     11-2045-cr
     United States v. Campos-Rodriguez

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 12th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                    DENNIS JACOBS,
 8                         Chief Judge,
 9                    ROSEMARY S. POOLER,
10                    SUSAN L. CARNEY,
11                         Circuit Judges.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       United States,
15                Appellee,
16
17                    -v.-                                               11-2045-cr
18
19       Luis Campos-Rodriguez,
20                Defendant-Appellant.*
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR DEFENDANT-APPELLANT:              Colleen P. Cassidy, Federal
24                                             Defenders of New York, Inc., New
25                                             York, NY.
26
27       FOR APPELLEE:                         David C. James and Allon
28                                             Lifshitz, Assistant United
29                                             States Attorneys, for Loretta E.


                *
               The Clerk of Court is directed to amend the official
         caption as shown above.
                                                  1
1                                  Lynch, United States Attorney,
2                                  Eastern District of New York,
3                                  Brooklyn, NY.

4        Appeal from a judgment of the United States District

5    Court for the Eastern District of New York (Vitaliano, J.).

6

7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

8    AND DECREED that the judgment of the District Court is

9    AFFIRMED.

10

11       Defendant-Appellant Luis Campos-Rodriguez was

12   principally sentenced to 24 months’ incarceration after

13   pleading guilty to illegal re-entry into this country after

14   deportation for a felony.     8 U.S.C. § 1326(a), (b)(1).    In

15   his plea agreement, Campos-Rodriguez waived his right to

16   appeal any sentence of 16 months or less.     He now appeals

17   the length of his sentence.     We assume the parties’

18   familiarity with the underlying factual allegations, the

19   procedural history of the case, and the issues on appeal.

20       Campos-Rodriguez argues that the district court

21   overstated his criminal history category.     His argument

22   focuses on a single added point based on a Wisconsin

23   conviction for criminal destruction of private property.

24   See Wis. Stat. § 943.01(1).     He argues that (1) the

25   prosecution failed to sufficiently establish that he was

                                     2
1    convicted of criminal destruction of private property, see

2    United States v. Irving, 554 F.3d 64, 72 (2d Cir. 2009)

3    (requiring proof of facts relevant to sentencing by a

4    preponderance of the evidence), and (2) criminal destruction

5    of private property is “similar to” disorderly conduct and

6    therefore uncountable under the rules for calculating a

7    defendant’s criminal history, U.S.S.G. § 4A1.2(c)(1).

8    [1] The government adduced a printout from the online

9    Wisconsin Circuit Court Access System indicating that

10   Campos-Rodriguez pleaded guilty to misdemeanors for

11   disorderly conduct and destruction of property.   The United

12   States Probation Department in the Western District of

13   Wisconsin so confirmed in writing.

14       Significantly, Campos-Rodriguez does not deny that he

15   was convicted of those misdemeanors.    Instead, he argues

16   that the government cannot satisfy its burden without

17   providing a certified copy of the convictions.    The

18   government is not obligated to do so.   See, e.g., United

19   States v. Townley, 472 F.3d 1267, 1277 (10th Cir. 2007)

20   (“evidence derived from the National Crime Information

21   Center . . . database” and written confirmation by Probation

22   Department); United States v. Marin-Cuevas, 147 F.3d 889,

23   894-95 (9th Cir. 1998) (pre-sentence report statement based

24   on computerized printout).   Given the government’s evidence

                                   3
1    and Campos-Rodriguez’s failure to deny the convictions, the

2    district court’s finding is supported by the preponderance

3    of the evidence.

4    [2] Campos-Rodriguez failed to argue in the district court

5    that criminal destruction of private property is “similar

6    to” disorderly conduct and therefore uncountable under the

7    rules for calculating a defendant’s criminal history.

8    U.S.S.G. § 4A1.2(c)(1).   Arguments raised for the first time

9    on appeal are reviewed for plain error.     See United States

10   v. Folkes, 622 F.3d 152, 156 (2d Cir. 2010) (per curiam).

11   “Plain error is (1) error (2) that is plain and (3) affects

12   substantial rights.”   Id.   If those three conditions are

13   satisfied, “‘an appellate court may then exercise its

14   discretion to notice a forfeited error, but only if (4) the

15   error seriously affect[s] the fairness, integrity, or public

16   reputation of judicial proceedings.’”     United States v.

17   Thomas, 274 F.3d 655, 667 (2d Cir. 2001) (en banc)

18   (alteration in the original) (quoting Johnson v. United

19   States, 520 U.S. 461, 467 (1997)).   A court will typically

20   not find that an error is plain “[w]ithout a prior decision

21   from this court or the Supreme Court mandating” a particular

22   result.   United States v. Weintraub, 273 F.3d 139, 152 (2d

23   Cir. 2001).



                                    4
1        In determining whether the crime of conviction is

2    “similar to” disorderly conduct (or other crimes enumerated

3    in U.S.S.G. § 4A1.2(c)), “‘the goal of the inquiry is to

4    determine whether the unlisted offense under scrutiny is

5    categorically more serious than the Listed Offenses to which

6    it is being compared.’”   United States v. DeJesus-

7    Concepcion, 607 F.3d 303, 304 (2d Cir. 2010) (per curiam)

8    (brackets omitted) (quoting United States v. Morales, 239

9    F.3d 113, 118 (2d Cir. 2000)).    “‘Although “categorically”

10   might be misunderstood to mean that the unlisted offense is

11   within a category that is more serious than the Listed

12   Offenses, we . . . use the adverb in its ordinary sense to

13   mean “without qualification or reservation.”’”   Id. at 305

14   (omission in original) (brackets omitted) (quoting Morales,

15   239 F.3d at 118 n.5).   In determining whether the unlisted

16   offense is categorically more serious than the listed

17   offense, a sentencing court

18       may consider multiple factors . . . , including: “[1] a

19       comparison of punishments imposed for the listed and

20       unlisted offenses, [2] the perceived seriousness of the

21       offense as indicated by the level of punishment, [3]

22       the elements of the offense, [4] the level of

23       culpability involved, and [5] the degree to which the



                                   5
1        commission of the offense indicates a likelihood of

2        recurring criminal conduct.”

3    Id. (brackets in original) (quoting United States v.

4    Martinez-Santos, 184 F.3d 196, 206 (2d Cir. 1999)).      In

5    addition, a sentencing court “may also consider any other

6    relevant factor, including ‘the actual conduct involved and

7    the actual penalty imposed.’”       Id. (quoting United States v.

8    Sanders, 205 F.3d 549, 553 (2d Cir. 2000) (per curiam)).

9        One consideration is that criminal destruction of

10   property carries a greater sentence than disorderly conduct.

11   Compare Wis. Stat. § 943.01(1), and Wis. Stat.

12   § 939.51(3)(a) (providing that criminal destruction of

13   property is a Class A misdemeanor punishable by a fine not

14   to exceed $10,000 or imprisonment not to exceed 9 months, or

15   both), with Wis. Stat. § 947.01(1), and Wis. Stat.

16   § 939.51(3)(b) (providing that disorderly conduct is a Class

17   B misdemeanor punishable by a fine not to exceed $1,000 or

18   imprisonment not to exceed 90 days, or both).

19       A second relevant consideration is the relative level

20   of culpability (“i.e., the ‘degree of moral guilt,’” United

21   States v. Ubiera, 486 F.3d 71, 75 (2d Cir. 2007) (quoting

22   Morales, 239 F.3d at 119)).   Culpability is greater for

23   criminal destruction of private property because it requires



                                     6
1    intentional, physical damage to property.       Bere v. State,

2    251 N.W.2d 814, 819 (Wis. 1977).

3           Although other factors may point in favor of Campos-

4    Rodriguez, the above demonstrates that any error by the

5    district court was not plain, especially in light of the

6    absence of prior authority from this Court or the Supreme

7    Court addressing this matter.       See Weintraub, 273 F.3d at

8    152.

9           In any event, on these facts, Campos-Rodrigeuz cannot

10   show any “error seriously affect[ing] the fairness,

11   integrity, or public reputation of [the] judicial

12   proceedings.”    Thomas, 274 F.3d at 667 (internal quotation

13   mark omitted).

14

15          We have considered all of Campos-Rodriguez’s additional

16   arguments and find them to be without merit.      Accordingly,

17   the judgment of the District Court is AFFIRMED.

18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk
20
21




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