United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 22, 2004
Charles R. Fulbruge III
Clerk
No. 04-10315
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL DARVIN LAMM, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
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 crime of insufficient funds check, which is
excludable from criminal history, under certain conditions,
pursuant to Guidelines § 4A1.2(c)(1). AFFIRMED.
I.
Prior to the instant offense (committed in September 2003),
Lamm had four criminal convictions, including petty theft, a class-
C misdemeanor 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)(1), 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)(1), he should not receive 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, 334
F.3d 406, 412 (5th Cir. 2003).
In calculating criminal history, “[s]entences for all felony
offenses are counted”; those for “misdemeanor and petty offenses
2
are counted, except as” detailed in § 4A1.2(c). 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)(1)
(emphasis added). (Some listed offenses, or those similar to them,
“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)(1); petty theft is not
listed. (Examples of other listed offenses are careless or
reckless driving, gambling, and resisting arrest. U.S.S.G. §
4A1.2(c)(1).) 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
counted 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)(1) 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
3
used a false name or non-existent 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, 8 F.3d 186, 193 (5th Cir. 1993).
Under Texas law, the offense of issuance of a bad check is the
same offense 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 on 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, 8 F.3d at 194. For the
offense-similarity comparison advanced by Lamm, a person commits
theft under Texas law “if he unlawfully appropriates property with
intent to deprive the owner of property”. TEX. PENAL CODE ANN. §
31.03(a).
To determine whether a prior offense is “similar” to a listed
excludable offense under § 4A1.2(c)(1), our court “suggest[s] a
common sense approach which relies on all possible factors of
similarity”. United States v. Hardeman, 933 F.2d 278, 281 (5th
Cir. 1991) (under Texas law, driving with revoked or suspended
license held similar to failure to maintain financial
responsibility) (emphasis added). Factors to consider include: “a
comparison of punishments imposed for the listed and unlisted
4
offenses, the perceived 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”. Id.
Hardeman did not accord any of these 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, 8 F.3d at 194.
Lamm maintains that, according to Hardeman and United States
v. Reyes-Maya, 305 F.3d 362 (5th Cir. 2002) (under Texas law,
criminal mischief held similar to disorderly conduct), punishment
is the most important factor in determining offense similarity.
Lamm notes that, under Texas law, the potential sentences for
issuance of a bad check and for shoplifting an item worth less than
$50 are identical: both are Class C misdemeanors punishable by a
fine not to exceed $500. TEX. PENAL CODE ANN. §§ 12.23, 31.03(e)(1),
32.41(f). In this regard, Lamm contends an even more important
factor in determining offense similarity is the punishment imposed;
he compares his shoplifting sentence ($257 fine) to those imposed
5
in Hardeman (one day in jail and $250 fine) and Reyes-Maya ($182.50
fine).
The Government counters that, applying the Hardeman factors 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 dispositive 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, 77 Fed. Appx. 262, 263 (5th Cir. 2003) (unpublished),
held the district court did not commit plain error in concluding
that a petty larceny conviction was not similar to insufficient
funds check. The Government also notes that, for purposes of §
4A1.2(c)(1), the majority of other circuits deciding the issue have
held petty theft is not similar to insufficient funds check.
Those holdings are instructive. In United States v.
Spaulding, 339 F.3d 20, 21-22 (1st Cir. 2003), the First Circuit
6
held shoplifting an item worth $21 is not similar to insufficient
funds check because
7
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 are not similar, because shoplifting is a
trespassory 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, 325 F.3d
865, 872-73 (7th Cir. 2003) (citing the dissent in United States v.
Lopez-Pastrana, 244 F.3d 1025 (9th Cir. 2001), discussed infra).
Likewise, the Eighth Circuit held petty theft is not similar to an
offense listed in § 4A1.2(c)(1). See United States v. Waller, 218
F.3d 856, 857-58 (8th Cir. 2000). See also United States v.
Yednak, 66 Fed. Appx. 406 (3rd Cir. 2003) (unpublished) (retail
theft conviction not similar to insufficient funds check). And,
the Fourth Circuit in United States v. Benjamin, 110 F.3d 61 (4th
Cir. 1997) (unpublished table decision), referring to our court’s
decisions in Hardeman and Gadison, held the district court had not
committed plain error in determining a shoplifting conviction is
not similar to insufficient funds check.
On the other hand, the Ninth Circuit in Lopez-Pastrana, a case
relied on by Lamm, held a Nevada shoplifting offense similar to
8
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, 244 F.3d at 1027-30.
Lamm also relies on our 1993 decision in Gadison, which held
similar the Texas offenses of issuance of a bad check (again,
insufficient funds check under Texas law) and theft by check. 8
F.3d at 194. As noted, Gadison stated its holding was fact
specific. Id. When Gadison was decided, a person committed theft
by check when he obtained property by issuing a check without
sufficient funds to cover that check and all others outstanding.
See TEX. PENAL CODE ANN. § 31.06(a) (Vernon 1993). The intent to
deprive an owner of property, a required element of theft, was
presumed if the issuer of the check did not have an account with
the bank when the check was issued, or if payment was refused for
insufficient funds within 30 days after issue, and the issuer
failed to pay the holder in full within ten days after receiving
notice of refusal. Id. (The theft by check statute has since been
amended, as discussed infra.)
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 of them follow.
9
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, 339 F.3d at
20.
Second, Lamm’s reliance on Gadison is misplaced because, as
discussed supra, Gadison’s holding (issuance of a bad check 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
10
check are less analogous than under the theft by check statute
relied upon in Gadison.
Finally, citing Liparota v. United States, 471 U.S. 419
(1985), and Rewis v. United States, 401 U.S. 808 (1971), Lamm urges
the rule of lenity requires our resolving the claimed ambiguity in
§ 4A1.2 in his favor. That rule requires an ambiguity in a
criminal statute be resolved in favor of the defendant when there
is a “grievous ambiguity or uncertainty” in the statute.
Muscarello v. United States, 524 U.S. 125, 138-39 (1998) (citations
omitted). To the extent there is any ambiguity in § 4A1.2(c)(1),
it does not rise to the level required for application of the rule
of lenity.
In sum, weighing the Hardeman factors as a whole, under the
requisite 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
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, 325 F.3d
at 872. In the light of an insufficient funds check offense not
11
involving use of a false name or non-existent account, consistent
with the limitation imposed by comment 13 to § 4A1.2(c)(1), the
identity and account information of the person issuing the check is
known, whereas the perpetrator of petty theft is more difficult to
apprehend.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
12
United States v. Lamm
Court: Court of Appeals for the Fifth Circuit
Date filed: 2004-11-22
Citations: 392 F.3d 130
Copy Citations