United States v. Estrada-Berreondo

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1665
UNITED STATES,
Appellee,
v.
NELSON ESTRADA-BERREONDO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Stahl,
Circuit Judges.
Kenneth M. Diesnhof on brief for appellant.
Sheldon Whitehouse, United States Attorney, Margaret E. Curran,
Assistant United States Attorney, and James H. Leavey, Assistant
United States Attorney, on brief for appellee.
NOVEMBER 19, 1997
Per Curiam. We have examined the submissions of the
parties and the record below, and we affirm. Appellant's
first contention, that his nolo contendere plea for simple
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
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)
(assault is not similar to disorderly conduct for purposes of
computing criminal history); cf. United States v. Cox, 934
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
v. United States, 117 S.Ct. 1544, 1549 (1997) (plain error
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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