United States v. Grob
2010 U.S. App. LEXIS 23341
9th Cir.2010Background
- Grob was convicted of one count of cyberstalking in violation of 18 U.S.C. § 2261A(2)(B) and sentenced to 37 months.
- In the Presentence Investigation Report, the probation office counted a Montana misdemeanor conviction for criminal mischief from 2000 in Grob's criminal history score.
- The district court adopted the PSR’s calculation, including the mischief conviction, yielding a Criminal History Category III and a guideline range of 37–46 months.
- Grob objected, arguing the Montana mischief conviction should not be counted under § 4A1.2(c) because it is not similar to an enumerated offense.
- The Ninth Circuit vacated Grob’s sentence and remanded for resentencing due to procedural error in the criminal history calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Grob's prior criminal mischief similar to an enumerated offense? | Grob’s prior mischief is similar to disorderly conduct under § 4A1.2(c). | Grob contends mischief is not dissimilar enough to disorderly conduct to count. | Prior mischief is similar to disorderly conduct. |
| Is Grob's prior mischief similar to the instant cyberstalking offense? | Similarity would warrant counting the prior offense. | Prior mischief is not similar to cyberstalking. | Prior mischief not similar to cyberstalking; not countable under § 4A1.2(c). |
Key Cases Cited
- United States v. Bays, 589 F.3d 1035 (9th Cir. 2009) (standard de novo review of criminal history calculation)
- United States v. Carty, 520 F.3d 984 (9th Cir. 2008) (en banc; procedural error in Guidelines calculation)
- Gall v. United States, 552 U.S. 38 (S. Ct. 2007) (reasonableness of sentencing; guidance for guideline calculations)
- Reyes-Maya, 305 F.3d 362 (5th Cir. 2002) (similarity analysis under § 4A1.2(c) using common-sense approach)
- Booker v. United States, 71 F.3d 685 (7th Cir. 1995) (common-sense framework; consideration of offense conduct)
- Hardeman, 933 F.2d 278 (5th Cir. 1991) (guide to evaluating similarity and punishment levels)
- Lopez-Pastrana, 244 F.3d 1025 (9th Cir. 2001) (test for similarity in § 4A1.2(c) before Note 12)
- Kemp, 938 F.2d 1020 (9th Cir. 1991) (elements vs. conduct-focused approach for prior offenses)