United States v. Blake: Criminal History Points for DWAI and CREAMMA “Expungements” Stand Absent Preserved, Developed Guidelines Arguments; Minor-Role Relief Denied Where Defendant Admits Agreement to Sell

Note on authority: This disposition is a Second Circuit “SUMMARY ORDER” and, as the panel states, “RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.” The analysis below explains the court’s reasoning and its practical implications, not binding circuit law.

1. Introduction

Parties: United States of America (Appellee) v. Andrew Blake (Defendant-Appellant).
Court: United States Court of Appeals for the Second Circuit.
Date: January 6, 2026.
Posture: Blake appealed only his sentence following a guilty plea in the Northern District of New York (Kahn, J.).

Blake pleaded guilty to (1) conspiracy to distribute and possess with intent to distribute a controlled substance, and (2) possession with intent to distribute a controlled substance, both under 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(C). The district court imposed 51 months’ imprisonment and three years’ supervised release.

The appeal raised several Sentencing Guidelines issues: (i) whether a New York DWAI conviction should receive a criminal history point; (ii) whether Blake merited a minimal/minor role adjustment under U.S.S.G. § 3B1.2; (iii) whether a New Jersey marijuana conviction that was automatically cleared by CREAMMA was an “expunged conviction” excluded by U.S.S.G. § 4A1.2(j); and (iv) whether the sentencing court improperly relied on a pending (but actually dismissed) misdemeanor charge listed in the PSR.

2. Summary of the Opinion

The Second Circuit affirmed. It held:

The district court did not err in assigning a criminal history point for Blake’s DWAI conviction. The panel declined to resolve whether the current version of U.S.S.G. § 4A1.2 Application Note 5 abrogates United States v. Potes-Castillo, because even under Potes-Castillo Blake’s DWAI conduct was “extremely dangerous” and reflected “a high level of culpability.”
The district court did not clearly err in denying a minor/minimal role adjustment under U.S.S.G. § 3B1.2, because Blake’s plea admissions showed he agreed to sell drugs—more than merely transporting them.
Blake forfeited (and thus faced plain-error review on) his argument that his New Jersey marijuana conviction was excluded as “expunged” under U.S.S.G. § 4A1.2(j). He did not show error—much less plain error—because he cited no binding precedent establishing that CREAMMA expungements qualify as “expunged” within the Guidelines’ technical meaning.
The court declined to remand based on the sentencing judge’s passing reference to a pending (but dismissed) misdemeanor charge, because Blake failed to show a substantial-rights violation under plain-error review; the reference was brief and Blake did not dispute the PSR’s factual narrative underlying the charge.

3. Analysis

A. Precedents Cited

1) DWAI criminal history scoring

United States v. Potes-Castillo, 638 F.3d 106, 114 (2d Cir. 2011): Blake relied on this case’s approach (decided under an earlier Guidelines commentary regime) requiring courts applying § 4A1.2(c) to assess whether an offense is “categorically more serious than” careless or reckless driving, including attention to “actual conduct” and culpability. The panel assumed arguendo that Potes-Castillo still governs and found Blake loses even under that framework.
District court decisions invoked by Blake—United States v. Paredes, 185 F. Supp. 3d 287, 289 (E.D.N.Y. 2016); United States v. Walia, No. 14-cr-213, 2016 WL 4257347, at *6-*7 (E.D.N.Y. Aug. 11, 2016); and United States v. Perez, No. 24-cr-368, 2025 WL 2047829, at *5 (S.D.N.Y. July 22, 2025): cited to show some courts continued to apply Potes-Castillo after changes to Application Note 5.
United States v. Luizzi, No. 24- 2708-cr, 2025 WL 2992462, at *4 (2d Cir. Oct. 24, 2025) (unpublished): cited by the Government to support the argument that the amended Application Note 5 effectively abrogated Potes-Castillo. The panel in Blake avoided choosing between these positions.

2) Mitigating role adjustment

United States v. Alston, 899 F.3d 135, 149-50 (2d Cir. 2018): quoted for the core comparative inquiry—role adjustments depend primarily on the defendant’s role relative to co-participants.
United States v. Wynn, 108 F.4th 73, 80 (2d Cir. 2024): cited for the burden of proof (defendant must establish entitlement by a preponderance).
United States v. Esteras, 102 F.4th 98, 107 (2d Cir. 2024): cited for the deferential standard of review—minor-role determinations are highly fact-specific and reversed only for clear error.

3) “Expunged convictions” and state-law set-asides

State v. Gomes, 288 A.3d 825, 827 (N.J. 2023): cited to confirm that New Jersey’s CREAMMA automatically expunged certain marijuana offenses by operation of law.
United States v. Matthews, 205 F.3d 544, 546 (2d Cir. 2000): provides the interpretive method when the Guidelines do not define “expunged”—look to “language and design of the state statute, as well as its purpose.”
United States v. Beaulieau, 959 F.2d 375, 380 (2d Cir. 1992): cited alongside Matthews for the same general approach to determining whether a prior conviction was “expunged” for Guidelines purposes.

4) Plain error review

United States v. Rainford, 110 F.4th 455, 475 (2d Cir. 2024): cited to support plain-error review where an argument was not properly raised below.

B. Legal Reasoning

1) DWAI: the panel sidesteps abrogation and decides on “actual conduct”

The Guidelines issue was framed by a tension between:

U.S.S.G. § 4A1.2(c)(1) (which conditionally counts certain minor offenses, including “[c]areless or reckless driving”), and § 4A1.2(c)(2) (which never counts certain infractions); and
Application Note 5 (2023 Manual), which states: “Convictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are always counted,” and that “Paragraphs (1) and (2) of § 4A1.2(c) do not apply.”

Rather than resolve whether the amended commentary displaced Potes-Castillo, the panel assumed Blake’s preferred legal framework and held that, on the facts, Blake’s DWAI conduct was sufficiently serious: he drove “southbound in a northbound lane on Route 9W in Highland, New York, while intoxicated,” which the court described as “extremely dangerous” and demonstrating a “high level of culpability” (tracking Potes-Castillo’s focus on culpability and conduct).

Practical upshot: Even where a defendant argues that DWAI should be treated like (or evaluated against) “careless or reckless driving,” the panel signaled that unusually dangerous facts can independently justify counting the conviction.

2) Minor-role adjustment: plea admissions can defeat the “courier” narrative

Blake sought a reduction under U.S.S.G. § 3B1.2 (minimal/minor role), arguing he was less culpable than a co-defendant who negotiated with a confidential source and that his own “observed conduct” looked like a courier’s.

The panel emphasized the evidentiary record—particularly Blake’s written plea agreement, where he admitted that he and his co-defendant “agreed to sell two kilograms of cocaine” to the confidential source and agreed they would transport the cocaine to complete the exchange. Those admissions, the court held, were enough to support the conclusion he was “more than a mere courier,” and thus not clearly eligible for the mitigating-role adjustment.

The court also implicitly treated Application Note 3(A) to § 3B1.2 (the example of a defendant “limited to transporting or storing drugs”) as requiring genuine limitation; where the defendant admits participation in the sales agreement itself, the “limited to transport” characterization becomes untenable.

3) CREAMMA and “expunged convictions”: forfeiture plus lack of settled authority defeats relief

Blake argued the district court should not have scored his New Jersey marijuana conviction because CREAMMA “automatically expunged” it. The panel treated the claim as forfeited because, although Blake mentioned “vacated” below, he did not specifically argue exclusion under § 4A1.2(j) or meaningfully present the “complicated expungement issue” to the district court. That triggered plain-error review.

On the merits under that stringent standard, the panel found no plain error because Blake offered “no binding precedent” establishing that CREAMMA’s mechanism fits the Guidelines’ technical concept of “expunged” (as opposed to set-aside/pardon-type relief “for reasons unrelated to innocence or errors of law” described in Application Note 10). The panel therefore left open (for a future, properly preserved case) whether CREAMMA expungements qualify under § 4A1.2(j).

4) Passing reliance on a dismissed charge: no substantial-rights showing

The panel accepted that the sentencing judge’s references to a “pending misdemeanor charge” and “active warrant” were “apparently inaccurate” because the charge had been dismissed by sentencing. But Blake raised the issue for the first time on appeal and sought resentencing and PSR correction.

Applying plain-error principles (Fed. R. Crim. P. 52(b)), the panel refused remand because Blake did not demonstrate prejudice: the district court mentioned the charge only “in passing,” and Blake did not challenge the PSR’s account of the underlying facts. In short, even if there was an error, Blake did not show it affected his “substantial rights” (i.e., likely affected the sentence imposed).

C. Impact

DWAI scoring disputes may turn on facts even before doctrine is resolved. The panel avoided deciding whether the amended Application Note 5 “abrogates” Potes-Castillo. Yet it demonstrated that, in cases with egregious driving facts, courts may uphold a criminal history point even under the defendant’s preferred interpretive framework.
Mitigating-role arguments must grapple with plea allocutions and written admissions. Defendants who admit an agreement to sell (not just transport) drugs face an uphill battle characterizing themselves as “limited to transporting or storing drugs” under § 3B1.2’s commentary.
Marijuana-legalization “expungements” remain a live Guidelines question—but preservation is critical. The panel’s reliance on forfeiture and lack of binding authority signals that litigants must (a) clearly raise § 4A1.2(j) below, (b) develop the statutory-purpose analysis under Matthews and Beaulieau, and (c) build a record showing why the state law is an “expungement” as the Guidelines use that term.
PSR accuracy issues should be litigated in the district court. The dismissed-charge issue illustrates that appellate courts are reluctant to remand absent a concrete showing that the mistaken information mattered to the sentencing outcome—especially where the defendant did not object pre-sentencing.

4. Complex Concepts Simplified

Criminal history point: A numeric addition to a defendant’s criminal history score under the Sentencing Guidelines. More points generally increase the advisory sentencing range.
Application Note (Guidelines commentary): Official explanatory text accompanying a Guideline. Here, Application Note 5 to § 4A1.2 addresses how DUI-type offenses are counted.
Mitigating role adjustment (U.S.S.G. § 3B1.2): A reduction in offense level for defendants substantially less culpable than others in the criminal activity (minimal/minor participant).
Forfeiture vs. preservation: If an argument is not properly raised in the district court, it is typically reviewed only for “plain error” on appeal.
Plain error (Fed. R. Crim. P. 52(b)): A demanding standard requiring (among other things) a clear or obvious error that affected the defendant’s substantial rights—usually meaning it likely affected the sentence—and that seriously affects the fairness, integrity, or public reputation of judicial proceedings.
“Expunged” under § 4A1.2(j): The Guidelines exclude “sentences for expunged convictions,” but determining what counts as “expunged” can depend on the state statute’s design and purpose; some “set aside” or stigma-removal procedures may still be counted under Application Note 10.

5. Conclusion

United States v. Blake affirms a within-Guidelines sentence against multiple Guidelines challenges by focusing on record facts, standards of review, and preservation. The panel (i) upheld scoring a DWAI conviction based on the dangerousness and culpability of the actual conduct without deciding whether amended commentary displaced earlier circuit reasoning; (ii) rejected a minor-role claim where the defendant’s own plea admissions showed agreement to sell drugs; (iii) declined to treat a CREAMMA-cleared marijuana conviction as “expunged” for Guidelines purposes on plain-error review in the absence of developed, binding authority; and (iv) found no basis for resentencing where an inaccurate reference to a dismissed charge was brief and not shown to affect the sentence.