                                                                              FILED
                           NOT FOR PUBLICATION                                APR 12 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50138

              Plaintiff - Appellee,              D.C. No. 2:11-cr-390-PA

  v.
                                                 MEMORANDUM*
CHRISTOPHER DELONG,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                            Submitted April 10, 2013**
                               Pasadena, California

Before: TALLMAN and M. SMITH, Circuit Judges, and ROSENTHAL, District
Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for Southern Texas, sitting by designation.
      Christopher DeLong appeals from the sentence he received after pleading guilty

to conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846.

DeLong was sentenced to the lowest end of the Sentencing Guidelines range. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      DeLong’s guilty plea included a stipulated factual basis and an appeal-waiver

provision that allowed him to appeal a sentence over 120 months. DeLong argues that

the district court erred by denying him a two-level reduction under U.S.S.G. § 3B1.2

for playing a minor role in the offense; adding a criminal history point based on his

prior misdemeanor conviction for tampering with utility services; and failing to reduce

the criminal history category from V to IV.

      The first argument fails because the record supports treating DeLong as

comparable to his two codefendants, who received no role adjustment. The district

court considered and rejected DeLong’s argument that he was substantially less

culpable than his codefendants because he did not attend three of the four meetings

to sell methamphetamine to the confidential informant. The district court noted that

a mitigating role adjustment depends on the defendant showing that he was

substantially less culpable than the average participant. The district judge then

properly compared DeLong’s role in committing the conspiracy to that of his

coconspirators. The judge did not, as DeLong contends, compare his role to that of


                                          2
a hypothetical “average participant” in the type of crime involved. See, e.g., United

States v. Johnson, 297 F.3d 845, 874 (9th Cir. 2002); United States v. Benitez, 34 F.3d

1489, 1498 (9th Cir. 1994). The record supports the district court’s conclusion that

DeLong was essentially equal in culpability and involvement to his codefendants. The

district court did not err by concluding that a minor-role adjustment was unwarranted.

See United States v. Rosas, 615 F.3d 1058, 1067–68 (9th Cir. 2010).

      DeLong’s second argument, that the district court improperly calculated his

criminal history category, also fails. The presentence report assigned one point for

DeLong’s prior misdemeanor conviction for tampering with utility services, in

violation of California Penal Code § 498(b). DeLong received a fine for his

conviction. Under U.S.S.G. § 4A1.2(c), a prior conviction for a listed misdemeanor

offense—or an “offense[ ] similar to” a listed offense—is not included in the

calculation if the only punishment was a fine and the prior and instant offenses differ.

The district court rejected DeLong’s argument that his prior utility-tampering offense

was similar to trespassing, which is not included in the criminal history calculation.

See U.S.S.G. § 4A1.2(c).

      Application Note 12 to § 4A1.2 of the Sentencing Guidelines requires a district

court to apply a “common sense” approach in determining “similarity” under

§ 4A1.2(c). United States v. Grob, 625 F.3d 1209, 1213 (9th Cir. 2010). A court


                                           3
determines similarity between a listed misdemeanor offense and the offense at issue

by comparing the punishments imposed, 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. U.S.S.G. § 4A1.2 cmt. n.12(A).

      In California, trespassing and utility tampering are both misdemeanors.

Depending on the circumstances, a similar range of punishment, from a fine to

imprisonment for up to one year, may be imposed. See Cal. Penal Code §§ 498, 602.

But the elements of the two offenses are markedly different. The Penal Code defines

utility tampering as unlawfully taking electricity, gas, or water without paying for it.

See Cal. Penal Code § 498(a)(2), (a)(4), (b). The Penal Code defines trespassing to

include approximately 25 different acts. See Cal. Penal Code § 602(a)–(y). DeLong’s

offense of utility tampering could not have been described or prosecuted as

trespassing under California law. See Grob, 625 F.3d at 1217. The level of

culpability differs between the two offenses as well. Utility tampering requires an

intentional plan to take electricity, gas, or water from the utility without lawfully

paying for it, while trespassing can occur without intending to take something from

the owner. The district court did not err by finding that utility tampering was more




                                           4
akin to theft, which is properly included in the criminal history calculation, and by

counting the conviction to place DeLong in criminal history category V.

      DeLong’s third argument is that because the one point addition pushed him

from criminal history category IV to V, his criminal history is overstated and his

sentence is substantively unreasonable. The record reflects that the district court

properly examined the 18 U.S.C. § 3553(a) factors as well as the Guidelines basis for

treating DeLong as in criminal history category V, and imposed a bottom-of-the-

Guidelines sentence. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)

(en banc). The sentence is not substantively unreasonable.

      AFFIRMED.




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