1 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 01-51107

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MIGUEL REYES-MAYA,

Defendant - Appellant.

Appeal from the United States District Court

for the Western District of Texas, San Antonio

September 10, 2002

Before DeMOSS, STEWART, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Miguel Reyes-May a appeals his sentence for illegal reentry

into the United States in violation of 8 U.S.C. § 1326 (a)(b)(2).

Reyes-Maya argues that the felony conviction that resulted in his

increased sentence was an offense element that the Due Process

Clause of the 5th Amendment required be charged in the indictment.

Reyes-Maya also argues that the district court erred when it

included the prior misdemeanor offense of criminal mischief in his2

criminal history score. Because the district court incorrectly

included Reyes-Maya’s criminal mischief conviction in his criminal

history score, we vacate his sentence and remand the case for resentencing.

I.

Miguel Reyes-Maya, the Appellant, was found by the Immigration

a nd Naturalization Service (INS) on or about May 1, 2001, in the

county jail in San Antonio, Texas, after his arrest by local police

for “fighting with his wife.” Investigation by the INS agents

revealed that the Appellant is a native and citizen of the Republic

of Mexico, and that Appellant had been deported from the United

States to Mexico on September 17, 1999. A review found no record

that Appellant applied for or received permission of the Attorney

General of the United States to reapply for admission after

deportation.

The Appellant was charged with violation of 8 U.S.C. § 1326

(a)(b)(2) for illegal re-entry into the United States after

deportation, and he pleaded guilty. Appellant moved to dismiss the

penalty enhancement notice and objected to imposition of a sentence

greater than two years. He argued that the prior aggravated felony

was an offense element that Due Process required be charged to the

grand jury.

Reyes-May a also objected to the probation officer’s presentencing report (PSR), which assigned one criminal history point1 Although the District Court requested details of the

prior conviction beyond offense and sentence, such details were

unavailable. Because of the age of the offense, the convicting

court no longer has the records. Additionally, Appellant has

stated that he no longer remembers the details of the incident.

3 for a 1991 guilty plea conviction for criminal mischief. That

conviction arose out of a dispute at a mo tel for which Appellant

was fi ned $182.50. 1 The point gave appellant 10 criminal history

points, moving him from Category IV, with a sentencing range of 57-

71 months, to Category V, with a sentencing range of 70-87 months.

The District Court for the Western District of T exas denied

Reyes-Maya’s mo tion to dismiss the penalty enhancement. The

district court also reje cted Reyes-Maya’s PSR objection and

assigned one criminal history point based on his criminal mischief

conviction. The district court sentenced Appellant using a total

offense level of 21 and a criminal history category of V. T he

guideline range of imprisonment was 70 to 87 months, and the

district court sentenced Appellant to 70 months’ im prisonment.

Reyes-Maya now appeals his sentence.

II.

Reyes-Maya argues that the felony conviction that resulted in

h is increased sentence under 8 U.S.C. § 1326(a)(b)(2) was an

offense element that should have been charged in the indictment.

Reyes-Maya acknowledges that his argument is foreclosed by the

Supreme Court’s decision in Almendarez-Torres v. United States

, 523

U.S. 224 (1998), but seeks to preserve the issue for Supreme Court2 This court addressed whether criminal mischief is an

offense similar to disorderly conduct in United States v.

Rodriguez , No. 93-1361 (5th Cir. filed November 3, 1993), an

unpublished opinion with precedential value. There the district

court included the criminal mischief conviction in Rodriguez’s

criminal history score and we affirmed. However, our review in

Rodriguez was on the far more deferential plain error standard,

because Rodriguez had not raised the similarity issue in front of

the district court. We have not determined, under a de novo

standard of review, whether criminal mischief should be excluded

from criminal history scores.

4 review in light of the decision in Apprendi

. S ee Bousley v. United

States

, 523 U.S. 614, 622-23 (1998)(noting that the futility of an

argument at the tim e it should have been made is not “cause” for

defaulting claim).

The Court in Apprendi

, while acknowledging that

Almendarez-Torres may be logically inconsistent with that case, and

therefore incorrectly decided, chose not to overrule that decision.

Apprendi

, 530 U.S. at 489-90; see also United States v. Dabeit

, 231

F.3d 979, 984 (5th Cir. 2000), cert. denied

, 531 U.S. 1202 (2001).

Accordingly this court remains bound by Alm endarez-Torres

, s ee

Rodriguez de Quijas v. Shearson/American Express

, 490 U.S. 477, 484

(1991) (stating precedent is controlling where it “has direct

application in a cas e” even if “it appears to rest on reasons

rejected in some other line of decisions.”), and relief is denied

on this ground.

III.

We review a district court’s interpretation of the Sentencing

Guidelines de novo. 2 U nited States v. Gadison

, 8 F.3 d 186, 1935

(5th Cir. 1993).

Generally, sentences for misdemeanor and petty offenses are

counted in the calculation of a defendant’s criminal history score.

U.S.S.G. § 4A1.2(c). 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. U.S.S.G. §

4 A1.2(c)(1). In addition, certain other offenses are always

excluded. U.S.S.G. § 4A1.2(c)(2).

Criminal mischief is not an offense that is always excluded

pursuant to § 4A1.2(c)(2). However, because criminal mischief is

not similar to illegal reentry into the United States, and since

Appellant’s criminal mischief sentence was only a fine of $182.50

(not probation of at least one year or imprisonment of at least 30

days), the criminal mischief conviction should be excluded from his

criminal history score if it is similar to one of the offen ses

listed in § 4A1.2(c)(1).

Appellant argues that criminal mischief is similar to §

4A1.2(c)(1)’s exempted offense of disorderly conduc t. In U nited

States v. Hardeman

, 933 F.2d 278 (5th Cir. 1991), 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.” I d.

at 281. These factors include “a comparison of punishments imposed6

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.” Id.

We believe that proper application of the Hardem an analysis

results in the exclus ion of Appellant’s criminal mischief

conviction from his criminal history score.

Our § 4A1.2( c) analysis begins by comparing the punishments

given in the Texas statutes for criminal mischief, Tex. Penal Code

Ann. § 28.03 (Vernon 1992), and disorderly conduct, Tex. Penal Code

Ann. § 42.01, as they were at the time of conviction. Here, a

comparison indicates that the offense of criminal mischief can be

more serious than the offense of disorderly conduct. Disorderly

conduct offenses are only classified as class B or C misdemeanors,

Tex. Penal Code Ann. § 42 .01(d), while a criminal mischief

conviction may be a class A, B, or C misdemeanor and, under certain

circumstances, a felony. Tex. Penal Code Ann. § 28.03(b).

More important than the statutory range of punishments is the

actual punishment given, as “[t]he level of punishment imposed for

a particular offense serves as a reasonable proxy for the perceived

severity of the crime.” H ardeman

, 933 F.2d at 282. While criminal

mischief can range greatly in severity, in this case it was a class

C misdemeanor, the same criminal degree as most disorderly conduct3 Because we do not know with which elements of criminal

mischief Reyes-Maya was charged, we must look to the statutory

elements.

7 violations. The actual punishment, a fine of just $182.50, is

similar to the minor punishments for offenses exclud ed from the

criminal hi story score under the Sentencing Guidelines. S ee

U.S.S.G. § 4A1.2(c)(1) (excluding offenses only if punishment was

less than 1 year probation or 30 days incarceration). Thus the

punishment for the prior and listed crimes are sufficiently similar

to warrant exclusion.

The Government emphasizes that criminal mischief is a property

crime, while disorderly conduct is not, and argues that as a result

they cannot be similar. In fact, a comparison of the elements of

the prior offense w ith the elements of the exempted offense,

Hardeman

, 933 F.2d at 282, shows both similarity a nd difference. 3

The offense of criminal mischief involves the inten tional or

knowing damage to property of another, Tex. Penal Code Ann.

§ 28.03(a), and is considered a crime of violence. See Boyd v.

State, 899 S.W.2d 371, 374 n.5 (Tex. Crim. App. 1995). Disorderly

conduct occurs when a person creates a public inconvenience or

annoyance , not damage to property. T ex. Penal Code Ann. § 42.01

(a)(1)-(12). Disorderly conduct need not be violent, but can

include violent acts such as discharging a firearm in a public

place. Tex. Penal Code Ann. § 42.01(a)(9),(11).

The fact that the elements are somewhat different is not8

dispositi ve. S ee Hardeman

, 933 F.2d at 281 (rejecting approach

comparing only the elements of actual and listed offense). The

different elements do not necessarily make criminal mischief a more

serious offense than disorderly conduct, weakening the strength of

the Government’s argument. Moreover, while criminal mischief is a

property crime, this categorization does not mak e exclusion

inappropriate; some property crimes, such as criminal trespass, are

excluded under § 4A1.2(c).

In evaluating the third and fourth Hardeman factors, level of

culpability and the extent to which commission of the prior offense

is more or less predictive of future crimes, the seriousness of the

prior crime as reflected in the sentence must be considered. Id.

at 283. The extremely light sentence noted above suggests a low

level of cu lpability and low predictive capacity for future

criminality. Id.

Assessing these factors a lso requires analyzing the entire

episode which led to the prior conviction. See United States v.

Moore

, 997 F.2d 30, 34 (5th Cir. 1993) (defining “offense” as used

in § 4A1.2(c) to “include[] any relevant conduct and not just the

conduct charged in the indictment” ). When Reyes-Maya was arrested

for criminal mischief he refused to give his name, date of birth,

or address. Because of his refusal to cooperate with the

authorities, Appellant was also charged with failure to identify

and he subsequently pleaded guilty to that charge. Reyes-Maya was9

fined $182.50 for that offense as well.

Failure to cooperate with the authorities is sugg estive of

both a greater degr ee of culpability and increased likelihood of

future criminal conduct tha n criminal mischief standing alone.

However, the decision of the Sentencing Guidelines to exclude the

similar of fense of false information to a police officer from

criminal history scores, see U.S.S.G. § 4A1.2(c) (excluding offense

where sentence is less than 1 year probation or 30 days

incarceration), suggests that the added culpability and predictive

nature of future criminal conduct from the failure to identify is

slight.

Given the similarity in punishments between Appellant’s

criminal mischief conviction and disorderly conduct and that the

small fine Appellant received sug gests low culpability and low

predictiveness of future criminal conduct, we believe that the

district court erred in n ot excluding this conviction from

Appellant’s criminal history score.

This error mandates vacating Appellant’s sentence unless the

error was harmless. W illiams v. United States

, 503 U.S. 193, 202-

03 (1992). Such error is harmless only if it did not affect the

selection of the sentence imposed. U nited States v. Corley

, 978

F.2d 185, 186 (5th Cir. 1992). In this case the district judge

sentenced Reyes-Maya to 70 months’ imprisonment, a number within

both the Category IV and Category V ranges. However, nothing in10

the record indicates that the district court would have imposed the

same sentence using the l ower guideline range. Further, the

district court noted that its determination on this issue “really

ma[de] a difference.” Accordingly, error is not harmless and we

remand for re-sentencing.

IV.

The district court’s judgment that the penalty enhancement for

prior convictions need not be charged in the grand jury indictment

is AFFIRMED . Because Appellant’s prior criminal mischief

conviction should have been excluded from his cri minal history

score pursuant to §4A1.2(c), the sentence is VACATED, and we REMAND

for re-sentencing.