United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit February 12, 2007
Charles R. Fulbruge III
Clerk
No. 05-41876
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
RICARDO GUAJARDO,
Defendant-Appellant
Appeal from the United States District Court For the Southern
District of Texas, Brownsville Division
1:04-CR-00959
Before DAVIS and STEWART, Circuit Judges, and GODBEY, District Judge.1
PER CURIAM2
Defendant-Appellant Ricardo Guajardo (“Guajardo”) challenges
his sentence following his guilty plea to possessing less than 50
kilograms of marijuana with intent to distribute in violation of 21
1
District Judge of the Northern District of Texas, sitting
by designation.
2
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
U.S.C. § 841(a)(1) and (b)(1)(D), and 18 U.S.C. § 2. Guajardo
argues the district court erred in: (1) increasing his criminal
history score by one point for a prior Texas misdemeanor conviction
for displaying a counterfeit inspection sticker; and (2) failing to
articulate any application of the 18 U.S.C. § 3553(a) sentencing
factors. For the reasons set forth below, we AFFIRM.
I. Prior Misdemeanor Conviction
Prior to the instant offense, Guajardo had a number of
convictions including a Texas misdemeanor conviction for displaying
a counterfeit inspection sticker.3 The Texas Penal Code provided
for punishment of a fine up to $2,000 or up to 180 days of jail, or
both. Guajardo was sentenced to two days in jail and fined $500.
The district court added one point to Guajardo’s criminal
history score for this offense. As a result, Guajardo received a
total of 10 criminal history points, placing him in Criminal
History Category V. Combined with an offense level of 17, this
gave Guajardo a sentencing range of 46 to 57 months. Guajardo was
sentenced to the minimum penalty. If the point had not been added,
Guajardo’s 9 point criminal history would have fallen into Criminal
History Category IV with a resultant range of punishment of 37 to
46 months in prison.
As he did before the district court, Guajardo argues that
3
The details of the prior conviction were not available.
The District Court requested the court records, but they have not
been received.
2
pursuant to U.S.S.G. § 4A1.2(c)(1) he should not receive a criminal
history point for this prior misdemeanor conviction because it is
“similar” to the listed excludable offense of driving without a
license or with a revoked or suspended license.4 We review the
district court’s interpretation of the Guidelines de novo.5
Generally, sentences for misdemeanor offenses are counted in
the calculation of a defendant’s criminal history score.6 However,
certain offenses or offenses similar to them are excluded unless
the sentence was a term of probation of at least one year or a term
of imprisonment of at least 30 days, or the prior offense is
similar to the current offense.7 In addition, certain other
offenses are always excluded.8
The offense of driving without a license or with a revoked or
suspended license is among the excludable offenses listed in §
4A1.2(c)(1); displaying a counterfeit inspection sticker is not
listed. Guajardo was sentenced to only two days in jail, and
displaying a counterfeit inspection sticker is not similar to the
4
Guajardo does not renew the other ground upon which he
objected to the additional history point in the district court,
i.e., that the conviction is only a “minor traffic infraction,”
and that argument is therefore waived. See United States v.
Searcy, 316 F.3d 550, 551 n.* (5th Cir. 2002).
5
United States v. Reyes-Maya, 305 F.3d 362, 366 (5th Cir.
2002).
6
U.S.S.G. § 4A1.2(c).
7
U.S.S.G. § 4A1.2(c)(1).
8
U.S.S.G. § 4A1.2(c)(2).
3
instant offense. Therefore, if displaying a counterfeit inspection
sticker is similar to driving without a license or with a revoked
or suspended license, it should not be counted in Guajardo’s
criminal history.
In United States v. Hardeman,9 we explained how to determine
whether a prior offense is “similar” to one of the exempted
offenses in § 4A1.2(c)(1). We suggested a “common sense approach
which relies on all possible factors of similarity.”10 Factors to
consider include: “a comparison of punishments imposed for listed
and unlisted offenses, the seriousness of the offense as indicated
by the level of punishment, the elements of the offense, the level
of culpability involved, and the degree to which the commission of
the offense indicates a likelihood of recurring criminal conduct.”11
None of these factors are accorded dispositive weight, and “each
offense-similarity comparison is fact specific.”12 We “look to the
definition of the equivalent offense under the relevant State’s
law.”13
Our analysis begins with a comparison of the punishments given
in the Texas statutes for displaying a counterfeit inspection
9
933 F.2d 278 (5th Cir. 1991).
10
Id. at 281.
11
Id.
12
United States v. Lamm, 392 F.3d 130, 132 (5th Cir. 2004)
(internal citation omitted) (emphasis in original).
13
Id.
4
sticker,14 and driving without a license or with a revoked or
suspended license,15 as they were at the time of conviction. In
Texas, a conviction for displaying a counterfeit inspection sticker
is a class B misdemeanor punishable by a fine up to $2,000 or up to
180 days jail term, or both. An offense for driving without a
license or with a revoked or suspended license carries a fine of
$100 to $500 and a prison term of not less than 72 hours or more
than six months. Based on this type of comparison, the offense of
displaying a counterfeit inspection sticker can be less serious
than the offense of driving without a license or with a revoked or
suspended license.16
The actual punishment given is also a proxy for the perceived
severity of the crime.17 Guajardo’s sentence of two days in jail
and a $500 fine indicate that the offense should not be included in
his criminal history score.18
However, the fact that these offenses carry similar penalties
does not mean that the offense of displaying a counterfeit
inspection sticker should be excluded from the criminal history
14
Tex. Penal Code Ann. § 12.22.
15
Tex. Transp. Code Ann. § 521.457(e).
16
See Hardeman, 933 F.2d at 282.
17
Id.
18
See id (sentence of one day in jail and $250 fine indicate
that the offense should not be included in criminal history
score).
5
calculation.19 “The other factors involved may indicate that the
defendant’s prior offense should be included.”20
When comparing the elements of the offenses, we conclude that
displaying a counterfeit inspection sticker is categorically more
serious than driving without a license or with a revoked or
suspended license. In Hardeman, we compared the driving-without-a-
license offense with Hardeman’s misdemeanor offense for “failure to
maintain financial responsibility,” i.e., failing to maintain auto
insurance.21 We noted that the offense of failing to maintain
financial responsibility is “similar to other listed offenses which
involve regulations that must be complied with if one is to drive
an automobile.”22 In concluding that Hardeman’s misdemeanor offense
should have been excluded from the calculation of his criminal
history score, we rejected the Government’s argument that the
offenses were different because Hardeman’s failure-to maintain-
financial-responsibility offense “contained an element of
indifference toward society.”23 We determined that “this element
. . . does not distinguish this offense from the other listed
19
See id.
20
Hardeman, 933 F.2d at 282.
21
Id. at 279-83.
22
Id. at 282.
23
Id.
6
offenses.”24
The instant case is distinguishable from Hardeman. Although
the offense of displaying a counterfeit inspection sticker involves
a regulation “that must be complied with if one is to drive an
automobile,” in overruling Guajardo’s objection, the district court
stated that “this is counterfeiting a document required by the
state, and I think that’s more akin to fraud or forgery.” This
difference was not at issue in Hardeman.
In United States v. Caputo,25 the Seventh Circuit addressed the
issue of whether using a false driver’s license is similar to,
inter alia, driving without a license or with a revoked or
suspended license. In concluding that the offenses were not
similar, the court cited “[t]he old distinction between misfeasance
and nonfeasance,” reasoning that a
driver who fails to obtain a driver’s license, or who
continues driving after his license has been revoked or
suspended or has expired, is guilty of failing to expend
resources . . . of time and money that the state requires
him to expend as a condition of being permitted to drive.
His is a wrongful inactivity, but often it is the
wrongfulness of irresponsibility rather than of
calculation. The driver who expends resources to obtain
forged or otherwise fraudulent documentation to enable
him to drive crosses the line from inactivity to activity
and by doing so reveals himself to be a person willing to
incur expense to commit a crime, presumably in
anticipation of compensating profit.26
24
Hardeman, 933 F.2d at 282.
25
978 F.2d 972 (7th Cir. 1992).
26
Id. at 977-78 (emphasis added).
7
We find this reasoning persuasive. Like using a false
driver’s license, a person who commits the offense of displaying a
counterfeit inspection sticker engages in wrongful activity because
he has expended resources to obtain “an inspection certificate . .
. knowing that the certificate . . . is counterfeit.”27 This is
what distinguishes the instant case from Hardeman. Unlike
displaying a counterfeit inspection sticker, the failure to
maintain auto insurance involves wrongful inactivity on the part of
the driver who is guilty of failing to expend resources to obtain
proper auto insurance coverage.
The discussion of the previous factors sheds light on the
remaining issues concerning both culpability and recurring criminal
conduct. Displaying a counterfeit inspection sticker is suggestive
of both a greater degree of culpability and increased likelihood of
future criminal conduct than driving without a license or with a
revoked or suspended license standing alone. A defendant who is
willing to expend resources to obtain a counterfeit inspection
sticker suggests “a more calculating, a more resourceful, and a
more dangerous criminal.”28
The “seriousness of the offense is one indication of whether
27
See Tex. Transp. Code Ann. § 548.603. “Counterfeit” is
defined as “an imitation of a document that is printed, engraved,
copied, photographed, forged, or manufactured by a person not
authorized to take that action . . .” Tex. Transp. Code Ann. §
548.603(e).
28
See Caputo, 978 F.2d at 978.
8
the offense has any predictive capacity for future criminality.”29
As shown above, displaying a counterfeit inspection sticker is more
serious than driving without a license or with a revoked or
suspended license. In addition, a person who has no driver’s
license or a revoked or suspended license, will likely be
apprehended the first time he is stopped by a policeman.30 However,
a person who displays a counterfeit inspection sticker may not be
apprehended immediately, if at all, due to the potential difficulty
in identifying a counterfeit inspection sticker.31 As a result, a
defendant who is able to obtain a counterfeit inspection sticker
without being apprehended, may be more likely to repeat his illegal
behavior.
In sum, weighing all the Hardeman factors, under the requisite
common sense and fact specific approach, Guajardo’s offense for
displaying a counterfeit inspection sticker is not similar to the
offense of driving without a license or with a revoked or suspended
license. Therefore, the district court did not err in including
the prior misdemeanor offense of displaying a counterfeit
inspection sticker in Guajardo’s criminal history score.
29
See Hardeman, 933 F.2d at 283.
30
See Caputo, 978 F.2d at 978.
31
See Lamm, 392 F.3d at 135 (“[T]he identity and account
information of the person issuing the [insufficient funds] check
is known, whereas the perpetrator of petty theft is more
difficult to apprehend.”).
9
II. Failure to Articulate § 3553(a) Factors
In the district court, Guajardo moved for a downward departure
on the ground that he had been treated for and suffered from Schizo
affective Disorder (Depressive type), and has exhibited
“significant cognitive disorganization, heard voices, has had
hallucinations, been depressed, and has had suicidal thoughts.”
Guajardo argues that the district court erred in denying his
downward-departure motion because it failed to articulate any
application of the 18 U.S.C. § 3553(a) factors in imposing his
sentence, purportedly required by United States v. Booker.32
Under the discretionary sentencing system established by
Booker, district courts retain a duty to consider the Sentencing
Guidelines, along with the sentencing factors set forth in 18
U.S.C. § 3553(a).33 We review the sentence imposed by the district
court for reasonableness in light of the factors set forth in 18
U.S.C. § 3553(a).34 A post-Booker discretionary sentence within a
properly calculated Guideline range is presumptively reasonable.35
32
543 U.S. 220 (2005). To the extent that Guajardo argues
that § 3553(a) itself requires a district court to explicitly
consider the § 3553(a) factors, Guajardo cites no legal authority
that requires such consideration and we are aware of none.
33
See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.
2005).
34
Id.
35
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006).
10
If the district court imposes a sentence within a properly
calculated Guideline range, we “will infer that the judge has
considered all the factors for a fair sentence set forth in the
Guidelines.”36 In such cases, “it will be rare for a reviewing
court to say such a sentence is ‘unreasonable,’” and “we will give
great deference to that sentence.”37 In addition, when imposing a
properly calculated Guidelines sentence, “little explanation is
required.”38
In Guajardo’s case, the sentence imposed was at the bottom of
the applicable Guideline range. In sentencing Guajardo, the
district court adopted the factual findings and Guidelines
applications in the Pre-sentence Report (“PSR”). Although the
district court offered no independent reasons for the sentence
imposed and made no reference to the factors in 18 U.S.C. §
3553(a), we will infer that the district court considered the §
3553(a) factors in sentencing Guajardo.
Guajardo does not assert that his sentence is unreasonable,
only that the reasons do not resonate from the record. As a
result, Guajardo has failed to demonstrate that his properly
calculated Guidelines sentence, which was at the lowest end of the
range, was unreasonable. Because Guajardo has offered nothing to
36
Mares, 402 F.3d at 519.
37
Alonzo, 435 F.3d at 554.
38
Mares, 402 F.3d at 519.
11
rebut the presumption of reasonableness, he is not entitled to
relief.
III. Constitutionality of 21 U.S.C. § 841(a) and (b)
Guajardo next argues that 21 U.S.C. § 841(a) and (b) is
unconstitutional under Apprendi v. New Jersey.39 Guajardo
acknowledges that his argument is foreclosed by our decision in
United States v. Slaughter,40 but seeks to preserve the issue for
Supreme Court review in light of the decision in Apprendi.41
In Slaughter, we specifically rejected the claim that 21
U.S.C. § 841(a) and (b) is unconstitutional on its face according
to Apprendi.42 Guajardo’s contention is therefore rejected.
IV.
For the foregoing reasons, Guajardo’s sentence is
AFFIRMED.
39
530 U.S. 466 (2000).
40
238 F.3d 580 (5th Cir. 2000).
41
See Bousley v. United States, 523 U.S. 614, 622-23 (1998)
(noting that the futility of an argument at the time it should
have been made is not “cause” for defaulting claim).
42
Slaughter, 238 F.3d at 582 (“We see nothing in the Supreme
Court decision in Apprendi which would permit us to conclude that
21 U.S.C. §§ 841(a) and (b), 846, and 860(a) are unconstitutional
on their face.”).
12