09-1673-cr
USA v. DeJesus-Conception (Vallejo)
1 UNITED STATES COURT OF APPEAL
2 FOR THE SECOND CIRCUIT
3 August Term, 2009
4 (Submitted: March 8, 2010 Decided: June 11, 2010)
5 Docket No. 09-1673-cr
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7
8 UNITED STATES OF AMERICA,
9 Appellee,
10
11 v.
12
13 ANGEL DEJESUS-CONCEPCION, JUAN FRANCISCO GUERRA-PENA, ADRIAN
14 GONZALEZ-RUELAS, FRANCES SANTOS,
15 Defendants,
16
17 JULIO VALLEJO,
18 Defendant-Appellant.
19
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21 B e f o r e: WINTER, CABRANES, RAGGI, Circuit Judges.
22 Appeal from the April 15, 2009 judgment of the United States
23 District Court for the Southern District of New York (George B.
24 Daniels, Judge) sentencing Julio Vallejo to 144 months
25 imprisonment. Because we find that the court did not misapply
26 Section 4A1.2(c)(1) of the United States Sentencing Guidelines,
27 we affirm the sentence.
28 Laurie S. Hershey, Manhasset, New York,
29 for Appellant.
30
31 Preet Bharara, United States Attorney
32 for the Southern District of New York
33 (Howard S. Master and Katherine Polk
34 Failla, Assistant United States
35 Attorneys, of counsel), New York, New
36 York, for Appellee.
1
1 PER CURIUM:
2 Julio Vallejo appeals from the sentence of 144 months
3 imprisonment imposed by Judge Daniels. He argues that the
4 district court misapplied Section 4A1.2(c)(1) of the United
5 States Sentencing Guidelines when it included in its criminal
6 history calculation Vallejo’s New York state convictions for
7 unauthorized use of a vehicle in the third degree.
8 Section 4A1.2(c)(1) provides that a court may not consider
9 prior sentences for certain listed offenses and “offenses similar
10 to them” in calculating a defendant’s criminal history unless
11 “the sentence was a term of probation of more than one year or a
12 term of imprisonment of at least thirty days” or “the prior
13 offense was similar to an instant offense.” U.S.S.G. §
14 4A1.2(c)(1). Because the parties agree that neither of Vallejo’s
15 sentences for unauthorized use of a vehicle satisfy the quoted
16 preconditions, the only question is whether unauthorized use of a
17 vehicle in New York is an offense “similar to” the listed offense
18 of “[c]areless or reckless driving” under Section 4A1.2(c)(1).
19 See U.S.S.G. § 4A1.2(c)(1).
20 In applying Section 4A1.2(c)(1), “‘[t]he goal of the inquiry
21 is to determine whether the unlisted offense under scrutiny is
22 “categorically more serious” than the Listed Offenses to which it
23 is being compared.’” United States v. Morales, 239 F.3d 113, 118
24 (2d Cir. 2000) (quoting United States v. Martinez-Santos, 184
25 F.3d 196, 206 (2d Cir. 1999)). “Although ‘categorically’ might
26 be misunderstood to mean that the unlisted offense is within a
2
1 category that is more serious than the Listed Offenses, we . . .
2 use[] the adverb in its ordinary sense to mean ‘without
3 qualification or reservation.’” Id. at 118 n.5. (quoting
4 Webster’s Third New International Dictionary (1993)
5 (“categorically”)). A district court may consider multiple
6 factors in making its determination, including: “[1] a
7 comparison of punishments imposed for the listed and unlisted
8 offenses, [2] the perceived seriousness of the offense as
9 indicated by the level of punishment, [3] the elements of the
10 offense, [4] the level of culpability involved, and [5] the
11 degree to which the commission of the offense indicates a
12 likelihood of recurring criminal conduct.” Martinez-Santos, 184
13 F.3d at 200, 206 (quoting United States v. Hardeman, 933 F.2d
14 278, 281 (5th Cir. 1991). It may also consider any other
15 relevant factor, including “the actual conduct involved and the
16 actual penalty imposed.” United States v. Sanders, 205 F.3d 549,
17 553 (2d Cir. 2000) (per curiam).
18 We ordinarily review a district court’s seriousness
19 determination de novo. See Martinez-Santos, 184 F.3d at 198.
20 But where the unlisted offense encompasses a wide range of
21 conduct and thus the inquiry will necessarily focus on the
22 particular conduct of the defendant, we give “due deference” to a
23 court’s application of the Guidelines to the facts. See Morales,
24 239 F.3d at 118.
25 Vallejo has waived any objection to the district court’s
26 assessment of a criminal history point for his 2001 conviction.
3
1 At an evidentiary hearing to determine whether unauthorized use
2 was “similar to” the offenses enumerated in Section 4A1.2(c)(1),
3 Vallejo not only declined to contest the government’s factual
4 assertions about the conduct underlying the conviction, but
5 expressly acknowledged that such conduct warranted the assessment
6 of a criminal history point for the 2001 conviction. Vallejo has
7 thus knowingly and intentionally waived any argument on appeal
8 that Section 4A1.2(c)(1) prevented the court from assessing a
9 criminal history point for the 2001 unauthorized use conviction.
10 See United States v. Jackson, 346 F.3d 22, 24 (2d Cir. 2003)
11 (“Where . . . a claim has been waived through explicit
12 abandonment, rather than forfeited through failure to object,
13 plain error review is not available.”).
14 Moreover, because the conduct underlying the 1997 conviction
15 is indistinguishable from the conduct underlying the 2001
16 conviction for the same offense, Vallejo has waived any objection
17 to the assessment of a criminal history point for the 1997
18 conviction. Vallejo admitted that the 2001 conviction arose out
19 of his attempt to strip parts from a stolen car, and there is
20 ample evidence to support the district court’s finding that the
21 1997 conviction for the same offense arose out of Vallejo’s
22 attempt to strip another stolen car of its parts. Because there
23 is no material difference between the two convictions and because
24 Vallejo has already admitted that the 2001 conviction warranted a
25 criminal history point, Vallejo cannot argue that the court erred
26 in reaching the same result with respect to the 1997 conviction.
4
1 In any event, the district court did not err in determining
2 that Vallejo’s convictions for unauthorized use of a vehicle were
3 categorically more serious than careless or reckless driving.
4 Unauthorized use is a Class A misdemeanor under New York law and
5 carries a maximum sentence of up to one year imprisonment for a
6 first offense. See N.Y. Penal Law §§ 165.05, 70.15(1). Reckless
7 driving, by contrast, is a misdemeanor and carries with it a
8 maximum sentence of only thirty days imprisonment for a first
9 offense. N.Y. Veh. & Traf. Law §§ 1212, 1801. In addition, the
10 state must prove a higher degree of moral culpability to secure
11 an authorized use conviction than to secure a reckless driving
12 conviction. As to the former, the state must prove that a
13 defendant at least knew that he lacked a vehicle owner’s consent
14 at the time he exercised control over a vehicle. See N.Y. Penal
15 Law § 165.05. Whereas to secure conviction for the latter, it
16 need show only that a defendant used a vehicle “in a manner which
17 unreasonably interferes with the free and proper use of the
18 public highway, or unreasonably endangers users of the public
19 highway.” N.Y. Veh. & Traf. Law § 1212. Finally, the actual
20 conduct underlying Vallejo’s unauthorized use convictions
21 confirms the district court’s conclusion that those convictions
22 were for offenses categorically more serious than the offense of
23 careless or reckless driving. As noted, the record clearly shows
24 that both convictions arose out of Vallejo’s attempt to scrap
25 parts from a stolen vehicle.
26 Vallejo argues that unauthorized use of a vehicle is
5
1 actually a less serious offense because it does not inherently
2 involve the same serious risks of physical danger as reckless
3 driving. We disagree. First, the unauthorized use of a vehicle
4 is a “trespassory” offense and as such, it poses a serious risk
5 of head-to-head confrontations with owners, police and
6 bystanders. See United States v. Ubiera, 486 F.3d 71, 76 (2d
7 Cir. 2007). Second, as the multifactored nature of the relevant
8 inquiry makes clear, the “seriousness” of the offense is not
9 measured merely by looking at the degree of physical danger
10 posed. Rather, an assessment of an offense’s seriousness should
11 consider the degree of moral culpability required to obtain a
12 conviction, how the state perceives the offense’s seriousness, as
13 well as other societal costs associated with it. See id. at 74,
14 76; see also United States v. Caputo, 978 F.2d 972, 977-78 (7th
15 Cir. 1992); United States v. Hardeman, 933 F.2d 278, 281-3 (5th
16 Cir. 1991). Giving due deference to the district court’s
17 application of Section 4A1.2(c)(1) to the facts, we cannot say
18 that the court erred.
19 CONCLUSION
20 We therefore affirm.
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