### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-20103

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. LUIS CARLOS ACEVEDO MORENO, also known as Luis Carlos Moreno Acevedo, also known as Luis Acevedo Moreno, also known as Luis Acevedo-Moreno, also known as Luis Carlos Acevedo-Moreno, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:10-CR-468-1

Before KING, WIENER, and HAYNES, Circuit Judges. PER CURIAM: * Defendant-Appellant Luis Carlos Acevedo Moreno (“Moreno”) pleaded guilty wi t h o u t a p lea agreement to being found illegally present in the United States after deportation and after being convic t e d o f an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced Moreno to serve 87 months in the custody of the Bur e a u of Prisons to be followed by a U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Februa ry 8, 201 2 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-20103 Document: 00511751581 Page: 1 Date Filed: 02/08/2012No. 11-20103

three-year term of supervised release. Moreno appeals his sentence, contending that the district court erred in assessing one criminal history point for Moreno’s prior Texas conviction for the misdemeanor of criminal m i schief. Specifically, Moreno a s s erts that his prior criminal mischief conviction is similar to the offense of disorderly conduct, which, under specified circumstances, is exempted from criminal history calculations under U.S.S.G. § 4A1.2(c). We affirm. I. Facts & Proceedings A. Facts In October 2010, Moreno pleaded guilty without a plea agreement to being illegally present in the United States after having been deported and convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). During

r earraignment proceedings, Moreno admitted that he had been convicted o f possession with intent to deliver cocaine in 2003 for which he was sentenced to two years of imprisonment. He also admitted that he had been remov e d f r om the United States on May 5, 2004, and again on August 11, 20 0 4 , a n d t h a t he had illegally reentered the country following each occasion. A presentence investigation report (“PSR”) was prepared based on the 2010 version of the Federal Sentencing Guidelines. The PSR assigned Moreno

a total offense level of 21, 1 3 c r iminal history points, and a resulting criminal history category of VI. Moreno’s criminal history calculation was determined as follows: (1) two points pursuant to U.S.S.G § 4A1.1(b) for a 2002 conviction for burglary of a building,(2) three points pursuant to § 4A1.1( a) f o r a 2003 conviction for possession with intent to deliver cocaine,(3) two points pursuant to § 4A1.1(b) for a 2003 conviction for driving while intoxicated, (4) three points pursuant to § 4A1.1(a) for a 2005 conviction for sexual assault of a child, and (5)

one point pursuant to § 4A1.1(c) f o r a 2005 Texas conviction for criminal mischief. Moreno’s T e x a s c o nviction for criminal mischief was a Class A misdemeanor involving between $500 and $1500 in property damage for which

2 Case: 11-20103 Document: 00511751581 Page: 2 Date Filed: 02/08/2012No. 11-20103

he was sentenced to 29 days in jail. Two more points were added to Moreno’s 1

c r i m i n a l history calculation pursuant to § 4A1.1(d) because he committed th e instant off

e n s e w h i l e serving a five-year term of supervised release. His criminal history category was determined to be VI. Base d o n t h at criminal history category and a total offense level of 21, Moreno’s guidelines sentencing range was 77 to 96 months. 2 B. Proceedings Moreno filed an objection to the PSR and a motion for a d o w n w a r d departure. Citing to United States v. Reyes-Maya , Moreno cont e n d ed that he 3 should not receive one criminal history point on his 2005 conviction for criminal mischief because the offense was similar to “disorderly conduct,” which, under specified conditions, is excluded from criminal history calculations pursuant to U.S.S.G. § 4A1.2(c). He asserted that, without this additional point, his criminal history category w o u l d be V and would produce a guidelines sentencing range of imprisonment of 70 to 87 months rather than 77 to 96 months. D uring the sentencing hearing, th e di s tric t c o urt d e ni e d M o r e n o ’ s obj e c ti o n to the PSR and his request for a downward departure. Based on the factors that

we discussed in United States v. Hardeman , the district co u r t concluded that Moreno’s conviction for criminal mischief was not sufficiently simi lar to disorderly conduct to warr ant it s e xc lu s i o n f ro m hi s c ri m i n al history calculation. 4 The court distinguished the underlying facts of the i n s t a n t case from those in Reyes-Maya , noting that Moreno’s criminal mischief offense was a Texas Class

The Texas st atut ory pr ovis ion for cri mi nal mi sc hief is T E X

. P E N AL C ODE AN N

. § 28.0 3, 1 and the Texas s tat utor y p rovis ion ford iso rd erly cond uctis T E X

. P E N AL C ODE AN N

. § 4 2.01

. U. S. S. G. Ch. 5, Pt

. A ( Sent enci ng Tabl e, Zone D)

. 2
305 F.3d362 , 366- 68 ( 5th Cir. 200 2). 3
933 F.2d278 , 281 (5t h Cir

. 1991)

. 4 3 Case: 11-20103 Document: 00511751581 Page: 3 Date Filed: 02/08/2012No. 11-20103

A misdemeanor, that it involved between $500 and $1500 in property damage, and that the sentence imposed for the o f f e n s e w a s 29 days. The district court then impose d a s e n tence of 87 months of imprisonment, which was within the guidelines range. In appealing his sentence, Moreno claims that the one point for criminal mischief s h ould not have been included in the calculation of his criminal history. II. Analysis A. Standard of Review We review a district court’s sentencing decisions for reasonableness under an abuse of discretion standard. We “must first ensure that the district court 5 committed no significant p rocedural error, such as . . . improperly calculating the Guidelines range
. . . .” If the district court’s decision is procedurally sound, this 6 court will then “consider the substantive reason ab l e n e s s o f the sentence imposed under an abuse-of-discretion standard.” Nonetheless, for properly p r e s e rved 7 claims, a sentencing court’s application of the Sentencing Guidelines is reviewed de novo , and its factual findings are reviewed only for clear error. 8 B. Applicable Law In calculating criminal history, sentences for misdemeanor offenses are counted, except as provided in § 4A1.2(c). Sentences for offenses listed under §

Ga llv . Uni ted Sta tes, 552 U. S. 38, 46- 47, 51 ( 2007)

. 5
Id. at51. 6
Id. 7
Uni ted States v. Rodr iguez , 602 F.3d 346, 362 (5t h Cir. 2010)

. H e r e , M o r e no only 8 chall enges the pr oce dur al reas onable nes s of his se nten ce, i. e. wh ethe r the dis tri ct cour t err ed in app lying the Sent enci ng Gu ide lines in calc ulat i n g his cri mi nal his tor y. Becaus e Mo reno chall enged the ass es sm en t o f t h e cri mi nal his tory poi nt for his cri mi nal mi sc hief convic tio n in the dis tri ct cour t on the same ground s that he rais es on app eal, he has pr ope rly pr es erved his claim for ap pel late review

. See United States v. Mo ndra gon-Sa ntia

go , 564 F.3d357, 361 (5t h Cir

. 2009)

. 4 Case: 11-20103 Document: 00511751581 Page: 4 Date Filed: 02/08/2012No. 11-20103

4A1.2(c)(1) and for “offenses similar to them, by whatever name they are known”

are excluded from the criminal history calculation unless (1) “the sentence was
a term of probation of more than one year or a term of imprisonment of at least thirty days” or (2) “the prior o f f e n se was similar to an instant offense.” 9 Criminal mischief is not one of the offenses enumerated in this provision. Even though criminal m ischief is not listed as an exempted offense in § 4A1.2(c)(1), Moreno’s conviction for that crime would not have been includable in calculating his criminal history if criminal mischief is “similar” to one of the offenses enumerated in § 4A1.2(c)(1), of which disorderly conduct is one. For 1 0 the reasons stated below, w e c o n clude that Moreno’s 29-day criminal mischief offense is not similar to the offens e o f disorderly conduct enumerated in § 4A1.2(c)(1). In determining whether a prior offense is “similar to” an offense enumerated in § 4A1.2(c)(1), we apply “a common sense approach which relies

on all possible factors of similarity.” Every comparison of offenses to determine 1 1 their similarity is fact-specific. As set out in United States v. Hardeman , the 1 2 factors that we consider in such an analysi s i n c l u d e : (1) a comparison of punishments imposed for the listed and unl i s t e d offenses, (2) the perceived seriousness of the offenses as indicated by their respective levels of punishment, (3) the elements of the offenses, (4) the levels of culpability involved, and (5) the degrees to which the commission of the offenses indicate a likelihood of recurring criminal conduct. 1 3

U. S. S. G § 4A1.2( c) (1)

. 9 Reye s- Ma

ya , 305 F.3dat366

. 1 0
Ha rde ma n , 933 F.2dat281

. 1 1
Uni ted Sta tes v. La mm , 392 F.3d130 , 131 (5t h Cir

. 2004) ( cit atio n o mi tte d)

. 1 2 § 4A1.2, c om me nt, n. 12(A) ; Ha rde ma n , 933 F.2dat281

. 1 3 5 Case: 11-20103 Document: 00511751581 Page: 5 Date Filed: 02/08/2012No. 11-20103

Depending on the particular circum stances, a sentence for a criminal mischief conviction may be deemed sufficiently similar to one for a conviction of disorderly conduct to be excludable from a criminal history calculation under § 4A1.2(c). For example, in Reyes-Maya , we applied the Har de m a n f a c tors and determined that (1) the defendant’s actual punishment for criminal mischief

—
a $182.50 fine — was similar to minor punishments for offenses excluded under § 4A1.2(c)(1), (2) the elements of criminal mischief and disorderly conduct were similar, in that both can involve violence, and (3) the actual sentences imposed suggest a low level of culpability and “low predictive capacity f or future criminality.” In observing that the defendant’s punishment for criminal

1 4 mischief was a “small fine,” we noted that “[m]ore important than the statutory range of punishments is the actual punishment given, as the level of punishment imposed for a particular offense serves as a reasonable proxy for the perceived severity of the crime.” 1 5 Subsequently, however, we distinguished Reyes-Maya in an unpublished opinion, United States v. DeLeon-Garcia , and ruled that, under the specific facts of that case, the Texas offense of criminal mischief was not similar to disorderly conduct. In distinguishing DeLeon-Garcia from Reyes-Maya , we observed that

1 6 (1) DeLeon-Garcia was sentenced to jail for 20 days; Reyes-Maya was ordered to pay a small fine, (2) DeLeon-Garcia was convicted of a Cla s s B m i sdemeanor; Reyes-Maya was convicted of a Class C misdemeanor, and (3) DeLeon-Garcia’s offense involved property damage, and his offense conduct — throwing a bottle out through a car’s window while the car was being driven — “reflect[ed] a high

Reye s- Ma

ya , 305 F.3dat366 -67. 1 4
Id. at 367. 1 5
119 F. App ’x 6 0 5 , 6 0 6-07 (5t h Cir. 2004) , va ca ted on other grounds , 544 U. S. 1015 1 6 (200 5). Unp ublis hed opi nions is sue d aft er January 1, 1996 are not pr ece dent ial but may be per sua siveaut hori ty. See Bal la rd v. Bur ton , 444 F.3d391 , 401 n. 7 ( 5th Cir. 200 6). 6 Case: 11-20103 Document: 00511751581 Page: 6 Date Filed: 02/08/2012No. 11-20103

level of culpability and likelihood of r ecurring criminal conduct” and “involved not only destruction of property but also endangering another person’s safety.” 1 7 We agree with the district court that the specific facts of Moreno’s case are distinguishable from Reyes-Maya and that Moreno’s Texas sentence for criminal mischief was properly counted in his criminal history calculation. In the

se n tencing hearing, the district court referenced the Hardeman factors and distinguished the instant case from Reyes-M a y a o n the basis that (1) Moreno was convicted of a Class A misdemeanor, but Reyes-Maya was c onvicted of a Class C misdemeanor, (2) Moreno was sentenced to 29 days imprisonment — just one day short of the 30 days referred to u n der § 4A1.2(c) — but Reyes-Maya was ordered to pay a small fine, and (3) Moreno’s offense conduct involved damage to property — per the charging document — “by striking the driver’s side door of [a] Ford Motor vehicle with a car jack without co n s e nt of the owner” and causing damage in an amount between $500 and $1500. We credit the district court’s analysis and conclude that the instant case is similar to DeLeon-Garcia , in that the actu a l sentence imposed — in this case, 29 days imprisonment

— denotes a significantly higher level of severity than does a small monetary fine. We are satisfied that the facts of the instant case are sufficiently distinguishable f

r o m t h o s e of Reyes-Maya to make it inapt. Accordingly, we agree with the district court’s denial of More n o’s objection to the PSR’s imposition of one c r i m i n al history point for his state criminal mischief conviction. III. Conclusion The judgment of the district court is, in all respects, AFFIRMED.

De Leon- Ga rci a , 119 F. App ’x a t 607. 1 7 7 Case: 11-20103 Document: 00511751581 Page: 7 Date Filed: 02/08/2012