Paul Darvin Lamm, Jr., pleaded guilty to being a controlled substance user in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3) (the instant offense). Appealing only his sentence, he contests the addition of one criminal history point, under Sentencing Guidelines § 4A1.2(c), for his prior conviction for shoplifting. At issue is whether shoplifting an item valued less than $50 (petty theft) should be excluded from the criminal history calculation. That turns on whether the petty theft offense is similar to the crimе of insufficient funds check, which is excluda-ble from criminal history, under certain conditions, pursuant to Guidelines § 4A1.2(c)(l). AFFIRMED.
I.
Prior to the instant offense (committed in September 2003), Lamm had four criminal convictions, including petty theft, a class-C misdemеanor for which no imprisonment is imposed under Texas law. The pre-sentence investigation report (PSR) recommended one criminal history point for the petty theft conviction. Lamm objected, contending petty theft is sufficiently similar to insufficient funds check so that, under § 4A1.2(c)(l), it should not be included in his criminal history. In response, the probation officer prepared an addendum to the PSR, distinguishing petty theft from insufficient funds check.
In March 2004, over Lamm’s renewed objection at the sentencing hearing, the district court determined, without stating reasons, that Lamm’s criminal history should include the petty theft conviction. Lamm was sentenced, inter alia, to 21 months in prison.
II.
As he did in district court, Lamm claims: pursuant to § 4A1.2(c)(l), he should not rеceive a criminal history point for his petty theft conviction because it is similar to the listed excludable offense of insufficient funds check. Application of the Guidelines is reviewed
de novo. E.g., United States v. Booker,
In calculating criminal history, “[sentences for all felony offenses are counted”; those for “misdemeanor and petty offenses are counted, except as” detailed in § 4A1.2(e). 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, firearm possession). U.S.S.G. § 4A1.2(c)(l) (emphasis added). (Some listed offenses, or those similar to them, *132 “are never counted”. U.S.S.G. § 4A1.2(c)(2). Two of those listed are hitchhiking and loitering. Id.)
The offense of insufficient funds check is among the excludable offenses listed in § 4A1.2(c)(l); petty theft is not listed. (Examples of other listed offensеs are careless or reckless driving, gambling, and resisting arrest. U.S.S.G. § 4A1.2(c)(l).) Lamm was not sentenced to probation or imprisonment, and petty theft is not similar to the instant offense. Therefore, if petty theft is similar to insufficient funds check, it is not сounted in Lamm’s criminal history. (Lamm’s petty theft conviction could also be excluded, of course, if it is similar to any other listed offense. Lamm only claims similarity to insufficient funds check.)
Guidelines § 4A1.2(c)(l) identifies the excludable offenses without definition. The commentary to the section does provide, however, that the excludable offense of insufficient funds check “does
not
include any conviction establishing that the defendant used a false name or non-еxistent account”. U.S.S.G. § 4A1.2, cmt. n.13. (emphasis added). Therefore, we must look to the definition of the equivalent offense under the relevant State’s law.
United States v. Gadison,
Under Texas law, the offense of issuance of a bad check is the same оffense as insufficient funds check; a person commits issuance of a bad check in Texas
if he issues or passes a check or similar sight order for the payment of money knowing that the issuer does not have sufficient funds in or оn deposit with the bank or other drawee for the payment in full of the check or order as well as all other checks or orders outstanding at the time of issuance.
Tex. Penal Code Ann. § 32.41(a);
Gadison,
To determine whether a prior offense is “similar” to a listеd excludable offense under § 4A1.2(c)(l), our court
“suggest[$J
a common sense approach which relies on all possible factors of similarity”.
United States v. Hardeman,
Hardeman
did not accord any of thеse factors dispositive weight. To the contrary, it cautioned: “We do not suggest that any offense which carries a penalty similar to that imposed for a listed offense should automatically be excluded from the criminal history calculation. The other factors involved may indicate that the defendant’s prior offense should be included”.
Id.
at 282. Obviously, each offense-similarity comparison is
fact specific. Gadison,
Lamm maintains that, according to
Hardeman
and
United States v. Reyes-Maya,
The Government counters that, applying the Hardeman faсtors in the required common sense manner, the offenses are not similar. The Government maintains it is not logical to suppose the Sentencing Commission either mistakenly omitted theft, the most frequently committed offense in the United States, from the list of excludable offenses, or felt theft was so similar to the listed offense of insufficient funds check that further clarification was unnecessary. The Government notes correctly that Hardeman does not give dis-positive weight to any factor, including punishment.
Acknowledging our court has never addressed the issue at hand in a published opinion, the
Government
notes
United States v. Acuna-Chavez,
Those holdings are instructive. In
United States v. Spaulding,
shoplifting poses a markedly greater risk to the public. Passing a bad check poses little risk of physical confrontation, because the perpetrator is not present when the victim realizes that he has been victimized. Shoplifting, on the other hand, creates the very real risk of physical confrontation between the perpetrator and the victim.
Id.
at 22. In accord, the Seventh Circuit held shoplifting and bad-check writing arе not similar, because shoplifting is a tres-passory offense, and it appeared unlikely the Sentencing Commission meant to exempt, by mere implication, a crime as common as shoplifting or petty theft.
United States v. Harris,
On the other hand, the Ninth Circuit in
Lopez-Pastrana,
a case relied on by Lamm, held a Nevada shoplifting offense similar to insufficient funds check.
Lopez-Pastrana
reasoned the two offenses were similar in seriousness, punishment, and in their elements, but did not apply all the factors identified as relevant by our court in
Hardeman. Lopez-Pastrana,
Lamm also relies on our 1993 decision in
Gadison,
which held similar the Texas offenses of
issuance of a bad check
(again,
*134
insufficient funds check under Texas law) and
theft by check.
Lamm asserts: petty theft and theft by check are similar; therefore, pursuant to Gadison, petty theft and issuance of a bad check are similar. Lamm’s reliance on Gadison is misplaced, however, for several reasons. Two оf them follow.
First, Lamm’s premise that petty theft and theft by check are similar is inaccurate. The offenses are meaningfully different because petty theft poses a risk of physical confrontation, placing others at risk. This risk is heightened if the offender is apprehended during the attempted theft. There is'much less risk of physical confrontation for theft by check, just as there is much less risk for insufficient funds check.
See Spaulding,
Second, Lamm’s reliance on Gadison is misplaced because, as discussed supra, Gadison’s holding (issuance of a bad cheсk and theft by check are similar) was based on a prior version of the Texas theft by check statute. In that earlier version, the requisite intent for theft by check was presumed, under certain conditions, when a bad check was issued. See Tex. Penal Code Ann. § 31.06(a) (Vernon 1993). Under the current version, there is no such presumption (instead, issuance is prima facie evidence of intent). See Tex. Penal Code Ann. § 31.06(a) (Vernon 2003). Arguably, under the former statutory scheme, due to the presumption of intent for theft by check, issuance of a bad check could often constitute theft by check. Under the current statute, given there is no presumption of intent, the Gadison court may have found issuance of a bad check and theft by check were not similar. In any event, under the current statute, petty theft and theft by check are less analogous than under the theft by check statute relied upon in Gadison.
Finally, citing
Liparota v. United States,
In sum, weighing the
Hardeman
factors as a whole, under the requisitе common sense and fact specific approach, Lamm’s petty theft offense is not similar to the offense of issuance of a bad check (Texas’ equivalent to insufficient funds check). This is primarily because petty theft involves a heightened risk of physical confrontation and harm to others. Moreover, Lamm’s petty theft offense, when viewed in the context of his recent criminal
*135
history — four convictions from 1997 to 2001 — indicates a likelihood of recurring criminal conduct. Finally, one other meaningful distinction involves the difficulty in detecting and apprehending the perpetrator of petty theft.
See Harris,
III.
For the foregoing reasons, the judgment is
AFFIRMED.