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

reentry though even such conduct illegal America, indictment, UNITED STATES charged in the

had not been Plaintiff-Appellee, beyond jury, proved to a presented a reasonable doubt. Reynaldo LOPEZ-PASTRANA, a sentence enhance- Upholding

Id. at 413. Defendant-Appellant. circumstances, analogous ment under No. 00-10146. rejected Pacheco-Zepeda specifically argument the same Castillo makes that Appeals, United States Court of longer Almendarez-Torres is no viable Ninth Circuit. it should be limited precedent and Argued and Submitted Jan. (ie., strictly unique its facts defendant Filed March prior aggravated felony con- admitted his record). Id. at 415. More- victions

over, leaves no doubt that Pacheco-Zepeda exception Apprendi’s

the recidivism not, contrary sug-

holding is to Castillo’s

gestion, inapplicable aggra- somehow an felony

vated enhancement under 8 U.S.C.

§ 1326 because removal must have been felony

subsequent aggravated to an convic- “unmistakably Supreme

tion. The Court exception ‘prior

carved out an convic- specifically preserved

tions’ that the hold-

ing of Almendarez-Torres.” Id. at 415.

III. Conclusion

We conclude that Castillo’s state being possession

conviction for a felon 12021(a)

a firearm under CPC consti- felony aggravated

tutes an “as § 922(g)(1), pursu-

described in” 18 U.S.C. 2L1.2(b)(l)(A)

ant to U.S.S.G. and 8 1101(a)(43)(E)(ii). deny

U.S.C. We also challenge Apprendi

his to the sentence imposed. Accordingly,

enhancement

sentence is

AFFIRMED. GRABER, PAEZ, SNEED,

Before: Judges. Circuit SNEED, Judge: Circuit Lopez-Pastrana appeals his Reynaldo eighty imprisonment months sentence to a pursuant guilty plea entered to a § 1326 single violating count of 8 U.S.C. con- (Illegal Reentry). Lopez-Pastrana misapplied that the district court tends at an Sentencing and arrived Guidelines va- history criminal score. We improper cate the sentence and remand for re-sen- tencing grounds Lopez-Pastra- na’s conviction for should determining counted in his not have been history category. I. Defendant was convicted of vio-

lating Reno Code 8.10.045 (1998) attempted to (shoplifting) after he from a local steal wallet valued $19 store. He was fined department $200 community sentenced to sixteen hours of court, The district in the instant service. proceeding, point Lopez-Pas- added one history trana’s criminal score based on this point conviction. This one enhancement from criminal his- Lopez-Pastrana moved Category tory Category V to VI. Conse- his increased from a quently, sentence was potential imprisonment term of of 70-87 possible sentence of 77-96 months to months. Powell, K. Federal Michael Assistant that un Lopez-Pastrana contends Defender, Reno, Nevada,

Public for the 4A1.2(c)(l), der defendant-appellant. conviction should have been excluded be to” cause is “similar the listed Craig Denney, Assistant United States Reno, Nevada, funds check.” We Attorney, plaintiff- for the “insufficient appellee. agree.1 4A1.2(c)(1). Lopez-Pastrana argues shop- provision of U.S.S.G. We also that his arate lifting solely ordinance argument unpersuasive. Shoplifting offense was a local find this sep- violation and excluded under a therefore

II. enumerated offense of “insufficient funds Finally, check.” we conclude that the two district We review de novo a offenses are similar for the purpose of that a convic court’s determination calculating a history defendant’s criminal tion should be counted for criminal score. Sentencing under the Guidelines. v. 152 F.3d United States íAl.2(c) § A. To” “Similar as used in (9th Cir.1998). 1191 We have articulated two separate tests 4A1.2(c) pro- Section Guidelines determining particular whether a of- pertinent part: vides in fense is “similar to” an offense listed (1) following prior Sentences for the of- In United v. States Martinez fenses and similar to them (9th Cir.1990), (Clyde), 905 F.2d 251 we known, by they whatever name are explained excluding rationale for (A) only if the sentence counted they listed offenses: “offer no basis for probation was a term of of at least predicting criminal activ- year imprisonment one or a term of defendant; ity by they the conduct (B) thirty days, of at least criminalized, involve is uniformly prior to an in- offense was similar is, penalty usually light.” when stant offense: Id. at 253. (Clyde) Under the Martinez

test, an offense must “offer a more sub- insufficient cheek stantial predicting basis for future criminal

activity than do the minor” listed offenses before it be counted towards a defen- Lopez-Pastrana’s shoplifting con dant’s criminal score. United viction cannot be counted under either States 152 F.3d at 1192. In (B). (A) Shoplift subsection or subsection essence, this test defines “similar to” on ing is not similar to the instant offense underlying basis of the seriousness of reentry. illegal Defendant’s sentence for the offense.2 shoplifting consisted sixteen hours of (Carlos), In United States v. Martinez community and a minimal fíne. service (9th Cir.1995), however, 69 F.3d 999 we case, squarely presented by The issue this apply chose not to the Martinez therefore, shoplifting is whether a minor test and instead defined “similar to” with offense is “similar to” listed offense. only activity reference “whether below, As discussed hold that it is underlying is similar to [the offense] similar to the offense of insufficient funds of- activities the listed check. fenses.” Martinez 69 F.3d at (citing 1000 905 F.2d at III. (Wallace J., concurring)).3 255-256 First, we turn to the what is meant “similar to” as used U.S.S.G. approaches, either of these Under 4A1.2(c)(l). compare Lopez- We then Lopez-Pastrana’s conviction for Pastrana’s conviction to the is similar to an insufficient funds check 278, (5th 1991); is a criminal offense under law. 281 Nevada Cir. United States v. Booker, 685, (7th Cir.1995). N.R.S. 205.0832. The fact that Nevada's 71 F.3d 689-690 criminalizing state statute theft not track does language the exact of the Reno practice, approach is similar to First, Third, creating Code the offense of is of “elements” test used in the Fourth, legal significance. no See United States v. (10th Cir.1995). and Eleventh Circuits. See United 850, Hooks, 759, (1st 65 F.3d 856 Unger, States v. F.2d 763 Cir. 915 Elmore, 23, 1990); United States v. 108 F.3d Second, (3rd Cir.1997); Harris, 2. A Fifth 128 similar test is utilized United States v. Cir.1997); (4th and Seventh Circuits. See United States v. F.3d 854-855 Martinez-Santos, Wilson, (2d Cir. States v. 927 F.2d 1188 Cir. 1999); Hardeman, 1991). United States v. (9th Cir.1991) (Martinez 1020, 1023 under therefore excluded offense comparison 4A1.2(c)(1).4 (Clyde) analysis includes offense and the the elements listed “seriousness (Clyde): offense). B. Martinez the offense” analy- Restricting the Martinez (Clyde) “serious- the dissent Applying sis in the manner advocated unnecessarily scope we hold of the dis- of the offense” “limits ness inquiry.” court’s indicative of future trict shoplifting is no more (2d Martinez-Santos, a bad passing than is criminal behavior Cir.1999) (similarity charged of listed and disagree with the our dissent- check. We all by comparison determined applicability ing colleague factors). Instead, we take a relevant in this cir- (Clyde) test of the Martinez relies on approach common sense which cumstance, on the substance of the test but similarity, includ- possible all factors of dissent, applica- As noted the as well. im- comparison punishments of ing part (Clyde) as a “three tion of Martinez and unlisted of- posed for the listed unhelpful. Dissent at 1033-34. test” is fenses, perceived the seriousness of the argues this conclusion do not believe We pun- of offense as indicated the level test, only against the against using the but offense, ishment, the elements of the the to characterization of how best dissent’s involved, culpability level of and the de- holding (Clyde). the of Martinez follow to which the commission of the gree under The core Martinez recur- offense indicates a likelihood of the at issue (Clyde) is whether ring criminal conduct. sig predicting basis for “offer[s][a] Hardeman, United States v. 933 activity.” nificant criminal 905 F.2d at (5th Cir.1991). 281 so, prior 253. If the offense “is shoplifting Both and insufficient funds sentencing purposes” and should be provi- punished check are under same included in a defendant’s criminal sion of Nevada law. N.R.S. 205.0832. Society’s at interest score. Id. penalty for the two crimes is identical is, course, punishing the offense rele depends entirely on the value of the question. vant to this Also relevant is the property taken. N.R.S. 205.0835. This punishment imposed for a viola level of per- indicates that the two offenses are of these two “factors” Application tion. In equally present ceived as serious. alone, however, the in does conclude case, a minimal the defendant received pri- quiry. Other similarities between community 16 sentence of hours of service may and the or offense listed also punishment and a fine. The actual $200 assessing assist whether inclusion of therefore, imposed, “places shoplifting [the likely “would distort prior offense more arguably category” an lesser conviction] improve process than for ... deter than the listed offense of insufficient funds Almodovar, mining appropriate sentence.” Id. at 1996 check.5' United States (E.D.Pa.1996). 253; 114930,*5 Kemp, See United States v. 938 F.2d WL prior unimportant comparison, we dant’s sentence is under 4. For use 4A1.2(c).” holding This conflicts federal definitions of the listed offenses. which instructs us to Kemp, States v. 938 F.2d 1023- Martinez Cir.1991). severity penalty consider the of the for the Where there is 1024 no feder- here, prior determining offense when whether that point, as we al law on is the case conviction is similar to a listed offense. Mar- either law or the Model Penal look to state Furthermore, (Clyde), 905 F.2d at 253. disorderly (comparing tinez consideration of the actual Code. Id. offense to penalty imposed law); (Car- under Arizona conduct los), Martinez helpful determining on a defendant is (using at Model Penal 69 F.3d application seriousness of the crime. A fair loitering). Code's definition therefore, re- Sandoval, quires that the defendant’s sentence be con- In United States (9th Cir.1998), ascertaining defen- sidered as a factor when held that "a addition, many Appellant’s the two offenses share test shoplifting conviction. (Clyde) test, There are four Unlike the of the same elements. (Carlos) ways shoplift- the Reno require distinct violate test does not analysis subsection of the or- ing ordinance. Each the defendant’s offense to slightly defines in a determine if it is predictive dinance of future crim- Rather, example, different manner. For both con- inal behavior. the Martinez cealing altering merchandise and the la- focuses on whether the equally punisha- on conduct underlying bels merchandise are defendant’s if done with the intent to offense is “akin ble to the conduct underlying deprive property. owner of listed offenses.” (a)(3) (1998). 8.10.045(a)(2), (Car- F.3d at (applying R.M.C. De- los) test). variations, spite these minor the essential a elements of violation under (Carlos), In Martinez we applied the 1) 2) willfully the Reno Code are “conduct” test to the offense of vandalism. 3)

taking possession merchandise with Vandalism, definition, “by involves the ma- deprive the intent owner defacement, licious damage destruction or Similarly, value of that property. property to the of another.” Martinez by passing commits theft a bad check un- 1001. We held that der Nevada Law if ... “knowingly he vandalism was “similar to” the offenses check, passes draws or a in exchange 4A1.2(c)(2) § listed in U.S.S.G. services, obtains if property he knows vandalism is not a victimless crime and paid that the check will not be pre- when because vandalism involves malicious in- § sented.” N.R.S. 205.0832. tent.6 Id. at 1000-01. require Both offenses willfulness. Both (Carlos) test, Under Martinez there- require offenses the conversion of the fore, prior offense is “similar to” a listed property of another. And both offenses prior offense if the elements of the require specific deprive intent to are necessary similar to the elements owner of the value of that property. The prove one of the enumerated offenses.7 two offenses are similar. See United This test overlaps, but is more narrow (2nd Sanders, States v. than, the Martinez test. Whereas Cir.2000) (i.e. (“fare-beating” entering the similar elements be considered under subway in- paying) without is “similar to” to ascertain whether the sufficient funds check because the two of- prior predict- offense offers “basis for subject fenses share elements and are to ing activity,” criminal equally lenient punishments). comparison entirety such constitutes the (Carlos) of the Martinez test. As indicat- (Carlos):

C. “conduct" test above, underlying Lopez- ed the conduct We reach the ap- same conclusion after Pastrana’s conviction for is sim- (Carlos) plying the Martinez “conduct” ilar to the conduct that underlies an insuf- similarity charged of the offense to truancy a listed Juvenile status offenses and Loitering offense. (e.g., speeding) Minor traffic infractions Public intoxication 4A1.2(c)(2) slightly § 6. U.S.S.G. different Vagrancy 4A1.2(c)(1). § from Insufficient funds check an is not enumerated offense under (Carlos) Although we refer to the Martinez 4A1.2(c)(2). Rather, 4A1.2(c)(2) pro- § (Carlos) test as a "conduct” vides: made no effort discern the actual following Sentences for the offenses conduct the defendant’s vandalism them, Rather, and offenses similar to whatever in we conviction. known, they compared statutory name are are never counted: definition Hitchhiking offense to the listed offenses. We decline to follow by guideline provision. as defined check offense

ficient funds where the Compare R.M.C. 8.10.045 the lead of our sister circuit law.8 Nevada 205.0832(9). (1998) N.R.S. has been eroded of its decision basis action. through subsequent administrative in States v. Sando- United Our decision today’s support further provides val Furthermore, contrary to the dissent’s Sandoval, applied the Mar- order. the Tenth nor the suggestion, neither and held that “conduct” test tinez Fourth Circuits has held any of the was not similar to petty theft funds check offenses and insufficient 4A1.2(e)(2). Sandoval, §in listed offenses The court dissimilar under holding this 1192. We based 152 F.3d at Hooks, 65 F.3d 850 listed that none of the offenses on the fact Cir.1995) address the issue. simply did not 4A1.2(c)(2) “taking another’s §in involve held, today, we hold The Hooks court deprive with the intent property not excludable as a local Id. This cannot property.” supra n. No- ordinance violation. See listed said of those be decision address where does the Hooks 4A1.2(c)(l), at issue provision shoplifting is “similar to” insuf- whether funds cheek is a form case. Insufficient Likewise, in check offense. ficient funds stealing. implication Benjamin, States v. (like therefore, shoplift- is that theft (4th Cir.1997) (unpub- 1997 WL other minor theft offenses ing) is similar to disposition), the defendant failed to lished check). (like The dis- insufficient funds shoplift- court that his argue to the district including this offense trict court erred ing conviction should excluded from his Lopez-Pastrana’s crimi- calculating when history Consequent- calculation. nal score. his claim ly, appellate court reviewed “plain Applying error.” deferen- D. Circuit Conflict (rather than the “plain tial error” review contends that our conclusion dissent present in the approach applicable de novo Analysis an inter-circuit conflict. creates case), that the district court the court held by cases cited the dissent is suffi- failed, plainly err when it sua did' that in cient refute this claim. It is true sponte, shoplifting to exclude Defendant’s Hoelscher, 1527, v. 914 F.2d United States Benjamin, 110 F.3d at conviction. (8th Cir.1990), Eighth Circuit (“While [Appellant] has 1997 WL 165414 any is not similar to shoplifting held that issue, say arguable raised an we cannot § listed in the offenses ”). erred ... plainly that the district court Hoelscher, however, was decided before holding our does not conflict Consequently, funds check” was added to the “insufficient Tenth or with decisions of either offenses. Sen- list of excludable See U.S. Fourth Circuits.9 Manual, C, tencing App. Guidelines (1998). 352 at 162-163 Both Amendment IV. Ziglin, conclusion, and insufficient (8th Cir.1992) Waller, shoplifting and United States (8th Cir.2000) share similar ele- funds check offenses fol- 857-58 ments, un- penalties, similar and similar any analysis lowed Hoelscher without are derlying conduct. The offenses there- underlying change comment on the deception, argu- "trespassory the additional element of it is 8. The dissent concludes that the ably shoplifting taking” necessary shoplifting "simply more serious than the is underly- here. taking at issue different” from the fraudulent ing offense. an "insufficient check” We do not believe this Dissent at 1035-36. 9. To the extent that we have reached differ- Circuit, Eighth the considerable similar- from the distinction overrides ent conclusion however, note, analysis so on our ities between the offenses. We have done based updated guideline provision. that to the extent a bad check offense contains

1Q31 meaning fore “similar” within the toward a defendant’s criminal-history 4A1.2(e)(1) added). Lopez-Pastra- § and (emphasis U.S.S.G. score. Id. sentence should not shoplifting na’s have (c)(1) list, contrast, a list is

been included his criminal calcu- crimes that sometimes are counted in a Excluding shoplifting lation. his convic- criminal-history score. Crimes on the tion, Lopez-Pastrana’s proper sentencing (c)(1) list, them, “and offenses similar to months, range was 70-87 not 77-96 known,” whatever name they are ex- are imposed by The sentence months. cluded from a defendant’s criminal-history vacated district court is and the case is (a) only if score the defendant received a re-sentencing. remanded for (b) light sentence and the crime for which and REMANDED currently

REVERSED for re- the defendant being sentenced sentencing. is not similar to crime. U.S.S.G. 4A1.2(c)(l). (c)(1) § The crimes on the

GRABER, Judge, dissenting: Circuit license, driving include without a trespass- dissent, ing, non-support, prostitution, respectfully resisting ar- shoplift- rest, court, contempt of ing “[^Insufficient is not to” “similar the excluded 4A1.2(c)(l). (c)(2) funds check.” The fact that offenses listed in U.S.S.G. (c)(1) counted, so, crimes never are while the being That the district court did err counted, crimes sometimes are reflects the counting Defendant’s conviction Sentencing criminal-history judgment in his Commission’s score sentencing when him for the crimes are present crime somewhat more seri- majority’s contrary of conviction. The ous than the crimes of significance” “minor conclusion illustrates the inconsistencies in on the list. cases, our fails follow closely the most law, II. Under Nevada pet- analogous precedent, Ninth Circuit larceny. it

needlessly creates a conflict with at least one sister circuit. pleaded guilty “shoplift- Defendant ing” Municipal under Reno Code I. generally Misdemeanors are included (1998). time, § 8.10.045 At criminal-history in a score. petit larceny was a subset of (essentially, 4A1.2(c) heart, store), At petit larceny is a rule of in a the elements of inclusion, provides: not exclusion. It which were set out Reno (1998). relevant, “Sentences for misdemeanor and of- 8.10.040 Code As counted, except fenses as follows.” 8.10.045 “[a]ny per- made unlawful for willfully What “follows” are two lists of son possession excluded to take of mer- (c)(1) offenses, (c)(2) list and the by any list. chandise offered for sale store with converting intention of the same to the (c)(2) The list is a list of crimes that “are person use of such without to the paying of minor significance goals such to the owner the value thereof.” In sentencing likely that inclusion would more amended; municipal code was improve process distort than estab- merged petit larceny into and was elimi- by guidelines lished for determining an separate nated as a crime. appropriate sentence.” United States v. notes, majority majority As the op. at Cir.1990) (citation omitted). n.l, consequence Those crimes 1026-27 it is of no significance” of “minor are hitchhiking, prosecuted loi- Defendant was under a local juvenile ordinance, tering, status offenses and truan- because Defendant’s crime also intoxication, cy, public vagrancy, and mi- awas crime under state law. Under Ne- 205.0832, § nor traffic infractions. U.S.S.G. vada Revised Statute 4A1.2(e)(2). (c)(2), § punish- Under those offenses crime that Defendant committed is them, Theft, turn, “single “and offenses similar to whatever able as theft. ais ” known, they separate name are never counted of- embracing certain useful nor (Clyde) is neither tinez funds check fenses,” including insufficient like this one. cases appropriate larceny. Nev.Rev.Stat. petit and petit larce- commits A 205.0833. application This case involves steals, takes “[intentionally ny if he or she 4A1.2(c)(l). But Martinez U.S.S.G. away” ... or drives away carries and applying court was (Clyde), this worth less than that is another property of (c)(2) 4A1.2(c)(2). noted, lists As § 205.240. Nev.Rev.Stat. $250. of which defen- least as shop- such for can be convicted—offenses local conviction dant So Defendant’s question in The to a state conviction minor traffic infractions. lifting equivalent was petit for was how decide or, specifically, MaHinez more for theft issue, larceny, petit public at inde- other forms the offense larceny. Like whether list), (which attempted or com- was was not on required cency significance” taking property, minor nevertheless “such pleted trespassory pur- the own- be counted for deprive that it never should permanently the intent acts covered property. sentencing. The poses er of that completely encom- municipal code are determination, the Mar- making larceny. against law passed state “categorical,” took a tinez “crime-by-crime,” approach. rather than a two tests adopted circuit III. This has pick did not I mean that the court By that ivhen one crime determining (c)(2) list crime from the particular to” “similar another. indecency public whether then determine (or theft, shoplifting) is or Petit Rather, the court de- was similar to it. (c)(1) either the the crimes on among characteristics of general scribed (c)(2) argues— But Defendant list. “insignificant” offenses Defen- majority concludes—that and the then set about to determine a whole and be counted be- cannot dant’s conviction indecency was an offense public whether crime on the it to” a cause is “similar characteristics. general that shared those list, check.” “insufficient three such The court identified character- (1) istics, the offense “of- op. asking acknowledges, majority whether: signifi- predicting basis for 1027-28, 'fer[s] [a] two tests that this court has defendant”; by the activity crime is “sim- cant determining whether one (2) 4A1.2(c): that “is conduct offense involves under U.S.S.G. ilar to” another is, criminalized, uniformly and when the Mar- (Clyde) test and (3) “[sjociety usually light”; and penalty is then tinez test. that, punishing such a substantial interest un- has tests concludes applies both repeti- its discouraging ... and in either, larceny is “similar to” conduct der F.2d at (Clyde), 905 253- tion.” MaHinez disagree with insufficient funds check. 54; States two Mar- see also United majority’s application (9th Cir.1998) (listing my dis- tests; explaining tinez but before elements).2 In the court fo- particular, why the Mar- agreement, explain I wish to offense,” (Carlos), prior listed offense and the which United States Martinez 1. 1995). (9th 999 Cir. factor and would make this would be fourth the Fifth Circuit's court's test similar to for- reading my of that Mar- The insists 2. Hardeman, 933 in United States mulation (Clyde) unduly Majority tinez is restrictive. (5th Cir.1991). op. Majority F.2d 281 three-part My description op. at Assuming Kemp contains that such test, however, descrip- numbered mirrors the Kemp suggestion, the between and difference the "three-factor test" of tion of (Clyde) Martinez disarray only highlights in our Sandoval gave recently in Sando- that this court apparently have precedents. three Now val, 152 F.3d at 1192. tests, (Clyde) two: as rather than Kemp, United States v. The cites Sandoval; interpreted applied in Mar- and Cir.1991), (9th F.2d applied (Clyde) interpreted and as analysis proposition (Clyde) tinez that the “Martinez and, Kemp; possibly, case comparison the elements of includes a cused on the fact that the offenses on the ed that it was not. Id. at 1000-01. Ac- (c)(2) universally regarded list are not as cordingly, the court held none of the “Consideration of culpable: (c)(2) convictions for offenses on the list was “similar to” conduct in determining such sentences vandalism. In explaining its refusal would be inimical to the realization of the follow categorical (Clyde) MaHinez goal uniformity in sentencing since the the court stated that application of sentencing guidelines calculation under the result, test “would lead to the same vary jurisdiction would with the in which a but it would do so looking without at the engaged who such conduct resided.” question real this couH—the simi- before (Clyde), Ma rtinez 905 F.2d at 253. larity vandalism to offense of the listed excluded Id. at 1001 The court then addressed the crime of offenses.” added). (emphasis public indecency light gen- of those eral characteristics and concluded that it The MaHinez (Clyde) test and the Mar- was “similar to” the crimes on the (Curios) tinez test answer related but dif- (c)(2) list. Id. at 254. The court focused questions. ferent The MaHinez (Clyde) public on the fact that indecency gener- is test answers this question: “As a general regarded ally culpable, as as evidenced matter, is this crime the kind crime that the fact that it is as a criminal treated Sentencing placed Commission on the in every jurisdiction. American (c)(2) (Carlos) list?” The MaHinez test public Id. indecency “Because is universal- question: answers this “Is this crime simi- ly regarded culpable,” as the court con- (c)(2) paHicular lar to crime on the cluded, “conviction of such an offense is list?” to the relevant likelihood the offender will in criminal conduct in engage the future 4.Al.2(c)(l), IV. the context is significant sentencing purposes.” the MaHinez test should ap- Id. ply. (Clyde), Like Martinez United States v. question Our in this ease is the MaHinez Cir. (Carlos) question, albeit the context of 1995), (c)(2). is a case that arose under (c)(1). answer, question We must not the But instead of following categorical petit larceny whether is like the crimes on “general characteristics” approach es (c)(1) but, list as a matter general poused in MaHinez rather, petit larceny whether (Carlos) court looked at specific con (c)(1) specific list, like a crime on the duct underlying defendant’s of insufficient funds check. fense, vandalism. Id. at 1000. court The inquiry reasoned: “The into MaHinez whether van is ill-suited to 4A1.2(c)(2) dalism is ‘similar’ to a answering specific question, paHicu- section here, listed offense must on larly applied, focus whether the when it is to a case (c)(1).3 activity underlying vandalism similar to under A of the three ele- review activities First, listed of why. ments the test illustrates Id. fenses.” then considered Martinez us to instructs ask “activity whether the underlying” certain uniformly whether a crime is considered to list was similar culpable. to the 905 F.2d at 253. The of- conduct underlying vandalism and conclud- on fenses list are not criminalized (Carlos). (c)(1). Al least one circuit Kemp, other has criti- 938 F.2d 1020. The court con- cized the respect Ninth Circuit's law with "practically impossible” cluded that it was 4A1.2(c) as "indeterminate” and apply the test in the circumstances of the case creating "confusion.” United States v. and, accordingly, exception” "carve[d] out an Harris, (4th Cir.1997). by looking underlying to it at the conduct once, involved in the crime. Id. at attempted, 1023. only ap- This court has to ply (Clyde) the test context of Martinez ... conduct in such punishing Thus, tial interest an offense that jurisdictions. all in repetition.” discouraging its places in but and in crime some a considered is parts of to the other is, similar at 254. As with respect, in that in others (c)(2) apply It would be to list. is difficult question on this crimes the goal of national contrary to the Mar- unfair, categorical, of a the context outside in such an jurisdiction to count uniformity, Every ever inquiry. (Clyde) tinez criminal-history score. a larceny and insufficient punishes petit as, excep- minor (just funds check more that the suggestion But there is no tions, of the crimes on they punish the rest (c)(1) are not crimes on significant list). (c)(1) in that sense two So Cer- culpable. to uniformly considered be why again, But crimi- are “similar.” here are crimes at issue tainly the offenses are con- another, crimes every in fact that both nalized, in one form or should (1980): against Penal Code count- everywhere argue Model jurisdiction. See demned (theft 224.5 taking); unlawful of criminal § 223.2 for ing checks). sense, suppose (bad that In history? similar; uni- both are are that the crimes another majority also considers itBut is culpable. to be considered

formly Martinez analysis under in its question a similar- that such to conclude nonsensical As the sentence. (Clyde)—Defendant’s a crime not to count ity is a reason notes, disagree- there is some the first criminal-history So purposes. that is whether in this circuit about ment simply is (Clyde) from question Martinez (c)(2). consideration under appropriate (c)(1) in that address unhelpful cases But there should at 1029 n.5. Majority op. to crimes, uniformly regarded which are a consider- disagreement that such be no degree. some culpable to be (c)(1). That is inappropriate is under ation us to Second, (Clyde) instructs (c)(2), (c)(1), already unlike con- a “basis a crime offers whether consider sentencing a consideration: within it tains predicting that a of- requirement the threshold F.2d at activity by the defendant.” 905 if term of may be excluded fense in sense question that Again, makes less actually imposed was than punishment in (Clyde) inquiry, categorical, Martinez a year’s probation. days prison or one to trying a is determine which court words, already considers In other of crimes a is in the class crime whether sentencing; even to reach they never should that that are so minor to” a crime a crime is “similar on whether here, trying are to But counted. be (c)(1) list, satisfy a must court first crime, petit specific a determine whether sentencing criteria are met. that the itself crime, in- specific larceny, like another is unnecessary under Accordingly, it is our check. How could sufficient funds a received whether defendant to examine are like- whether thieves speculation about determining whether two sentence in light help us answer ly again commit crimes The answer must are “similar.” crimes they If we conclude question? Harris, States always “yes.” are, “similar that make them more does (4th Cir.1997). checks, so? bad or less people to” who pass that is sum, insufficient funds check crime test is Is the Martinez characterized a likelihood recidivism? unhelpful this case. inappropriate and that? How are we to know (c)(1), inquiry is In cases under where step implicitly acknowledges crime is similar an- specific whether a impossible crime, approach is specific the better other majority op. by listing step, apply here (Carlos). A that taken discussing it. at but never crimes that two simply should look “focus on alleged to be similar Third, us to (Clyde) instructs activity [one] substan- whether “[sjociety has a consider whether event, activity] underlying similar to the In any Sandoval does not support Martinez [other].” F.3d at the majority’s holding. Sandoval simply (Carlos) applies Martinez and concludes that, if there is some significant difference test, V. Under either these crimes not between the conduct underlying a “similar.” misdemeanor and the conduct (Carlos) A. The Martinez test offense, listed then the two crimes are not similar. It is true that petit larceny is majority concludes that Defendant’s different from theft is similar to insufficient check insufficient funds check in funds (Carlos) test, under the Martinez largely respects. all larceny Petit and insufficient the crimes have several over- funds check differ from both the crimes noted, lapping disagree. elements. As (e)(2) listed in for the reasons discussed “shoplifting” offense under the 1998 above in IV. But petit larceny Part and Code, Reno and the offense insufficient funds check nevertheless differ law, “petit larceny” under Nevada state other, so; from each and significantly require trespassory taking property. Martinez requires no more. Pet- It is that element that larce- differentiates it larceny is like insufficient check in ny fraud-based passing from offenses like that both stealing, involve but it is differ- a bad check. Neither insufficient funds ent in that it trespassory involves a taking, any check nor other offense that is exclud- “physical possession or control without 4Al(2)(c) ed pertains under U.S.S.G. to a authority.” consent or Model Penal Code trespassory taking of property of an- (1980). 223.2, physi- That sort of other. taking cal without consent is simply differ- support contrary conclusion, As for its ent from the act of obtaining property by the majority cites United States v. Sando- fraud. This additional element distin- val. Majority op. at 1030. In guishes activity underlying the two this court held that theft was not (Car- crimes for of the Martinez similar to of the offenses on the los) test. list, primarily because none of on the requires proof of criminal B. The Martinez

intent or stealing. involves 152 F.3d at this, 1192. From majority concludes Nor are these offenses similar under the larceny and insufficient funds Martinez (Clyde) assuming even similar, check must be because both re- noted, applies. it petit larceny As is crimi- quire criminal intent and stealing. universally. nalized Martinez Sandoval is this court’s case ad- F.2d at “Society has a substantial dressing whether a minor in punishing interest such conduct ... and theft like petit larceny crime is excludable discouraging repetition.” its Id. at 254. under U.S.S.G. The Sandoval And, under reasoning of Martinez concluded the crime was not (Clyde), petit larceny predictive of fu- 152 F.3d at excludable. 1192. The court’s ture activity. therefore, holding, appear sup- would (Clyde), the court step addressed this port argument that petit through reference to the universal culpa- should not be excluded in this case. But bility of the in question: “Because opposite propo- cites for the public indecency universally regarded sure, sition. To Sandoval be dis- culpable, conviction of such an offense is a(c)(2) tinguished ground that it is a(e)(l) relevant to case, the likelihood the offender will case like this But one. so engage in criminal conduct in the are the other on cases which the bases and is holding, sentencing purposes.” its (Carlos). Id. So too here.

1036 conviction, it is similar petty-theft the ele- also addresses majority The ‘[ijnsufficient funds of of in its discussion to the offense of offenses ments op. at an Majority check,’ included on exclusion (Clyde) test. which is is properly this Assuming Sentencing that Guidelines in ary list U.S. 1028-29. inquiry, (1997).” but 4A1.2(c)(l) part United Manual 2, that the agree I do not 1171, Tauer, see ante note 1998 141 F.3d WL v. States the con- support of these offenses Cir.1998) elements (8th (unpublished 85348, *1 be exclud- larceny should petit clusion that Mazanetz, likewise, rejected disposition).5 (c)(1). Although the under ed makes Defendant very argument that common, they are in have some elements Dershem, v. also United States here. See different, above. as discussed crucially (hold (M.D.Pa.1993) 785, 791 F.Supp. 818 not excludable theft” is ing that “retail inter-circuit an majority creates The VI. 4Al.2(c)(l), response in under conflict. argument that is anal to defendant’s this considered circuit to have Every check”). The ogous to “insufficient (or held that has aof the creation majority downplays also theft, is not “similar shoplifting) petty or distinguishing out by pointing split circuit (c)(1) list, includ- any offense on to” to cases cited above. of some features United funds check. insufficient ing Majority op. at 1030-31. (8th 856, Waller, F.3d 857-58 218 v. States that, this after the fact remains But Hooks, Cir.2000); 65 F.3d v. States United alone, will stand the Ninth Circuit opinion, (10th Cir.1995); v. 850, 855 for will occur sentencing disparities (8th Cir.1992); 756, F.2d 758 Ziglin, 964 circuit, In this time on this basis. the first Hoelscher, 914 F.2d v. States United con- only, and this circuit defendants’ (8th Cir.1990); States see also United 1537 theft will excluded victions 61,1997 165414 WL Benjamin, v. striking It is under U.S.S.G. Cir.1997) (4th (unpublished disposition); most on which that the case Mazanetz, States United relies, its (Clyde), based heavily Cir.1995) (unpub- WL 431404 of goal holding on the “realization opinion, we disposition).4 With lished the ne- sentencing” and on uniformity oth- hold the first circuit become in which cessity avoiding a situation of erwise. guide- under the “sentence calculation[s] of that its creation The asserts jurisdiction vary lines would long, because split may circuit not last a in such con- engaged who which a see fit recon- Eighth might Circuit F.2d at 253. duct resided.” “in- now that binding precedent its sider (c)(1) list. is on the funds check” sufficient contrary majority’s result VII. course change A Majority op. at 1030. Sentencing likely intent of specifi- unlikely; Eighth Circuit seems Commission. argument rejected a defendant’s cally has final majority for one disagree with the one not have received “that he should not make simply does reason: its result state history point for Circuit, opin unpublished Eighth an unpub- allows citation 4. The Fourth Circuit persuasive “has value on be cited if it ion opin- published opinions if “there is no lished opinion published issue and no material States as well.” ion that would serve United court would serve well.” this or another Circuit, Appeals Rule Court of for the Fourth Eighth Appeals States Court United 36(c). United Circuit does not. Seventh Circuit, 28A(i); see also Rule Anastasoff Appeals Cir- Court for the Seventh States States, (8th Cir. cuit, 53(2)(iv). dispo- cite Rule I do not these 2000) constitutionality of the (stating precedential persuasive for their sitions 28A(i) unpublished provision in Rule but, rather, simply exis- to note their value precedential effect "remains opinions have no tence. circuit). question” open (or theft) Larceny sense. far the frequently crime America,

most committed that the UNITED STATES FBI lists its crime index. See 1999 FBI Plaintiff-Appellee, Figure Crime Index at 2.3. larce- ny and theft up made almost 60% of the MENDOZA, Flavio David

total reported crimes the crime index. Defendant- Appellant. alone, year Id. In that reported the FBI nearly 7 million larcenies and thefts. Id. No. 00-10219. § II. Appeals, Court of (or larceny shoplifting, Petit or Ninth Circuit.

theft) assuredly is one of the com- most mon, known, and best of misdemeanors. Argued and Submitted Jan. concludes that the Sentenc- Filed March ing Commission intended this crime to be criminal-history excluded from un- scores 4A1.2(c)(l). so,

der why If then did not put Commission simply crime on list? There are 15 crimes on the

list, (and including such obvious less less

common) hindering po- misdemeanors as

lice officer and fish game violations. it really likely

Is the Commission

intended to petit larceny perhaps — prototypical simply misdemeanor —but ne- so,

glected to do thought that it was

unnecessary is so

clearly “similar to” insufficient

check?

Of If course not. the Commission had offense,

wanted to list this it would have

done so. But it did not.

VIII. Conclusion stated,

For the I disagree reasons majority’s that petit larceny conclusion

is “similar to” insufficient funds check for 4A1.2(c)(l).

therefore dissent.

Case Details

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

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 28, 2001

Citation: 244 F.3d 1025

Docket Number: 00-10146

Court Abbreviation: 9th Cir.