     05-5256-cr
     United States v. Ubiera


 1                       UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5                                August Term, 2006
 6
 7
 8    (Argued: March 1, 2007                     Decided: May 15, 2007)
 9
10                              Docket No. 05-5256-cr
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   UNITED STATES OF AMERICA,
15
16                     Appellee,
17
18               - v.-
19
20   HENRY UBIERA,
21
22                     Defendant-Appellant.
23
24   - - - - - - - - - - - - - - - - - - - -x
25

26         Before:             JACOBS, Chief Judge, CARDAMONE and
27                             SOTOMAYOR, Circuit Judges.
28
29         Appeal from a sentence imposed in the United States

30   District Court for the Southern District of New York

31   (Hellerstein, J.), following a plea to distribution and

32   possession with the intent to distribute and conspiracy to

33   distribute ecstasy.

34         AFFIRMED.

35                                      ARZA FELDMAN and STEVEN A.
36                                      FELDMAN, Feldman & Feldman,
 1                                 Uniondale, New York, for
 2                                 Defendant-Appellant.
 3
 4                                 STEVEN D. FELDMAN, Assistant
 5                                 United States Attorney (Celeste
 6                                 L. Koeleveld, on the brief) for
 7                                 Michael J. Garcia, United States
 8                                 Attorney, Southern District of
 9                                 New York, for Appellee.
10
11   DENNIS JACOBS, Chief Judge:
12
13       Following his plea to drug offenses in the United

14   States District Court for the Southern District of New York

15   (Hellerstein, J.), Henry Ubiera appeals his post-Fagans

16   sentence.   Ubiera’s principal challenge is to the assessment

17   of a criminal history point for each of two prior

18   shoplifting convictions.   Ubiera contends that shoplifting

19   is similar to passing a bad check, which is excluded from

20   the criminal history computation by the United States

21   Sentencing Guidelines § 4A1.2(c)(1) along with “similar”

22   offenses.   Ubiera also argues that the court erred by:

23   declining to credit him for acceptance of responsibility

24   based on his failure to admit one of the overt acts of the

25   conspiracy to which he pled; assigning a criminal history

26   point to a conviction for disorderly conduct; and making

27   certain findings by a preponderance of the evidence.

28       We affirm the judgment.


                                    2
1                                  I

2        On February 4, 2004, Ubiera pled guilty to both counts

3    of the indictment against him.    The first count was

4    conspiracy to distribute ecstasy pills in violation of 21

5    U.S.C. § 846, and specified two overt acts committed in or

6    about February 2003: [i] Ubiera’s sale of approximately 1000

7    pills, and [ii] Ubiera’s delivery of approximately 800

8    pills.   The second count was predicated on the second overt

9    act, and alleged that Ubiera had distributed, and possessed

10   with the intent to distribute, approximately 800 ecstasy

11   pills, in violation of 21 U.S.C. §§ 812, 841(a)(1), and

12   841(b)(1)(C).

13       At his allocution, though Ubiera admitted to the

14   conspiracy and to the delivery of the 800 pills, he denied

15   selling the 1000 pills.   The district court warned Ubiera of

16   the consequences of his incomplete allocution:

17             [W]hat I want you to be aware of is that one
18             consequence of my allocuting you to less than all
19             of the issues that may be involved in the
20             indictment is that . . . if I find that there
21             really was a lot more to what you did than what
22             are you are ready to admit to, I may find that you
23             are not entitled to the credit for acceptance of
24             responsibility.
25
26   At a subsequent hearing held pursuant to United States v.

27   Fatico, 579 F.2d 707 (2d Cir. 1978), Ubiera repeated his

                                   3
1    denial of the 1000 pill transaction.

2        At sentencing on October 14, 2004, the district court

3    found that Ubiera had in fact sold the 1000 pills.      Ubiera’s

4    responsibility for a total of 1800 ecstasy pills yielded an

5    offense level of 26.   See U.S.S.G. § 2D1.1.     The district

6    court declined Ubiera’s request to reduce the offense level

7    for acceptance of responsibility:

 8            I don’t believe you clearly demonstrated
 9            acceptance of responsibility. I found that you
10            were a drug dealer and you tried to hide that and
11            you have not accepted that. And by denying
12            something, admitting a little bit, you are
13            creating a deception to yourself, perhaps to the
14            probation officer, to others.
15
16       The district court concluded that Ubiera fell within

17   Criminal History Category II.       Neither party objected to

18   this computation, which yielded a guidelines range of 70 to

19   87 months’ imprisonment.   Ubiera was then sentenced to 75

20   months’ imprisonment, three years’ supervised release and a

21   $200 mandatory special assessment.

22       Ubiera appealed his sentence on various grounds, but

23   was ultimately granted a remand for resentencing pursuant to

24   United States v. Fagans, 406 F.3d 138 (2d Cir. 2005),

25   because he had preserved an objection to mandatory

26   application of the Guidelines, id. at 140-41.


                                     4
1        At resentencing on September 16, 2005, the district

2    court declined to revisit its factual findings or the

3    resulting offense level calculation.     Ubiera’s counsel

4    argued that the criminal history computation was an

5    “overstatement,” citing cases that allow a downward

6    departure if the criminal history category “substantially

7    over-represents the seriousness of the defendant’s criminal

8    history.”     U.S.S.G. § 4A1.3(b)(1); see also United States v.

9    Thorn, 317 F.3d 107, 128-31 (2d Cir. 2003); United States v.

10   Resto, 74 F.3d 22, 28 (2d Cir. 1996).     The district court

11   refused to depart, citing Ubiera’s criminal background,

12   specifically a conviction for attempted petit larceny in New

13   York and two convictions for shoplifting from retailers in

14   New Jersey.     The court also referenced a conviction for

15   disorderly conduct.

16       After hearing argument pursuant to United States v.

17   Booker, 543 U.S. 220 (2005), on the application of 18 U.S.C.

18   § 3553(a) to Ubiera’s case, the district court declined to

19   deviate from its original sentence.

20

21                                  II

22       Ubiera argues that his convictions for shoplifting


                                     5
1    should have been excluded from his criminal history

2    computation because shoplifting is similar to passing a bad

3    check--in the Guidelines’ parlance, an “insufficient funds

4    check”--an offense which (along with “similar” offenses) is

5    excluded from such computation by U.S.S.G. § 4A1.2(c)(1),

6    set out in the margin.1   Where, as here, a statute “punishes

7    only one basic form of conduct,” its similarity to an

8    offense listed in § 4A1.2(c)(1) is a question of law we

9    review de novo.   United States v. Morales, 239 F.3d 113,

10   117-18 (2d Cir. 2000).

11       As the government contends, Ubiera failed to raise the

12   § 4A1.2(c)(1) argument below.       Although Ubiera argued to the

13   district court that his criminal history computation was an

14   “overstatement,” that argument was (as previously noted)


          1
            “Sentences for the following prior offenses and
     offenses similar to them, by whatever name they are known,
     are counted only if (A) the sentence was a term of probation
     of at least one year or a term of imprisonment of at least
     thirty days, or (B) the prior offense was similar to an
     instant offense: Careless or reckless driving, Contempt of
     court, Disorderly conduct or disturbing the peace, Driving
     without a license or with a revoked or suspended license,
     False information to a police officer, Fish and game
     violations, Gambling, Hindering or failure to obey a police
     officer, Insufficient funds check, Leaving the scene of an
     accident, Local ordinance violations (excluding local
     ordinance violations that are also criminal offenses under
     state law), Non-support, Prostitution, Resisting arrest,
     Trespassing.”
                                     6
1    based on U.S.S.G. § 4A1.3(b)(1).    Since Ubiera raises a

2    substantially different argument on appeal, we review the

3    district court’s decision to count the shoplifting

4    convictions only for plain error.   See Fed. R. Crim. P.

5    52(b); Johnson v. United States, 520 U.S. 461, 466-67

6    (1997).   For the reasons set forth below, we conclude that

7    there was no error, plain or otherwise.

8        Among those considerations courts have focused on in

9    determining whether a prior offense is “similar” to an

10   offense listed in § 4A1.2(c) are: the relative punishments

11   prescribed and the relative seriousness implied by those

12   punishments, the elements of the offenses, the level of

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

14   offense predicts recidivism.   See, e.g., United States v.

15   Hardeman, 933 F.2d 278, 281 (5th Cir. 1991).    We have

16   adopted this multifactor test (though not in haec verba),

17   but also consider “any other factor [we] reasonably find[]

18   relevant.”   United States v. Martinez-Santos, 184 F.3d 196,

19   206 (2d Cir. 1999).

20       We have not previously applied the test to a

21   shoplifting conviction.   Because Ubiera’s brief compares his

22   shoplifting offenses only to the offense of passing a bad


                                    7
1    check, we limit ourselves to that comparison and do not

2    consider the similarity (if any) between shoplifting and the

3    other offenses excluded by § 4A1.2(c).

4        The question posed by § 4A1.2(c)(1) is “whether the

5    unlisted offense under scrutiny is ‘categorically more

6    serious’ than the Listed Offenses to which it is being

7    compared.”   Martinez-Santos, 184 F.3d at 206 (quoting United

8    States v. Caputo, 978 F.2d 972, 977 (7th Cir. 1992)).    But

9    our analysis also considers “the actual conduct involved and

10   the actual penalty imposed.”   United States v. Sanders, 205

11   F.3d 549, 553 (2d Cir. 2000) (per curiam).   “Although

12   ‘categorically’ might be misunderstood to mean that the

13   unlisted offense is within a category that is more serious

14   than the Listed Offenses, we . . . use[] the adverb in its

15   ordinary sense to mean ‘without qualification or

16   reservation.’”   Morales, 239 F.3d at 118 n.5.   The facts

17   underlying Ubiera’s prior convictions are therefore

18   relevant: his first shoplifting conviction, in March 1999,

19   was for the theft of $248 worth of merchandise from a

20   department store in Paramus, New Jersey; he was fined $553.

21   His second conviction, in March 2001, was for the attempted

22   theft of $903 merchandise from a department store in


                                    8
1    Hackensack; he was fined $550.

2         In comparing an unlisted offense to the Listed

3    Offenses, we look to the law of the state that obtained the

4    prior conviction.   See Sanders, 205 F.3d at 552.   Under New

5    Jersey law, shoplifting and passing a bad check generally

6    entail comparable penalties for comparable values of the

7    property taken: thus shoplifting less than $200 worth of

8    merchandise and passing a bad check for less than $200 are

9    disorderly persons offenses, see N.J. Stat. Ann. § 2C:20-

10   11(c)(4) and § 2C:21-5(c)(4), and both are punished by a

11   statutory maximum of six months in prison, see id. § 2C:43-

12   8.   One key difference in relative punishment, however, is

13   that shoplifting carries a minimum sentence of community

14   service, the length of which depends on the number of

15   shoplifting offenses; third-time offenders are punished not

16   only with 25 days of community service but with 90 days of

17   incarceration.   See id. § 2C:20-11(c).   A repeat passer of

18   bad checks is subject to no such minimums.2


          2
            Changes in New Jersey law explain why it is that
     Ubiera’s first shoplifting conviction yielded only a fine,
     and not community service. Prior to a 2000 amendment to the
     New Jersey Code of Criminal Justice, all shoplifting
     offenses were classified as disorderly persons offenses,
     repeat offenders were fined, and any person convicted of a
     third or subsequent shoplifting offense received a minimum
                                   9
1        Naturally, the elements of the two offenses are

2    different.   In New Jersey, shoplifting consists chiefly of

3    the purposeful carrying away of merchandise, the alteration

4    of a price tag, the “under-ringing” of merchandise, or the

5    theft of a shopping cart with the intent to deprive the

6    merchant of the value thereof.    See id. § 2C:20-11(b).

7    Passing a bad check consists of writing a check “knowing

8    that it will not be honored by the drawee.”    Id. § 2C:21-5.

9        In weighing relative culpability, i.e. the “degree of

10   moral guilt,” Morales, 239 F.3d at 119, two observations

11   made by other circuits are useful.    First, a shoplifting

12   loss is much harder for the victim to detect; a department

13   store stuck with a bad check can be certain only of how much

14   was lost in terms of inventory or receivables--not the

15   identity of the thief.   This difference is germane because

16   the Guidelines exclude from consideration only bad check



     of 30 days in prison. See 1997 N.J. Sess. Law Serv. Ch. 319
     (Assembly 2484) (West). The amendment introduced the
     gradations of punishment based upon the value of property
     stolen and the mandatory terms of community service for
     repeat offenders. See 2000 N.J. Sess. Law Serv. Ch. 16
     (Senate 267) (West). It is unclear, however, why Ubiera’s
     Presentence Investigation Report suggests that he was only
     sentenced to a fine for the second shoplifting conviction,
     as the conviction occurred after the effective date of the
     2000 amendment.
                                  10
1    offenses involving an existing account bearing the

2    defendant’s real name, i.e. where the fraud can easily be

3    traced to the defendant.   See United States v. Harris, 325

4    F.3d 865, 873 (7th Cir. 2003) (citing U.S.S.G. § 4A1.2,

5    Applic. Note 13).

6        Second, shoplifting is a “trespassory” offense that

7    poses dangers that do not arise when a bad check is written

8    or negotiated.   See United States v. Lamm, 392 F.3d 130, 133

9    (5th Cir. 2004); Harris, 325 F.3d at 872-73; United States

10   v. Spaulding, 339 F.3d 20, 22 (1st Cir. 2003).   Shoplifting

11   risks head-to-head confrontation with shop personnel and

12   physical touching or struggle, as well as danger to

13   bystanders and the erroneously accused.3   “The particular

14   facts,” Morales, 239 F.3d at 118, of Ubiera’s prior offenses

15   illustrate this distinction: he stole (or attempted to

16   steal) property directly from merchants’ premises.



          3
            The Ninth Circuit has found these concerns
     unpersuasive on balance, in light of the “additional element
     of deception” in passing a bad check. See Lopez-Pastrana,
     244 F.3d at 1030 n.8. As noted above, however, the
     guidelines distinguish bad check offenses that involve the
     more serious deception of writing checks on accounts other
     than one’s own. We are persuaded by the view of Judge
     Graber dissenting in Lopez-Pastrana: “physical taking
     without consent is simply different from the act of
     obtaining property by fraud.” Id. at 1035.
                                  11
1        Moreover, because shoplifting diminishes trust in the

2    retail marketplace, it has insidious collateral impacts on

3    the public as a whole.   The incidence of shoplifting tends

4    to reduce the shopper’s opportunity to handle the

5    merchandise or try it on, leads to security measures such as

6    the scrutiny of bags and parcels, raises costs and prices,

7    and heightens the risk of accusing the innocent.     Few of

8    these problems are caused when an individual writes a bad

9    check on his own account: scrutiny falls on the check-writer

10   alone; the risk of loss is quantified by the amount of the

11   check; and loss can be controlled or eliminated by

12   restricted policies that impinge less on the shopping

13   public.

14        It is unclear in the cases how recidivism can be

15   predicted on the basis of having committed one offense or

16   another.   See Harris, 128 F.3d at 855 (concluding that prior

17   cases “do not offer any unifying principle for how one

18   offense, but not another, indicates a likelihood of future

19   criminal conduct”).   As noted above, however, shoplifting

20   offenses tend to escape detection more readily than passing

21   bad checks that bear one’s real name, so that two

22   shoplifting convictions are more likely to bespeak more than


                                  12
1    two prior offenses than would two convictions for passing

2    bad checks.   Assuming that these are the relevant

3    considerations under this factor, it thus weighs somewhat

4    against finding the two offenses similar.

5        We therefore conclude that Ubiera’s convictions for

6    shoplifting are not “similar” to passing a bad check, and

7    that the district court committed no error by including them

8    in the criminal history computation.4

9

10                                III

11       Ubiera argues further that the district court erred by

12   [A] declining to credit him for acceptance of

13   responsibility, [B] assigning a criminal history point to

14   his disorderly conduct conviction, and [C] making findings

15   of fact by a preponderance of the evidence.

16

17       [A] The district court declined to reduce Ubiera’s

18   offense level for acceptance of responsibility because he

19   had refused to admit conduct beyond the offense of



          4
            We similarly reject Ubiera’s argument that his trial
     counsel’s failure to raise the § 4A1.2(c)(1) argument to the
     district court constituted ineffective assistance of
     counsel.
                                  13
1    conviction.     Ubiera contends that this was error.   Our

2    review on this point is particularly deferential:      Unless

3    the judge’s determination as to acceptance of responsibility

4    is “without foundation,” it may not be disturbed.      United

5    States v. Zhuang, 270 F.3d 107, 110 (2d Cir. 2001) (per

6    curiam).

7        Ubiera says that he told the district court he was

8    “sorry,” that he was too embarrassed to have his family come

9    to the sentencing (allegedly out of contrition), that he

10   promised not to commit another crime, and that he did admit

11   other, uncharged drug transactions to the probation officer.

12   None of this establishes that the district court’s finding

13   lacked foundation.

14       Ubiera argues further that the district court erred by

15   requiring him to allocute to the 1000 pill transaction.         We

16   disagree.     That transaction was an overt act within the

17   conspiracy to which Ubiera pled guilty.     A district court

18   commits no error in requiring allocution to the “full scope

19   of the conspiracy that formed the basis for . . . the

20   indictment, to which [the defendant] pleaded guilty.”

21   United States v. McLean, 287 F.3d 127, 134 (2d Cir. 2002).

22   “[A]s to the offense that is the subject of the plea, the


                                    14
1    district court may require a candid and full unraveling . .

2    . .”    United States v. Reyes, 9 F.3d 275, 279 (2d Cir.

3    1993).

4

5           [B]   Ubiera contends that the district court erred by

6    assigning a criminal history point to a conviction for

7    disorderly conduct, which is generally excluded from the

8    criminal history computation.        See U.S.S.G. § 4A1.2(c)(1).

9    A colloquy between the district court and Ubiera’s trial

10   counsel, Mark Cohen, reflects that the disorderly conduct

11   conviction was not, in fact, included in the criminal

12   history computation:

13                Mr. Cohen: [T]he Nassau County conviction for
14                disorderly conduct . . .doesn’t count in his
15                criminal history calculation. . . .
16
17                The Court: They don’t -- there is no Criminal
18                History point but I look at this as a pattern, Mr.
19                Cohen.
20
21   Had the district court assessed an additional criminal

22   history point for the disorderly conduct conviction, the

23   resulting criminal history category would have been III, not

24   II.    See U.S.S.G. Ch. 5 Pt. A.

25

26          [C] Finally, Ubiera argues that because his complicity


                                     15
1    in the 1000 pill transaction was found by a judge and only

2    by a preponderance of the evidence5 , his sentencing was

3    inconsistent with United States v. Booker, 543 U.S. 220

4    (2005).   Booker does require factfinding by a jury and

5    beyond a reasonable doubt, but only where the fact “is

6    necessary to support a sentence exceeding the maximum

7    authorized by the facts established by a plea of guilty.”

8    Id. at 244.   Ubiera’s guilty plea to the conspiracy count

9    (and allocution to the 800 pill transaction) would have

10   supported a sentence up to a statutory maximum of 20 years’

11   imprisonment.   21 U.S.C. § 841(b)(1)(C).   Because Ubiera was

12   sentenced only to 75 months, his argument is without merit.

13

14                             *   *    *

15       For the reasons set forth above, the judgment of the

16   district court is affirmed.




          5
            Given the uncertainty prevailing at the time of
     sentencing as to the appropriate burden of proof for such
     findings, the district court noted for the record that the
     government had not proven the 1000 pill transaction beyond a
     reasonable doubt.
                                   16
