     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.

21

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