                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                        December 23, 2004

                                                              Charles R. Fulbruge III
                                                                      Clerk
                              No. 04-20316
                            Summary Calendar


                      UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                  versus

                         JESUS DeLEON-GARCIA,

                                                   Defendant-Appellant.


           Appeal from the United States District Court
                for the Southern District of Texas
                          (4:03-CR-422-1)


Before JONES, BARKSDALE and PRADO Circuit Judges.

PER CURIAM:*

     Jesus DeLeon-Garcia pleaded guilty to illegally re-entering

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)

(the instant offense).      Appealing only his sentence, he primarily

contests   the   addition   of   one   criminal   history   point,     under

Sentencing Guidelines § 4A1.2(c), for his prior conviction for

criminal mischief. At issue is whether criminal mischief should be

excluded from the criminal history calculation.             That turns on



     *
       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this opinion should not be published and is not precedent except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.
whether the criminal mischief offense is similar to the crime of

disorderly conduct, which is excludable from criminal history,

under certain conditions, pursuant to Guidelines § 4A1.2(c)(1). To

preserve the issues for further review, DeLeon-Garcia also raises:

(1) whether, under Alabama v. Shelton, 535 U.S. 654 (2002), his

uncounseled misdemeanor conviction for illegal entry should be

included in his criminal history; and (2) whether sentencing

enhancements   and    the   federal   sentencing   guidelines     are

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000)

and Blakely v. Washington, 124 S. Ct. 2531 (2004).    AFFIRMED.

                                I.

     Prior to the instant offense, DeLeon-Garcia had three criminal

convictions, including criminal mischief, charged as a class-B

misdemeanor for which he was sentenced to 20 days in jail.        The

pre-sentence investigation report (PSR) recommended one criminal

history point for the criminal mischief conviction.   DeLeon-Garcia

objected, contending, under United States v. Reyes-Maya, 305 F.3d

362 (5th Cir.)(2002), cert. denied, 537 U.S. 1145 (2003), criminal

mischief is sufficiently similar to disorderly conduct that, under

§ 4A1.2(c)(1), it should not be included in his criminal history.

The probation officer responded with an addendum to the PSR,

distinguishing the criminal mischief crime committed by DeLeon-

Garcia from that considered in Reyes-Maya and, therefore, from

disorderly conduct.


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     Adopting the PSR and addendum, including the recommendation

that DeLeon-Garcia’s criminal history should include the criminal

mischief conviction, the district court denied DeLeon-Garcia’s

objections.   DeLeon-Garcia was sentenced, inter alia, to 56 months

in prison.

                                II.

     Application of the Guidelines is reviewed de novo.       E.g.,

United States v. Booker, 334 F.3d 406, 412 (5th Cir. 2003).

                                A.

     Concerning his criminal mischief conviction, DeLeon-Garcia

claims:   pursuant to § 4A1.2(c)(1) and Reyes-Maya, he should not

receive a criminal history point for that conviction because it is

similar to the listed excludable offense of disorderly conduct.

     In calculating criminal history, “[s]entences for all felony

offenses are counted”; those for “misdemeanor and petty offenses

are counted, except as” detailed in § 4A1.2(c).         U.S.S.G. §

4A1.2(c). In this regard, listed offenses, or “offenses similar to

them”, are excluded from the criminal history unless the sentence

was (1) probation of at least one year, or (2) imprisonment of at

least 30 days, or (3) the prior offense is similar to the instant

offense (here, illegal re-entry). U.S.S.G. § 4A1.2(c)(1) (emphasis

added).

     The offense of disorderly conduct is among the excludable

offenses listed in § 4A1.2(c)(1); criminal mischief is not listed.


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If DeLeon-Garcia’s criminal mischief is similar to disorderly

conduct, it is not counted in his criminal history.

      To determine whether a prior offense is “similar” to a listed

excludable offense under § 4A1.2(c)(1), our court “suggest[s] a

common sense approach which relies on all possible factors of

similarity”.     United States v. Hardeman, 933 F.2d 278, 281 (5th

Cir. 1991) (under Texas law, driving with revoked or suspended

license   held     similar   to     failure   to     maintain    financial

responsibility) (emphasis added). Factors to consider include: “a

comparison of punishments imposed for the listed and unlisted

offenses, the perceived seriousness of the offense as indicated by

the level of punishment, the elements of the offense, the level of

culpability involved, and the degree to which the commission of the

offense indicates a likelihood of recurring criminal conduct”. Id.

In United States v. Lamm, we recently applied the requisite common

sense approach, recognizing that each offense-similarity comparison

is fact specific.     ___ F.3d ___, No. 04-10315, 2004 WL 2650710 at

*2 (5th Cir. 22 November 2004) (citing United States v. Gadison, 8

F.3d 186, 194 (5th Cir. 1993)).

      DeLeon-Garcia contends:      he received only 20 days in jail for

criminal mischief; his criminal-mischief offense is not similar to

the   instant    illegal-reentry   offense;   but,    it   is   similar   to

disorderly conduct, one of the offenses listed in § 4A1.2(c)(1).

He relies on Reyes-Maya, in which our court held a criminal-


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mischief offense was improperly counted because it was similar to

the offense of disorderly conduct.

     Under the requisite common sense and fact specific approach,

DeLeon-Garcia’s criminal mischief offense is distinguishable from

that in Reyes-Maya and is not similar to disorderly conduct.

Reyes-Maya    paid    only    a    small       fine,    while   DeLeon-Garcia     was

sentenced to time in jail; Reyes-Maya was convicted of a Class C

misdemeanor, whereas DeLeon-Garcia was convicted of a Class B

misdemeanor;   and    criminal          mischief   involves      property   damage,

whereas disorderly conduct does not.                   DeLeon-Garcia’s throwing a

bottle through an automobile’s rear window while the vehicle was

being driven reflects a high level of culpability and likelihood of

recurring criminal conduct.               DeLeon-Garcia’s criminal-mischief

offense    involved   not     only      destruction       of    property   but   also

endangering another person’s safety.                    Moreover, DeLeon-Garcia’s

criminal mischief offense, when viewed in the context of his recent

criminal history, indicates a likelihood of recurring criminal

conduct.

                                           B.

     DeLeon-Garcia presents several claims in order to preserve

them for Supreme Court review.

                                           1.

     DeLeon-Garcia asserts the district court erred in assessing a

criminal   history    point       for    his    prior    uncounseled   misdemeanor



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illegal-entry conviction, claiming that the conviction violated

Alabama v. Shelton, 535 U.S. 654 (2002).          He acknowledges that our

court, in United States v. Perez-Macias, 335 F.3d 421 (5th Cir.),

cert. denied, 124 S. Ct. 495 (2003), rejected a contention that

Shelton rendered invalid an uncounseled conviction for which the

defendant had received a sentence of only probation (like DeLeon-

Garcia), as opposed to probation coupled with a suspended prison

sentence.

                                    2.

     For the first time on appeal, DeLeon-Garcia contends: the

sentencing   enhancements    contained   in   8    U.S.C.   §   1326(b)   are

unconstitutional on their face, in the light of Apprendi v. New

Jersey, 530 U.S. 466 (2000); and, enhancements under the federal

Sentencing   Guidelines     are   unconstitutional     under    Blakely    v.

Washington, 124 S. Ct. 2531 (2004). He acknowledges relief on both

of these contentions is foreclosed by Fifth Circuit precedent. See

United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.), cert.

denied, 124 S. Ct. 358 (2003) (holding Apprendi did not overrule

Almendarez-Torres v. United States, 523 U.S. 224 (1998)); United

States v. Pineiro, 377 F.3d 464, 465 (5th Cir. 2004), petition for

cert. filed, (U.S. July 14, 2004) (No. 04-5263) (holding Blakely

does not apply to federal sentencing guidelines).




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                        III.

For the foregoing reasons, the judgment is

                                             AFFIRMED.




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