               Case: 11-12196      Date Filed: 01/03/2013     Page: 1 of 26

                                                                              [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 11-12196
                             ________________________

                     D.C. Docket No. 8:10-cr-00502-SDM-EAJ-1

                          UNITED STATES OF AMERICA,

                                                                     Plaintiff - Appellee,

                                          versus

                           ERICK GARCIA-SANDOBAL,
                                a.k.a. Erik Garcia,

                                                                  Defendant - Appellant.
                             ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________

                                    (January 3, 2013)

Before O’CONNOR, * Associate Justice Retired, and MARCUS and PRYOR,
Circuit Judges.

PRYOR, Circuit Judge:




       *
       Honorable Sandra Day O’Connor, Associate Justice (Retired) of the United States
Supreme Court, sitting by designation.
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      This appeal presents three issues arising from the guilty plea and prison

sentence of Erick Garcia-Sandobal for unlawful reentry to the United States, 8

U.S.C. § 1326. First, Garcia-Sandobal contends that the district court erred when it

accepted his guilty plea and enhanced his sentence for having been removed

following a conviction for an aggravated felony. See id. § 1326(b)(2). Second,

Garcia-Sandobal contends that the district court erred when it increased his offense

level under the Sentencing Guidelines for having been convicted of a “crime of

violence” before his removal. See United States Sentencing Guidelines Manual

§ 2L1.2(b)(1)(A)(ii) (Nov. 2010). Third, Garcia-Sandobal contends that the

district court erred when it increased his criminal history score by counting a prior

conviction for disorderly intoxication, Fla. Stat. § 856.011. See U.S.S.G.

§ 4A1.2(c)(1). Garcia-Sandobal waived his first argument when he pleaded guilty;

a prior panel precedent, United States v. Romo-Villalobos, 674 F.3d 1246 (11th

Cir. 2012), forecloses his second argument; and his third argument fails because

his conviction is more similar to a conviction for disorderly conduct than to a

conviction for public intoxication. We affirm.

                                I. BACKGROUND

      Garcia-Sandobal, a citizen of Honduras, illegally entered the United States

in 1993. Between 1993 and 1998, Florida convicted Garcia-Sandobal of several

crimes including battery, domestic violence battery, battery of a law enforcement

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officer, obstructing or opposing an officer with violence, and obstructing or

opposing an officer without violence. In 1996, a Florida court convicted Garcia-

Sandobal of two counts of battery of a law enforcement officer and one count of

obstructing or opposing an officer with violence. For these three convictions, the

Florida court sentenced Garcia-Sandobal to two years of probation, but the Florida

court later revoked his probation and sentenced him to two years of imprisonment.

See Garcia v. State, 701 So. 2d 607, 608 (Fla. Dist. Ct. App. 1997). An appellate

court later revoked the prison sentence and reinstated the term of probation. Id. at

608–09.

      After an immigration judge ordered Garcia-Sandobal’s removal from the

United States, the government removed him to Honduras in March 1998, but

Garcia-Sandobal’s absence from our shores and our criminal justice system was

brief. He unlawfully reentered the United States, and between 2000 and 2010,

Florida convicted Garcia-Sandobal of several crimes, including battery, aggravated

assault, lewd or lascivious molestation of a child under 12 years of age, marijuana

possession, disorderly intoxication, providing a false name to law enforcement

officials, driving with an expired tag, and failure to appear in court. The

conviction for disorderly intoxication occurred in 2009, and a Florida court

sentenced Garcia-Sandobal to serve 50 days in jail followed by 12 months of




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probation. After he violated the terms of his probation, the Florida court revoked

his probation and sentenced him to an additional 60 days in jail.

      In October 2010, a federal grand jury indicted Garcia-Sandobal on one count

of unlawfully being found in the United States after having been previously

removed, 8 U.S.C. § 1326(a), (b)(2). Section 1326(a) makes it a crime for an alien

previously removed to reenter the United States without the permission of the

Attorney General of the United States and provides for a maximum sentence of

two years of imprisonment. Id. § 1326(a). Section 1326(b) provides for longer

prison sentences under certain conditions: section 1326(b)(1) provides for a

maximum prison sentence of 10 years if the defendant was removed following a

conviction of a non-aggravated felony or convictions of three or more

misdemeanors involving drugs, crimes against the person, or both; and section

1326(b)(2) provides for a maximum prison sentence of 20 years if the defendant

was removed following a conviction of an aggravated felony. Id. § 1326(b). The

indictment alleged that Garcia-Sandobal committed three aggravated felonies

before his removal and listed his 1996 convictions for two counts of battery of a

law enforcement officer and one count of obstructing or opposing an officer with

violence.

      Garcia-Sandobal pleaded guilty to the indictment before a magistrate judge.

Garcia-Sandobal’s lawyer initially stated that “Mr. Garcia is objecting to the

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characterization of his prior conviction as an aggravated felony, just the

characterization.” The magistrate judge asked, “All right, is this a sentencing

issue? I have told him what the penalty is. Are you disputing the penalty?”

Garcia-Sandobal’s attorney replied, “No, Your Honor, we’re not disputing the

penalty at this time, no.” After some confusion as to whether the three 1996

convictions remained on his record, Garcia-Sandobal conceded that he had been

convicted of an aggravated felony, but he purported to preserve a right to challenge

at sentencing this classification of his prior convictions.

      The magistrate judge then had the following colloquy with Garcia-Sandobal

to ensure that he understood that he was pleading guilty to the offense with the

enhanced penalty under section 1326(b)(2):

      THE COURT: Mr. Garcia, you appear to be quite verbal and quite
      familiar with your case. Am I correct in that conclusion?

      GARCIA-SANDOBAL (through interpreter): Yes.

      THE COURT: Do you understand that I’m interpreting this discussion
      to mean that you agree that you’ve been convicted of at least one
      felony that would carry this maximum term of 20 years
      imprisonment? Is that what you’re agreeing to?

      GARCIA-SANDOBAL (through interpreter): Yes.

      THE COURT: The other issues are matters for sentencing, but I just
      want you to understand that you can’t say one thing at a plea
      agreement and then say oh, no, it really wasn’t a felony that would
      qualify me for that penalty. Do you understand that?

      GARCIA-SANDOBAL (through interpreter): Yes.
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      THE COURT: Do you still want to plead guilty?

      GARCIA-SANDOBAL (through interpreter): Yes.

      THE COURT: How do you wish to plead to the charge in the
      indictment, guilty or not guilty?

      GARCIA-SANDOBAL (through interpreter): Yes, guilty.

      THE COURT: Is that because you are guilty of this crime?

      GARCIA-SANDOBAL (through interpreter): Yes.

      The magistrate judge concluded that the plea was knowing, voluntary, and

intelligent, and the magistrate judge recommended that the district court accept the

plea. The magistrate judge informed Garcia-Sandobal that he had 14 days to file

any objections to the recommendation. See Fed. R. Crim. P. 59(b)(2). Garcia-

Sandobal did not file any objections with the district court, and the district court

accepted the guilty plea.

      The presentence investigation report calculated Garcia-Sandobal’s offense

level as 21, his criminal history category as VI, and his guideline range as 77 to 96

months of imprisonment. The calculation of Garcia-Sandobal’s offense level

included a 16-level enhancement because Garcia-Sandobal “previously was

deported, or unlawfully remained in the United States, after . . . a conviction for a

felony that is . . . a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). That

enhancement was based on Garcia-Sandobal’s 1996 conviction for obstructing or

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opposing an officer with violence. Garcia-Sandobal objected to this enhancement

on the ground that his conviction was not a crime of violence, but the district court

overruled that objection.

      The calculation of Garcia-Sandobal’s criminal history score included the

assessment of two criminal history points for Garcia-Sandobal’s 2009 conviction

for disorderly intoxication, in accordance with section 4A1.2(c) of the Sentencing

Guidelines. See U.S.S.G. § 4A1.2(c). The assessment of those two points

increased Garcia-Sandobal’s criminal history category from V to VI and increased

his guideline range from 70 to 87 months of imprisonment to 77 to 96 months of

imprisonment. See id., ch. 5, pt. A, Sentencing Table. Garcia-Sandobal objected

on the ground that the offense of disorderly intoxication is similar to the offense of

“public intoxication,” which is not counted toward the criminal history score. See

id. § 4A1.2(c)(2). The district court overruled this objection on the ground that the

offense of disorderly intoxication is more similar to the offense of “disorderly

conduct or disturbing the peace,” which may be counted toward a defendant’s

criminal history score. See id. § 4A1.2(c)(1). The district court sentenced Garcia-

Sandobal to 87 months of imprisonment.

                            II. STANDARD OF REVIEW

      “With respect to Sentencing Guidelines issues, this Court reviews ‘purely

legal questions de novo, a district court’s factual findings for clear error, and, in

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most cases, a district court's application of the guidelines to the facts with due

deference.’” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010)

(quoting United States v. Rodriguez–Lopez, 363 F.3d 1134, 1136–37 (11th Cir.

2004) (internal quotation marks omitted)). Arguments that are waived before the

district court may not be reviewed on appeal. United States v. De La Garza, 516

F.3d 1266, 1271 (11th Cir. 2008).

                                 III. DISCUSSION

      We divide our discussion in three parts. First, we explain why Garcia-

Sandobal waived the argument that the district court should not have accepted his

guilty plea and sentenced him under section 1326(b)(2). Second, we explain why

our precedent forecloses Garcia-Sandobal’s argument that he did not commit a

crime of violence before being removed from the United States. Third, we explain

why the district court did not err when it assigned two criminal history points for

Garcia-Sandobal’s prior conviction for disorderly intoxication.

  A. Garcia-Sandobal Waived His Argument That the District Court Should Not
  Have Accepted His Guilty Plea and Sentenced Him Under Section 1326(b)(2).

      Garcia-Sandobal argues that the district court erred when it accepted his

guilty plea and sentenced him under section 1326(b)(2), but Garcia-Sandobal

waived this argument when he pleaded guilty to violating that section. The

indictment alleged that Garcia-Sandobal was convicted of an aggravated felony

before he was deported and that the enhanced sentencing provision of section
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1326(b)(2) applied to his case. Garcia-Sandobal’s “knowing and informed plea of

guilty . . . amounted to an express admission that [section 1326(b)(2)] applied to

his case,” and he cannot now argue otherwise on appeal. See United States v.

Covington, 565 F.3d 1336, 1345 (11th Cir. 2009).

         Garcia-Sandobal argues that he “did not agree below that he had committed

an aggravated felony before his removal,” but we disagree. Although Garcia-

Sandobal initially “object[ed] to the characterization of his prior conviction as an

aggravated felony,” he later unequivocally pleaded guilty to a violation of section

1326(b)(2) and agreed that he had been removed following a conviction for an

aggravated felony. Garcia-Sandobal told the magistrate judge that he understood

that he was agreeing that he had been convicted of an aggravated felony before his

removal and that he understood that he could not argue otherwise at the sentencing

phase.

         When he pleaded guilty, Garcia-Sandobal purported to preserve a right to

challenge the classification of his prior conviction at sentencing, but we have held

that a defendant cannot do so. See United States v. Bennett, 472 F.3d 825, 832–33

(11th Cir. 2006). In Bennett, the defendant pleaded guilty to an indictment

alleging that he had at least three prior convictions for “violent felonies” under the

Armed Career Criminal Act, 18 U.S.C. § 924(e). Id. at 827. Bennett, like Garcia-

Sandobal, pleaded guilty to the indictment, but purported to “preserve an objection

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to the classification of [his] prior convictions as violent felonies for the sentencing

hearing.” Id. at 828. When Bennett argued on appeal that the district court erred

in sentencing him under section 924(e)(1) because he did not have three prior

convictions for violent felonies, we rejected Bennett’s argument. We explained

that Bennett’s “guilty plea included an admission to his having three prior violent

felony convictions,” and we explained that “[t]his alone authorized the district

court to sentence Bennett as an armed career criminal under § 924(e).” Id. at 833.

      Garcia-Sandobal waived his right to appellate review on this issue. Before

the magistrate judge, Garcia-Sandobal unconditionally admitted having been

convicted of an aggravated felony, and the magistrate judge recommended that the

district court accept Garcia-Sandobal’s guilty plea. Garcia-Sandobal had 14 days

to file any objections to that recommendation, Fed. R. Crim. P. 59(b)(2), but he

failed to file any objections. A “[f]ailure to object in accordance with [Rule

59(b)(2)] waives a party’s right to review.” Id.

B. Our Precedent Forecloses Garcia-Sandobal’s Argument About His Conviction
            For Obstructing or Opposing an Officer with Violence.

      Garcia-Sandobal argues that the district court erred when it increased his

offense level based on his prior conviction for obstructing or opposing an officer

with violence, but Garcia-Sandobal’s argument is foreclosed by our precedent. A

defendant’s criminal offense level is increased by 16 levels if “the defendant

previously was deported, or unlawfully remained in the United States, after . . . a
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conviction for a felony that is . . . a crime of violence.” U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). In 1996, Garcia-Sandobal was convicted of “knowingly and

willfully resist[ing], obstruct[ing], or oppos[ing] any officer . . . by offering or

doing violence to the person of such officer or legally authorized person.” Fla.

Stat. § 843.01. After Garcia-Sandobal filed his brief, we held that “a conviction

under Florida Statute § 843.01 . . . constitutes a crime of violence for purposes of

the elements clause of U.S.S.G. § 2L1.2(b)(1)(A)(ii).” Romo-Villalobos, 674 F.3d

at 1251. Garcia-Sandobal concedes that our decision in Romo-Villalobos

forecloses his argument. The district court did not err when it applied a 16-level

enhancement based on his 1996 conviction for obstructing or opposing an officer

with violence.

    C. The District Court Properly Counted Garcia-Sandobal’s Conviction for
           Disorderly Intoxication Toward His Criminal History Score.

      Garcia-Sandobal argues that the district court erred when it counted his prior

conviction for disorderly intoxication and increased his criminal history by two

points. Garcia-Sandobal contends that disorderly intoxication is akin to public

intoxication, which is never counted, but the government responds that disorderly

intoxication is more akin to disorderly conduct or disturbing the peace, which may

be counted.

      The Sentencing Guidelines provide that “[s]entences for misdemeanor and

petty offenses are counted” toward a defendant’s criminal history score, subject to
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two exceptions in subsections 4A1.2(c)(1) and 4A1.2(c)(2). U.S.S.G. § 4A1.2(c).

Under subsection (c)(1), certain enumerated offenses and “offenses similar to

them” are to be disregarded unless “(A) the sentence was a term of probation of

more than one year or a term of imprisonment of at least thirty days, or (B) the

prior offense was similar to an instant offense.” Id. § 4A1.2(c)(1). Among those

offenses specifically listed in subsection (c)(1) is “[d]isorderly conduct or

disturbing the peace.” Id. Under subsection (c)(2), certain enumerated offenses

and “offenses similar to them” are “never counted” toward a defendant’s criminal

history score, and among those offenses specifically listed in subsection (c)(2) is

“[p]ublic intoxication.” Id. § 4A1.2(c)(2). The offense of “disorderly

intoxication” is not listed in either subsection (c)(1) or (c)(2).

      To resolve this issue, we must decide whether Garcia-Sandobal’s conviction

for disorderly intoxication is more similar to a conviction for the subsection (c)(1)

crime of “disorderly conduct or disturbing the peace” or to a conviction for the

subsection (c)(2) crime of “public intoxication.” “Because the Guidelines’ default

rule for past offenses is one of inclusion, any doubts should be resolved in favor of

counting the offense.” United States v. Hernandez, 634 F.3d 317, 319 (5th Cir.

2011). “Moreover, the defendant has the burden of showing that the exception

applies.” United States v. Martinez-Santos, 184 F.3d 196, 200 (2d Cir. 1999); see

also United States v. Howard, 923 F.2d 1500, 1505 (11th Cir. 1991) (“[T]he

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Guidelines have been interpreted to contemplate that the defendant bears the

burden of establishing the applicability of Guideline sections which would reduce

the offense level.”).

      An Application Note to the Sentencing Guidelines lists five factors that we

should consider, in a “common sense approach,” to determine whether an unlisted

offense is similar to one enumerated in subsection (c)(1) or subsection (c)(2):

      In determining whether an unlisted offense is similar to an offense
      listed in subsection (c)(1) or (c)(2), the court should use a common
      sense approach that includes consideration of relevant factors such as
      (i) a comparison of punishments imposed for the listed and unlisted
      offenses; (ii) the perceived seriousness of the offense as indicated by
      the level of punishment; (iii) the elements of the offense; (iv) the level
      of culpability involved; and (v) the degree to which the commission of
      the offense indicates a likelihood of recurring criminal conduct.

U.S.S.G. § 4A1.2 cmt. 12(A). “Sentencing Guidelines commentary explaining or

interpreting the Guidelines is ‘authoritative unless it violates the Constitution or a

federal statute, or is inconsistent with, or a plainly erroneous reading of, that

guideline.’” United States v. Cortes-Salazar, 682 F.3d 953, 954 (11th Cir. 2012)

(quoting Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915 (1993)).

We apply these five factors mindful that, although the definitions of “disorderly

conduct” and “public intoxication” within the meaning of the Sentencing

Guidelines are matters of federal law, we look to state law definitions of these

crimes for guidance. See United States v. Palomino Garcia, 606 F.3d 1317, 1327–

28 (11th Cir. 2010).
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      As both parties agree, the five-factor test under section 4A1.2(c) requires

that we consider the underlying facts of Garcia-Sandobal’s conviction. The

Sentencing Commission adopted the five-factor test from precedents of the Fifth

Circuit that considered both the elements of the offense and the underlying facts of

the dispute. See, e.g., United States v. Gadison, 8 F.3d 186, 194 (5th Cir. 1993);

United States v. Moore, 997 F.2d 30, 34–35 (5th Cir. 1993); United States v.

Hardeman, 933 F.2d 278, 282 (5th Cir. 1991). When it adopted this test, the

Commission favorably cited both Hardeman and a decision of the Seventh Circuit,

United States v. Booker, 71 F.3d 685 (7th Cir. 1995), which also considered the

underlying facts of the dispute, id. at 690. See U.S.S.G. app. C at 240–41 ( “This

amendment, at Application Note 12(A), adopts the Hardeman ‘common sense

approach’ as a means of ensuring that courts are guided by a number of relevant

factors that may help them determine whether a non-listed offense is similar to a

listed one.”). In weighing some of the factors, including the level of punishment,

the level of culpability, and likelihood of recurring criminal conduct, other courts

too have considered the underlying facts. See, e.g., United States v. Burge, 683

F.3d 829, 835 (7th Cir. 2012); Hernandez, 634 F.3d at 319; United States v. Grob,

625 F.3d 1209, 1216–17 (9th Cir. 2010); United States v. Maldonado, 614 F.3d 14,

18 (1st Cir. 2010); United States v. DeJesus-Concepcion, 607 F.3d 303, 305 (2d

Cir. 2010).

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      A careful consideration of the five factors establishes that Garcia-Sandobal’s

conviction for disorderly intoxication is more similar to a conviction for disorderly

conduct than to a conviction for public intoxication. Not all of the factors weigh

against Garcia-Sandobal, but four of the five do.

      The first factor asks us to compare the “punishments imposed for the listed

and unlisted offenses,” U.S.S.G. § 4A1.2 cmt. 12(A), and this factor weighs in

equipoise. Florida punishes disorderly intoxication and disorderly conduct under

an identical scheme: both offenses are classified as second-degree misdemeanors,

and both offenses carry a maximum penalty of 60 days in jail and a $500 fine, as

provided in sections 775.082 and 775.083. See Fla. Stat §§ 775.082(4)(b),

775.083(1)(e), 856.011, 877.03. Florida does not proscribe an offense called

“public intoxication,” but the public intoxication statute repealed in 1973 provided

that “[w]hoever shall be or become drunk from the voluntary use of intoxicating

liquors or drugs shall be guilty of a misdemeanor of the second degree, punishable

as provided in § 775.082 or § 775.083.” Fla. Stat. § 856.01 (1971). Because

Florida punishes or has punished public intoxication, disorderly intoxication, and

disorderly conduct with similar levels of punishment, we cannot conclude based on

this factor whether a conviction for disorderly intoxication is more similar to a

conviction for public intoxication or to a conviction for disorderly conduct.




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      The second factor asks us to consider “the perceived seriousness of the

offense as indicated by the level of punishment,” U.S.S.G. § 4A1.2 cmt. 12(A), and

this factor weighs in favor of determining that the conviction for disorderly

intoxication is similar to a conviction for “disorderly conduct or disturbing the

peace” and should count toward Garcia-Sandobal’s criminal history score. The

offense of disorderly intoxication carries a maximum jail sentence of 60 days, Fla.

Stat. §§ 775.082(4)(b), 856.011, and Garcia-Sandobal was initially sentenced to 50

days of imprisonment and 12 months of probation. But Garcia-Sandobal was then

sentenced to an additional 60 days of imprisonment after his probation was

revoked, and the Guidelines direct us to consider both the original sentence and

any term of imprisonment imposed due to revocation of probation. See U.S.S.G.

§ 4A1.2(k)(1); United States v. Coast, 602 F.3d 1222, 1223–24 (11th Cir. 2010).

Garcia-Sandobal’s 110-day term of imprisonment is nearly four times as long as

the 30-day “triggering period” of section 4A1.2(c)(1), which suggests that his

offense is at least as serious as those crimes listed in subsection (c)(1) and is of

sufficient severity that it should count toward his criminal history score. It is

difficult to imagine a scenario where an individual spends nearly one-third of a

year in jail for endangering the public or causing a disturbance, yet his conviction

is not considered serious enough to count toward his criminal history score.




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      The third factor asks us to consider “the elements of the offense,” U.S.S.G.

§ 4A1.2 cmt. 12(A), and this factor also weighs in favor of determining that a

conviction for disorderly intoxication is similar to a conviction for “disorderly

conduct or disturbing the peace.” Both disorderly intoxication and disorderly

conduct share the critical element that the offender actually endangers the public or

causes a public disturbance, and this element is absent from the offense of public

intoxication. The Florida statute for disorderly intoxication provides, “No person

in the state shall be intoxicated and endanger the safety of another person or

property, and no person in the state shall be intoxicated or drink any alcoholic

beverage in a public place or in or upon any public conveyance and cause a public

disturbance.” Fla. Stat. § 856.011(1). Florida courts recognize that a conviction

under the Florida statute for disorderly intoxication requires proof that the

defendant “endangered [some]one or created a public disturbance.” Papalas v.

State, 645 So. 2d 153, 155 (Fla. Dist. Ct. App. 1994). The Florida statute for

disorderly conduct also requires that a person actually cause a public disturbance:

      Whoever commits such acts as are of a nature to corrupt the public
      morals, or outrage the sense of public decency, or affect the peace and
      quiet of persons who may witness them, or engages in brawling or
      fighting, or engages in such conduct as to constitute a breach of the
      peace or disorderly conduct, shall be guilty of a misdemeanor of the
      second degree . . . .

Fla. Stat. § 877.03. The requirement under the Florida statute for disorderly

intoxication that a person “endanger the safety of another person or property” or
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“cause a public disturbance” also mirrors language found in statutes proscribing

disorderly conduct or breach of the peace across the country. See, e.g., Del. Code

Ann. tit. 11, § 1301 (providing that “disorderly conduct” includes any act

“[d]isturbing any lawful assembly”); 720 Ill. Comp. Stat. 5/26-1 (providing that

“disorderly conduct” includes any act that “disturb[s] another and [] provoke[s] a

breach of the peace”); Iowa Code § 723.4 (providing that “disorderly conduct”

includes any act that “disturbs any lawful assembly”); Minn. Stat. § 609.72

(providing that “disorderly conduct” includes any act that tends to “disturb others

or provoke an assault or breach of the peace”); Neb. Rev. Stat. § 28-1322

(providing that “disturbing the peace” including any conduct that “disturb[s] the

peace and quiet of any person”); N.J. Stat. Ann. § 2C:33-2 (providing that

“disorderly conduct” includes “[c]reat[ing] a hazardous or physically dangerous

condition by any act which serves no legitimate purpose of the actor”).

      The parties disagree about the definition of the crime of public intoxication,

in part because the several states have not adopted a common definition of that

offense. The government argues, on the one hand, that the Guidelines adopt the

common-law definition of public intoxication, which prohibits being drunk in

public, but does not require the additional element that the individual pose a risk of

danger to the public. Several states and Black’s Law Dictionary adopt this

definition of public intoxication. See, e.g., Iowa Code § 123.46(2); Miss. Code

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Ann. § 97-29-47; Va. Code Ann. § 18.2-388; W. Va. Code § 60-6-9(a)(1); Black’s

Law Dictionary 898 (9th ed. 2009) (defining “public intoxication” as “[t]he

condition of a person who is under the influence of drugs or alcohol in a place

open to the general public”). Garcia-Sandobal contends, on the other hand, that the

offense of public intoxication requires that a person be drunk in public and present

a risk of danger to other persons or property. The Model Penal Code and many

states adopt this definition of public intoxication. See, e.g., Del. Code Ann. tit. 11,

§ 1315; Ky. Rev. Stat. Ann. § 222.202(1); 18 Pa. Cons. Stat. Ann. § 5505; Tex.

Penal Code Ann. § 49.02; Utah Code Ann. § 76-9-701; Model Penal Code § 250.5

(providing a “public drunkenness” statute that proscribes being intoxicated in a

public place “to the degree that he may endanger himself or other persons or

property, or annoy persons in his vicinity”); see also 36 C.F.R. § 2.35(c) (providing

that “[p]resence in a park area when under the influence of alcohol or a controlled

substance to a degree that may endanger oneself or another person, or damage

property or park resources, is prohibited”). And the other states in this Circuit

proscribe intoxication in public accompanied by offensive conduct: Alabama has a

“public intoxication” statute that proscribes “appear[ing] in a public place under

the influence of alcohol . . . to the degree that [the offender] endangers himself or

another person or property, or by boisterous and offensive conduct annoys another

person in his vicinity,” Ala. Code § 13A-11-10; and Georgia has a “public

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drunkenness” statute that proscribes “appear[ing] in an intoxicated condition in any

public place . . . which condition is made manifest by boisterousness, by indecent

condition or act, or by vulgar, profane, loud, or unbecoming language,” Ga. Code

Ann. § 16-11-41. Although the states have defined public intoxication differently,

the meaning of “public intoxication” in the Sentencing Guidelines does not

“depend on the definition adopted by the State of conviction.” See Taylor v.

United States, 495 U.S. 575, 590, 110 S. Ct. 2143, 2154 (1990).

      We need not decide whether the Guidelines adopted the definition of public

intoxication under the common law or the Model Penal Code because the Florida

statute is dissimilar to both definitions. There are two critical differences between

the Florida statute, on the one hand, and both the common law and the Model

Penal Code, on the other hand: Florida requires that the person actually cause a

public disturbance, and Florida does not proscribe any drunkenness that might

harm only the intoxicated person himself. The common-law crime of public

intoxication punishes being drunk in public, and the Model Penal Code, which has

been adopted by several states, punishes being intoxicated in public “to the degree

that [the offender] may endanger himself or other persons or property, or annoy

persons in his vicinity.” Model Penal Code § 250.5 (emphasis added); see also

Del. Code Ann. tit. 11, § 1315; Ky. Rev. Stat. Ann. § 222.202(1); 18 Pa. Cons.

Stat. Ann. § 5505; Tex. Penal Code Ann. § 49.02; Utah Code Ann. § 76-9-701.

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The Florida disorderly intoxication statute punishes more culpable conduct than

either the common law or the Model Penal Code: the Florida statute requires that

an individual actually “endanger the safety of another person or property” or

“cause a public disturbance.” Fla. Stat. § 856.011(1). Conduct that actually

endangers the public is more similar to disorderly conduct than to public

intoxication, regardless of whether the offender is sober or drunk when he

committed the conduct. The public intoxication statute of Utah illustrates the

important distinction between the risk of endangering others and actually

endangering others: that statute punishes intoxication in public if it “may endanger

the person or another,” but punishes intoxication in private only if it actually

“unreasonably disturbs other persons.” Utah Code Ann. § 76-9-701; see Due S.,

Inc. v. Dep’t of Alcoholic Beverage Control, 197 P.3d 82, 91 (Utah 2008).

Moreover, the Model Penal Code and most state “public intoxication” statutes

punish public drunkenness that either poses a danger to the public or to the

intoxicated person himself. See Model Penal Code § 250.5 (punishing intoxication

when the person is drunk “to the degree that he may endanger himself”); see also

Del. Code Ann. tit. 11, § 1315; Ky. Rev. Stat. Ann. § 222.202(1); 18 Pa. Cons.

Stat. Ann. § 5505; Tex. Penal Code Ann. § 49.02; Utah Code Ann. § 76-9-701.

But the Florida disorderly intoxication statute punishes only activity that actually

endangers or disrupts the public. Fla. Stat. § 856.011(1).

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      The similarities between the Florida statute and the statutes of two other

states also suggest that Garcia-Sandobal’s conviction for disorderly intoxication is

more akin to a conviction for disorderly conduct than to a conviction for public

intoxication. Michigan and North Carolina, like Florida, have statutes that

proscribe conduct by an intoxicated person that actually endangers the public, but

those statutes do not proscribe conduct that potentially endangers the public or the

intoxicated person himself. Those two states label their offenses as disorderly or

disruptive conduct, not public intoxication. Mich. Comp. Laws § 750.167(1)(e)

(“[d]isorderly person[s]” statute); N.C. Gen. Stat. § 14-444 (“[i]ntoxicated and

disruptive in public” statute). The critical element of the Florida statute — that a

person actually endanger the public or cause a public disturbance — is shared with

statutes that proscribe disorderly conduct, but not with statutes that proscribe

public intoxication.

      The fourth factor asks us to consider “the level of culpability involved” in

the offense, U.S.S.G. § 4A1.2 cmt. 12(A), and it weighs in favor of determining

that disorderly intoxication is similar to “disorderly conduct or disturbing the

peace.” “[A]n offense bears greater culpability when it presents an increased risk

of harm to others.” Hernandez, 634 F.3d at 320. Garcia-Sandobal was convicted

of actually “endanger[ing] the safety of another person or property” or “caus[ing] a

public disturbance.” See Fla. Stat. § 856.011. According to the presentence report,

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Garcia-Sandobal “was almost struck by a vehicle as he was walking” in the middle

of a road at 2:36 a.m. Crimes that present an actual threat to public safety are

likely to be more similar to crimes in subsection (c)(1) of the Guidelines than to

crimes in subsection (c)(2). “[A]n examination of the offenses listed in subsection

(c)(1) reveals that many of these offenses . . . exhibit some measure of indifference

to the public.” Hardeman, 933 F.2d at 282. For example, subsection (c)(1) lists

crimes including careless or reckless driving, providing false information to a

police officer, hindering or failure to obey a police officer, resisting arrest, and

trespass. See U.S.S.G. § 4A1.2(c)(1). By contrast, the Sentencing Commission

excepted in subsection (c)(2) crimes with a more indirect and attenuated threat to

the public, including loitering, vagrancy, minor traffic violations, hitchhiking,

juvenile truancy, and fish and game violations. See U.S.S.G. § 4A1.2(c)(2).

Because the Florida crime of disorderly intoxication punishes conduct that poses a

significant risk of harm to others, it has a level of culpability that suggests it should

be grouped with the crimes listed in subsection (c)(1) and that Garcia-Sandobal’s

conviction should count toward his criminal history score.

      Garcia-Sandobal argues that public intoxication, under the Guidelines,

includes conduct that actually endangers the public, but this argument contradicts

the text and structure of section 4A1.2(c). Garcia-Sandobal’s proposed reading of

the Guidelines would lead to the absurd result that a sober person who disturbs the

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peace and is convicted of “disorderly conduct” would have his conviction count

toward his criminal history score, see id. § 4A1.2(c)(1), but an intoxicated person

who disturbs the peace and is convicted of a crime labeled “public intoxication”

would not have his conviction count toward his criminal history, see id.

§ 4A1.2(c)(2). We decline to give an offender a break in his criminal history score

because he became drunk before he caused a public disturbance.

      Our reading of public intoxication as not including offenses that actually

disturb the peace is also consistent with the canon of construction of noscitur a

sociis, whereby “a word is known by the company it keeps.” Gustafson v. Alloyd

Co., 513 U.S. 561, 575, 115 S. Ct. 1061, 1069 (1995). That canon directs us to

read public intoxication in the context of the crimes listed alongside it in

subsection (c)(2). As mentioned earlier, the other offenses in subsection (c)(2) are

more benign offenses that pose an attenuated and indirect risk to the public. If

“public intoxication” included conduct like that proscribed by the Florida statute

for disorderly intoxication, which requires actual harm to the public, it would have

been anomalous for the Sentencing Commission to place public intoxication in

subsection(c)(2).

      The fifth factor asks us to consider “the degree to which the commission of

the offense indicates a likelihood of recurring criminal conduct,” U.S.S.G. § 4A1.2

cmt. 12(A), and it too weighs in favor of determining that disorderly intoxication is

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similar to “disorderly conduct or disturbing the peace.” “[T]he seriousness of the

offense is one indication of whether the offense has any predictive capacity for

future criminality,” Hardeman, 933 F.2d at 283, and someone who gets drunk and

walks in the middle of a public road at 2:36 a.m., nearly causing a collision with an

oncoming vehicle, engages in conduct that suggests the likelihood of recurring

criminal conduct. Garcia-Sandobal’s prison sentence for 110 days also suggests

that his offense is serious and exhibits a likelihood of recurring criminal conduct.

      The distinction we draw between Garcia-Sandobal’s conviction for

disorderly intoxication and the public intoxication statutes of several states also

makes sense when considered against the history of public intoxication laws. At

common law, public intoxication statutes punished mere drunkenness, see 4

William Blackstone, Commentaries * 41, and historically most states prohibited,

under the heading of public intoxication, the act of being drunk in public, see

American Law Institute, Model Penal Code and Commentaries: Part II, § 250.5

cmt. 1(a) at 375 (1980). In the 1960s, there was a movement to decriminalize mere

drunkenness, which led to the definition of public intoxication in the Model Penal

Code and to the recommendation in the 1967 Report by the President’s

Commission on Law Enforcement and Administration of Justice that

“[d]runkenness should not in itself be a criminal offense,” but that “[d]isorderly

and other criminal conduct accompanied by drunkenness should remain punishable

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as separate crimes.” The Challenge of Crime in a Free Society, A Report by the

President’s Commission on Law Enforcement and Administration of Justice 236

(1967). The Sentencing Commission wanted to ensure that convictions for only

being drunk in public are not counted toward a defendant’s criminal history score,

and perhaps the Sentencing Commission wanted to ensure that convictions for

being drunk and posing a potential danger to the public or to oneself are not

counted toward a defendant’s criminal history score. But the Sentencing

Commission stated that convictions for disorderly conduct and disturbing the peace

may be counted toward a defendant’s criminal history, and Garcia-Sandobal was

punished under the Florida statute for endangering the public and causing a public

disturbance, in addition to being intoxicated.

      The district court did not err when it assessed two criminal history points for

Garcia-Sandobal’s conviction for disorderly intoxication. Garcia-Sandobal failed

to satisfy his burden of establishing that his prior conviction falls within the

exception to the default rule of counting toward his criminal history score. Garcia-

Sandobal’s prior conviction is more similar to a conviction for disorderly conduct

or disturbing the peace, which may be counted, than to a conviction for public

intoxication, which is never counted.

                                 IV. CONCLUSION

      We AFFIRM Garcia-Sandobal’s guilty plea and sentence.

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