
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1665                                    UNITED STATES,                                      Appellee,                                          v.                              NELSON ESTRADA-BERREONDO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                                   Selya and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Kenneth M. Diesnhof on brief for appellant.            ___________________            Sheldon  Whitehouse, United  States Attorney,  Margaret E. Curran,            ___________________                            __________________        Assistant  United  States  Attorney, and  James  H.  Leavey, Assistant                                                  _________________        United States Attorney, on brief for appellee.                                 ____________________                                  NOVEMBER 19, 1997                                 ____________________                 Per Curiam.   We  have examined the  submissions of  the                 __________            parties and  the record  below, and  we affirm.   Appellant's            first  contention, that his  nolo contendere plea  for simple                                         _______________            assault in a prior state proceeding should have been excluded            under U.S.S.G.   4A1.2(c)(1), is without merit.  The crime of            assault is not substantially similar to the excluded crime of            disorderly conduct.  Though an assault might  also qualify as            disorderly conduct,  the former involves not only a threat to            the public peace,  but also a threat to  the bodily integrity            of  another individual.   Appellant cites no  authority which            would equate the two crimes,  and at least two other circuits            have  distinguished the two  crimes for purposes  of applying            U.S.S.G.   4A1.2(c)(1);  see United States v.  Kemp, 938 F.2d                                     ___ ______________________            1020, 1025 (9th  Cir. 1991) (case remanded  for determination            of  whether  defendant's   conduct  more  closely   resembled            assault,  which would  be included  in  the criminal  history            calculation, or disorderly conduct, which would be excluded);            United States v. Russell, 913 F.2d 1288, 1294 (8th Cir. 1990)            ________________________            (assault is not similar to disorderly conduct for purposes of            computing  criminal history); cf.  United States v.  Cox, 934                                          ___  _____________________            F.2d 1114, 1124 (10th Cir.  1991) (crime of "menacing" is not            similar  to disorderly  conduct, since  the  former is  crime            against an individual  and the latter is a  crime against the            public peace and order).                                         -2-                 Appellant's other two  points were not raised  below, so            this court may  reverse only for "plain error."   See Johnson                                                              ___ _______            v. United States,  117 S.Ct. 1544,  1549 (1997) (plain  error            ________________            must affect substantial rights and seriously affect fairness,            integrity or reputation of justice system).  We find no plain            error.                 Affirmed.  Loc. R. 27.1.                 _________                                         -3-
