United States v. Chavez ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10694
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER CHAVEZ, also known as “Chapo”,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:02-CR-5-14-C
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February 17, 2003
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Christopher Chavez appeals his sentence after a guilty-
plea conviction for distribution and possession with intent to
distribute less than 500 grams of cocaine and aiding and abetting.
He argues that his prior conviction for assault/family violence
should have been excluded from his criminal history computation
because: (1) the offense is similar to the offense of “disorderly
conduct or disturbing the peace,” which is listed in U.S.S.G.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 02-10694
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§ 4A1.2(c)(1); (2) the offense was heard in a Justice of the Peace
court,1 and (3) his plea in that case was uncounselled.2
An application of the factors set forth in United States
v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991), demonstrates that
Chavez’s assault offense is not similar to the offense of
disorderly conduct. The two offenses may or may not be comparable
in terms of perceived seriousness and levels of culpability; the
family assault crime can range up to a Class A misdemeanor, unlike
disorderly conduct. Moreover, the crimes have dissimilar
punishments and elements, and Chavez’s assault offense indicates a
higher likelihood of recurring criminal conduct than does the
offense of disorderly conduct. See TEX. PENAL CODE ANN. §§ 12.21,
12.23, 12.34, 22.01, and 42.01. The majority of courts
interpreting this guideline have held that assault is not excluded
from a criminal history score thereby. See e.g., United States v.
Horton, 158 F.3d 1227 (11th Cir. 1998). This court’s recent
decision in United States v. Reyes-Maya, 305 F.3d 362 (5th Cir.
2002), is not to the contrary, since it compared a different
criminal statute – defining criminal mischief – to disorderly
conduct under Hardeman. Accordingly, the district court did not
1
Chavez provides no briefing or legal analysis supporting
this argument. As such, the argument is waived. Fed. R. App. P.
28(a)(9); United States v. Green, 964 F.2d 365, 371 (5th Cir.
1992).
2
This argument is without merit. An uncounselled guilty
plea may be considered in calculating a criminal history score.
United States v. Haymer, 995 F.2d 550 (5th Cir. 1993).
No. 02-10694
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err in assessing Chavez a criminal history point for his prior
assault conviction. See Hardeman, 933 F.2d at 281.
AFFIRMED.