                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3760
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Daniel Ruacho

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                           Submitted: October 25, 2013
                              Filed: March 11, 2014
                                   [Published]
                                  ____________

Before BYE, SMITH, and BENTON, Circuit Judges.
                           ____________

PER CURIAM.

      Daniel Ruacho pleaded guilty to one count of conspiracy to distribute 500
grams or more of methamphetamine, five kilograms or more of cocaine, and 100
kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846.
The district court1 denied Ruacho statutory safety-valve relief because Ruacho had
previously committed two minor offenses involving marijuana. The district court
reluctantly sentenced Ruacho to the statutory mandatory minimum of 120 months'
imprisonment. Ruacho makes two arguments on appeal. First, he contends that his
2010 conviction for possession of marijuana is sufficiently similar to public
intoxication or disorderly conduct pursuant to U.S.S.G. § 4A1.2(c) to avoid an added
criminal history point. Second, he similarly avers that his 2009 conviction for
possession of marijuana in a motor vehicle is sufficiently similar to careless or
reckless driving to avoid an added criminal history point based on this conviction. We
affirm.

                                    I. Background
       This case turns on Ruacho's criminal history. In 2009, he was convicted of
misdemeanor possession of marijuana in a motor vehicle, in violation of Minnesota
Statutes § 152.027, subdivision 3. When Ruacho was 18, an officer stopped him when
he unintentionally turned the wrong way down a one-way street. When Ruacho
opened his glove box, the officer spotted a small bag of marijuana. The officer issued
Ruacho a citation. Ruacho pleaded guilty to the crime without a court appearance. He
paid a $150 fine and $85 in court fees.

       In 2010, Ruacho was a passenger in a car that police stopped. Police found a
small amount of marijuana near Ruacho. Police again issued Ruacho a citation, which
he resolved without a court appearance by pleading guilty to possession of a small
amount of marijuana, in violation of Minnesota Statutes § 152.027, subdivision 4. He
paid a $50 fine and court fees of $85.




      1
      The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.

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       Following a series of controlled drug purchases, the government charged
Ruacho with one count of conspiracy to distribute methamphetamine, cocaine, and
marijuana; two counts of distribution of methamphetamine; and one count of
distribution of cocaine for incidents that occurred between January 2009 and
December 2010. Ruacho pleaded guilty to the conspiracy charge in April 2011. In
return, the government dropped the remaining charges. The plea agreement
acknowledged that Ruacho may be eligible for the statutory safety valve, which
would eliminate the 120-month mandatory minimum sentence. It also stated that the
parties believed Ruacho's criminal history category was I, but it recognized that
Ruacho's criminal history category could be greater; if so, Ruacho agreed not to
change his plea.

       The United States Probation Office prepared a presentence report (PSR) that
calculated an offense level of 29 and a criminal history category of II. A criminal
history category of II made Ruacho ineligible for safety-valve relief. The Guidelines
range became 120–121 months. Ruacho objected to the assessment of a criminal
history point for his 2009 conviction of misdemeanor possession of marijuana in a
motor vehicle and one criminal history point for his 2010 conviction for petty
misdemeanor possession of marijuana.

       The district court reluctantly overruled Ruacho's objection to the calculation
of his criminal history category. The district court determined that both of Ruacho's
prior marijuana convictions should each yield one criminal history point. The court
found that those crimes are not sufficiently similar to the enumerated offenses in
U.S.S.G. § 4A1.2(c) under the common-sense, multifactor balancing test set forth in
Comment 12 of U.S.S.G. § 4A1.2 ("Amendment 709"). The district court noted that
the statutory minimum sentence that it was "forced" to impose was "grossly
excessive" and "grossly unfair." Although the district court thought the sentence
"unjust," it also determined that the law required it. Thus, the district court sentenced
Ruacho to the statutory mandatory minimum of 120 months' imprisonment. The

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district court acknowledged that it would have sentenced Ruacho to only 60 months'
imprisonment had he qualified for the safety valve.

                                      II. Discussion
       Ruacho argues on appeal that (1) his 2010 conviction for possession of
marijuana is sufficiently similar to public intoxication or disorderly conduct pursuant
to U.S.S.G. § 4A1.2(c) such that the district court should not have awarded him a
criminal history point for that conviction, and (2) his 2009 conviction for possession
of marijuana in a motor vehicle is sufficiently similar to careless or reckless driving
such that the district court should not have awarded him a criminal history point
based on this conviction. The government counters by averring that these crimes are
not sufficiently similar to any of the offenses enumerated in U.S.S.G. § 4A1.2(c). See
United States v. Foote, 705 F.3d 305, 309 (8th Cir. 2013). Although we review
factual findings as to safety-valve eligibility for clear error, we review interpretation
of the statutory safety valve de novo. Id. at 306. Because Ruacho does not challenge
factual findings here, we review Ruacho's safety-valve eligibility de novo.

       Section 3553(f) of 18 U.S.C. describes a defendant's eligibility for the "safety
valve," which enables the district court to avoid imposition of a mandatory minimum
sentence. The statutory safety valve covers qualified defendants who were convicted
of a crime under 21 U.S.C. §§ 841 and 846. 18 U.S.C. § 3553(f). The statute sets out
five eligibility requirements. Id. The only eligibility requirement at issue here is that
"the defendant does not have more than 1 criminal history point, as determined under
the sentencing guidelines." Id. at § 3553(f)(1). The Guidelines reflect this statutory
provision. See U.S.S.G. §§ 5C1.2 and 2D1.1(b)(16). The defendant bears the burden
of demonstrating entitlement to safety-valve relief. Foote, 705 F.3d at 306.

       In calculating a defendant's criminal history score, we have observed that the
Guidelines require that all prior sentences receive criminal history points unless
specifically exempted. Id. at 307. Prior sentences include sentences where defendants

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were required only to pay a small fine. Foote, 705 F.3d at 307. Thus, Ruacho's two
marijuana convictions are prior sentences.

       The Guidelines provide that sentences for misdemeanor and petty offenses are
counted toward a defendant's criminal history score. However, certain enumerated
offenses and "offenses similar" to those enumerated offenses are counted only if (A)
the sentence resulted in probation greater than one year or imprisonment for at least
30 days, "or (B) the prior offense was similar to an instant offense." U.S.S.G.
§ 4A1.2(c)(1). These enumerated offenses include careless or reckless driving,
contempt of court, disorderly conduct, or disturbing the peace. U.S.S.G.
§ 4A1.2(c)(1). The Guidelines also provide that certain other enumerated offenses or
"offenses similar" should never be counted. U.S.S.G. § 4A1.2(c)(2). These offenses
include fish and game violations, hitchhiking, minor traffic infractions like speeding,
and public intoxication. Id. Although petty misdemeanors are not considered "crimes"
in Minnesota, see Minnesota Statutes § 609.02, subdivision 4A, "how a state views
an offense does not determine how the United States Sentencing Guidelines view that
offense." Foote, 705 F.3d at 307 (quotation and citation omitted).

      In determining whether an offense is sufficiently similar to one of the
enumerated offenses in U.S.S.G. § 4A1.2(c), the court must apply the test articulated
in Amendment 709, which can be found in Comment 12 of U.S.S.G. § 4A1.2(c). It
provides:

      In determining whether an unlisted offense is similar to an offense listed
      in subsection (c)(1) or (c)(2), the court should use 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.


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U.S.S.G. § 4A1.2 cmt. n.12. We have expressly adopted the test from Amendment
709, eschewing our previous "'elements' or 'essential characteristics' test." United
States v. Barrientos, 670 F.3d 870, 871 (8th Cir. 2012) (citations omitted).

       Mere months after Ruacho's sentencing, we decided that a petty misdemeanor
conviction for possession of marijuana, in violation of Minnesota Statutes § 152.027,
subdivision 4, qualifies for a criminal history point. Foote, 705 F.3d at 309. Foote
argued that possession of marijuana is sufficiently similar to a minor traffic infraction
such that the court should not award a criminal history point for that conviction. Id.
at 307. We disagreed and, after performing the required Amendment 709 analysis, we
held that this petty offense was significant enough to warrant a criminal history point.
Id. at 309. We also "h[e]ld[] that possession of marijuana is not similar to any
enumerated exception." Id. at 309.

       A. 2010 Conviction for Possession of a Small Amount of Marijuana
      In order to avoid Foote, Ruacho compares his marijuana possession conviction
to public intoxication or disorderly conduct. Public intoxication may never be
counted in calculating a defendant's criminal history score. U.S.S.G. § 4A1.2(c)(2).
Disorderly conduct may be counted if the defendant was sentenced to at least 30 days'
imprisonment or at least one year of probation, or it was similar to the current offense.
U.S.S.G. § 4A1.2(c)(1).

        The government concedes that the first two factors—punishment comparison
and seriousness of the offense—weigh in favor of Ruacho. Public intoxication is not
a crime in Minnesota. Minn. Stat. § 340A.902. Disorderly conduct is a misdemeanor,
so it is actually punished more heavily than a petty misdemeanor like possession of
a small amount of marijuana. See Minn. Stat. § 609.72; Minn. Stat. § 609.02, subd. 3.




                                          -6-
       However, the elements of these crimes are completely different. Marijuana
possession entails (1) a person who unlawfully possesses a small amount of
marijuana.2 Minn. Stat. § 152.027, subd. 4(a). The elements of disorderly conduct are
(1) engaging in brawling or fighting, disturbing a lawful assembly or meeting, or
engaging in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive,
obscene, or abusive language; (2) tending reasonably to arouse alarm, anger, or
resentment in others; (3) in a public or private place; (4) knowing, or having
reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others
or provoke an assault or breach of the peace. Minn. Stat. § 609.72, subd. 1.
Predictably, these crimes are found in separate chapters of the Minnesota Statutes
because they involve completely different actions. No elements are the same. Ruacho
contends that marijuana possession risks disturbing the peace, so the two crimes are
sufficiently similar. However, virtually every law is designed to prevent disturbances
of the peace to some extent. Ruacho's argument would envelop too many offenses.
Thus, this factor weighs in favor of the government.

       The Foote court has already decided the culpability and recidivism factors. The
Foote court noted that "[d]rug possession 'suggests a more calculating, a more
resourceful, and a more dangerous criminal' than someone who commits a minor
traffic infraction." Foote, 705 F.3d at 308 (quoting United States v. Roy, 126 F.3d


      2
        Defendants convicted of marijuana possession are required to participate in
a drug education program unless the court determines it is inappropriate. Minn. Stat.
§ 152.027, subd. 4(a). The Foote court found this program significant in determining
that marijuana possession is more serious than a minor traffic offense. Foote, 705
F.3d at 307. Ruacho argues that those convicted of a marijuana possession never
participate in drug education programs in practice, so the Foote court was incorrect.
While defendants may not actually attend these programs, the requirement of the
drug-education program reflects the Minnesota legislature's view that marijuana
possession is more serious than a minor traffic offense. However, the government
concedes that marijuana possession is not as serious as disorderly conduct, so we
weigh this factor in Ruacho's favor.

                                          -7-
953, 955 (7th Cir. 1997)). The same observation applies here. Finally, the Foote court
determined that convictions involving illegal narcotics correlate strongly to
recidivism. Foote, 705 F.3d at 308. Although Ruacho argues that many teenagers
experiment with small amounts of marijuana, we have already determined that this
factor favors the government in narcotics cases.

       Based on our Amendment 709 analysis, Ruacho has failed to demonstrate that
possession of a small amount of marijuana is sufficiently similar to public
intoxication, disorderly conduct, or any other enumerated offense. The Foote court
also observed that "[n]o circuit has held that possession of marijuana (or other drugs)
is similar to any of the Guidelines' enumerated exceptions." Id. (collecting cases).3
We also note that the Sentencing Commission could have enumerated certain drug
crimes like marijuana possession in U.S.S.G. § 4A1.2(c) if it intended that those
convicted of such crimes are not to receive a criminal history point given the
frequency of drug offense prosecutions in the federal courts. For these reasons, the
district court properly awarded a criminal history point to Ruacho's criminal history
score for his petty misdemeanor violation of possession of a small amount of
marijuana.

         B. 2009 Conviction for Possession of Marijuana in a Motor Vehicle
       Ruacho contends that the district court erred by adding a criminal history point
for his 2009 conviction of possession of marijuana in a motor vehicle. Ruacho argues


      3
        Ruacho cites a Fifth Circuit case holding that it was not plain error for the
district court to fail to award a criminal history point for marijuana possession. United
States v. Ventura, 428 F. App'x 390 (5th Cir. 2011). The court there determined that
no plain error occurred because the Fifth Circuit had no clear precedent on the matter.
Id. at 392. The court expressly declined to determine whether marijuana possession
was similar to public intoxication under U.S.S.G. § 4A1.2(c). Id. Because the Ventura
court applied plain-error review and expressly declined to answer the question with
which we are now confronted, we conclude that it is inapposite.

                                          -8-
that possession of marijuana in a motor vehicle is similar to the crimes of careless
driving and reckless driving. The government again concedes that the first two
factors, punishment and seriousness of the offense, weigh in Ruacho's favor. All three
offenses have the same maximum penalty. Minn. Stat. § 609.03, subd. 3. However,
the remaining factors weigh in favor of the government.

       As for the third factor, different elements comprise the offenses. Possession of
marijuana in a motor vehicle requires a showing that (1) the defendant is the owner
or driver of a private motor vehicle, and (2) the defendant knowingly keeps or allows
to be kept within the area of the vehicle normally occupied by the driver or
passengers, more than 1.4 grams of marijuana. Minn. Stat. § 152.027, subd. 3. The
elements of reckless driving are that (1) a person drives any vehicle (2) in such a
manner as to indicate either a willful or a wonton disregard for the safety of people
and property. Minn. Stat. § 169.13, subd. 1. The elements of careless driving are that
(1) a person operates or halts a vehicle on any street or highway and (2) carelessly or
heedlessly in disregard of the rights of others, or in a manner that endangers any
property or person. Minn. Stat. § 169.13, subd. 2.

        Ruacho argues that the elements of these offenses are sufficiently similar
because all three involve operation of a motor vehicle. Additionally, possession of
marijuana in a vehicle is both careless and reckless. However, the motor-vehicle
overlap is not enough for this factor to weigh in favor of Ruacho. These crimes are
listed in separate chapters of the Minnesota statutes. Furthermore, if the operating-a-
motor-vehicle commonality suffices, then no criminal history points would be
awarded for several driving-related offenses like driving under the influence of
alcohol. The Tenth Circuit has expressly rejected Ruacho's argument:

      The superficial similarity that both offenses involve driving a car is
      overshadowed by the significant difference that [driving without proof
      of insurance] is concerned not with actually operating an automobile, as


                                         -9-
      is the [minor traffic infraction], but with failing to abide by regulations
      designed to assure that unsafe drivers are not on the road at all.

United States v. Perez de Dios, 237 F.3d 1192, 1199 (10th Cir. 2001) (citation
omitted). We agree.

       Furthermore, the level of culpability favors the government. Possession of
marijuana requires that defendants knowingly commit a crime. Reckless and careless
driving require only that defendants drive recklessly or carelessly without knowledge
that they are committing a crime. See Foote, 705 F.3d at 308. Ruacho argues that
several enumerated crimes also require "knowledge" or "purpose" like contempt of
court, giving false information to a police officer, gambling, etc. See U.S.S.G.
§ 4A1.2(c) While this may be true, Ruacho does not ask us to compare marijuana
possession with these crimes.

      We are unpersuaded by Ruacho's arguments. We hold that the district court
properly awarded Ruacho a criminal history point for his 2009 conviction for
possession of marijuana in a motor vehicle.

                                  III. Conclusion
      For these reasons, we affirm the district court's judgment.
                      ______________________________




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