United States Court of Appeals,

Fifth Circuit.

No. 96-50466

Summary Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Jay Lloyd McDONALD, also known as Charles McDonald, Defendant-Appellant.

Feb. 21, 1997.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:

BACKGROUND

Jay Lloyd McDonald pleaded guilty to both counts of an indictment that charged him with

using false identification documents and possessing 15 or more unauthorized access devices. At his

plea proceeding, McDonald agreed to the following factual basis for his plea: Upon his arrests after

the revocation of his state probation, a search of his vehicle revealed that he was carrying at least five

false identification documents; most of the documents bore the name of Charles McDonald and one

was a false driver's license. McDonald also was carrying more than 15 "access devices," including

fraudulently obtained credit cards and blank checks. McDonald had used these items to defraud many

merchants and financial institutions, in the amount of approximately $82,679.54.

In McDonald's Presentence Report ("PSR"), th e Pro bat ion Office made the following

recommendations regarding his sentence: McDonald's base offense level was 6. U.S.S.G. § 2F1.1(a).

Six levels were to be added because McDonald caused more than $70,000 in los ses. U.S.S.G. §

2F1.1(b)(1)(G). A further two-level increase was required because his offense involved "more than

minimal planning." U.S.S.G. § 2F1.1(b)(2). McDonald was entitled to a two-level reduction fo r

accept ance of responsibility, resulting in a total offense level of 12. U.S.S.G. § 3E1.1(a). His

criminal history score was 10, for a Category V criminal history; one criminal-history point wasattributable to a 1994 Texas misdemeanor conviction fo r "failure to identify," in which he gave a

fictitious name and showed a false driver's license to police officers. McDonald's total offense level

and criminal history score combined for a sentencing guideline range of 27 to 33 months.

McDonald objected to the inclusion of the "failure to ident ify" offense in his criminal history

score. Citing § 4A1.2(c)(1)(A), he argued that it should not count because it was a misdemeanor

with a prison term of less than 30 days. The Probation Office countered that the 1994 offense was

includable because it involved "similar conduct" to his federal offense, in that McDonald had used a

fraudulent driver's license in an attempt to avoid arrest after an officer arrived with an arrest warrant.

Id.

At sen t encing, the district court overruled McDonald's objection, reasoning that "the

substance of the failure to identify

... was not only a failure to identify but to give a fictitious name"

and that the prior offense was therefore "close enough to the type of conduct involved" in this case

to warrant its inclusion in McD o nald's criminal history score. The court sentenced McDonald to

concurrent 30-month prison terms and a three-year supervised release term and ordered him to pay

$35,922.76 in restitution. McDonald timely filed a notice of appeal.

OPINION

McDonald contends that his 1994 misdemeanor offense for "failure to identify" should not

have been included in his criminal history score. He observes that the state offense, which involved

providing false information to a police officer, is specifically listed in § 4A1.2(c)(1) as a misdemeanor

co nvict ion that is ordinarily to be excluded in computing that score. Acknowledging that such

offenses may be counted if the "prior offense was similar to an instant offense," McDonald contends

that his 1994 Texas offense was different from both of federal charges to which he pleaded guilty.

He also argues that he was prejudiced, because without the one criminal-history point for the 1994

offense, his score wou ld have been o nly nine and he would have had only a Category IV criminal

history.

"Misdemeanor offenses and petty offenses are generally considere d in calculating a

defendant's criminal history score." U nited States v. Gadison, 8 F.3d 186, 193 (5th Cir.1993) (citing1 It is not disputed that McDonald's 1994 "failure to identify" sentence did not qualify for the

exception listed in subsection (c)(1)(A). § 4A1.2(c)). However,

(1) [s]entences for the following prior offenses a nd 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 yea r o r a term of imprisonment of at least thirty days, 1 or (B) the prior offense was similar to the instant offense:

. . . . .

False information to a police officer

....

§ 4A1.2(c)(1) (emphasis added).

In United States v. Hardeman, 933 F.2d 278 (5th Cir.1991), [this Court] established

a "common sense" approach to determine when a prior offense is "similar" to one of the

enumerated exempted offenses in § 4A1.2(c)(1). The H ardeman approach requires the

district court to assess all factors of similarity, including

a co mparison of punishments imposed for the listed and unlisted offenses, t he

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.

Hardeman, 933 F.2d at 281. A court employing the Hardeman factors should do so cognizant of the fact that the cr i minal history factors are designed to take into account the

relative severity of a prior offense as well as the degree to which it indicates the likelihood of

future criminal behavior. Id. at 281-82.

Gadison, 8 F.3d at 193. "The word "offense', as used [in § 4A1.2(c) ], includes any relevant conduct

and not just the conduct charged in the indictment." United States v. Moore, 997 F.2d 30, 34 (5th

Cir.1993) (citation omitted). "In reviewing [such] claim[s], we must accept the factual findings of

the district court unless clearly erroneous, but we review de novo the application of the guidelines

for errors of law." Id. (citation and internal quotation marks omitted).

In McDonald's case, the Probation Office urged that his 1994 conviction for "failure to

ident ify" was similar to his instant conviction for possession of false identification documents because

both involved the use of a false driver's license. McDonald's federal conviction for possession of false

identification documents is based on the following provisions:

(a) Whoever, in a circumstance described in subsection (c) of this section— ...

(3) knowingly possesses with intent to use unlawfully ... five or more ... false identification

documents; ...or attempts to do so, shall be punished as provided in subsection (b) of this section.

18 U.S.C. § 1028(a). Subsection (c) refers to the circumstance that "the ... possession prohibited by

this section is in or affects interstate or foreign commerce...." § 1028(c)(3). If the offense involves

more than five identification documents, the offender is subject to imprisonment of up to five years.

§ 1028(b)(1)(B).

McDonald's "failure to ident ify" conviction was based on the following provision: "A person

commits an offense if he intentionally gives a false or fictitious name ... to a peace officer who has:

(1) lawfully arrested the person...." T EX .P ENAL C ODE A NN

. § 38.02(b). McDonald was sentenced

to five days in jail for his "failure to identify" offense. The parties agree that because officers were

serving an outstanding arrest warrant on McDonald, his offense was a "Class B" misdemeanor that

carried a maximum penalty of 180 days in jail.

It is undisputed t hat both offenses involved the use of a false driver's license. The

Government focuses on this fact in arguing that the two offenses were "similar" for the purposes of

§ 4A 1.2(c). The Government also contends that McDonald's 1994 offense "was far more serious

than merely giving " false information to a police officer,' " because it "strongly suggested the

possibility of future criminalit y." The Government asserts that the 1994 offense was "consistent with

planned criminal conduct" and "suggest[ed] a more calculating, resourceful and more dangerous

criminal."

McDonald emphasizes the differences in the maximum penalties for the two offenses: five

years versu s 180 days. He notes that the elements of the offenses are different, in that his federal

offense not only requires the possession of false identification but also the use of that identification

to unlawfully affect interstate commerce.

The parties do not explicitly dispute that McDonald's "failure to ident ify" offense was "similar"

to the "false information" offense listed in § 4A1.2(c).

We believe that Moore provides the closest analog to the circumstances in McDonald's case.

In Moore, this Court, applying § 4A1.2(c), compared a defendant's prior state crime of evading arrest

to his federal conviction for assaulting a federal officer. M oore, 997 F.3d at 34-35. The defendant,Moore, shot at a DEA agent during a raid on a "crack house." Id. at 32-33. This Court identified

the following differences in the two crimes: they carried far different maximum penalties (six months

versus 10 years); the federal offense involved violence, but the prior state one did not; and Moore

was only a teenager at the time of the earlier offense. I d. at 35. However, this Court observed that

both offenses "involved nearly identical conduct," in that Moore possessed a gun and fled on both

occasions. I

d. Moreover, "while Moore's prior evading arrest conviction may not have indicated

some likelihood to commit future offenses, the fact that Moore has now attempted to evade arrest

twice and that he was willing to sho o t a po lice o fficer to do so indicates a likelihood of recurring

criminal conduct." I

d. In balancing the differences and similarities, this Court upheld the district

court's imposition of a criminal history point for Moore's "similar" evading-arrest offense. Id.

The Court's reasoning in Moore supports the district court's ruling that McDonald's "failure

to ident ify" offense was "similar" to his federal con vict io n for possession of false identification

documents. McDonald's use of false identification was central to both offenses. Likewise, we read

the district court's decision as sat isfying the balancing requirements of Hardeman. The district court's

decision is

AFFIRMED.