                                                                 NOT PRECEDENTIAL


                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       __________

                                       No. 15-2060
                                       __________

                            UNITED STATES OF AMERICA

                                             v.

                              JEREL EVANS, a/k/a Gigante

                                        Jerel Evans,
                                                  Appellant
                                       __________

                      On Appeal from the United States District Court
                              for the District of New Jersey
                             (Crim. No. 3-14-cr-00307-001)
                             District Judge: Mary L. Cooper

                        Submitted Under Third Circuit LAR 34.1(a)
                                    March 14, 2016

            Before: FUENTES,* CHAGARES, and RESTREPO, Circuit Judges


                                (Filed: September 1, 2016)
                                        __________

                                       OPINION**
                                       __________


*
    Honorable Julio M. Fuentes assumed Senior Status on July 18, 2016.
**
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge:

         Jerel Evans appeals his sentence to 60 months’ imprisonment stemming from his

conviction of conspiring with others to distribute 500 grams or more of cocaine. For the

reasons that follow, we will affirm the sentence imposed by the District Court.

    I.   BACKGROUND1

         Evans was involved in a conspiracy with Roberto Rentas-Negron and others to

distribute cocaine in the Elizabeth, New Jersey area. In 2012, Evans and Rentas-Negron

were involved in number of phone conversations, monitored by federal authorities,

during which they discussed preparing the drugs for distribution.           Based on an

investigation, the government was also led to believe that the conspiracy stretched

beyond New Jersey to Pennsylvania, Connecticut, and Maryland.

         In 2014, Evans and fourteen other individuals were arrested and charged with

knowingly and intentionally conspiring and agreeing to distribute and possess with intent

to distribute 500 grams or more of a mixture and substance containing a detectable

amount of cocaine, in violation of 21 U.S.C. §§ 841(a) and (b)(1)(B) and 21 U.S.C. §

846. Soon after, Evans entered into a plea agreement with the government under which

he agreed to plead guilty to one count of conspiracy to distribute 500 grams or more of

cocaine. The parties stipulated to an offense level of 21 if Evans qualified for a 2-level

safety valve reduction under U.S.S.G. § 2D1.1(b)(16) at sentencing, but an alternative

offense level of 23 if he did not qualify for the safety valve. The government, moreover,

1
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over
this matter under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                            2
also agreed to a two-level downward variance in anticipation of certain amendments to

the Guidelines. The parties also agreed that, among other things, they would reserve the

right to appeal the sentencing court’s determination of the criminal history category.

       During his sentencing hearing, which was adjourned and re-adjourned, the District

Court first calculated the advisory Guidelines and the parties agreed that the total offense

level was 21. The parties then presented argument regarding Evans’ three prior territorial

and state-law misdemeanor convictions in Puerto Rico and New Jersey. After thorough

consideration of the contentions provided by both sides, as well as the U.S. Probation

Office’s Presentence Investigation Report, the court then assigned three criminal history

points to Evans’ sentence based on those convictions pursuant to U.S.S.G. § 4A1.2(c)(1)

and (2). The first two points were added as a result of Evans’ 2005 larceny conviction

and his 2008 receipt of stolen goods conviction. Evans committed both of these offenses

in Puerto Rico at the ages of 18 and 21, respectively. The third criminal history point

resulted from Evans’ 2011 marijuana possession conviction in New Jersey. With the

resulting three criminal history points based on these misdemeanor offenses, the court

imposed a mandatory minimum sentence of 60 months’ imprisonment. Evans was also

ineligible for the safety-valve provision under the Sentencing Guidelines.2 This appeal

followed.




2
  See U.S.S.G. § 5C1.2(a)(1) (eligibility for relief from mandatory minimum sentence
limited to those defendants who do “not have more than 1 criminal history point”).

                                             3
    II.   DISCUSSION

          Evans first contends that the District Court erred by considering his two prior

convictions in Puerto Rico because they were both petty offenses.3 The first offense

occurred three months after Evans’ eighteenth birthday, when Evans was charged with

larceny under Puerto Rican law. The second, a conviction for receipt, disposal, and

transfer of stolen goods under Puerto Rican law, occurred when Evans was 21. Neither

offense resulted in a prison term.

          The Sentencing     Guidelines state that “misdemeanor and petty offenses are

counted” as criminal history points unless they are offenses expressly listed in (c)(1) or

(c)(2) or similar to the offenses listed in (c)(1) or (c)(2). 4 The lists of offenses under

(c)(1) and (c)(2) include:

          Careless or reckless driving
          Contempt of court
          Disorderly conduct or disturbing the peace
          Driving without a license or with a revoked or suspended license
          False information to a police officer
          Gambling
          Hindering or failure to obey a police officer
          Insufficient funds check
          Leaving the scene of an accident
          Non-support
          Prostitution

3
  “We exercise plenary review over the District Court’s interpretation and application of
the Guidelines, we review determinations of fact for clear error, and we ‘give due
deference to the district court’s application of the guidelines to the facts.’” United States
v. Zabielski, 711 F.3d 381, 386 (3d Cir. 2013) (internal citations omitted). We review
purely legal questions de novo. United States v. Blair, 734 F.3d 218, 211 n.3 (3d Cir.
2013).
4
    U.S.S.G. § 4A1.2(c).

                                              4
      Resisting arrest
      Trespassing

      ...

      Fish and game violations
      Hitchhiking
      Juvenile status offenses and truancy
      Local ordinance violations (except those violations that are also violations under
      state criminal law)
      Loitering
      Minor traffic infractions (e.g., speeding)
      Public intoxication
      Vagrancy.

      In other words, unless Evans’ offenses were specifically identified in these lists or

are similar to these offenses, the District Court had no choice but to include the offenses

when calculating Evans’ sentence.      None of Evans’ offenses are listed in Section

4A1.2(c). As to whether Evans’ offenses are “similar” to a listed offense, we apply:

             a common sense approach that includes consideration of
             relevant factors such as (i) a comparison of punishments
             imposed for the listed and unlisted offenses; (ii) the perceived
             seriousness of the offense as indicated by the level of
             punishment; (iii) the elements of the offense; (iv) the level of
             culpability involved; and (v) the degree to which the
             commission of the offense indicates a likelihood of recurring
             criminal conduct.5

      We have applied the common sense approach required by the Guidelines and

conclude that neither of Evans’ convictions are remotely similar to any of the listed under

the statute. Therefore, because the District Court was required to add three criminal




5
 U.S.S.G. § 4A1.2, cmt. n.12(A); see also United States v. Hines, 628 F.3d 101, 110 (3d
Cir. 2010).
                                            5
history points to Evans’ sentence, we conclude that it committed no error by imposing a

mandatory minimum sentence of 60 months’ imprisonment.6

         Evans also argues that the 60-month sentence was both substantively and

procedurally unreasonable, given his minimal criminal history and the need to avoid

unwarranted sentencing disparities. We reject these contentions. The District Court had

no authority to sentence Evans to anything less than a mandatory minimum of 60 months’

imprisonment, and therefore any arguments regarding the authority or discretion of the

District Court to sentence otherwise are rendered moot.7

III.     CONCLUSION

         For substantially the same reasons set forth in the record, we affirm the sentence

imposed by the District Court.




6
  See U.S.S.G. 5G1.1(b). We further reject Evans’ additional argument that the District
Court failed to consider his objections to the criminal history calculation. The record
reveals that the court fully considered the arguments presented by his counsel and the
government and, after careful consideration, imposed one point for each conviction.

7
    United States v. Winebarger, 664 F.3d 388, 392 (3d Cir. 2011).
                                              6
