UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-51107
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MIGUEL REYES-MAYA,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Texas, San Antonio
September 10, 2002
Before DeMOSS, STEWART, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Miguel Reyes-Maya appeals his sentence for illegal reentry
into the United States in violation of 8 U.S.C. § 1326 (a)(b)(2).
Reyes-Maya argues that the felony conviction that resulted in his
increased sentence was an offense element that the Due Process
Clause of the 5th Amendment required be charged in the indictment.
Reyes-Maya also argues that the district court erred when it
included the prior misdemeanor offense of criminal mischief in his
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criminal history score. Because the district court incorrectly
included Reyes-Maya’s criminal mischief conviction in his criminal
history score, we vacate his sentence and remand the case for re-
sentencing.
I.
Miguel Reyes-Maya, the Appellant, was found by the Immigration
and Naturalization Service (INS) on or about May 1, 2001, in the
county jail in San Antonio, Texas, after his arrest by local police
for “fighting with his wife.” Investigation by the INS agents
revealed that the Appellant is a native and citizen of the Republic
of Mexico, and that Appellant had been deported from the United
States to Mexico on September 17, 1999. A review found no record
that Appellant applied for or received permission of the Attorney
General of the United States to reapply for admission after
deportation.
The Appellant was charged with violation of 8 U.S.C. § 1326
(a)(b)(2) for illegal re-entry into the United States after
deportation, and he pleaded guilty. Appellant moved to dismiss the
penalty enhancement notice and objected to imposition of a sentence
greater than two years. He argued that the prior aggravated felony
was an offense element that Due Process required be charged to the
grand jury.
Reyes-Maya also objected to the probation officer’s pre-
sentencing report (PSR), which assigned one criminal history point
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for a 1991 guilty plea conviction for criminal mischief. That
conviction arose out of a dispute at a motel for which Appellant
was fined $182.50.1 The point gave appellant 10 criminal history
points, moving him from Category IV, with a sentencing range of 57-
71 months, to Category V, with a sentencing range of 70-87 months.
The District Court for the Western District of Texas denied
Reyes-Maya’s motion to dismiss the penalty enhancement. The
district court also rejected Reyes-Maya’s PSR objection and
assigned one criminal history point based on his criminal mischief
conviction. The district court sentenced Appellant using a total
offense level of 21 and a criminal history category of V. The
guideline range of imprisonment was 70 to 87 months, and the
district court sentenced Appellant to 70 months’ imprisonment.
Reyes-Maya now appeals his sentence.
II.
Reyes-Maya argues that the felony conviction that resulted in
his increased sentence under 8 U.S.C. § 1326(a)(b)(2) was an
offense element that should have been charged in the indictment.
Reyes-Maya acknowledges that his argument is foreclosed by the
Supreme Court’s decision in Almendarez-Torres v. United States, 523
U.S. 224 (1998), but seeks to preserve the issue for Supreme Court
1
Although the District Court requested details of the
prior conviction beyond offense and sentence, such details were
unavailable. Because of the age of the offense, the convicting
court no longer has the records. Additionally, Appellant has
stated that he no longer remembers the details of the incident.
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review in light of the decision in Apprendi. 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).
The Court in Apprendi, while acknowledging that
Almendarez-Torres may be logically inconsistent with that case, and
therefore incorrectly decided, chose not to overrule that decision.
Apprendi, 530 U.S. at 489-90; see also United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001).
Accordingly this court remains bound by Almendarez-Torres, see
Rodriguez de Quijas v. Shearson/American Express, 490 U.S. 477, 484
(1991) (stating precedent is controlling where it “has direct
application in a case” even if “it appears to rest on reasons
rejected in some other line of decisions.”), and relief is denied
on this ground.
III.
We review a district court’s interpretation of the Sentencing
Guidelines de novo.2 United States v. Gadison, 8 F.3d 186, 193
2
This court addressed whether criminal mischief is an
offense similar to disorderly conduct in United States v.
Rodriguez, No. 93-1361 (5th Cir. filed November 3, 1993), an
unpublished opinion with precedential value. There the district
court included the criminal mischief conviction in Rodriguez’s
criminal history score and we affirmed. However, our review in
Rodriguez was on the far more deferential plain error standard,
because Rodriguez had not raised the similarity issue in front of
the district court. We have not determined, under a de novo
standard of review, whether criminal mischief should be excluded
from criminal history scores.
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(5th Cir. 1993).
Generally, sentences for misdemeanor and petty offenses are
counted in the calculation of a defendant’s criminal history score.
U.S.S.G. § 4A1.2(c). 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. U.S.S.G. §
4A1.2(c)(1). In addition, certain other offenses are always
excluded. U.S.S.G. § 4A1.2(c)(2).
Criminal mischief is not an offense that is always excluded
pursuant to § 4A1.2(c)(2). However, because criminal mischief is
not similar to illegal reentry into the United States, and since
Appellant’s criminal mischief sentence was only a fine of $182.50
(not probation of at least one year or imprisonment of at least 30
days), the criminal mischief conviction should be excluded from his
criminal history score if it is similar to one of the offenses
listed in § 4A1.2(c)(1).
Appellant argues that criminal mischief is similar to §
4A1.2(c)(1)’s exempted offense of disorderly conduct. In United
States v. Hardeman, 933 F.2d 278 (5th Cir. 1991), 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.” Id.
at 281. These factors include “a comparison of punishments imposed
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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.” Id.
We believe that proper application of the Hardeman analysis
results in the exclusion of Appellant’s criminal mischief
conviction from his criminal history score.
Our § 4A1.2(c) analysis begins by comparing the punishments
given in the Texas statutes for criminal mischief, Tex. Penal Code
Ann. § 28.03 (Vernon 1992), and disorderly conduct, Tex. Penal Code
Ann. § 42.01, as they were at the time of conviction. Here, a
comparison indicates that the offense of criminal mischief can be
more serious than the offense of disorderly conduct. Disorderly
conduct offenses are only classified as class B or C misdemeanors,
Tex. Penal Code Ann. § 42.01(d), while a criminal mischief
conviction may be a class A, B, or C misdemeanor and, under certain
circumstances, a felony. Tex. Penal Code Ann. § 28.03(b).
More important than the statutory range of punishments is the
actual punishment given, as “[t]he level of punishment imposed for
a particular offense serves as a reasonable proxy for the perceived
severity of the crime.” Hardeman, 933 F.2d at 282. While criminal
mischief can range greatly in severity, in this case it was a class
C misdemeanor, the same criminal degree as most disorderly conduct
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violations. The actual punishment, a fine of just $182.50, is
similar to the minor punishments for offenses excluded from the
criminal history score under the Sentencing Guidelines. See
U.S.S.G. § 4A1.2(c)(1) (excluding offenses only if punishment was
less than 1 year probation or 30 days incarceration). Thus the
punishment for the prior and listed crimes are sufficiently similar
to warrant exclusion.
The Government emphasizes that criminal mischief is a property
crime, while disorderly conduct is not, and argues that as a result
they cannot be similar. In fact, a comparison of the elements of
the prior offense with the elements of the exempted offense,
Hardeman, 933 F.2d at 282, shows both similarity and difference.3
The offense of criminal mischief involves the intentional or
knowing damage to property of another, Tex. Penal Code Ann.
§ 28.03(a), and is considered a crime of violence. See Boyd v.
State, 899 S.W.2d 371, 374 n.5 (Tex. Crim. App. 1995). Disorderly
conduct occurs when a person creates a public inconvenience or
annoyance, not damage to property. Tex. Penal Code Ann. § 42.01
(a)(1)-(12). Disorderly conduct need not be violent, but can
include violent acts such as discharging a firearm in a public
place. Tex. Penal Code Ann. § 42.01(a)(9),(11).
The fact that the elements are somewhat different is not
3
Because we do not know with which elements of criminal
mischief Reyes-Maya was charged, we must look to the statutory
elements.
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dispositive. See Hardeman, 933 F.2d at 281 (rejecting approach
comparing only the elements of actual and listed offense). The
different elements do not necessarily make criminal mischief a more
serious offense than disorderly conduct, weakening the strength of
the Government’s argument. Moreover, while criminal mischief is a
property crime, this categorization does not make exclusion
inappropriate; some property crimes, such as criminal trespass, are
excluded under § 4A1.2(c).
In evaluating the third and fourth Hardeman factors, level of
culpability and the extent to which commission of the prior offense
is more or less predictive of future crimes, the seriousness of the
prior crime as reflected in the sentence must be considered. Id.
at 283. The extremely light sentence noted above suggests a low
level of culpability and low predictive capacity for future
criminality. Id.
Assessing these factors also requires analyzing the entire
episode which led to the prior conviction. See United States v.
Moore, 997 F.2d 30, 34 (5th Cir. 1993) (defining “offense” as used
in § 4A1.2(c) to “include[] any relevant conduct and not just the
conduct charged in the indictment”). When Reyes-Maya was arrested
for criminal mischief he refused to give his name, date of birth,
or address. Because of his refusal to cooperate with the
authorities, Appellant was also charged with failure to identify
and he subsequently pleaded guilty to that charge. Reyes-Maya was
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fined $182.50 for that offense as well.
Failure to cooperate with the authorities is suggestive of
both a greater degree of culpability and increased likelihood of
future criminal conduct than criminal mischief standing alone.
However, the decision of the Sentencing Guidelines to exclude the
similar offense of false information to a police officer from
criminal history scores, see U.S.S.G. § 4A1.2(c) (excluding offense
where sentence is less than 1 year probation or 30 days
incarceration), suggests that the added culpability and predictive
nature of future criminal conduct from the failure to identify is
slight.
Given the similarity in punishments between Appellant’s
criminal mischief conviction and disorderly conduct and that the
small fine Appellant received suggests low culpability and low
predictiveness of future criminal conduct, we believe that the
district court erred in not excluding this conviction from
Appellant’s criminal history score.
This error mandates vacating Appellant’s sentence unless the
error was harmless. Williams v. United States, 503 U.S. 193, 202-
03 (1992). Such error is harmless only if it did not affect the
selection of the sentence imposed. United States v. Corley, 978
F.2d 185, 186 (5th Cir. 1992). In this case the district judge
sentenced Reyes-Maya to 70 months’ imprisonment, a number within
both the Category IV and Category V ranges. However, nothing in
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the record indicates that the district court would have imposed the
same sentence using the lower guideline range. Further, the
district court noted that its determination on this issue “really
ma[de] a difference.” Accordingly, error is not harmless and we
remand for re-sentencing.
IV.
The district court’s judgment that the penalty enhancement for
prior convictions need not be charged in the grand jury indictment
is AFFIRMED. Because Appellant’s prior criminal mischief
conviction should have been excluded from his criminal history
score pursuant to §4A1.2(c), the sentence is VACATED, and we REMAND
for re-sentencing.
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