                                                                            FILED
                           NOT FOR PUBLICATION                               APR 11 2011

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50045

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00625-GAF-1

  v.
                                                 MEMORANDUM *
ROBERT EUGENE COLEMAN,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                     Argued and Submitted February 14, 2011
                              Pasadena, California

Before: ALARCÓN, RYMER, and BYBEE, Circuit Judges.

       Robert Eugene Coleman appeals his sentence pursuant to a conviction of

possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a),

(b)(1)(B)(iii). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       The district court did not plainly err in basing Coleman’s Guidelines Range

in part on a prior conviction for vandalism.1 As we held in United States v. Grob,

625 F.3d 1209, 1213 (9th Cir. 2010), Application Note 12 to § 4A1.2 of the

Sentencing Guidelines is the applicable test and it requires courts to apply a

“common sense” approach in determining “similarity” as used in § 4A1.2(c).

Applying the common sense approach to Coleman’s case, vandalism is not similar

to loitering.

       In California, loitering is a type of disorderly conduct offense that is always

a misdemeanor whereas vandalism is a waffler. See Cal. Penal Code §§ 594(b),

647(h). This said, Coleman received a probationary sentence, which makes it a

misdemeanor. See Cal. Penal Code § 17(a). Whether considering California law

or the Model Penal Code, the elements are quite different in that loitering involves

lingering, while vandalism involves destruction of property. That both may

involve rights of others, or intentional acts, is immaterial given these substantive

differences. Culpability is different, too, as vandalism entails planning and damage

whereas one can loiter without destructive consequence. Recurrence doesn’t cut

either way because we know too little about the vandalism incident.




       1
        We review for plain error because Coleman did not object at the time of
sentencing. See United States v. Maciel-Vasquez, 458 F.3d 994, 996 n.3 (9th Cir.
2006).
      On balance, the crimes are dissimilar such that it was not plainly erroneous

for the district court to include Coleman’s prior conviction in the criminal history

calculation.2

      AFFIRMED.




      2
        This is consistent with what we held in United States v. Martinez (Carlos),
69 F.3d 999 (9th Cir. 1995), which we decided using a different approach before
Amendment 709 was adopted.
