United States Court of Appeals

Fifth Circuit



## FILED

November 22, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 04-10315

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PAUL DARVIN LAMM, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Paul Darvin Lamm, Jr., pleaded guilty to being a controlled

substance user in possession of a firearm, in violation of 18

U.S.C. § 922(g)(3) (the instant offense). Appealing only his

sentence, he contests the addition of one criminal history point,

under Sentencing Guidel ines § 4A1.2(c), for his prior conviction

for shoplifting. At issue is whether shoplifting an item valued

less than $50 (petty theft) should be excluded from the criminal

history calculation. That turns on whether the petty theft offense

is similar to the crime of insufficient funds check, which is

excludable from criminal history, under certain conditions,

pursuant to Guidelines § 4A1.2(c)(1). AFFIRMED.

I.2

Prior to the instant offense (committed in Septem ber 2003),

Lamm had four criminal convictions, including petty theft, a classC misdemeanor for which no imprisonment is imposed under Texas law.

The pre-sentence investigation report (PSR) recommended one

criminal history point for the petty theft conviction. Lamm

objected, contending petty theft is sufficiently similar to

insufficient funds check so that, under § 4A1.2(c)(1), it s hould

not be included in his criminal history. In response, the

probation officer prepared an addendum to the PSR, distinguishing

petty theft from insufficient funds check.

In March 2004, over Lamm’s renewed objection at the sentencing

hearing, the district court determined, without stating reasons,

that Lamm’s criminal hi story should include the petty theft

conviction. Lamm was sentenced, i nter alia

, to 21 months in

prison.

II.

As he did in district court, Lamm claims: pursuant to §

4A1.2(c)(1), he should not receive a criminal history point for his

p etty theft conviction because it is similar to the listed

excludable offense of insufficient funds check. Application of the

Guidelines is reviewed de novo

. E .g., United States v. Booker

, 334

F.3d 406, 412 (5th Cir. 2003).

In calculating criminal history, “[s]entences for all felony

offenses are counte d”; those for “misdemeanor and petty offenses3

are counted, except as” detailed in § 4A1.2(c). U.S.S.G. §

4A1.2(c). In this regard, listed offenses, o r “offenses similar to

them ”, are excluded from the criminal history unless the sentence

was (1) probation of at least one year, or (2) imprisonment of at

least 30 days, or (3) the prior offense is similar to the instant

o ffense (here, firearm possession). U.S.S.G. § 4A1.2(c)(1)

(emphasis added). (Some listed offenses, or those similar to them,

“are never counted”. U.S.S.G. § 4A1.2(c)(2). Two of those listed

are hitchhiking and loitering. Id

. )

The offense of insufficient funds check is among the

excludable offenses l isted in § 4A1.2(c)(1); petty theft is n ot

listed. (Examples of other listed offenses are careless or

reckless driving, gambling, and resisting arrest. U.S.S.G. §

4A1.2(c)(1).) L amm was not sentenced to probation or imprisonment,

and petty theft is not similar to the instant offense. Therefore,

if petty theft is similar to insufficient funds check, it is not

counted in Lamm’s criminal history. (Lamm’s petty theft conviction

could also be excluded, of course, if it is similar to any other

listed offense. Lamm only claims similarity to insufficient funds

check.)

Guidelines § 4A1.2(c)(1) identifies the excludable offenses

without def inition. The commentary to the section does provide,

however, that the excludable offense of insufficient funds check

“does not include any conviction e stablishing that the defendant4

used a false name or non-existent account”. U.S.S.G. § 4A1.2, cmt.

n.13. (emphasis added). Therefore, we must look to the definition

of the equivalent offense under the relevant State’s law. United

States v. Gadison , 8 F.3d 186, 193 (5th Cir. 1993).

Under Texas law, the offense of issuance of a bad check is the

same offense as insufficient funds check; a person commits issuance

of a bad check in Texas

if he issues or passes a check or similar

sight order for the payment of mon ey knowing

that the issuer does not have sufficient funds

in or on deposit with the bank or other drawee

for the payment in full of the check or order

a s well as all other checks or orders

outstanding at the time of issuance.

T EX

. P ENAL C ODE A NN

. § 32.41(a); Gadison

, 8 F.3d at 194. For the

offense-similar ity comparison advanced by Lamm, a person commits

theft under Texas law “if he unlawfully appropriates property with

in tent to deprive the owner of property”. T E X

. P ENAL C ODE A NN

. §

31.03(a).

To determine whether a prior offense is “similar” to a listed

excludable offense under § 4A1.2(c)(1), our court “ s uggest[s] a

common sense ap proach which relies on all possible factors of

similarity”. U

nited States v. Hardeman

, 933 F.2d 278, 281 (5th

Cir. 1991) (under Texas law, driving with revoked or suspended

license held similar to failure to mainta in financial

responsibility) (emphasis added). Factors to consider include: “a

comparison of punishments imposed for the listed and unlisted5

offenses, the 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”. I d.

Hardeman did not accord any of these factors dispositive

weight. To the contrary, it cautioned: “We do not suggest that

any offense which carries a penalty similar to that imposed for a

listed offense should automatically be excluded from the criminal

history calculation. The other factors involved may indicate that

the defendant’s prior offense should be included”. I d. at 282.

Obviously, each offense-similarity comparison is fact specific

.

Gadison , 8 F.3d at 194.

Lamm maintains that, according to Hardeman and United States

v. Reyes-Maya

, 305 F.3d 362 (5th Cir. 2002) (under Texas law,

criminal mischief held similar to disorderly conduct), punishment

is the most imp ortant factor in determining offense similarity.

Lamm notes that, under Texas law, the potential sentences for

issuance of a bad check and for shoplifting an item worth less than

$50 are identical: both are Class C misdemeanors punishable by a

fine not to exceed $500. T E X

. P ENAL C ODE A NN

. §§ 12.23, 31.03(e)(1),

32.41(f). In this regard, Lamm contends an even more important

factor in determining offense similarity is the punishment imposed;

he compares his shoplifting sentence ($257 fine) to those imposed6

in Hardeman (one day in jail and $250 fine) and Reyes-Maya ($182.50

fine).

The Government counters that, applying the Hardeman factors in

the required common sense ma nner, the offenses are not similar.

The Government maintains it is not logical to suppose the

Sentencing Commission either mistakenly omitted the ft, the most

frequently committed offense in the United States, from the list of

excludable offenses, or felt theft was so similar to the listed

offense of insufficient funds check that further clarification was

unnecessary. The Government notes correctly that H ardeman does not

give dispositive weight to any factor, including punishment.

Acknowledging our court has never addressed the issue at hand

in a published opinion, the Government notes Un ited States v.

Acuna-Chavez

, 77 Fed. Appx. 262, 263 (5th Cir. 2003) (unpublished),

held the district court did not commit plain error in concluding

t hat a petty larceny conviction was not similar to insufficient

funds check. The Government also notes that, for purposes of §

4A1.2(c)(1), the majority of other circuits deciding the issue have

held petty theft is not similar to insufficient funds check.

Those holdings are instructive. In U nited States v.

Spaulding

, 339 F.3d 20, 21-22 (1st Cir. 2003), the First Circuit7

held shoplifting an item worth $21 is not similar to insufficient

funds check because8 shoplifting poses a markedly greater risk to

the public. Passing a bad check poses little

risk of physical confrontation, because the

perpetrator is not present when the victim

realizes that he has been victimized.

Shoplifting, on the other hand, creates the

very real risk of physical confrontation

between the perpetrator and the victim.

Id. at 22. In accord, the Seventh Circuit held shoplifting and

bad-check writing are not similar, because shoplif ting is a

trespassory offe nse, and it appeared unlikely the Sentencing

Commission meant to exempt, by mere implication, a crime as common

as shoplifting or petty theft. United States v. Harris , 325 F.3d

865, 872-73 (7th Cir. 2003) (citing the dissent in United States v.

Lopez-Pastrana

, 244 F.3d 1025 (9th Cir. 2001), disc ussed i nfra ).

Likewise, the Eighth Circuit held petty theft is not similar to an

offense listed in § 4A1.2(c)(1). S ee United States v. Waller

, 218

F.3d 856, 857 -58 (8th Cir. 2000)

. S ee also United States v.

Yednak

, 66 Fed. Appx. 406 (3rd Cir. 2003) (unpublished) (retail

theft conviction not similar to in sufficient funds check). And,

the Fourth Circuit in United States v. Benjamin , 110 F.3d 61 (4th

Cir. 1997) (unpublished table decision), referring to our court’s

decisions in Hardeman and Gadison

, held the district court had not

committed plain error in d etermining a shoplifting conviction is

not similar to insufficient funds check.

On the other hand, the Ninth Circuit in Lopez-Pastrana

, a case

relied on by Lamm, held a Nevada shoplifting offense similar to9

insufficient funds check. L opez-Pastrana reasoned the two offenses

were similar in seriousness, punishment, and in their elements, but

did not apply all the factors identified as relevant by our court

in Hardeman

. Lopez-Pastrana , 244 F.3d at 1027-30.

Lamm also relies on our 1993 decision in Gadison , which held

similar the Texas offenses of issuance of a bad check (again,

insufficient funds check und er Texas law) and t heft by check

. 8

F.3d at 194. As noted, G adison stated its holding was fact

specific

. I d. When G adison was decided, a person committed theft

by check when he obtained property by issuing a check without

sufficient funds to cov er that check and all others outstanding.

See T EX

. P ENAL C ODE A NN

. § 31.06(a) (Ver non 1993). The intent to

deprive an owner of property, a required element of theft, was

presumed if the issuer of the check did not have an account with

the bank when the check was issued, or if payment was refused for

insufficient funds within 30 days af ter issue, and the issuer

failed to pay the holder in ful l within ten days after receiving

notice of refusal. I d. (The theft by check statute has since been

amended, as discussed infra .)

Lamm asserts: petty theft and theft by check are similar;

therefore, pursuant to Gadison , petty theft and issuance of a bad

check are simi lar. Lamm’s reliance on G adison is misplaced,

however, for several reasons. Two of them follow.10

First, Lamm’s premise that petty theft and theft by check are

similar is inaccurate. The offenses are meaningfully different

because petty theft poses a risk of physical confrontation, placing

others at ris k. This risk is heightened if the offender is

apprehended during the attempted theft. There is much less risk of

physical confrontation for theft by check, just as there is much

less risk for insufficient funds check. S ee Spaulding

, 339 F.3d at

20.

Second, Lamm’s reliance on Gadison is misplaced because, as

discussed supra

, Gadison ’s holding (i ssuance of a bad check and

theft by check are similar) was based on a prior version of the

Texas theft by check statute. In that earlier version, the

requisite intent for theft by check was presumed , under certain

conditions, when a bad check was issued. S ee T EX

. P ENAL C ODE A NN

. §

31.06(a) (Vernon 1993). Under the current version, there is no

such presumption (instead, issuance is p rima facie evidence of

intent). S ee T EX

. P ENAL C ODE A NN

. § 31. 06(a) (Vernon 2003).

Arguably, under the former statutory scheme, due to the presumption

of intent for theft by check, issuance of a bad check could often

constitute theft by check. Under the current statute, given there

is no presumption of intent, the Gadison court may have found

issuance of a bad check and theft by check w ere n ot similar. In

any event, under the current statute, petty theft and theft by11

check are less analogous than under the theft by check statute

relied upon in Gadison

.

Finally, citing Liparota v. United St ates , 471 U.S. 419

(1985), and Rewis v. United States

, 401 U.S. 808 (1971), Lamm urges

the rule of lenity requires our resolving the claimed ambiguity in

§ 4A1.2 in his favor. That rule requires an ambiguity in a

criminal statute be resolved in favor of the defendant when there

is a “grievous ambiguity or uncertainty” in the statute.

Muscarello v. United States

, 524 U.S. 125, 138-39 (1998) (citations

omitted). To the extent there is any ambiguity in § 4A1.2(c)(1),

it does not rise to the level required for application of the rule

of lenity.

In sum, weighing the Hardeman factors as a whole, under the

requisite common sense and fact specific approach, Lamm’s petty

theft offense is not similar to the offense of issu ance of a bad

c heck (Texas’ equivalent to insufficient funds check). This is

primarily becau se petty theft involves a heightened risk of

physical confrontation and harm to others. Moreover, Lamm’s petty

theft offense, when viewed in the context of his recent criminal

history

- four convictions from 1997 to 2001

- indicates a

likelihood of recurring criminal conduct. Finally, one other

meaning ful distinction involves the difficulty in detecting and

apprehending the perpetrator of petty theft. S ee Harris

, 325 F.3d

at 872. In the light of an insufficient funds check offense not12

involving use of a false name or non-existent account, consistent

with the limitation imposed by comment 13 to § 4A1.2(c)(1), the

identity and account information of the person issuing the check is

known, whereas the perpetrator of petty theft is more difficult to

apprehend.

III.

For the foregoing reasons, the judgment is

AFFIRMED.