United States v. DeLeon-Garcia

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 23, 2004
Charles R. Fulbruge III
Clerk
No. 04-20316
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS DeLEON-GARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(4:03-CR-422-1)
Before JONES, BARKSDALE and PRADO Circuit Judges.
PER CURIAM:*
Jesus DeLeon-Garcia pleaded guilty to illegally re-entering
the United States, after having been deported and convicted of an
aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2)
(the instant offense). Appealing only his sentence, he primarily
contests the addition of one criminal history point, under
Sentencing Guidelines § 4A1.2(c), for his prior conviction for
criminal mischief. At issue is whether criminal mischief should be
excluded from the criminal history calculation. That turns on
*
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this opinion should not be published and is not precedent except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.
whether the criminal mischief offense is similar to the crime of
disorderly conduct, which is excludable from criminal history,
under certain conditions, pursuant to Guidelines § 4A1.2(c)(1). To
preserve the issues for further review, DeLeon-Garcia also raises:
(1) whether, under Alabama v. Shelton, 535 U.S. 654 (2002), his
uncounseled misdemeanor conviction for illegal entry should be
included in his criminal history; and (2) whether sentencing
enhancements and the federal sentencing guidelines are
unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000)
and Blakely v. Washington, 124 S. Ct. 2531 (2004). AFFIRMED.
I.
Prior to the instant offense, DeLeon-Garcia had three criminal
convictions, including criminal mischief, charged as a class-B
misdemeanor for which he was sentenced to 20 days in jail. The
pre-sentence investigation report (PSR) recommended one criminal
history point for the criminal mischief conviction. DeLeon-Garcia
objected, contending, under United States v. Reyes-Maya, 305 F.3d
362 (5th Cir.)(2002), cert. denied, 537 U.S. 1145 (2003), criminal
mischief is sufficiently similar to disorderly conduct that, under
§ 4A1.2(c)(1), it should not be included in his criminal history.
The probation officer responded with an addendum to the PSR,
distinguishing the criminal mischief crime committed by DeLeon-
Garcia from that considered in Reyes-Maya and, therefore, from
disorderly conduct.
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Adopting the PSR and addendum, including the recommendation
that DeLeon-Garcia’s criminal history should include the criminal
mischief conviction, the district court denied DeLeon-Garcia’s
objections. DeLeon-Garcia was sentenced, inter alia, to 56 months
in prison.
II.
Application of the Guidelines is reviewed de novo. E.g.,
United States v. Booker, 334 F.3d 406, 412 (5th Cir. 2003).
A.
Concerning his criminal mischief conviction, DeLeon-Garcia
claims: pursuant to § 4A1.2(c)(1) and Reyes-Maya, he should not
receive a criminal history point for that conviction because it is
similar to the listed excludable offense of disorderly conduct.
In calculating criminal history, “[s]entences for all felony
offenses are counted”; those for “misdemeanor and petty offenses
are counted, except as” detailed in § 4A1.2(c). U.S.S.G. §
4A1.2(c). In this regard, listed offenses, or “offenses similar to
them”, are excluded from the criminal history unless the sentence
was (1) probation of at least one year, or (2) imprisonment of at
least 30 days, or (3) the prior offense is similar to the instant
offense (here, illegal re-entry). U.S.S.G. § 4A1.2(c)(1) (emphasis
added).
The offense of disorderly conduct is among the excludable
offenses listed in § 4A1.2(c)(1); criminal mischief is not listed.
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If DeLeon-Garcia’s criminal mischief is similar to disorderly
conduct, it is not counted in his criminal history.
To determine whether a prior offense is “similar” to a listed
excludable offense under § 4A1.2(c)(1), our court “suggest[s] a
common sense approach which relies on all possible factors of
similarity”. United States v. Hardeman, 933 F.2d 278, 281 (5th
Cir. 1991) (under Texas law, driving with revoked or suspended
license held similar to failure to maintain financial
responsibility) (emphasis added). Factors to consider include: “a
comparison of punishments imposed for the listed and unlisted
offenses, the perceived seriousness of the offense as indicated by
the level of punishment, the elements of the offense, the level of
culpability involved, and the degree to which the commission of the
offense indicates a likelihood of recurring criminal conduct”. Id.In United States v. Lamm, we recently applied the requisite common
sense approach, recognizing that each offense-similarity comparison
is fact specific. ___ F.3d ___, No. 04-10315, 2004 WL 2650710 at
*2 (5th Cir. 22 November 2004) (citing United States v. Gadison, 8
F.3d 186, 194 (5th Cir. 1993)).
DeLeon-Garcia contends: he received only 20 days in jail for
criminal mischief; his criminal-mischief offense is not similar to
the instant illegal-reentry offense; but, it is similar to
disorderly conduct, one of the offenses listed in § 4A1.2(c)(1).
He relies on Reyes-Maya, in which our court held a criminal-
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mischief offense was improperly counted because it was similar to
the offense of disorderly conduct.
Under the requisite common sense and fact specific approach,
DeLeon-Garcia’s criminal mischief offense is distinguishable from
that in Reyes-Maya and is not similar to disorderly conduct.
Reyes-Maya paid only a small fine, while DeLeon-Garcia was
sentenced to time in jail; Reyes-Maya was convicted of a Class C
misdemeanor, whereas DeLeon-Garcia was convicted of a Class B
misdemeanor; and criminal mischief involves property damage,
whereas disorderly conduct does not. DeLeon-Garcia’s throwing a
bottle through an automobile’s rear window while the vehicle was
being driven reflects a high level of culpability and likelihood of
recurring criminal conduct. DeLeon-Garcia’s criminal-mischief
offense involved not only destruction of property but also
endangering another person’s safety. Moreover, DeLeon-Garcia’s
criminal mischief offense, when viewed in the context of his recent
criminal history, indicates a likelihood of recurring criminal
conduct.
B.
DeLeon-Garcia presents several claims in order to preserve
them for Supreme Court review.
1.
DeLeon-Garcia asserts the district court erred in assessing a
criminal history point for his prior uncounseled misdemeanor
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illegal-entry conviction, claiming that the conviction violated
Alabama v. Shelton, 535 U.S. 654 (2002). He acknowledges that our
court, in United States v. Perez-Macias, 335 F.3d 421 (5th Cir.),
cert. denied, 124 S. Ct. 495 (2003), rejected a contention that
Shelton rendered invalid an uncounseled conviction for which the
defendant had received a sentence of only probation (like DeLeon-
Garcia), as opposed to probation coupled with a suspended prison
sentence.
2.
For the first time on appeal, DeLeon-Garcia contends: the
sentencing enhancements contained in 8 U.S.C. § 1326(b) are
unconstitutional on their face, in the light of Apprendi v. New
Jersey, 530 U.S. 466 (2000); and, enhancements under the federal
Sentencing Guidelines are unconstitutional under Blakely v.
Washington, 124 S. Ct. 2531 (2004). He acknowledges relief on both
of these contentions is foreclosed by Fifth Circuit precedent. See
United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.), cert.
denied, 124 S. Ct. 358 (2003) (holding Apprendi did not overrule
Almendarez-Torres v. United States, 523 U.S. 224 (1998)); United
States v. Pineiro, 377 F.3d 464, 465 (5th Cir. 2004), petition for
cert. filed, (U.S. July 14, 2004) (No. 04-5263) (holding Blakely
does not apply to federal sentencing guidelines).
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III.
For the foregoing reasons, the judgment is
AFFIRMED.
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