     Case: 11-20644     Document: 00511933063         Page: 1     Date Filed: 07/25/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 25, 2012
                                     No. 11-20644
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROBERTO ALVAREZ SANDOVAL, also known as Roberto Sandoval Alvarez,
also known as Roberto Alvarez, also known as Roberto Alvarez-Sandoval,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-305-1


Before HIGGINBOTHAM, OWEN, and, SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Roberto Alvarez Sandoval (Alvarez) appeals his sentence for illegal reentry
following deportation in violation of 8 U.S.C. § 1326(a), (b)(2). He argues that
the district court erred in assessing criminal history points based on his prior
misdemeanor conviction for displaying a fictitious or counterfeit inspection
certificate in violation of TEX. TRANSP. CODE ANN. § 548.603(a)(1). Under that
section, a person commits an offense if he “displays or causes or permits to be


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                          No. 11-20644

displayed an inspection certificate . . . knowing that the certificate is counterfeit,
tampered with, altered, fictitious, issued for another vehicle, issued for a vehicle
failing to meet all emissions inspection requirements, or [otherwise issued in
violation of law].” § 548.603(a)(1). Alvarez was convicted of the offense after
being stopped for speeding while driving a car with an inspection sticker issued
for a different vehicle.
          In determining a defendant’s criminal history score, “[s]entences for
misdemeanor and petty offenses are counted,” except for offenses listed under
U.S.S.G. § 4A1.2(c)(1) and “offenses similar to them.” See § 4A1.2(c)(1). In
determining whether a prior offense is “similar” to a listed offense in
§ 4A1.2(c)(1), this court employs a “common sense approach which relies on all
possible factors of similarity.” United States v. Hardeman, 933 F.2d 278, 281
(5th Cir. 1991).
          Alvarez argues that the fictitious inspection certificate offense is similar
to the offenses of driving without a license or with an invalid license and giving
false information to a police officer, which are listed offenses excludable from a
defendant’s criminal history under § 4A1.2(c)(1). He acknowledges that we have
held that a misdemeanor conviction for violating § 548.603 counts as a conviction
for criminal history purposes. See United States v. Guajardo, 218 F. App’x 294
(5th Cir. 2007).1
          To commit the offense of displaying a fictitious or counterfeit inspection
certificate, Alvarez had to knowingly display a fictitious or counterfeit certificate
or cause or permit such certificate to be displayed. See § 548.603(a)(1). The
district court did not err in determining that the conviction should be counted
in determining his criminal history because displaying a counterfeit inspection
certificate requires affirmative and knowing activity and, thus, involves a



          1
              Although Gujardo is not precedential, it is persuasive authority. See 5TH CIR. R.
47.5.4.

                                                 2
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                                   No. 11-20644

greater level of culpability than the offenses of omission listed in § 4A1.2(c)(1).
See Hardeman, 933 F.2d at 281. Accordingly, the district court did not err in
assessing criminal history points based on Alvarez’s conviction for displaying a
fictitious or counterfeit inspection certificate. Id.
      AFFIRMED.




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