                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS January 9, 2020
                                                                Christopher M. Wolpert
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 18-1456
                                              (D.C. No. 1:17-CR-00213-PAB-1)
 DANIEL GOMEZ-LOPEZ, also                                 (D. Colo.)
 known as Daniel Gomez-Perrez, also
 known as Eliseo Gomez-Perrez, also
 known as Daniel Gonzales, also
 known as Daniel Torrez,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, MATHESON, and McHUGH, Circuit
Judges. **


      Daniel Gomez-Lopez pleaded guilty to illegal reentry of a previously

deported alien following a felony conviction in violation of 8 U.S.C. § 1326(a)


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
and (b)(1). On appeal, he challenges his sentence of 60 months’ imprisonment on

the grounds that it was improper for the district court to consider two local

ordinance violations in its criminal history analysis. Because we find that the

district court did not plainly err with respect to at least one of the two ordinances,

we AFFIRM.

                                 I. Background

      After Gomez-Lopez pleaded guilty to illegal reentry, the United States

Probation Office submitted a Presentence Investigation Report (PSR) to the

district court that gave him a criminal history score of ten. One of those ten

points came from Gomez-Lopez’s guilty plea in 2009 to two violations of the

Aurora Municipal Code: (1) “Harmful – Painful Offensive Conduct,” in violation

of § 94-42(a)(1), and (2) “False Statement to City Personnel,” in violation of §

94-381. Gomez-Lopez did not object to the PSR’s analysis and the assigning of

one point for these ordinance violations. The district court used this report and

calculated a total offense level of 20 and a criminal history category of V—with

an advisory range of 63 to 78 months’ imprisonment. Had the district court only

assigned nine criminal history points to him, his category would have been

IV—with the lower advisory range of 51 to 63 months’ imprisonment. The

district court granted a downward variance to better match sentences the court




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gave in other cases with similar circumstances, and it sentenced Gomez-Lopez to

only 60 months’ imprisonment.

      Although he did not object at sentencing, Gomez-Lopez argues that the

district court erred in including the Aurora violations as part of his criminal

history score.

                                    II. Analysis

      Under the United States Sentencing Guidelines, a criminal history point is

warranted for any prior criminal violation, with the exception of certain

misdemeanors not at issue in this case. U.S.S.G. § 4A1.2(c)(1). The Guidelines

consider local ordinance violations as criminal violations for the purposes of a

criminal history analysis if, and only if, they “are also violations under state

criminal law.” Id. § 4A1.2(c)(2). To determine whether a given local ordinance

violation is also a violation of state criminal law, we use the categorical approach.

United States v. Abeyta, 877 F.3d 935, 940 (10th Cir. 2017). In conducting our

categorical analysis, we look at the statute under which the defendant was

convicted, not to the facts of his case. United States v. Martinez-Hernandez, 422

F.3d 1084, 1086 (10th Cir. 2005).

      We begin our categorical analysis by considering the two local ordinances

Gomez-Lopez pleaded guilty to violating in 2009: “1) Harmful – Painful

Offensive Conduct” and “2) False Statement to City Personnel.” The district


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court considered both to be violations of state criminal law and therefore

considered each a sufficient predicate for the sentence enhancement.

       We review that determination only for plain error because Gomez-Lopez

“did not object to the district court’s calculation of his criminal history score” in

front of that court. United States v. Tisdale, 248 F.3d 964, 981 (10th Cir. 2001);

see also Fed. R. Crim. Pro. 52(b). The district court did not plainly err if at least

one of the two violations is a violation of state law, because either is a sufficient

predicate for assessing the single criminal history point.

      Our review begins and ends with the charge of “Harmful – Painful

Offensive Conduct,” in violation of Aurora Municipal Code § 94-42(a)(1). The

ordinance provides:

      (a) It shall be unlawful to commit harassment. A person commits
      harassment if, with intent to harass, threaten or abuse another person,
      that person:
                    (1) Strikes, shoves, kicks or otherwise touches a person
                    or directly or indirectly subjects him or her to harmful,
                    painful or offensive contact.

Aur. Mun. Code § 94-42(a)(1). The state corollary of this ordinance against

which we must compare it reads:

      (1) A person commits harassment if, with intent to harass, annoy, or
      alarm another person, he or she:
                  (a) Strikes, shoves, kicks, or otherwise touches a person
                  or subjects him to physical contact . . .

Colo. Rev. Stat. § 18-9-111(1)(a).


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      Gomez-Lopez argues the two laws are not a categorical match because the

Aurora ordinance includes indirect contact while the state corollary does not. We

reject this argument because the Colorado criminal law can be violated by the sort

of indirect physical contact mentioned in the Aurora ordinance, even if the statute

does not expressly say so.

      A case from the Colorado Court of Appeals demonstrates that § 18-9-

111(1)(a) proscribes indirect contact. In People v. Peay, the court expressly

rejected a “narrow construction of ‘physical contact’” in that statute. 5 P.3d 398,

401 (Colo. App. 2000). It held that spitting on a victim constituted the sort of

indirect contact proscribed by § 18-9-111(1)(a). Id.

      Because the distinction Gomez-Lopez raises is illusory, Aurora and

Colorado harassment laws are a categorical match. Gomez-Lopez therefore

committed a crime for guidelines purposes when he violated the Aurora

ordinance.

      The district court did not, then, err, let alone plainly err, in assessing a

criminal history point for Gomez-Lopez’s violation of Aurora Municipal Code

§ 19-42(a)(2). And because a single criminal violation can support the addition

of a criminal history point under the Guidelines, we need not consider whether the

district court plainly erred with regard to Gomez-Lopez’s violation of § 94-381.




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                                III. Conclusion

      Because Gomez-Lopez violated state criminal law when he violated

Aurora’s harassment ordinance, the district court was correct that the harassment

violation was a crime, and it did not err in adding the criminal history point.

      We therefore AFFIRM the district court’s sentencing decision.

                                               ENTERED FOR THE COURT

                                               Timothy M. Tymkovich
                                               Chief Judge




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