United States Court of Appeals
For the First Circuit
No. 02-1789
UNITED STATES OF AMERICA,
Appellee,
v.
MURRAY SPAULDING,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
R. Arnold,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Ann E. Johnston, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Paula D. Silsby, United States Attorney, was on brief for
appellee.
August 4, 2003
*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
R. ARNOLD, Senior Circuit Judge. This is an 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 argues that they should have been excluded
because they qualify as crimes “similar to” two offenses that
United States Sentencing Guideline § 4A1.2(c)(1) 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 government drug
operation. He sold a large quantity of cocaine to a confidential
informant over an extended time period. He pleaded 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 counts 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 fine 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
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sentence a defendant below the statutory minimum if, among other
things, the defendant falls within Criminal History Category I.
The crux of Mr. Spaulding’s argument is that two of his prior
convictions--shoplifting and violating a condition of release--were
improperly counted toward his criminal history. He argues that
they should have been excluded under § 4A1.2(c)(1) because they are
“similar to” crimes listed therein. The District Court rejected
this argument, 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)(1) is a question of law, and we therefore review the
District Court’s decision de novo. See United States v. Palmer, 203
F.3d 55, 60 (1st Cir. 2000).
All parties agree that Mr. Spaulding is entitled to
“safety valve” relief from the statutory minimum sentence only if
either his conviction for shoplifting or his conviction for
violating a court protective order is excluded from his criminal
history under U.S.S.G. § 4A1.2(c)(1). Under U.S.S.G. § 4A1.2(c),
“Sentences for all felony offenses are counted. Sentences for
misdemeanor and petty offenses are counted, except as follows: (1)
sentences for the following prior offenses and offenses similar to
them, by any name they are known,” are generally not counted.
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U.S.S.G. § 4A1.2(c). The Guideline then lists a number of offenses
which are not to be counted including convictions for insufficient
funds checks and disorderly conduct.
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 are “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 state-law classifications. 915
F.2d 759, 763 (1st Cir. 1990).1 Determining whether two crimes are
similar necessarily requires us to begin by looking to the elements
of the two offenses. Although the elements need not match exactly,
two crimes cannot be termed “similar” if they involve wholly
different elements. At the same time, such things as the relative
danger posed by each crime and the risk of recidivism displayed by
each crime are relevant in deciding whether a crime is “similar to”
a listed offense.
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_-
1
Unger was about § 4A1.2(c)(2) rather than §4A1.2(c)(1), but
it is relevant nevertheless, because “similar to” is the same
phrase in both provisions.
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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)(1), 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 perpetrator 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 that Mr. Spaulding did not
2
Mr. Spaulding was adjudged guilty only of violating the terms
of his release, not of violating the protective order. The latter
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.
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physically harm his ex-wife; he clearly violated the order that he
stay away from her, however, and there is some evidence that he was
harassing her. Mr. Spaulding argues that, in light of the fact
that he did not physically harm his ex-wife, this offense is
similar to, if not less serious than, disturbing the peace. We
agree with the District Court that his offense is not “similar to”
disturbing the peace, because he was under two court orders at the
time of his conduct. As the District Court correctly pointed out,
violation of a court order is a more serious offense than a run-of-
the-mill public-disturbance case. The Sentencing Guidelines
themselves treat crimes committed while under court supervision as
more serious than other crimes. See U.S.S.G. § 4A1.1(d) (calling
for a two-level increase in criminal history if an offense was
committed while under any criminal justice sentence). In addition,
that Mr. Spaulding violated the court order demonstrates a higher
risk of recidivism than a run-of-the-mill public-disorder offense.
This higher risk of recidivism is demonstrated by the fact that Mr.
Spaulding regarded the criminal justice system with so little
respect that he was willing to violate two judicial orders. This
higher risk of recidivism indicated by his violation of a release
order renders Mr. Spaulding’s crime more serious than disorderly
conduct.3 Thus, the District Court did not err in assessing Mr.
3
Mr. Spaulding’s brief 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. Spaulding was adjudged
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Spaulding one criminal-history point for this prior conviction.
Having concluded that neither of Mr. Spaulding’s prior
offenses should 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.
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.
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