USA. v. Pastrana, LOPEZ-PASTRAN

• Citation: 244 F.3d 1025
• Decision Date: 28 March 2001
• Docket Number: No. 00-10146,LOPEZ-PASTRAN,00-10146
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,Plaintiff-Appellee, v. REYNALDOefendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1025

244 F.3d 1025 (9th Cir. 2001)

UNITED STATES OF AMERICA,Plaintiff-Appellee, v. REYNALDO LOPEZ-PASTRANA,Defendant-Appellant.

No. 00-10146

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted January 12, 2001

Filed March 28, 2001

Michael K. Powell, Assistant Federal Public Defender, Reno, Nevada, for the defendant-appellant.

Craig Denney, Assistant United States Attorney, Reno, Nevada, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada Edward C. Reed, Jr., District Judge, Presiding. D.C. No.CR-99-00084-ECR/RAM

Before: Joseph T. Sneed, Susan P. Graber, and Richard A. Paez, Circuit Judges.

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. S 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 resentencing on the grounds that Lopez-Pastrana'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 S 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-Pastrana'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. S 4A1.2(c)(1), the shoplifting conviction should have been excluded because shoplifting is "similar to" the listed offenseof "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 check

. . .

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 fine. 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. S 4A1.2(c)(1). 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 S 4A1.2(c)

We have articulated two separate tests for determining whether a particular offense is "similar to" an offense listed in S 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. S 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 3873-3874. 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, rele-vant 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 prior 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 pun ishments 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 indi cates 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. S 205.0832. The penalty for the two crimes is identical and depends entirely on the value of the property taken. N.R.S. 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. S 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. 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.2d 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...