This is аn appeal from a sentence imposed upon Murray Spaulding after he pleaded guilty to certain drug offenses. The question raised on this appeal is whether two of Mr. Spaulding’s prior convictions should have been excluded when the District Court was tallying his criminal-history score. Mr. Spaulding arguеs that they should have been excluded because they qualify as crimes “similar to” two offenses that United States Sentencing Guideline § 4A1.2(c)(l) explicitly excludes from being counted. We conclude that Mr. Spaulding’s convictions are not “similar to” any listed offenses, and we affirm.
I.
Mr. Spaulding was the target of a gоvernment drug operation. He sold a large quantity of cocaine to a confidential informant over an extended time period. He plеaded guilty to one count of conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and five cоunts of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). He was sentenced to the statutory minimum 60 months’ imprisonment, five years of supervised release, a finе of $3000, and a special assessment of $600. Mr. Spaulding objected to this sentence at the time of sentencing, maintaining that he is entitled to “safety valve” relief under 18 U.S.C. § 3553(f), which allows a district court to sentence a defendant below the statutory minimum if, among other things, the defendant falls within Criminal History Category I. The сrux of Mr. Spaulding’s argument is that two of his prior convictions — shoplifting and violating a condition of release — were improperly counted toward his сriminal history. He argues that they should have been excluded under § 4A1.2(c)(l) because they are “similar to” crimes listed therein. The District Court rejected this argumеnt, concluding that Mr. Spaulding fell into Criminal History Category II and was, therefore, ineligible for “safety valve” relief.
II.
Whether a crime is “similar to” a crime listed in § 4A1.2(c)(l) is a question of law, and we therefore review the District Court’s decision
de novo. See United States v. Palmer,
All parties agree that Mr. Spaulding is entitled to “safety valve” relief from the
Mr. Spaulding does not allege that either of the crimes at issue in this case is included in the list of excluded offenses. Instead, he argues that his crimes arе “similar to” certain listed offenses, so they should have been excluded from his criminal-history score. In
United States v. Unger,
this Court concluded that to determine whether a conviction is “similar to” a listed offense, we look to the substance of the offense rather than the name of the offense and eschew any stаte-law classifications.
Mr. Spaulding argues that his conviction for theft, a shoplifting charge for theft of products valued at approximately $21, should be excluded because it is similar to an insufficient — funds check — a listed offense. This argument has some initial appeal as both crimes involve theft. We do not believe that the two crimes are sufficiently similar to exclude shoplifting under § 4A1.2(c)(l), however, because 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 perpetrаtor and the victim. A store employee or customer may confront the perpetrator in an attempt to thwart the crime. This risk of confrontation precludes a conclusion that shoplifting is “similar to” passing a bad check. Thus, the District Court did not err in counting Mr. Spaulding’s conviction for theft in calculating his criminal-history score.
Mr. Spaulding likewise argues that his conviction for violation of his conditions of release should have been excluded because it is “similar to” the listed offense of disorderly conduct. Mr. Spaulding’s offense conduct involved his making contact with his ex-wife, in violation of both a protective order that she had obtained against him and conditions of his release from state custody.
2
Both parties agree
Having concluded that neither of Mr. Spaulding’s prior offenses shоuld have been excluded as “similar to” listed offenses, we hold that Mr. Spaulding was properly placed in Criminal History Category II, rendering him ineligible for “safety valve” relief from the statutory minimum sentence. The District Court’s ruling is, therefore, affirmed.
Notes
. Unger was about § 4A1.2(c)(2) rather than § 4A 1.2(c)(1), but it is relevant nevertheless, because "similar tо” is the same phrase in both provisions.
. Mr. Spaulding was adjudged guilty only of violating the terms of his release, not of violating the protective order. The lаtter charge was dismissed, but Mr. Spaulding does not assert that this dismissal was based upon a finding that his behavior did not violate the protective order.
. Mr. Spaulding’s briеf to this Court asserts that he was not even guilty of this crime, as his ex-wife approached him. We will not consider this assertion, because Mr. Spauld-ing was adjudgеd guilty. Sentencing courts are not to reexamine the evidence underlying prior convictions in deciding whether to count prior crimes toward a defendant’s criminal-history score.