United States v. Campos-Rodriguez

11-2045-cr
United States v. Campos-Rodriguez
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 12th day of April, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROSEMARY S. POOLER,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12
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14 United States,
15 Appellee,
16
17 -v.- 11-2045-cr
18
19 Luis Campos-Rodriguez,
20 Defendant-Appellant.*
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22
23 FOR DEFENDANT-APPELLANT: Colleen P. Cassidy, Federal
24 Defenders of New York, Inc., New
25 York, NY.
26
27 FOR APPELLEE: David C. James and Allon
28 Lifshitz, Assistant United
29 States Attorneys, for Loretta E.
*
The Clerk of Court is directed to amend the official
caption as shown above.
1
1 Lynch, United States Attorney,
2 Eastern District of New York,
3 Brooklyn, NY.
4 Appeal from a judgment of the United States District
5 Court for the Eastern District of New York (Vitaliano, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
8 AND DECREED that the judgment of the District Court is
9 AFFIRMED.
10
11 Defendant-Appellant Luis Campos-Rodriguez was
12 principally sentenced to 24 months’ incarceration after
13 pleading guilty to illegal re-entry into this country after
14 deportation for a felony. 8 U.S.C. § 1326(a), (b)(1). In
15 his plea agreement, Campos-Rodriguez waived his right to
16 appeal any sentence of 16 months or less. He now appeals
17 the length of his sentence. We assume the parties’
18 familiarity with the underlying factual allegations, the
19 procedural history of the case, and the issues on appeal.
20 Campos-Rodriguez argues that the district court
21 overstated his criminal history category. His argument
22 focuses on a single added point based on a Wisconsin
23 conviction for criminal destruction of private property.
24 See Wis. Stat. § 943.01(1). He argues that (1) the
25 prosecution failed to sufficiently establish that he was
2
1 convicted of criminal destruction of private property, see
2 United States v. Irving, 554 F.3d 64, 72 (2d Cir. 2009)
3 (requiring proof of facts relevant to sentencing by a
4 preponderance of the evidence), and (2) criminal destruction
5 of private property is “similar to” disorderly conduct and
6 therefore uncountable under the rules for calculating a
7 defendant’s criminal history, U.S.S.G. § 4A1.2(c)(1).
8 [1] The government adduced a printout from the online
9 Wisconsin Circuit Court Access System indicating that
10 Campos-Rodriguez pleaded guilty to misdemeanors for
11 disorderly conduct and destruction of property. The United
12 States Probation Department in the Western District of
13 Wisconsin so confirmed in writing.
14 Significantly, Campos-Rodriguez does not deny that he
15 was convicted of those misdemeanors. Instead, he argues
16 that the government cannot satisfy its burden without
17 providing a certified copy of the convictions. The
18 government is not obligated to do so. See, e.g., United
19 States v. Townley, 472 F.3d 1267, 1277 (10th Cir. 2007)
20 (“evidence derived from the National Crime Information
21 Center . . . database” and written confirmation by Probation
22 Department); United States v. Marin-Cuevas, 147 F.3d 889,
23 894-95 (9th Cir. 1998) (pre-sentence report statement based
24 on computerized printout). Given the government’s evidence
3
1 and Campos-Rodriguez’s failure to deny the convictions, the
2 district court’s finding is supported by the preponderance
3 of the evidence.
4 [2] Campos-Rodriguez failed to argue in the district court
5 that criminal destruction of private property is “similar
6 to” disorderly conduct and therefore uncountable under the
7 rules for calculating a defendant’s criminal history.
8 U.S.S.G. § 4A1.2(c)(1). Arguments raised for the first time
9 on appeal are reviewed for plain error. See United States
10 v. Folkes, 622 F.3d 152, 156 (2d Cir. 2010) (per curiam).
11 “Plain error is (1) error (2) that is plain and (3) affects
12 substantial rights.” Id. If those three conditions are
13 satisfied, “‘an appellate court may then exercise its
14 discretion to notice a forfeited error, but only if (4) the
15 error seriously affect[s] the fairness, integrity, or public
16 reputation of judicial proceedings.’” United States v.
17 Thomas, 274 F.3d 655, 667 (2d Cir. 2001) (en banc)
18 (alteration in the original) (quoting Johnson v. United
19 States, 520 U.S. 461, 467 (1997)). A court will typically
20 not find that an error is plain “[w]ithout a prior decision
21 from this court or the Supreme Court mandating” a particular
22 result. United States v. Weintraub, 273 F.3d 139, 152 (2d
23 Cir. 2001).
4
1 In determining whether the crime of conviction is
2 “similar to” disorderly conduct (or other crimes enumerated
3 in U.S.S.G. § 4A1.2(c)), “‘the goal of the inquiry is to
4 determine whether the unlisted offense under scrutiny is
5 categorically more serious than the Listed Offenses to which
6 it is being compared.’” United States v. DeJesus-
7 Concepcion, 607 F.3d 303, 304 (2d Cir. 2010) (per curiam)
8 (brackets omitted) (quoting United States v. Morales, 239
9 F.3d 113, 118 (2d Cir. 2000)). “‘Although “categorically”
10 might be misunderstood to mean that the unlisted offense is
11 within a category that is more serious than the Listed
12 Offenses, we . . . use the adverb in its ordinary sense to
13 mean “without qualification or reservation.”’” Id. at 305
14 (omission in original) (brackets omitted) (quoting Morales,
15 239 F.3d at 118 n.5). In determining whether the unlisted
16 offense is categorically more serious than the listed
17 offense, a sentencing court
18 may consider multiple factors . . . , including: “[1] a
19 comparison of punishments imposed for the listed and
20 unlisted offenses, [2] the perceived seriousness of the
21 offense as indicated by the level of punishment, [3]
22 the elements of the offense, [4] the level of
23 culpability involved, and [5] the degree to which the
5
1 commission of the offense indicates a likelihood of
2 recurring criminal conduct.”
3 Id. (brackets in original) (quoting United States v.
4 Martinez-Santos, 184 F.3d 196, 206 (2d Cir. 1999)). In
5 addition, a sentencing court “may also consider any other
6 relevant factor, including ‘the actual conduct involved and
7 the actual penalty imposed.’” Id. (quoting United States v.
8 Sanders, 205 F.3d 549, 553 (2d Cir. 2000) (per curiam)).
9 One consideration is that criminal destruction of
10 property carries a greater sentence than disorderly conduct.
11 Compare Wis. Stat. § 943.01(1), and Wis. Stat.
12 § 939.51(3)(a) (providing that criminal destruction of
13 property is a Class A misdemeanor punishable by a fine not
14 to exceed $10,000 or imprisonment not to exceed 9 months, or
15 both), with Wis. Stat. § 947.01(1), and Wis. Stat.
16 § 939.51(3)(b) (providing that disorderly conduct is a Class
17 B misdemeanor punishable by a fine not to exceed $1,000 or
18 imprisonment not to exceed 90 days, or both).
19 A second relevant consideration is the relative level
20 of culpability (“i.e., the ‘degree of moral guilt,’” United
21 States v. Ubiera, 486 F.3d 71, 75 (2d Cir. 2007) (quoting
22 Morales, 239 F.3d at 119)). Culpability is greater for
23 criminal destruction of private property because it requires
6
1 intentional, physical damage to property. Bere v. State,
2 251 N.W.2d 814, 819 (Wis. 1977).
3 Although other factors may point in favor of Campos-
4 Rodriguez, the above demonstrates that any error by the
5 district court was not plain, especially in light of the
6 absence of prior authority from this Court or the Supreme
7 Court addressing this matter. See Weintraub, 273 F.3d at8 152.
9 In any event, on these facts, Campos-Rodrigeuz cannot
10 show any “error seriously affect[ing] the fairness,
11 integrity, or public reputation of [the] judicial
12 proceedings.” Thomas, 274 F.3d at 667 (internal quotation
13 mark omitted).
14
15 We have considered all of Campos-Rodriguez’s additional
16 arguments and find them to be without merit. Accordingly,
17 the judgment of the District Court is AFFIRMED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
7