United States of America,plaintiff-Appellee v. Reynaldo Lopez-Pastrana,defendant-Appellant

SNEED, Circuit Judge:

Reynaldo Lopez-Pastrana appeals his sentence of eighty months imprisonment entered pursuant to a guilty plea to a single count of violating 8 U.S.C. § 1326 (Illegal Reentry). Lopez-Pastrana contends that the district court misapplied the Sentencing Guidelines and arrived at an improper criminal history score. We vacate the sentence and remand for re-sentencing on the grounds that Lopez-Pastra-na’s prior conviction for shoplifting should not have been counted in determining his criminal history category.

I.

In 1993, Defendant was convicted of violating Reno Municipal Code § 8.10.045 (1998) (shoplifting) after he attempted to steal a wallet valued at $19 from a local department store. He was fined $200 and sentenced to sixteen hours of community service. The district court, in the instant proceeding, added one point to Lopez-Pas-trana’s criminal history score based on this conviction. This one point enhancement moved Lopez-Pastrana from criminal history Category V to Category VI. Consequently, his sentence was increased from a potential term of imprisonment of 70-87 months to a possible sentence of 77-96 months.

Lopez-Pastrana contends that under U.S.S.G. § 4A1.2(c)(l), the shoplifting conviction should have been excluded because shoplifting is “similar to” the listed offense of “insufficient funds check.” We agree.¹

II.

We review de novo a district court’s determination that a prior conviction should be counted for criminal history purposes under the Sentencing Guidelines. United States v. Sandoval, 152 F.3d 1190, 1191 (9th Cir.1998).

Section 4A1.2(c) of the Guidelines provides in pertinent part:

(1) Sentences for the following prior offenses and offenses similar to them by whatever name they are known, are counted only if (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense:

insufficient funds cheek

Lopez-Pastrana’s shoplifting conviction cannot be counted under either subsection (A) or subsection (B). Shoplifting is not similar to the instant offense of illegal reentry. Defendant’s sentence for shoplifting consisted of sixteen hours of community service and a minimal fíne. The issue squarely presented by this case, therefore, is whether a minor shoplifting offense is “similar to” any listed offense. As discussed below, we hold that it is similar to the offense of insufficient funds check.

III.

First, we turn to the question of what is meant by “similar to” as used in U.S.S.G. § 4A1.2(c)(l). We then compare Lopez-Pastrana’s shoplifting conviction to the enumerated offense of “insufficient funds check.” Finally, we conclude that the two offenses are similar for the purpose of calculating a defendant’s criminal history score.

A. “Similar To” as used in § íAl.2(c) We have articulated two separate tests for determining whether a particular offense is “similar to” an offense listed in § 4A1.2(c). In United States v. Martinez (Clyde), 905 F.2d 251 (9th Cir.1990), we explained the rationale for excluding the listed offenses: they “offer no basis for predicting future significant criminal activity by the defendant; the conduct they involve is not uniformly criminalized, and when it is, the penalty is usually light.” Id. at 253. Under the Martinez (Clyde) test, an offense must “offer a more substantial basis for predicting future criminal activity than do the minor” listed offenses before it may be counted towards a defendant’s criminal history score. United States v. Sandoval, 152 F.3d at 1192. In essence, this test defines “similar to” on the basis of the underlying seriousness of the offense.²

In United States v. Martinez (Carlos), 69 F.3d 999 (9th Cir.1995), however, we chose not to apply the Martinez (Clyde) test and instead defined “similar to” with reference only to “whether the activity underlying [the prior offense] is similar to the activities underlying the listed offenses.” Martinez (Carlos), 69 F.3d at 1000 (citing Martinez (Clyde), 905 F.2d at 255-256 (Wallace J., concurring)).³

Under either of these approaches, Lopez-Pastrana’s conviction for shoplifting is similar to an insufficient funds check offense and therefore excluded under U.S.S.G. § 4A1.2(c)(1).⁴

B. Martinez (Clyde): “seriousness of the offense” test

Applying the Martinez (Clyde) “seriousness of the offense” test, we hold that shoplifting is no more indicative of future criminal behavior than is passing a bad check. We disagree with the our dissenting colleague not only on the applicability of the Martinez (Clyde) test in this circumstance, but on the substance of the test as well. As noted by the dissent, application of Martinez (Clyde) as a “three part test” is unhelpful. Dissent at 1033-34. We do not believe this conclusion argues against using the test, but only against the dissent’s characterization of how best to follow the holding of Martinez (Clyde).

The core question under Martinez (Clyde) is whether the offense at issue “offer[s][a] basis for predicting future significant criminal activity.” 905 F.2d at 253. If so, the prior offense “is significant for sentencing purposes” and should be included in a defendant’s criminal history score. Id. at 254. Society’s interest in punishing the offense is, of course, relevant to this question. Also relevant is the level of punishment imposed for a violation. Application of these two “factors” alone, however, does not conclude the inquiry. Other similarities between the pri- or offense and the listed offenses may also assist in assessing whether inclusion of the prior offense “would more likely distort than improve the process for ... determining an appropriate sentence.” Id. at 253; See United States v. Kemp, 938 F.2d 1020, 1023 (9th Cir.1991) (Martinez (Clyde) analysis includes a comparison of the elements of the listed offense and the prior offense).

Restricting the Martinez (Clyde) analysis in the manner advocated by the dissent “limits unnecessarily the scope of the district court’s inquiry.” United States v. Martinez-Santos, 184 F.3d 196, 206 (2d Cir.1999) (similarity of listed and charged offense determined by comparison of all relevant factors). Instead, we take a

common sense approach which relies on all possible factors of similarity, including 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.

United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991).

Both shoplifting and insufficient funds check are punished under the same provision of Nevada law. N.R.S. § 205.0832. The penalty for the two crimes is identical and depends entirely on the value of the property taken. N.R.S. § 205.0835. This indicates that the two offenses are perceived as equally serious. In the present case, the defendant received a minimal sentence of 16 hours of community service and a $200 fine. The actual punishment imposed, therefore, “places [the shoplifting conviction] in an arguably lesser category” than the listed offense of insufficient funds check.⁵' United States v. Almodovar, 1996 WL 114930, *5 (E.D.Pa.1996).

In addition, the two offenses share many of the same elements. There are four distinct ways to violate the Reno shoplifting ordinance. Each subsection of the ordinance defines shoplifting in a slightly different manner. For example, both concealing merchandise and altering the labels on merchandise are equally punishable as shoplifting if done with the intent to deprive the owner of the property. R.M.C. § 8.10.045(a)(2), (a)(3) (1998). Despite these minor variations, the essential elements of a shoplifting violation under the Reno Municipal Code are 1) willfully 2) taking possession of merchandise with 3) the intent to deprive the owner of the value of that property. Similarly, a person commits theft by passing a bad check under Nevada Law if he “knowingly ... draws or passes a check, and in exchange obtains property or services, if he knows that the check will not be paid when presented.” N.R.S. § 205.0832.

Both offenses require willfulness. Both offenses require the conversion of the property of another. And both offenses require the specific intent to deprive the owner of the value of that property. The two offenses are similar. See United States v. Sanders, 205 F.3d 549, 553 (2nd Cir.2000) (“fare-beating” (i.e. entering the subway without paying) is “similar to” insufficient funds check because the two offenses share elements and are subject to equally lenient punishments).

C. Martinez (Carlos): “conduct" test

We reach the same conclusion after applying the Martinez (Carlos) “conduct” test to Appellant’s shoplifting conviction. Unlike the Martinez (Clyde) test, the Martinez (Carlos) test does not require analysis of the defendant’s prior offense to determine if it is predictive of future criminal behavior. Rather, the Martinez (Carlos) test focuses only on whether the conduct underlying the defendant’s prior offense is “akin to the conduct underlying any of the listed offenses.” Sandoval, 152 F.3d at 1192 (applying the Martinez (Carlos) test).

In Martinez (Carlos), we applied the “conduct” test to the offense of vandalism. Vandalism, “by definition, involves the malicious defacement, destruction or damage to the property of another.” Martinez (Carlos), 69 F.3d at 1001. We held that vandalism was not “similar to” the offenses listed in U.S.S.G. § 4A1.2(c)(2) because vandalism is not a victimless crime and because vandalism involves malicious intent.⁶ Id. at 1000-01.

Under the Martinez (Carlos) test, therefore, a prior offense is “similar to” a listed offense if the elements of the prior offense are similar to the elements necessary to prove one of the enumerated offenses.⁷ This test overlaps, but is more narrow than, the Martinez (Clyde) test. Whereas similar elements may be considered under Martinez (Clyde) to ascertain whether the prior offense offers any “basis for predicting future significant criminal activity,” such a comparison constitutes the entirety of the Martinez (Carlos) test. As indicated above, the conduct underlying Lopez-Pastrana’s conviction for shoplifting is similar to the conduct that underlies an insufficient funds check offense as defined by Nevada law.⁸ Compare R.M.C. § 8.10.045 (1998) with N.R.S. 205.0832(9).

Our decision in United States v. Sandoval provides further support for today’s order. In Sandoval, we applied the Martinez (Carlos) “conduct” test and held that petty theft was not similar to any of the offenses listed in § 4A1.2(e)(2). Sandoval, 152 F.3d at 1192. We based this holding on the fact that none of the offenses listed in § 4A1.2(c)(2) involve “taking another’s property with the intent to deprive that person of the property.” Id. This cannot be said of those offenses listed in § 4A1.2(c)(l), the provision at issue in this case. Insufficient funds cheek is a form of stealing. The implication of Sandoval, therefore, is that petty theft (like shoplifting) is similar to other minor theft offenses (like insufficient funds check). The district court erred in including this offense when calculating Lopez-Pastrana’s criminal history score.

D. Circuit Conflict

The dissent contends that our conclusion creates an inter-circuit conflict. Analysis of the cases cited by the dissent is sufficient to refute this claim. It is true that in United States v. Hoelscher, 914 F.2d 1527, 1537 (8th Cir.1990), the Eighth Circuit held that shoplifting is not similar to any of the offenses listed in § 4A1.2(c). Hoelscher, however, was decided before “insufficient funds check” was added to the list of excludable offenses. See U.S. Sentencing Guidelines Manual, App. C, Amendment 352 at 162-163 (1998). Both United States v. Ziglin, 964 F.2d 756, 758 (8th Cir.1992) and United States v. Waller, 218 F.3d 856, 857-58 (8th Cir.2000) followed Hoelscher without any analysis or comment on the underlying change in the guideline provision. We decline to follow the lead of our sister circuit where the basis of its decision has been eroded through subsequent administrative action.

Furthermore, contrary to the dissent’s suggestion, neither the Tenth nor the Fourth Circuits has held that shoplifting and insufficient funds check offenses are dissimilar under § 4A1.2(c). The court in United States v. Hooks, 65 F.3d 850 (10th Cir.1995) simply did not address the issue. The Hooks court held, as we hold today, that shoplifting is not excludable as a local ordinance violation. See supra n. 1. Nowhere does the Hooks decision address whether shoplifting is “similar to” an insufficient funds check offense. Likewise, in United States v. Benjamin, 110 F.3d 61, 1997 WL 165414 (4th Cir.1997) (unpublished disposition), the defendant failed to argue to the district court that his shoplifting conviction should be excluded from his criminal history calculation. Consequently, the appellate court reviewed his claim only for “plain error.” Applying deferential “plain error” review (rather than the de novo approach applicable in the present case), the court held that the district court did' not plainly err when it failed, sua sponte, to exclude Defendant’s shoplifting conviction. Benjamin, 110 F.3d at 61, 1997 WL 165414 (“While [Appellant] has raised an arguable issue, we cannot say that the district court plainly erred ... ”). Consequently, our holding does not conflict with decisions of either the Tenth or Fourth Circuits.⁹

IV.

In conclusion, shoplifting and insufficient funds check offenses share similar elements, similar penalties, and similar underlying conduct. The offenses are therefore “similar” within the meaning of U.S.S.G. § 4A1.2(e)(1) and Lopez-Pastra-na’s shoplifting sentence should not have been included in his criminal history calculation. Excluding his shoplifting conviction, Lopez-Pastrana’s proper sentencing range was 70-87 months, not 77-96 months. The sentence imposed by the district court is vacated and the case is remanded for re-sentencing.

REVERSED and REMANDED for re-sentencing.

1 . Lopez-Pastrana also argues that his shoplifting offense was solely a local ordinance violation and therefore excluded under a separate provision of U.S.S.G. § 4A1.2(c)(1). We find this argument unpersuasive. Shoplifting is a criminal offense under Nevada law. N.R.S. § 205.0832. The fact that Nevada's state statute criminalizing theft does not track the exact language of the Reno Municipal Code creating the offense of shoplifting is of no legal significance. See United States v. Hooks, 65 F.3d 850, 856 (10th Cir.1995).

2 . A similar test is utilized in the Second, Fifth and Seventh Circuits. See United States v. Martinez-Santos, 184 F.3d 196, 206 (2d Cir.1999); United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991); United States v. Booker, 71 F.3d 685, 689-690 (7th Cir.1995).

3 . In practice, this approach is similar to the “elements” test used in the First, Third, Fourth, and Eleventh Circuits. See United States v. Unger, 915 F.2d 759, 763 (1st Cir.1990); United States v. Elmore, 108 F.3d 23, 27 (3rd Cir.1997); United States v. Harris, 128 F.3d 850, 854-855 (4th Cir.1997); United States v. Wilson, 927 F.2d 1188 (11th Cir.1991).

4 . For purposes of comparison, we use the federal definitions of the listed offenses. United States v. Kemp, 938 F.2d 1020, 1023-1024 (9th Cir.1991). Where there is no federal law on point, as is the case here, we may look to either state law or the Model Penal Code. Id. (comparing offense to disorderly conduct under Arizona law); Martinez (Carlos), 69 F.3d at 1001 (using Model Penal Code's definition of loitering).

5 . In United States v. Sandoval, 152 F.3d 1190, 1192 (9th Cir.1998), we held that "a defendant’s prior sentence is unimportant under U.S.S.G. § 4A1.2(c).” This holding conflicts with Martinez (Clyde), which instructs us to consider the severity of the penalty for the prior offense when determining whether that conviction is similar to a listed offense. Martinez (Clyde), 905 F.2d at 253. Furthermore, consideration of the actual penalty imposed on a defendant is helpful in determining the seriousness of the crime. A fair application of the Martinez (Clyde) test, therefore, requires that the defendant’s sentence be considered as a factor when ascertaining the similarity of the charged offense to a listed offense.

6 . U.S.S.G. § 4A1.2(c)(2) is slightly different from § 4A1.2(c)(1). Insufficient funds check is not an enumerated offense under § 4A1.2(c)(2). Rather, § 4A1.2(c)(2) provides:

Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are never counted:

Hitchhiking

Juvenile status offenses and truancy

Loitering

Minor traffic infractions (e.g., speeding)

Public intoxication

Vagrancy

7 . Although we refer to the Martinez (Carlos) test as a "conduct” test, the Martinez (Carlos) court made no effort to discern the actual conduct underlying the defendant’s vandalism conviction. Rather, in Martinez (Carlos), we compared the statutory definition of the prior offense to the listed offenses.

8 . The dissent concludes that the "trespassory taking” necessary for shoplifting is "simply different” from the fraudulent taking underlying an "insufficient funds check” offense. Dissent at 1035-36. We do not believe this distinction overrides the considerable similarities between the offenses. We note, however, that to the extent a bad check offense contains the additional element of deception, it is arguably more serious than the shoplifting offense at issue here.

9 . To the extent that we have reached a different conclusion from the Eighth Circuit, we have done so based on our analysis of the updated guideline provision.