United States v. Estrada-Berreondo ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 97-1665



                                    UNITED STATES,



                                      Appellee,



                                          v.



                              NELSON ESTRADA-BERREONDO,



                                Defendant, Appellant.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                       [Hon. Mary M. Lisi, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                                   Selya and Stahl,

                                   Circuit Judges.
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            Kenneth M. Diesnhof on brief for appellant.
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            Sheldon  Whitehouse, United  States Attorney,  Margaret E. Curran,
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        Assistant  United  States  Attorney, and  James  H.  Leavey, Assistant
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        United States Attorney, on brief for appellee.





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                                  NOVEMBER 19, 1997

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                 Per Curiam.   We  have examined the  submissions of  the
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            parties and  the record  below, and  we affirm.   Appellant's



            first  contention, that his  nolo contendere plea  for simple
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            assault in a prior state proceeding should have been excluded



            under U.S.S.G.   4A1.2(c)(1), is without merit.  The crime of



            assault is not substantially similar to the excluded crime of



            disorderly conduct.  Though an assault might  also qualify as



            disorderly conduct,  the former involves not only a threat to



            the public peace,  but also a threat to  the bodily integrity



            of  another individual.   Appellant cites no  authority which



            would equate the two crimes,  and at least two other circuits



            have  distinguished the two  crimes for purposes  of applying



            U.S.S.G.   4A1.2(c)(1);  see United States v.  Kemp, 938 F.2d
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            1020, 1025 (9th  Cir. 1991) (case remanded  for determination



            of  whether  defendant's   conduct  more  closely   resembled



            assault,  which would  be included  in  the criminal  history



            calculation, or disorderly conduct, which would be excluded);



            United States v. Russell, 913 F.2d 1288, 1294 (8th Cir. 1990)
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            (assault is not similar to disorderly conduct for purposes of



            computing  criminal history); cf.  United States v.  Cox, 934
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            F.2d 1114, 1124 (10th Cir.  1991) (crime of "menacing" is not



            similar  to disorderly  conduct, since  the  former is  crime



            against an individual  and the latter is a  crime against the



            public peace and order).











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                 Appellant's other two  points were not raised  below, so



            this court may  reverse only for "plain error."   See Johnson
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            v. United States,  117 S. Ct. 1544,  1549 (1997) (plain  error
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            must affect substantial rights and seriously affect fairness,



            integrity or reputation of justice system).  We find no plain



            error.



                 Affirmed.  Loc. R. 27.1.
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