                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 03-4331
WILLIE LEE MOORE,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
               Frank W. Bullock, Jr., District Judge.
                          (CR-02-252-1)

                      Submitted: March 15, 2004

                       Decided: April 7, 2004

     Before MOTZ, GREGORY, and SHEDD, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Lyle J. Yurko, YURKO & OWENS, P.A., Charlotte, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Sandra
J. Hairston, Assistant United States Attorney, Greensboro, North Car-
olina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                       UNITED STATES v. MOORE
                               OPINION

PER CURIAM:

   Willie Lee Moore was convicted by a jury of conspiracy to distrib-
ute more than fifty grams of cocaine base (crack), 21 U.S.C.A.
§§ 846, 841(b)(1)(A) (West 1999 & Supp. 2003), and was sentenced
to a term of 324 months imprisonment. He appeals his sentence, argu-
ing that the district court erred in calculating his criminal history, U.S.
Sentencing Guidelines Manual §§ 4A1.1, 4A1.2(c) (2002), and in
applying the sentencing guidelines for crack offenses, which he chal-
lenges on equal protection grounds. We affirm.

   The district court determined that Moore was in criminal history
category III, but departed downward to category II pursuant to
U.S.S.G. § 4A1.3, p.s. Moore contends that the district court erred in
awarding him one criminal history point under § 4A1.1(c) for each of
the following sentences: (1) two years unsupervised probation for
driving with a revoked license in North Carolina in 1994; (2) two sen-
tences of twelve months unsupervised probation for driving with a
revoked license in North Carolina in 1995 and 1997; (3) twelve
months unsupervised probation for misdemeanor breach of peace in
North Carolina in 2001; and (4) for a conviction for shoplifting in
Florida in 1994.*

   Moore first argues that his North Carolina driver’s license was
revoked because he failed to pay outstanding traffic tickets and that
a revocation of this nature is not the kind of offense intended by the
Sentencing Commission to be counted under § 4A1.2(c)(1), but is
instead similar to minor traffic infractions and petty offenses listed in
§ 4A1.2(c)(2). Guideline section 4A1.2(c)(2) identifies specific petty
offenses and directs that sentences for those offenses, and others simi-
lar to them, are never counted in a defendant’s criminal history. How-
ever, driving on a revoked or suspended license is listed in

  *When the presentence report was prepared, the probation officer was
awaiting information about the Florida shoplifting conviction, but no fur-
ther evidence was presented to the district court concerning the sentence.
Moore maintained that he posted bond and was released, and that there
were no further proceedings.
                       UNITED STATES v. MOORE                         3
§ 4A1.2(c)(1) as an offense for which the sentence must be counted
if the sentence was a term of probation of at least one year or at least
thirty days imprisonment. The elements of Moore’s offense are the
same as for the offense of driving on a revoked or suspended license,
which is listed in § 4A1.2(c)(1). Therefore, we find that these sen-
tences were properly counted under § 4A1.1(c)(1). See United States
v. Harris, 128 F.3d 850, 853-55 (4th Cir. 1997) (approving elements
test as consistent with the plain meaning of "similar"). The reason for
the license revocation is immaterial.

   Moore’s sentence for breach of the peace (described in the presen-
tence report as "a large street fight" in which Moore "urged the crowd
to disregard the orders of the responding officers") could be counted
even if it was a municipal or ordinance violation because § 4A1.2(c)
may include such offenses. United States v. Rayner, 2 F.3d 286, 287
(8th Cir. 1993). Moore speculates that, because he was not charged
with a criminal offense such as disorderly conduct or obstructing an
officer, his conduct was most analogous to loitering, an offense not
counted under § 4A1.2(c)(2). We disagree. One of the offenses listed
in § 4A1.2(c)(1) is disturbing the peace. The district court correctly
determined that breach of peace and disturbing the peace are nearly
identical offenses. Therefore, the court did not err in counting in
Moore’s criminal history his sentence of twelve months probation for
breach of peace.

   Moore alleges error in that one criminal history point was recom-
mended in the presentence report under § 4A1.1(c) for his shoplifting
conviction although there was no information about any sentence that
may have been imposed. Because criminal history points under
§ 4A1.1(a)-(c) are awarded for sentences, not convictions, no points
were due for the shoplifting conviction alone. Although the district
court did not explicitly grant Moore’s objection, it did not count the
shoplifting conviction when adding Moore’s criminal history points.
Thus, no error occurred.

  Moore argues that no criminal history points should have been
awarded for his sentences of unsupervised probation, reasoning that
such sentences are not serious enough to warrant inclusion in a defen-
dant’s criminal history. The guidelines do not make any distinction
between supervised and unsupervised probation and we will not infer
4                      UNITED STATES v. MOORE
any difference. The fact that the term "probation" is not defined, as
is "sentence of imprisonment," in § 4A1.2(b), indicates that it includes
both supervised and unsupervised probation. See United States v.
Harris, 204 F.3d 681, 682-83 (6th Cir. 2000) (upholding award of
criminal history points under § 4A1.1(c)(1) for Ohio sentences that
are functional equivalent of unsupervised probation).

   Moore makes the related argument that, because he was under a
sentence of unsupervised probation when he committed the instant
offense, the court should not have awarded him two criminal history
points under § 4A1.1(d). We find no merit in this claim. See United
States v. Mason, 74 F.3d 890, 891 (8th Cir. 1996) (holding that "pro-
bation," as used in § 4A1.1(d), means both supervised and unsuper-
vised probation).

   Last, Moore argues that the sentencing guidelines for crack
offenses violate the Equal Protection Clause of the Constitution
because they affect more black defendants than white defendants.
This court has repeatedly upheld the constitutionality of the guide-
lines for crack offenses on this ground. See United States v. Ford, 88
F.3d 1350, 1365 (4th Cir. 1996) (listing previous decisions). There-
fore, we find no merit in this claim.

   Accordingly, we affirm the sentence imposed by the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                                                           AFFIRMED
