maximum prison term applicable to the violation of a Department of Interior regula- tion concerning unattended signs did not make the offense “netty” because the regulation was not promulgated by Con- gress, the court would not automatically deem the offense “serious”; instead, the availability of a jury trial would de- pend on the sentence actually imposed), cert. denied, 493 U.S. 983 (1989). Respondent was sentenced to one year of un- supervised probation and fined $750. Thus, even if the choice of six months’ imprisonment as the penalty for violations of the federal DUI regulations was not a “legislative determina- tion’ within the meaning of Blanton, 489 U.S. at 543, respond- ent was not entitled to a jury trial. 11 1512, 1517 (10th Cir. 1991) (“the Blanton Court refused an invitation to survey and rely on state law” to determine the seriousness of an offense). Similarly, the relevant measure of the “seriousness” of the federal DUI offense for purposes of the right to a jury trial is not the “seriousness” of state drunk driving offenses, but is Congress’s judgment, as re- flected by the maximum term of imprisonment that Congress has permitted the Secretary to set for that offense and any additional penalties that Congress has affixed to it. ¢. The Ninth Circuit acknowledged, App., infra, 2a-da, that it derived the two rationales for its deci- sion from its pre-Blanton decision in United States v. Craner, 652 F.2d 23 (1981). In Craner, the court held that a jury trial was constitutionally required for violations of former 16 C.F.R. 4.6 (1980), which prohibited driving under the influence of intoxicating liquor or drugs in park areas. That crime carried the same maximum penalty of six months’ incarcera- tion that is found in 36 C.F.R. 4.23(a) (1), which is at issue here. In this case, the court of appeals held that “Craner is indistinguishable in any legally mean- ingful sense from the case at hand” and “remains the law of this Circuit.” App., infra, 3a, da. But Craner is oo longer good law after Blanton, because Blanton expressly disapproved the authority on which Craner was premised. The Ninth Circuit in Craner relied heavily on District of Columbia vy. Colts, 282 U.S. 63 (1930), which held that reckless driving was a serious offense requiring trial by jury. See Craner, 652 F.2d at 26 (“There is no legally meaningful distinction between the present case and Colts.”). Craner noted that this Court had “never repudiated Colts.” Ibid. In Blanton, however, this Court contrasted its current approach 12 to the jury trial requirement with its approach to that issue in Co/fs, which had “focused on the nature of the offense and on whether it was triable by a jury at common law.” 489 U.S. at 541. In Blanton, this Court observed that, in s«cent years, it had sought “objective indications of the seriousness with which society regards the offense,” ‘hid. (quoting Frank v. United States, 395 U.S. 147, 148 (1969)), and had found “the most relevant such criteria in the severity of the maximum authorized penalty,” 489 U.S. at 541 (quoting Baldwin v. New York, 399 U.S. 66, 68 (1970) (plurality opinion), and citing Duncan vy. Louisiana, 391 U.S. 145, 159 (1968) ). See also 489 U.S. at 542 (to determine whether a jury trial is required, “[{p]rimary emphasis * * * must be placed on the maximum authorized period of incarceration,” because it is “the most powerful indication of whether en offense is ‘serious.’”). The Ninth Cireuit’s continued reliance on Craner in the face of this Court’s express rejection in Blanton of the reasoning on which Craner was based is further proof that the decision helow is irreconcilable with Jlanton. 2. The Ninth Circuit’s decision is inconsistent with the post-Blanton decisions of several other circuits. Unlike the Ninth Circuit, those courts have applied Blanton’s analysis to hold that federal regulatory crimes carrying a maximum penalty of six months’ incarceration and a $5,000 fine are petty offenses and therefore not subject to 2 jury trial. See United States v. Paternostro, 966 F.2d 907, 913 (Sth Cir. 1992) (permit violation under 36 C.F.R. 327.19); United States v. Harper, 946 F.2d 1373, 1374 (8th Cir. 1991) (placing an unauthorized structure in a national forest, in violation of 36 C.F.R. 261.10(a), and camping for more than 30 days, in violation of 13 36 C.F.R. 261.58(a)), cert denied, 112 S. Ct. 1506 (1992): United States vy. Musser, 873 F.2d 1513, 1516 (leaving a sign unattended in a national park, in violation of 36 C.F.R. 7.96(g) (5) (x) (B)(2)), aff'd on denial of reh’g, 883 F.2d 84 (D.C. Cir.), cert. denied, 493 US. 983 (1989).* In none of those cases did the courts find any significance in the fact that the Secretary of the Interior fixed the statutory maximum penalty within a range set by Congress; nor did they look to how other States treated the offense in question. Other courts have likewise followed Blanton in hold- ing the right to a jury trial does not apply to cases carrying a maximum penalty of six months’ incar- ceration, even when the offenses and penalties are similar to those at issue here. See United States v. LaValley, 957 F.2d 1309, 1312-1313 (6th Cir. 1992) (wrongful entry of a military base, in violation of i8 U.S.C. 1382; maximum authorized penalty of six months’ confinement, $5,000 fine, and five years’ supervised release); United States v. Bencheck, 926 F.2d 1512, 1514-1520 (10th Cir. 1991) (several mis- demeanors (various traffic offenses and assault on a police officer) under Oklahoma law and the Assimilative Crimes Act, 18 U.S.C. 13; maximum authorized pen- a'ty for each offense of six months’ confinement, $500 fine, or both) : United States v. Garner, 874 F.2d 1510, 1512 (11th Cir. 1989) (DUI offense under Florida law and the Assimilative Crimes Act; maximum penalties are “similar” to those in Blanton, although Florida re- “In Musser, the maximum fine was only $500 because 18 U.S.C. 3571 (e), which provides for a fine of up to $5,000 for al! federal misdemeanors not specifically excluded from the operation of that statute, had not gone into effect at the time of the offenses at issue in that case. 4 voked license for a longer period and required 50 hours of community service); United States vy. Spivey, 781 F. Supp. 676, 679 (D. Haw. 1991) (DU! in violation of Hawaii law and the Assimilative Crimes Act; maximum authorized penalty of six months’ confinement and $1,000 fine); Stevenson v. District of Columbia, 562 A.2d 622, 623 (D.C. 1989) (DUT under D.C. Code; maximum authorized pen- alty of 90 days’ confinement and $300 fine); Stete v. Harrison, 792 P.2d 779 (Ariz. Ct. App. 1990) (traf- fic offenses; maximum authorized penalty of four months’ confinement and a fine). We are aware of only one case in which a federal court of appeals has found that the circumstances were sufficient to overcome Blanton’s presumption that offenses subject to a six-month maximum prison term are petty. In Richter v. Fairbanks, 903 F.2d 1202, 1204-1205 (Sth Cir. 1990), the court of appeals held that a jury trial was required for a DUI offense under a Nebraska city ordinance, where the maxi- mum penalty was six months’ incarceration, a $500 fine, and a 15-year driver’s license revocation. In contrast to this case, however, the Eighth Circuit reached that result by applying this Court’s analysis in Blanton. In finding that “a 15-year revocation is a substantial burden on the offender that is com- pletely ‘out-of-step’ with a six month prison term,” the court observed that “[t]he Supreme Court’s analy- sis of the facts in Blanton supports our conclusion that adding the 15-year license revocation to the six month prison term resulted in a penaity severe enough to warrant a jury trial in this case.” 905 F.2d at 1205. Thus, the decision below is as incon- sistent with Richter as with the decisions discussed above. 15 The analysis applied by the Ninth Circuit in this case cannot be reconciled with the analysis followed by the other circuits that have addressed similar questions after Blanton. In light of the analysis followed by the other circuits in the cases cited above, there can be no doubt that a defendant charged with the offenses in question here would not have been entitled to a trial by jury in any of those circuits. Accordingly, review of the decision below is necessary to ensure that the Ninth Circuit applies the test articulated by this Court in the same manner as every other court of appeals that has addressed the jury trial issue since Llanton. 3. The decision below, if allowed to stand, will have a substantial adverse effect on the administra- tion of justice in the Ninth Circuit. Each year, the government prosecutes thousands of petty offenses, including hundreds of DUI offenses,.committed in federal parks and on other federal property, such as military bases. During the past decade, the government has prosecuted nationwide more than 700,000 petty offenses before United States Magis- trates, including 83,258 such offenses during the last year for which figures are available (July 1, 1990, to June 30, 1991). Administrative Office of the United States Courts; 1986 Ann. Rep. of the Director 36, Table S-26, at 130; Administrative Office of the United States Courts, 1991 Ann. Rep. of the Director 107, Table 15, at 108. In addition, the United States Attorney for the Eastern District of California, the district where this case arose, reports that in 1991 4,731 petty offense charges were brought in his dis- trict alone, and that of those charges, 252 were DUIs brought under 36 C.F.R. 4.23(a)(1). Gov't Pet. for Reh’g and Suggestion for Reh’g En Banc 8-9. To ex- 16 tend the right to a trial by jury to even a small percentage of those cases would severely impede the ability of the federal criminal justice system to ad- judicate petty offenses expeditiously, and as a result would significantly affect the ability of the courts to handle more serious criminal cases and civil cases as well. See United States y. Bencheck, 926 F.2d at 1517." The impact of the Ninth Circuit’s ruling is not likely to be lessened by the fact that that court did not formally publish its opinion. Ordinarily, an un- published opinion affects only the particular litigants in the case at bar. The Ninth Circuit’s opinion in this case, however, is likely to have a far broader effect on the administration of justice at the trial level. District court judges and magistrates, who already face swollen dockets, can be expected to grant jury trials in DUI cases despite the decision’s un- published status in order to avoid a risk of reversal on this ground. Because an order granting a jury trial on demand is not appealable, the government will have no way in such cases of presenting the jury trial issue to the Ninth Circuit in another case seek- *Since Congress has fixed the maximum sentence for all regulatory offenses defined by the Secretary of the Interior at six months’ imprisonment and a $5,000 fine, see 16 U.S.C. 3; 18 U.S.C. 3571(b) (6) and (7), and since the Secretary has chosen to impose the maximum penalty available to him on all offenses in national parks, see 36 C.F.R. 1.3(a), under the Ninth Circuit’s decision in this case jury trials could now be required for offenses such as failure to keep a pet on a leash that does not exceed six feet in length, 36 C.F.R. 2.15(a) (2), using a surfboard on a beach designated for swimming, 36 C.F.R. 3.22, and picnicking in a non-designated area, 36 C.F.R. 2.11, al! of which carry the same maximum penalty at issue here. 17 ing a published decision on the question. The deci- sion below therefore merits the attention of this Court.” CONCLUSION The petition for a writ of certiorari should be granted. The Court may wish to consider summary reversal, tespectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General WILLIAM C, BRYSON Deputy Solicitor General PAUL J. LARKIN, JR. Assistant to the Solicitor General Vick1IS. MARANI Attorney OCTOBER 1992 / This Court has granted review of unpublished court of appeals’ decisions in other cases raising questions warranting review by this Court. EFE.g., Spectrum Sports, Ine. Vv. Me- Quillan, cert. granted, No. 91-10 (unpublished opinion of the Ninth Cireuit) (to be argued Nov. 10, 1992) ; Commissioner Vv. McCoy, 484 U.S. 3, 7 (1987) (‘We note in passing that the fact that the Court of Appeals’ order under challenge here is unpublished carries no weight in our decision to review the case. The Court of Appeals exceeded its jurisdiction re- gardless of nonpublication and regardless of any assumed lack of precedential effect of a ruling that is unpublished.”’) ; Groen V. Bock Laundry Machine Co., 490 US. 504 (1989); Rose Vv. Clark, 478 U.S. 570 (1986). That course is appro- priate here, too. APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 91-10212 D.C. No. CR-90-00154-EDP UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT vs. JERRY J. NACHTIGAL, DEFENDANT-APPELLEE Appeal from the United States District Court for the Eastern District of California Edward D. Price, District Judge, Presiding Submitted January 17, 1992** San Francisco, California MEMORANDUM* [Filed Jan. 27, 1992] * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. ** The panel unanimously found this case suitable for de- cision without oral argument. Fed. R. App. 34(a) and Ninth Circuit Rule 34-4. (la) 2a Before: CHAMBERS, TANG, and PREGERSON, Circuit Judges Jerry Nachtigal was convicted before a magistrate judge of driving a motor vehicle under the influence of alcohol in Yosemite National Park, in violation of 296 C.F.R. § 4.23(a) (1). This crime carries a maxl- mum sentence of six months imprisonment, 36 C.F. £$1.3(a), a maximum fine of $5,000, 18 U.S.C. § 3571(b) (6), (e), and a maximum probationary period of five years during which the defendant is subject to a host of possible restrictions and condi- tions, 18 U.S.C. $$ 3561(b) (2), 3563(a) (1), ‘(b). On appeal to the district court, Nachtigal argued that because of the severity of the potential sanctions, he had a right to a jury trial. The district court agreed, and reversed his conviction. The government now appeals the reversal, arguing that Nachtigal has no right to a jury trial. ‘We a surisdiction under 18 U.S.C. § 3731, and we affirm. DISCUSSION Our constitution guarantees the right to trial by jury. U.S. Const. art. III, § 2, el. 3; amend. VI. How- ever, this right does not apply to all crimes. The Supreme Court has recognized “the common-law rule that ‘petty’ offenses may be tried without the inter- vention of a jury.” United States v. Craner, 652 F.2d 23, 24 (9th Cir. 1981) (citations omitted). Sev- eral Supreme Court cases, culminating in Blanton v. City of North Las Vegas, Nevada, 109 S.Ct. 1289 (1989), have focused on offenses carrying maximum prison terms of six months as the dividing line be- tween “netty” and “serious” offenses. At issue here is whether operating a motor vehicle under the in- 3a fluence of alcohol on federal property, which carries a Maximum term of six months imprisonment, is a petty offense for which no right to a trial by jury exists. In Craner, we addressed this same question. In that case, we held that a person accused of operating a motor vehicle under the influence of alcohol in Yosemite Park has a right to a jury trial. 652 F.2d at 27. In doing so, we emphasized two factors. First, the six month term of imprisonment is set by the Secretary of the Interior, and “is the severest one the Secretary may authorize.” Jd. at 25, citing 16 U.S.C. $ 3. Second, we noted that seven states in this circuit guarantee a right to a jury trial in drunk driving cases. Id. at 27. We concluded in Craner that the crime of driving a motor vehicle while intoxicated is a serious one which merits trial by jury. Craner is indistinguishable in any legally meaningful sense from the case at hand, and controls this case. The government urges us to abandon Craner, how- ever, on the grounds that it has been overturned by Blanton. There, the Supreme Court held that the federal constitution does not require a jury trial where a state drunk driving statute imposes a maxi- mum penalty of six months imprisonment and a fine of $1,000. 109 S.Ct. at 1293. The Court did not, how- ever, adopt a bright line rule that an offense carrying a muximum prison term of six months or less is “netty.”” Id. The Court in Blanton adopted a “somewhat im- precise” test which focuses on the totality of statutory sanctions in, order to determine whether there is “a legislative determination that the offense in question is a ‘serious’ one.” Jd. (emphasis added). Because 4a of the Supreme Court’s emphasis on the legislature’s intent in establishing criminal penalties, we do not believe that Blanton is apposite to this case. As Craner emphasized, the six month prison term is dictated by the Secretary of the Interior, not Con- gress. There is no controlling legislative determina- tion here. Moreover, it would be error to construe the six month prison term as indicative of the pettiness of driving while intoxicated. As Craner noted, the general regulatory powers vested in the Secretary by Congress make six months the maximum sentence the Secretary can impose for any offense. Indeed, the fact that the Secretary imposed the harshest penalty avail- able to him dictates the gravity of drunk driving. Finally, to the extent that legislative determinations are relevant, Craner points out that the legislatures of seven states in our Circuit have determined that drunk driving is a “serious” offense to which the right to a jury trial attaches. CONCLUSION Blanton is inapposite to this case. Craner remains the law of this Circuit. Nachtigal is therefore en- titled to a jury trial. The judgment of the district court is AFFIRMED. 5a APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CR-F-90-27-DLB JNITED STATES OF AMERICA, PLAINTIFF Uv. JERRY NACHTIGAL, DEFENDANT MEMORANDUM OF DECISION AND RULING ON DEFENDANT'S MOTION FOR JURY TRIAL [Filed Aug. 3, 1990] This matter came regularly for hearing on June 29, 1990, in Courtroom No. 4 before the Honorable Dennis L. Beck, United States Magistrate on defend- ant’s motion for jury trial. _Defendant and moving party was represented by his attorney, Stephen Mensel, Assistant Federal De- fender. The Government was represented by Assistant United States Attorney, Lawrence Lincoln. The court having read and considered the points and authorities in support of and in opposition to de- 6a fendant’s motion and having heard the argument of counsel in open court renders the following memo- randum of decision and ruling on defendant’s motion. Defendant is before this court charged with driv- ing under the influence, in violation of 26 CFR § 4.23 (aj(1). The maximum punishment for violation of 36 CFR § 4.23(a)(1) is specified in 36 CFR § 1.3, as amended by U.S.C. § 3571(b)(6), and is six months in jail and or a fine of up to $5,000.00, The defendant argues that he is entitled to a jury trial since this offense is not properly characterized as a “petty offense”. Defendant acknowledges that Blanton v. City of North Las Vegas, U.S. —, 109 S.Ct. 1289 (1989) may have “arguably aban- doned without specifically overruling’? United States v. Craner, 652 F.2d 23 (9th Cir. 1981) which held that a defendant charged with the same offense as Mr. Nachtigal was entitled to a jury trial. The court in Craner held that the defendant was entitled to a jury trial on a charge of driving under the influence, since the court could find no evidence that serious legislative consideration was given to the punishment for the offense which demonstrated a conscious decision that it should be treated as a petty offense. The court found that since the regulation, under which the charge was brought, was promul- gated by the Secretary of Interior and carried the maximum punishment allowable for any violation of the secretary’s regulations (the same punishment as for “digging for bait in a national park” or for “climbing Mt. Rushmore’) that there was no evi- dence of a considered legislative determination; and, therefore, the defendant was entitled under the to- tality of the circumstances to a jury trial. 7a In Blanton tae United States Supreme Court held that a defendant charged with driving under the in- fluence in Nevada (an offense which carried a maxi- mum possible punishment of 6 months in jail and/or a fine of up to $1,000) was not entitled to a jury trial. The offense of driving under the influence in Nevada carries additional penalties similar to Cali- fornia such as an automatic suspension of drivers license for 90 days, attendance, at defendant’s own expense, at an alcohol abuse education program and increased penalties for repeat offenders. While the Court in Blanton declined to hold that “an offense carrying a maximum prison term of six months or less automatically qualifies as a ‘petty of- fense’”’ they did “find it appropriate to assume for purposes of the Sixth Amendment that society views such an offense as ‘petty’.” Blanton, 109 S.Ct. 1289 at 1293. The Court went on to hold that “A defendant is entitled to a jury trial in such circumstances (where the offense punishable by six months or less) only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized pe- riod of incarceration are so severe that they clearly reflect a legislative determination that the offense in question is a ‘serious’ one. This standard, albeit somewhat imprecise, should in- sure the availability of a jury trial in the rare situation where a legislature packs an offense it deems ‘serious’ with onerous penalties that none- the-less ‘do not puncture the six months incar- ceration line’.” Blanton, at p. 1293. Defendant in his attempt to justify his request for a jury trial points to added penalties in the instant 8a case which justify departure from the presumption set forth in Blanton and a determination that the in- stant ofiense is a “serious” one. These additional penalties cited by defendant are: (1) A fine of $5,000 plus the possibility that in- terest may be assessed thereon and a $10 penalty as- sessment; (2) The possibility that the court, as a condition of probation, might order restitution; (3) The possibility that, as a further condition of probation, that the defendant might be “incarcerated” for up to four and one half years in a federal com- munity treatment center. The court rejects each of defendant’s arguments with respect to these added penalties. With respect to the first two additional penalties, neither the added fine and penalty assessment nor the restitution in- volved are sufficient to support a findine that there was a legislative determination that the offense was a “serious” offense. Each of these penalties attaches, by statute, to crimes designated by Congress as petty offenses. As to defendant’s third argument, that he might be “incarcerated” in a community treatment center for up to four and one half years as a condition of probation, it is rejected as simply being incorrect. Defendant acknowledges that under Brown v. Rison, 895 F.2d 533 (9th Cir. 1990) a defendant is entitled to custody time credits for time spent (in that case only between 7 p.m. and 5 a.m.) in a treatment center as a condition of pretrial release. Neverthe- less, he argues that the court could impose “incarcera- tion” in a community treatment center as a condition of probation for a period of up to four and one half years. 9a Defendant's argument is both incorrect and dis- ingenuous. Defendant cites no authority for the proposition that custodial alcohol or drug treatment may be imposed as a condition of probation for a time period in excess of the sixth month maximum period of incarceration. Indeed the holding in Brown vy. Rison indicates quite to the contrary, that a defend- ant would be entitled to time credits for any such ordered treatment which significantly limited the de- fendant’s freedom and could be properly termed in- carceration. For the foregoing reasons defendant's motion for jury trial is hereby denied. DATED: 8 3/90 s Dennis L. Beck United States Magistrate 10a APPENDIX C UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA No. CR F-90-154 EDP UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. JERRY J. NACHTIGAL, DEFENDANT-APPELLANT MEMORANDUM DECISION RE: APPELLANT'S RIGHT TO A JURY TRIAL [Filed Mar. 29, 1991] Defendant was charged by information with a violation of 36 CFR 4.23(a) (1), and 4.23(a)(2)° in 1 Operating under the influence of alcohol or drugs. (a) Operating or being in actual physical control of a motor vehicle is prohibited while: (1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation; or (2) The alcoho! concentration in the operator’s blood or breath is 0.10 grams or more of alcoho! per 100 milliliters lla Yosemite National Park. When the defendant ap- peared before Magistrate-Judge Pitts in Yosemite on January 23, 1990, he declined the Magistrate’s juris- diction. However, when he appeared before Magis- trate-Judge Beck on or about March 29, 1990, he consented to be tried before a magistrate-judge. Defendant then moved for a jury trial. His motion was denied. Defendant proceeded to trial before Magistrate-Judge Beck and was convicted. Defendant filed this appeal. The sole issue on appeal is the propriety of the ruling of the magistrate-judge that defendant was not entitled to a trial by jury. In United States v. Craner, 652 F.2d 23 (9th Cir. 1981), the Ninth Circuit held that defendant Craner was entitled to a jury trial on charges of driving under the influence of alcohol in Yosemite National Park. The penalty imposed on Craner’s violation and upon appellant, is the same. See 36 CFR § 1.3(a): Penalties. (a) A person convicted of violating a provision of the regulations contained in Parts 1 through 5, 7, 12 and 13 of this chapter, within a park area not covered in paragraphs (b) or (c) of this section, shall be punished by a fine not ex- ceeding $500 or by imprisonment not exceeding of blood or 0.01 grams or more of alcohol per 210 liters of breath. Provided however, that if State law that applies to operating a motor vehicle while under the in- fluence of alcohol establishes more restrictive limits of alcohol concentration in the operator's blood or breath, those limits supersede the limits specified in this para- graph. : 12a 6 months, or both, and shall be adjusted to pay all costs of the proceedings. In United States v. Craner, supra, at 26-27, the court held that a defendant charged with driving under the influence was entitled to a jury trial, stating: Federal and state precedent and practices counsel ranking DUI as a “serious” crime. In 1930 the Supreme Court held that the analogous offense of reckless driving was a serious oilense within the constitutional guarantee of trial by jury. See District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1980). The court in Colts reasoned that reckless driving was both indictable at common law and malum in se, and hence, serious. There is no legally meaningful distinction be- tween the present case and Colts. The govern- ment, therefore, understandably argues that Colts is superannuated and, as precedent, aban- doned. Yet Colts was cited by Justice White without disapproval in Baldwin—the very case that supposedly doomed “the nature of the of- fense” as the determinant of the right to a jury trial. See Baldwin, supra, 399 U.S. at 69 n. 6, $0 S.Ct. at 1888 n. 6 (plurality opinion). This Court has rejected the argument that the Colts line of cases should not be followed; the Supreme Court has never repudiated Colts, although it has had many opportunities to do so. United States v. Sanchez-Meza, supra, 547 F.2d at 463- 64. See also United States v. Stewart, 568 F.2d 501, 503 (6th Cir. 1978); United States v. Woods, 450 F.Supp. 1835, 13842 (D.Md.1978) ; 13a Brady v. Blair, 427 F.Supp. 5, 9 (S.D.Ohio 1976). At least seven of the states in this Circuit guarantee the DUI defendant the right to a jury trial. This is a better objective gauge of the common perception of the gravity of the offense than the broad formula for classifying crimes found in 18 U.S.C. $1. It accords with the rele- vant state and federal practice that Craner have the jury trial he seeks. In 1989, the United States Supreme Court decided Blanton v. City of North Las Vegas, 489 U.S. ' 103 L.Ed.2d 550, 109 S.Ct. —, (1989). In Blanton, supra, two petitioners had been charged with driving an automobile under the influence of alcohol in a Nevada court. Each was a first time offender. The Nevada state statute prescribed the following punish- ment upon conviction: 1. A minimum of two (2) days imprisonment and a maximum of six months imprisonment; 2. Alternatively, the trial court could order the defendant to perform 48 hours of work for the com- munity while dressed in distinctive garb, which iden- tifies the wearer as a driving under the influence offender ; 3. A fine ranging from $200 to $1,000; 4. Loss of his driver's license for 90 days; * and 5. The convicted individual must attend, at his own expense, an alcohol abuse program. * The convicted individual could receive a restricted license after the expiration of 45 days, which would permit travel to and from work, and to obtain food and medical care. l4a The lower Nevada courts had ruled differently as to the entitlement of the two petitioners to a jury trial. The Nevada Supreme Court ruled that neither was so entitled. The Blanton case arose by certiorari from the Nevada Supreme Court decision as to each petitioner. Justice Marshall, writing for a unani- mous court, held that: Applying these principais here, it is apparent that petitioners are not entitled to a jury trial. The maximum authorized prison sentence for first-time DUI offenders does not exceed six months. A presumption therefore exists that the Nevada legislature views DUI as a “petty” of- fense for purposes of the Sixth Amendment. Con- sidering the additional statutory penalties as well, we do not believe that the Nevada Legisla- ture has clearly indicated that DUI is a “serious” offense. In the first place, it is immaterial that a first- time DUI offender may face a minimum term of imprisonment. In settling on six months impris- onment as the constitutional demarcation point, we have assumed that a defendant convicted of the offense in question would receive the mazi- mum authorized prison sentence. It is not con- stitutionally determinative, therefore, that a particular defendant muy he required to serve some amount of jail time /ess than six months. Likewise, it is of little moment that a defendant may receive the maximum prison term because of the prohibitions on plea bargaining and _ pro- bation. As for the 90-day license suspension, it, too, will be irrelevant if it runs concurrently with the prison sentence, which we assume for 15a present purposes to be the maximum of six months. We are also unpersuaded by the fact that, in- stead of a prison sentence, a DUI offender may be ordered to perform 48 hours of community service dressed in clothing identifying him as a DUI offender. Even assuming the outfit is the source of some embarrassment during the 4&- hour period, such a penalty will be less embar- rassing and less onerous than six months in jail. As for the possible $1,000 fine, it is well below the $5,000 level set by Congress in its most re- cent definition of a “petty” offense, 18 USC $1 (1982 ed. Supp. IV [18 USCS $1], and peti- tioners do not suggest that this congressional figure is out of step with state practice for of- fenses carrying prison sentences of six months or less. Finally we ascribe little significance to the fact that a DUI offender faces increased penalties for repeat offenses. Recidivist penal- ties of the magnitude imposed for DUI are com- monplace and, in any event, petitioners do not face such penalties here. Viewed together, the statutory penalties are not so severe that DUI must be deemed a “seri- ous” offense for purposes of the Sixth Amend- ment. It was not error, therefore, to deny peti- tioners jury tral. Accordingly, the judgment of the Supreme Court of Nevada is affirmed. Blanton, supra, 103 L.Ed.2d at 557-58. Blanton represents a marked departure from prior Supreme Court precedents. In Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed.2d 491, 88 S.Ct. 1444 (1968), the court held that a l6a defendant in a Louisiana Court, charged with a mis- demeanor of simple battery, punishable by a $390 fine, or imprisonment for 2 years, or both, was en- titled to a jury trial. The constitutional analysis used by the Court was the right guaranteed by the Fourteenth Amendment to the Constitution. In Baldwin v. New York, 399 U.S. 66, 26 L.Ed.2d 437, 90 S.Ct. 1886 (1969), the petitioner had been denied a jury trial by the New York City Criminal Court. He was charged with the misdemeanor of “jostling”. The Act that created the New York City Criminal Court provided that no jury trials would be had in that court. Five members of the court agreed that Baldwin was entitled to a jury trial, although the maximum penalty was one year imprisonment. Five judges concurring with Justice White’s decision could not agree on the grounds for the decision. Some circuits viewed Buldirin as developing 2 “bright-line” test for determining whether a particu- lar offense would entitle a defendant to a jury trial: The Supreme Court has adopted a bright-linc test for determining whether a crime is “seri- ous.” An offense carrying a maximum penalty in excess of six months imprisonment is con- sidered sufficiently severe to be automatically categorized as “serious.” Paldwmn, 399 U.S. at 69, 90 S.Ct. at 1888. United States v. Jenkins, 780 F.2d 472, 473 (Ath Cir. 1986). However, the Supreme Court in Blanton v. Las Vegas, supra, made it clear that cases where the pos- sible penalty exceeded six months were sufficiently lia Severe to make the case triable by jury.’ Where, as here, that “bright-line” is not reached, the defendant must demonstrate that the collateral consequences of conviction are so severe they elevate the offense to the category of “serious.” The Supreme Court re- jected the possibility that the convicted offender may be required to perform 48 hours of community serv- ice in a distinctive costume. The Court also was not impressed by the $1,000 fine, and the fact that a first offender faced increased penalties on a second or more frequent offense.‘ These comments by the high court are at variance with the Ninth Circuit precedent of United States v. Craner, supra. (See Judge Sneed’s concurring opin- ion). See California Vehicle Code section 23152, 23165, 23166, 23167, 23170, 23171, 23175. Under- standably, the Supreme Court, dealing as it was with a Nevada case, did not address these sections, or analyze their effect upon its decision. However, United States v. Craver, supra, remains the law of this circuit. It should be noted that in 1984, Congress reclassi- fied federal offenses in 18 U.S.C. section 3559 as follows: 3It should be noted that the maximum penalty in United States v. Craner, 652 F.2d 28 (9th Cir. 1981) is the same that is applicable here, i.e., $500 fine; imprisonment not to exceed six (6) months, plus payment of costs. *Implicit in the Supreme Court opinion is the suggestion that all of these facts were known to the Nevada legislature when they determined that first offenders charged with driv- ing under the influence were not entitled to jury trials. The Supreme Court did state that the opinion of the legislature concerning this matter was entitled to great weight. 18a (a) Classification An offense that is not spe- cifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is— (1) life imprisonment, or if the maximum penalty is death, as a Class A felony; (2) twenty-five years or more, as a Class B felony; (3) less than twenty-five years but ten or more years, as a Class C felony; (4) less than ten years but five or more years, as a Class D felony; (5) less than five years but more than one year, as a Class E felony; (6) one year or less but more than six months, as a Class A misdemeanor; (7) six months or less but more than thirty days, as a Class B misdemeanor; (8) thirty days or less but more than five days, as a Class C misdemeanor; or (9) five days or less, or if no imprisonment is authorized, as an infraction. (b) Effect of classification. An offense classi- fied under subsection (a) carries all the incidents assigned to the applicable letter designation, ex- cept that, the maximum term of imprisonment is the term authorized by the law describing the offense. Beginning on November 1, 1987, Congress man- dated that the courts should sentence according to 19a the Sentencing Guidelines developed by the Sentenc- ing Commission: Application of guidelines in imposing a sentence. The court shall impose a sentence of the kind, and within the range, referred to in section (a) (4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In de- termining whether a circumstance was ade- quately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sen- tencing Commission. In the absence of an ap- plicable sentencing guideline, the court shall im- pose an appropriate sentence, having due regard for the purposes set forth in subsection (a) (2). In the absence of an applicable sentencing guide- line in the case of an offender other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sen- tences prescribed by guidelines applicable to sim- ilar offenses and offenders, and to the applicable policy statements of the Sentencing Commission. Title 18 of the United States Code section 3553(b). As of this date, the Sentencing Commission has not formed a sentencing guideline for “driving under the influence,” specifically, or Class B misdemeanors, generally. In 18 U.S.C. section 3571(b), Congress fixed the range of fines for each class of crime: 20a Fines for individuals. Except as provided in subsection (e) of this section, an individual who has been found guilty of an offense may be fined not more than the greatest of— (1) the amount specified in the law setting forth the offense; (2) the applicable amount under subsection (d) of this section; (3) for a felony, not more than $250,000; (4) for a misdemeanor resulting in death, not more than $250,000; (5) for a Class A misdemeanor that does not result in death, not more than $100,000; (6) for a Class B or C misdemeanor that does not result in death, not more than $5,000; or (7) for an infraction, not more than $5,000. The Court notes that using the analysis announced in Blanton v. Las Vegas, supra, something less than a clear picture emerges. More important, however, United States v. Craner, supra, is the law of this circuit. Since Blanton, supra, did not expressly overrule United States v. Craner, supra, this Court must fol- low it. Accordingly, the judgment is reversed. DATED: March 28, 1991 /s’ Edward Dean Price EDWARD DEAN PRICE Senior United States District Judge 2la APPENDIX D UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 91-10212 D.C. No, CR-90-00154-EDP UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT vs. JERRY J. NACHTIGAL, DEFENDANT-APPELLEE ORDER [Filed Jul. 10, 1992] Before: CHAMBERS, TANG, and PREGERSON, Circuit Judges Judges Chambers, Tang, and Pregerson voted to deny the petition for rehearing. Judges Tang and Pregerson voted to reject the suggestion for rehearing en bane and Judge Chambers recommends such re- jection. The full court has been advised of the suggestion for rehearing en bane and no active judge has re- quested an en bane hearing. Federal Rule 35(b). The petition for rehearing is denied and the sug- gestion for rehearing en banc is rejected. 22a APPENDIX E Article III, § 2, Cl. 3 of the Constitution pro- vides in part: The trial of all crimes, except in cases of im- peachment, shall be by jury * * *. 2. The Sixth Amendment to the Constiution pro- vides in part: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been com- mitted * * *. 16 U.S.C. 3 provides in part: The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and man- agement of the parks, monuments, and reserva- tions under the jurisdiction of the National Park Service, and any violation of any of the rules and regulations authorized by this sec- tion * * * shall be punished by a fine of not more than $500 or imprisonment for not ex- ceeding six month or both, and he adjudged to pay all costs of the proceedings. * * * 18 U.S.C. 3571(b) (6) and (e) provides: (b) Fines for individuals —Except as pro- vided in subsection (e) of this section, an indi- vidual who has been found guilty of an offense may be fined not more thai the greatest of— 23a (6) for a Class B or C misdemeanor that does not result in death, not more than $5,000[.] * 8 id * * (e) Special rule for lower fine specified in substantive provision.—If a law setting forth an offense specifies no fine or a fine that is lower than the fine otherwise applicable under this sec- tion and such law, by specific reference, ex- empts the offense from the applicability of the fine otherwise applicable under this section, the defendant may not be fined more than the amount specified in the law setting forth the offense. . 36 C.F.R. 1.3(a) provides: A person convicted of violating a provision of the regulations contained in Parts 1 through 5, 7, 12 and 13 of this chapter, within a park area not covered in paragraphs (b) or (c) of this section, shall be punished by a fine not ex- ceeding $500 or by imprisonment not exceeding 6 months, or both, and shall be adjudged to pay all costs of the proceedings. . 36 C.F.R. 4.23(a) (1) provides in part: (a) Operating or being in actual physical con- trol of a motor vehicle is prohibited while: (1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator in- capable of safe operation[.] ww © © @OvVennmeNT reimtime OFvice, (902 312324 460056 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0359%3A2. 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