*Of the United States Court of Appeals for the Eighth Circuit,

sitting by designation.

United States Court of Appeals

For the First Circuit

No. 02-1789

UNITED STATES OF AMERICA,

Appellee,

v.

MURRAY SPAULDING,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

 Selya, Circuit Judge,

R. Arnold,* Senior Circuit Judge,

and Lipez, Circuit Judge.

Ann E. Johnston, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with

whom Paula D. Silsby, United States Attorney, was on brief for

appellee.

August 4, 2003
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R. ARNOLD, Senior Circuit Judge. This is an appeal from a

sentence imposed upon Murray Spaulding after he pleaded guilty to

certain drug offenses. The question raised on this appeal is

whether two of Mr. Spaulding’s prior convictions should have been

excluded when the District Court was tallying his criminal-history

score. Mr. Spaulding argues that they should have been excluded

because they qualify as crimes “similar to” two offenses that

United States Sentencing Guideline § 4A1.2(c)(1) explicitly

excludes from being counted. We conclude that Mr. Spaulding’s

convictions are not “similar to” any listed offenses, and we

affirm.

I.

Mr. Spaulding was the target of a government drug

operation. He sold a large quantity of cocaine to a confidential

informant over an extended time period. He pleaded guilty to one

count of conspiracy to possess with intent to distribute 500 grams

or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B), and 846, and five counts of distribution of cocaine,

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). He was sentenced

to the statutory minimum 60 months’ imprisonment, five years of

supervised release, a fine of $3000, and a special assessment of

$600. Mr. Spaulding objected to this sentence at the time of

sentencing, maintaining that he is entitled to “safety valve”

relief under 18 U.S.C. § 3553(f), which allows a district court to
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sentence a defendant below the statutory minimum if, among other

things, the defendant falls within Criminal History Category I.

The crux of Mr. Spaulding’s argument is that two of his prior

convictions--shoplifting and violating a condition of release--were

improperly counted toward his criminal history. He argues that

they should have been excluded under § 4A1.2(c)(1) because they are

“similar to” crimes listed therein. The District Court rejected

this argument, concluding that Mr. Spaulding fell into Criminal

History Category II and was, therefore, ineligible for “safety

valve” relief.

II.

Whether a crime is “similar to” a crime listed in

§ 4A1.2(c)(1) is a question of law, and we therefore review the

District Court’s decision de novo. See United States v. Palmer, 203

F.3d 55, 60 (1st Cir. 2000).

All parties agree that Mr. Spaulding is entitled to

“safety valve” relief from the statutory minimum sentence only if

either his conviction for shoplifting or his conviction for

violating a court protective order is excluded from his criminal

history under U.S.S.G. § 4A1.2(c)(1). Under U.S.S.G. § 4A1.2(c),

“Sentences for all felony offenses are counted. Sentences for

misdemeanor and petty offenses are counted, except as follows: (1)

sentences for the following prior offenses and offenses similar to

them, by any name they are known,” are generally not counted.
1Unger was about § 4A1.2(c)(2) rather than §4A1.2(c)(1), but

it is relevant nevertheless, because “similar to” is the same

phrase in both provisions.

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U.S.S.G. § 4A1.2(c). The Guideline then lists a number of offenses

which are not to be counted including convictions for insufficient

funds checks and disorderly conduct.

Mr. Spaulding does not allege that either of the crimes

at issue in this case is included in the list of excluded offenses.

Instead, he argues that his crimes are “similar to” certain listed

offenses, so they should have been excluded from his criminalhistory score. In United States v. Unger, this Court concluded

that to determine whether a conviction is “similar to” a listed

offense, we look to the substance of the offense rather than the

name of the offense and eschew any state-law classifications. 915

F.2d 759, 763 (1st Cir. 1990).1 Determining whether two crimes are

similar necessarily requires us to begin by looking to the elements

of the two offenses. Although the elements need not match exactly,

two crimes cannot be termed “similar” if they involve wholly

different elements. At the same time, such things as the relative

danger posed by each crime and the risk of recidivism displayed by

each crime are relevant in deciding whether a crime is “similar to”

a listed offense. 

Mr. Spaulding argues that his conviction for theft, a

shoplifting charge for theft of products valued at approximately

$21, should be excluded because it is similar to an insufficient_-
2Mr. Spaulding was adjudged guilty only of violating the terms

of his release, not of violating the protective order. The latter

charge was dismissed, but Mr. Spaulding does not assert that this

dismissal was based upon a finding that his behavior did not

violate the protective order.

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funds check — a listed offense. This argument has some initial

appeal as both crimes involve theft. We do not believe that the

two crimes are sufficiently similar to exclude shoplifting under

§ 4A1.2(c)(1), however, because 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. A store

employee or customer may confront the perpetrator in an attempt to

thwart the crime. This risk of confrontation precludes a

conclusion that shoplifting is “similar to” passing a bad check.

Thus, the District Court did not err in counting Mr. Spaulding’s

conviction for theft in calculating his criminal-history score.

Mr. Spaulding likewise argues that his conviction for

violation of his conditions of release should have been excluded

because it is “similar to” the listed offense of disorderly

conduct. Mr. Spaulding’s offense conduct involved his making

contact with his ex-wife, in violation of both a protective order

that she had obtained against him and conditions of his release

from state custody.2 Both parties agree that Mr. Spaulding did not
3Mr. Spaulding’s brief to this Court asserts that he was not

even guilty of this crime, as his ex-wife approached him. We will

not consider this assertion, because Mr. Spaulding was adjudged

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physically harm his ex-wife; he clearly violated the order that he

stay away from her, however, and there is some evidence that he was

harassing her. Mr. Spaulding argues that, in light of the fact

that he did not physically harm his ex-wife, this offense is

similar to, if not less serious than, disturbing the peace. We

agree with the District Court that his offense is not “similar to”

disturbing the peace, because he was under two court orders at the

time of his conduct. As the District Court correctly pointed out,

violation of a court order is a more serious offense than a run-ofthe-mill public-disturbance case. The Sentencing Guidelines

themselves treat crimes committed while under court supervision as

more serious than other crimes. See U.S.S.G. § 4A1.1(d) (calling

for a two-level increase in criminal history if an offense was

committed while under any criminal justice sentence). In addition,

that Mr. Spaulding violated the court order demonstrates a higher

risk of recidivism than a run-of-the-mill public-disorder offense.

This higher risk of recidivism is demonstrated by the fact that Mr.

Spaulding regarded the criminal justice system with so little

respect that he was willing to violate two judicial orders. This

higher risk of recidivism indicated by his violation of a release

order renders Mr. Spaulding’s crime more serious than disorderly

conduct.3 Thus, the District Court did not err in assessing Mr.
guilty. Sentencing courts are not to reexamine the evidence

underlying prior convictions in deciding whether to count prior

crimes toward a defendant’s criminal-history score.

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Spaulding one criminal-history point for this prior conviction.

Having concluded that neither of Mr. Spaulding’s prior

offenses should have been excluded as “similar to” listed offenses,

we hold that Mr. Spaulding was properly placed in Criminal History

Category II, rendering him ineligible for “safety valve” relief

from the statutory minimum sentence. The District Court’s ruling

is, therefore, affirmed.