     Case: 11-20103     Document: 00511751581         Page: 1     Date Filed: 02/08/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         February 8, 2012

                                       No. 11-20103                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

LUIS CARLOS ACEVEDO MORENO, also known as Luis Carlos Moreno
Acevedo, also known as Luis Acevedo Moreno, also known as Luis
Acevedo-Moreno, also known as Luis Carlos Acevedo-Moreno,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-468-1


Before KING, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Luis Carlos Acevedo Moreno (“Moreno”) pleaded
guilty without a plea agreement to being found illegally present in the United
States after deportation and after being convicted of an aggravated felony, in
violation of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced Moreno
to serve 87 months in the custody of the Bureau of Prisons to be followed by a


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-20103

three-year term of supervised release. Moreno appeals his sentence, contending
that the district court erred in assessing one criminal history point for Moreno’s
prior Texas conviction for the misdemeanor of criminal mischief. Specifically,
Moreno asserts that his prior criminal mischief conviction is similar to the
offense of disorderly conduct, which, under specified circumstances, is exempted
from criminal history calculations under U.S.S.G. § 4A1.2(c). We affirm.
                           I. Facts & Proceedings
A. Facts
      In October 2010, Moreno pleaded guilty without a plea agreement to being
illegally present in the United States after having been deported and convicted
of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). During
rearraignment proceedings, Moreno admitted that he had been convicted of
possession with intent to deliver cocaine in 2003 for which he was sentenced to
two years of imprisonment. He also admitted that he had been removed from
the United States on May 5, 2004, and again on August 11, 2004, and that he
had illegally reentered the country following each occasion.
      A presentence investigation report (“PSR”) was prepared based on the
2010 version of the Federal Sentencing Guidelines. The PSR assigned Moreno
a total offense level of 21, 13 criminal history points, and a resulting criminal
history category of VI. Moreno’s criminal history calculation was determined as
follows: (1) two points pursuant to U.S.S.G § 4A1.1(b) for a 2002 conviction for
burglary of a building,(2) three points pursuant to § 4A1.1(a) for a 2003
conviction for possession with intent to deliver cocaine,(3) two points pursuant
to § 4A1.1(b) for a 2003 conviction for driving while intoxicated, (4) three points
pursuant to § 4A1.1(a) for a 2005 conviction for sexual assault of a child, and (5)
one point pursuant to § 4A1.1(c) for a 2005 Texas conviction for criminal
mischief.   Moreno’s Texas conviction for criminal mischief was a Class A
misdemeanor involving between $500 and $1500 in property damage for which

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                                        No. 11-20103

he was sentenced to 29 days in jail.1 Two more points were added to Moreno’s
criminal history calculation pursuant to § 4A1.1(d) because he committed the
instant offense while serving a five-year term of supervised release.                  His
criminal history category was determined to be VI. Based on that criminal
history category and a total offense level of 21, Moreno’s guidelines sentencing
range was 77 to 96 months.2
B. Proceedings
       Moreno filed an objection to the PSR and a motion for a downward
departure. Citing to United States v. Reyes-Maya,3 Moreno contended that he
should not receive one criminal history point on his 2005 conviction for criminal
mischief because the offense was similar to “disorderly conduct,” which, under
specified conditions, is excluded from criminal history calculations pursuant to
U.S.S.G. § 4A1.2(c). He asserted that, without this additional point, his criminal
history category would be V and would produce a guidelines sentencing range
of imprisonment of 70 to 87 months rather than 77 to 96 months.
       During the sentencing hearing, the district court denied Moreno’s objection
to the PSR and his request for a downward departure. Based on the factors that
we discussed in United States v. Hardeman, the district court concluded that
Moreno’s conviction for criminal mischief was not sufficiently similar to
disorderly conduct to warrant its exclusion from his criminal history calculation.4
The court distinguished the underlying facts of the instant case from those in
Reyes-Maya, noting that Moreno’s criminal mischief offense was a Texas Class



      1
        The Texas statutory provision for criminal mischief is TEX. PENAL CODE ANN. § 28.03,
and the Texas statutory provision for disorderly conduct is TEX. PENAL CODE ANN. § 42.01.
       2
           U.S.S.G. Ch. 5, Pt. A (Sentencing Table, Zone D).
       3
           305 F.3d 362, 366-68 (5th Cir. 2002).
       4
           933 F.2d 278, 281 (5th Cir. 1991).

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                                        No. 11-20103

A misdemeanor, that it involved between $500 and $1500 in property damage,
and that the sentence imposed for the offense was 29 days. The district court
then imposed a sentence of 87 months of imprisonment, which was within the
guidelines range. In appealing his sentence, Moreno claims that the one point
for criminal mischief should not have been included in the calculation of his
criminal history.
                                        II. Analysis
A. Standard of Review
       We review a district court’s sentencing decisions for reasonableness under
an abuse of discretion standard.5 We “must first ensure that the district court
committed no significant procedural error, such as . . . improperly calculating the
Guidelines range . . . .”6 If the district court’s decision is procedurally sound, this
court will then “consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.”7 Nonetheless, for properly preserved
claims, a sentencing court’s application of the Sentencing Guidelines is reviewed
de novo, and its factual findings are reviewed only for clear error.8
B. Applicable Law
       In calculating criminal history, sentences for misdemeanor offenses are
counted, except as provided in § 4A1.2(c). Sentences for offenses listed under §



       5
           Gall v. United States, 552 U.S. 38, 46-47, 51 (2007).
       6
           Id. at 51.
       7
           Id.
       8
          United States v. Rodriguez, 602 F.3d 346, 362 (5th Cir. 2010). Here, Moreno only
challenges the procedural reasonableness of his sentence, i.e. whether the district court erred
in applying the Sentencing Guidelines in calculating his criminal history. Because Moreno
challenged the assessment of the criminal history point for his criminal mischief conviction
in the district court on the same grounds that he raises on appeal, he has properly preserved
his claim for appellate review. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009).

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                                        No. 11-20103

4A1.2(c)(1) and for “offenses similar to them, by whatever name they are known”
are excluded from the criminal history calculation unless (1) “the sentence was
a term of probation of more than one year or a term of imprisonment of at least
thirty days” or (2) “the prior offense was similar to an instant offense.”9
Criminal mischief is not one of the offenses enumerated in this provision.
      Even though criminal mischief is not listed as an exempted offense in §
4A1.2(c)(1), Moreno’s conviction for that crime would not have been includable
in calculating his criminal history if criminal mischief is “similar” to one of the
offenses enumerated in § 4A1.2(c)(1), of which disorderly conduct is one.10 For
the reasons stated below, we conclude that Moreno’s 29-day criminal mischief
offense is not similar to the offense of disorderly conduct enumerated in §
4A1.2(c)(1).
      In determining whether a prior offense is “similar to” an offense
enumerated in § 4A1.2(c)(1), we apply “a common sense approach which relies
on all possible factors of similarity.”11 Every comparison of offenses to determine
their similarity is fact-specific.12 As set out in United States v. Hardeman, the
factors that we consider in such an analysis include: (1) a comparison of
punishments imposed for the listed and unlisted offenses, (2) the perceived
seriousness of the offenses as indicated by their respective levels of punishment,
(3) the elements of the offenses, (4) the levels of culpability involved, and (5) the
degrees to which the commission of the offenses indicate a likelihood of recurring
criminal conduct.13


      9
           U.S.S.G § 4A1.2(c)(1).
      10
           Reyes-Maya, 305 F.3d at 366.
      11
           Hardeman, 933 F.2d at 281.
      12
           United States v. Lamm, 392 F.3d 130, 131 (5th Cir. 2004) (citation omitted).
      13
           § 4A1.2, comment, n.12(A); Hardeman, 933 F.2d at 281.

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      Depending on the particular circumstances, a sentence for a criminal
mischief conviction may be deemed sufficiently similar to one for a conviction of
disorderly conduct to be excludable from a criminal history calculation under §
4A1.2(c). For example, in Reyes-Maya, we applied the Hardeman factors and
determined that (1) the defendant’s actual punishment for criminal mischief —
a $182.50 fine — was similar to minor punishments for offenses excluded under
§ 4A1.2(c)(1), (2) the elements of criminal mischief and disorderly conduct were
similar, in that both can involve violence, and (3) the actual sentences imposed
suggest a low level of culpability and “low predictive capacity for future
criminality.”14      In observing that the defendant’s punishment for criminal
mischief was a “small fine,” we noted that “[m]ore important than the statutory
range of punishments is the actual punishment given, as the level of punishment
imposed for a particular offense serves as a reasonable proxy for the perceived
severity of the crime.”15
      Subsequently, however, we distinguished Reyes-Maya in an unpublished
opinion, United States v. DeLeon-Garcia, and ruled that, under the specific facts
of that case, the Texas offense of criminal mischief was not similar to disorderly
conduct.16 In distinguishing DeLeon-Garcia from Reyes-Maya, we observed that
(1) DeLeon-Garcia was sentenced to jail for 20 days; Reyes-Maya was ordered to
pay a small fine, (2) DeLeon-Garcia was convicted of a Class B misdemeanor;
Reyes-Maya was convicted of a Class C misdemeanor, and (3) DeLeon-Garcia’s
offense involved property damage, and his offense conduct — throwing a bottle
out through a car’s window while the car was being driven — “reflect[ed] a high


      14
           Reyes-Maya, 305 F.3d at 366-67.
      15
           Id. at 367.
      16
         119 F. App’x 605, 606-07 (5th Cir. 2004), vacated on other grounds, 544 U.S. 1015
(2005). Unpublished opinions issued after January 1, 1996 are not precedential but may be
persuasive authority. See Ballard v. Burton, 444 F.3d 391, 401 n. 7 (5th Cir. 2006).

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level of culpability and likelihood of recurring criminal conduct” and “involved
not only destruction of property but also endangering another person’s safety.”17
      We agree with the district court that the specific facts of Moreno’s case are
distinguishable from Reyes-Maya and that Moreno’s Texas sentence for criminal
mischief was properly counted in his criminal history calculation.           In the
sentencing hearing, the district court referenced the Hardeman factors and
distinguished the instant case from Reyes-Maya on the basis that (1) Moreno was
convicted of a Class A misdemeanor, but Reyes-Maya was convicted of a Class
C misdemeanor, (2) Moreno was sentenced to 29 days imprisonment — just one
day short of the 30 days referred to under § 4A1.2(c) — but Reyes-Maya was
ordered to pay a small fine, and (3) Moreno’s offense conduct involved damage
to property — per the charging document — “by striking the driver’s side door
of [a] Ford Motor vehicle with a car jack without consent of the owner” and
causing damage in an amount between $500 and $1500. We credit the district
court’s analysis and conclude that the instant case is similar to DeLeon-Garcia,
in that the actual sentence imposed — in this case, 29 days imprisonment —
denotes a significantly higher level of severity than does a small monetary fine.
      We are satisfied that the facts of the instant case are sufficiently
distinguishable from those of Reyes-Maya to make it inapt. Accordingly, we
agree with the district court’s denial of Moreno’s objection to the PSR’s
imposition of one criminal history point for his state criminal mischief
conviction.
                                    III. Conclusion
      The judgment of the district court is, in all respects, AFFIRMED.




      17
           DeLeon-Garcia, 119 F. App’x at 607.

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