                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit                 February 12, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-41876




                     UNITED STATES OF AMERICA,


                                                  Plaintiff-Appellee


                               VERSUS


                         RICARDO GUAJARDO,


                                                 Defendant-Appellant



  Appeal from the United States District Court For the Southern
             District of Texas, Brownsville Division
                          1:04-CR-00959



Before DAVIS and STEWART, Circuit Judges, and GODBEY, District Judge.1

PER CURIAM2

     Defendant-Appellant Ricardo Guajardo (“Guajardo”) challenges

his sentence following his guilty plea to possessing less than 50

kilograms of marijuana with intent to distribute in violation of 21

     1
      District Judge of the Northern District of Texas, sitting
by designation.
     2
      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this opinion should not be published and is not precedent except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.
U.S.C. § 841(a)(1) and (b)(1)(D), and 18 U.S.C. § 2.                 Guajardo

argues the district court erred in: (1) increasing his criminal

history score by one point for a prior Texas misdemeanor conviction

for displaying a counterfeit inspection sticker; and (2) failing to

articulate any application of the 18 U.S.C. § 3553(a) sentencing

factors.     For the reasons set forth below, we AFFIRM.

                    I.   Prior Misdemeanor Conviction

     Prior    to   the   instant   offense,    Guajardo   had   a   number   of

convictions including a Texas misdemeanor conviction for displaying

a counterfeit inspection sticker.3          The Texas Penal Code provided

for punishment of a fine up to $2,000 or up to 180 days of jail, or

both.    Guajardo was sentenced to two days in jail and fined $500.

     The district court added one point to Guajardo’s criminal

history score for this offense.           As a result, Guajardo received a

total of 10 criminal history points, placing him in Criminal

History Category V.       Combined with an offense level of 17, this

gave Guajardo a sentencing range of 46 to 57 months.            Guajardo was

sentenced to the minimum penalty.          If the point had not been added,

Guajardo’s 9 point criminal history would have fallen into Criminal

History Category IV with a resultant range of punishment of 37 to

46 months in prison.

     As he did before the district court, Guajardo argues that


     3
      The details of the prior conviction were not available.
The District Court requested the court records, but they have not
been received.

                                      2
pursuant to U.S.S.G. § 4A1.2(c)(1) he should not receive a criminal

history point for this prior misdemeanor conviction because it is

“similar” to the listed excludable offense of driving without a

license or with a revoked or suspended license.4     We review the

district court’s interpretation of the Guidelines de novo.5

     Generally, sentences for misdemeanor offenses are counted in

the calculation of a defendant’s criminal history score.6 However,

certain offenses or offenses similar to them are excluded unless

the sentence was a term of probation of at least one year or a term

of imprisonment of at least 30 days, or the prior offense is

similar to the current offense.7      In addition, certain other

offenses are always excluded.8

     The offense of driving without a license or with a revoked or

suspended license is among the excludable offenses listed in §

4A1.2(c)(1); displaying a counterfeit inspection sticker is not

listed.   Guajardo was sentenced to only two days in jail, and

displaying a counterfeit inspection sticker is not similar to the

     4
      Guajardo does not renew the other ground upon which he
objected to the additional history point in the district court,
i.e., that the conviction is only a “minor traffic infraction,”
and that argument is therefore waived. See United States v.
Searcy, 316 F.3d 550, 551 n.* (5th Cir. 2002).
     5
      United States v. Reyes-Maya, 305 F.3d 362, 366 (5th Cir.
2002).
     6
      U.S.S.G. § 4A1.2(c).
     7
      U.S.S.G. § 4A1.2(c)(1).
     8
      U.S.S.G. § 4A1.2(c)(2).

                                 3
instant offense. Therefore, if displaying a counterfeit inspection

sticker is similar to driving without a license or with a revoked

or suspended license, it should not be counted in Guajardo’s

criminal history.

     In United States v. Hardeman,9 we explained how to determine

whether a prior offense is “similar” to one of the exempted

offenses in § 4A1.2(c)(1).   We suggested a “common sense approach

which relies on all possible factors of similarity.”10   Factors to

consider include: “a comparison of punishments imposed for listed

and unlisted offenses, the 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.”11

None of these factors are accorded dispositive weight, and “each

offense-similarity comparison is fact specific.”12   We “look to the

definition of the equivalent offense under the relevant State’s

law.”13

     Our analysis begins with a comparison of the punishments given

in the Texas statutes for displaying a counterfeit inspection

     9
      933 F.2d 278 (5th Cir. 1991).
     10
          Id. at 281.
     11
          Id.
     12
      United States v. Lamm, 392 F.3d 130, 132 (5th Cir. 2004)
(internal citation omitted) (emphasis in original).
     13
          Id.

                                 4
sticker,14 and driving without a license or with a revoked or

suspended license,15 as they were at the time of conviction.                   In

Texas, a conviction for displaying a counterfeit inspection sticker

is a class B misdemeanor punishable by a fine up to $2,000 or up to

180 days jail term, or both.                An offense for driving without a

license or with a revoked or suspended license carries a fine of

$100 to $500 and a prison term of not less than 72 hours or more

than six months.          Based on this type of comparison, the offense of

displaying a counterfeit inspection sticker can be less serious

than the offense of driving without a license or with a revoked or

suspended license.16

       The actual punishment given is also a proxy for the perceived

severity of the crime.17              Guajardo’s sentence of two days in jail

and a $500 fine indicate that the offense should not be included in

his criminal history score.18

       However, the fact that these offenses carry similar penalties

does    not       mean   that   the    offense   of   displaying   a   counterfeit

inspection sticker should be excluded from the criminal history


       14
            Tex. Penal Code Ann. § 12.22.
       15
            Tex. Transp. Code Ann. § 521.457(e).
       16
            See Hardeman, 933 F.2d at 282.
       17
            Id.
       18
      See id (sentence of one day in jail and $250 fine indicate
that the offense should not be included in criminal history
score).

                                            5
calculation.19       “The other factors involved may indicate that the

defendant’s prior offense should be included.”20

     When comparing the elements of the offenses, we conclude that

displaying a counterfeit inspection sticker is categorically more

serious than driving without a license or with a revoked or

suspended license. In Hardeman, we compared the driving-without-a-

license offense with Hardeman’s misdemeanor offense for “failure to

maintain financial responsibility,” i.e., failing to maintain auto

insurance.21        We noted that the offense of failing to maintain

financial responsibility is “similar to other listed offenses which

involve regulations that must be complied with if one is to drive

an automobile.”22 In concluding that Hardeman’s misdemeanor offense

should have been excluded from the calculation of his criminal

history score, we rejected the Government’s argument that the

offenses were different because Hardeman’s failure-to maintain-

financial-responsibility        offense   “contained   an   element   of

indifference toward society.”23        We determined that “this element

. . . does not distinguish this offense from the other listed




     19
          See id.
     20
          Hardeman, 933 F.2d at 282.
     21
          Id. at 279-83.
     22
          Id. at 282.
     23
          Id.

                                     6
offenses.”24

     The instant case is distinguishable from Hardeman.                   Although

the offense of displaying a counterfeit inspection sticker involves

a regulation “that must be complied with if one is to drive an

automobile,” in overruling Guajardo’s objection, the district court

stated that “this is counterfeiting a document required by the

state, and I think that’s more akin to fraud or forgery.”                     This

difference was not at issue in Hardeman.

     In United States v. Caputo,25 the Seventh Circuit addressed the

issue of whether using a false driver’s license is similar to,

inter     alia,   driving   without   a       license   or   with   a   revoked   or

suspended license.          In concluding that the offenses were not

similar, the court cited “[t]he old distinction between misfeasance

and nonfeasance,” reasoning that a

     driver who fails to obtain a driver’s license, or who
     continues driving after his license has been revoked or
     suspended or has expired, is guilty of failing to expend
     resources . . . of time and money that the state requires
     him to expend as a condition of being permitted to drive.
     His is a wrongful inactivity, but often it is the
     wrongfulness   of   irresponsibility   rather   than   of
     calculation. The driver who expends resources to obtain
     forged or otherwise fraudulent documentation to enable
     him to drive crosses the line from inactivity to activity
     and by doing so reveals himself to be a person willing to
     incur expense to commit a crime, presumably in
     anticipation of compensating profit.26


     24
          Hardeman, 933 F.2d at 282.
     25
          978 F.2d 972 (7th Cir. 1992).
     26
          Id. at 977-78 (emphasis added).

                                          7
       We     find   this   reasoning   persuasive.         Like    using   a   false

driver’s license, a person who commits the offense of displaying a

counterfeit inspection sticker engages in wrongful activity because

he has expended resources to obtain “an inspection certificate . .

. knowing that the certificate . . . is counterfeit.”27                     This is

what    distinguishes       the   instant    case    from    Hardeman.          Unlike

displaying       a   counterfeit   inspection       sticker,       the   failure   to

maintain auto insurance involves wrongful inactivity on the part of

the driver who is guilty of failing to expend resources to obtain

proper auto insurance coverage.

       The discussion of the previous factors sheds light on the

remaining issues concerning both culpability and recurring criminal

conduct. Displaying a counterfeit inspection sticker is suggestive

of both a greater degree of culpability and increased likelihood of

future criminal conduct than driving without a license or with a

revoked or suspended license standing alone.                 A defendant who is

willing to expend resources to obtain a counterfeit inspection

sticker suggests “a more calculating, a more resourceful, and a

more dangerous criminal.”28

       The “seriousness of the offense is one indication of whether


       27
      See Tex. Transp. Code Ann. § 548.603. “Counterfeit” is
defined as “an imitation of a document that is printed, engraved,
copied, photographed, forged, or manufactured by a person not
authorized to take that action . . .” Tex. Transp. Code Ann. §
548.603(e).
       28
            See Caputo, 978 F.2d at 978.

                                         8
the offense has any predictive capacity for future criminality.”29

As shown above, displaying a counterfeit inspection sticker is more

serious than driving without a license or with a revoked or

suspended license.         In addition, a person who has no driver’s

license      or   a   revoked   or   suspended   license,     will    likely   be

apprehended the first time he is stopped by a policeman.30 However,

a person who displays a counterfeit inspection sticker may not be

apprehended immediately, if at all, due to the potential difficulty

in identifying a counterfeit inspection sticker.31             As a result, a

defendant who is able to obtain a counterfeit inspection sticker

without being apprehended, may be more likely to repeat his illegal

behavior.

      In sum, weighing all the Hardeman factors, under the requisite

common sense and fact specific approach, Guajardo’s offense for

displaying a counterfeit inspection sticker is not similar to the

offense of driving without a license or with a revoked or suspended

license.       Therefore, the district court did not err in including

the   prior       misdemeanor   offense     of   displaying    a     counterfeit

inspection sticker in Guajardo’s criminal history score.



      29
           See Hardeman, 933 F.2d at 283.
      30
           See Caputo, 978 F.2d at 978.
      31
      See Lamm, 392 F.3d at 135 (“[T]he identity and account
information of the person issuing the [insufficient funds] check
is known, whereas the perpetrator of petty theft is more
difficult to apprehend.”).

                                        9
                II.    Failure to Articulate § 3553(a) Factors

     In the district court, Guajardo moved for a downward departure

on the ground that he had been treated for and suffered from Schizo

affective        Disorder     (Depressive     type),     and     has      exhibited

“significant          cognitive   disorganization,     heard    voices,    has   had

hallucinations, been depressed, and has had suicidal thoughts.”

Guajardo argues that the district court erred in denying his

downward-departure motion because it failed to articulate any

application of the 18 U.S.C. § 3553(a) factors in imposing his

sentence, purportedly required by United States v. Booker.32

     Under       the    discretionary   sentencing     system    established      by

Booker, district courts retain a duty to consider the Sentencing

Guidelines, along with the sentencing factors set forth in 18

U.S.C. § 3553(a).33         We review the sentence imposed by the district

court for reasonableness in light of the factors set forth in 18

U.S.C. § 3553(a).34         A post-Booker discretionary sentence within a

properly calculated Guideline range is presumptively reasonable.35

     32
      543 U.S. 220 (2005). To the extent that Guajardo argues
that § 3553(a) itself requires a district court to explicitly
consider the § 3553(a) factors, Guajardo cites no legal authority
that requires such consideration and we are aware of none.
     33
          See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.
2005).
     34
          Id.
     35
          United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006).

                                         10
If   the     district    court    imposes    a   sentence   within    a   properly

calculated Guideline range, we “will infer that the judge has

considered all the factors for a fair sentence set forth in the

Guidelines.”36        In such cases, “it will be rare for a reviewing

court to say such a sentence is ‘unreasonable,’” and “we will give

great deference to that sentence.”37             In addition, when imposing a

properly calculated Guidelines sentence, “little explanation is

required.”38

      In Guajardo’s case, the sentence imposed was at the bottom of

the applicable Guideline range.                  In sentencing Guajardo, the

district      court     adopted   the   factual     findings   and     Guidelines

applications in the Pre-sentence Report (“PSR”).                     Although the

district court offered no independent reasons for the sentence

imposed and made no reference to the factors in 18 U.S.C. §

3553(a), we will infer that the district court considered the §

3553(a) factors in sentencing Guajardo.

      Guajardo does not assert that his sentence is unreasonable,

only that the reasons do not resonate from the record.                       As a

result, Guajardo has failed to demonstrate that his properly

calculated Guidelines sentence, which was at the lowest end of the

range, was unreasonable.          Because Guajardo has offered nothing to


      36
           Mares, 402 F.3d at 519.
      37
           Alonzo, 435 F.3d at 554.
      38
           Mares, 402 F.3d at 519.

                                        11
rebut the presumption of reasonableness, he is not entitled to

relief.

      III.     Constitutionality of 21 U.S.C. § 841(a) and (b)

     Guajardo next argues that 21 U.S.C. § 841(a) and (b) is

unconstitutional     under   Apprendi     v.   New   Jersey.39   Guajardo

acknowledges that his argument is foreclosed by our decision in

United States v. Slaughter,40 but seeks to preserve the issue for

Supreme Court review in light of the decision in Apprendi.41

     In Slaughter, we specifically rejected the claim that 21

U.S.C. § 841(a) and (b) is unconstitutional on its face according

to Apprendi.42     Guajardo’s contention is therefore rejected.

                                  IV.

     For the foregoing reasons, Guajardo’s sentence is

AFFIRMED.




     39
          530 U.S. 466 (2000).
     40
          238 F.3d 580 (5th Cir. 2000).
     41
      See Bousley v. United States, 523 U.S. 614, 622-23 (1998)
(noting that the futility of an argument at the time it should
have been made is not “cause” for defaulting claim).
     42
      Slaughter, 238 F.3d at 582 (“We see nothing in the Supreme
Court decision in Apprendi which would permit us to conclude that
21 U.S.C. §§ 841(a) and (b), 846, and 860(a) are unconstitutional
on their face.”).

                                   12
