United States v. Ubiera, No. 05-5256 (2d Cir. 2007)

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05-5256-cr United States v. Ubiera 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2006 (Argued: March 1, 2007 Decided: May 15, 2007) Docket No. 05-5256-cr - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, - v.HENRY UBIERA, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, CARDAMONE and SOTOMAYOR, Circuit Judges. Appeal from a sentence imposed in the United States 30 District Court for the Southern District of New York 31 (Hellerstein, J.), following a plea to distribution and 32 possession with the intent to distribute and conspiracy to 33 distribute ecstasy. 34 AFFIRMED. 35 36 ARZA FELDMAN and STEVEN A. FELDMAN, Feldman & Feldman, 1 2 3 4 5 6 7 8 9 10 11 12 13 Uniondale, New York, for Defendant-Appellant. STEVEN D. FELDMAN, Assistant United States Attorney (Celeste L. Koeleveld, on the brief) for Michael J. Garcia, United States Attorney, Southern District of New York, for Appellee. DENNIS JACOBS, Chief Judge: Following his plea to drug offenses in the United 14 States District Court for the Southern District of New York 15 (Hellerstein, J.), Henry Ubiera appeals his post-Fagans 16 sentence. 17 of a criminal history point for each of two prior 18 shoplifting convictions. 19 is similar to passing a bad check, which is excluded from 20 the criminal history computation by the United States 21 Sentencing Guidelines § 4A1.2(c)(1) along with similar 22 offenses. 23 declining to credit him for acceptance of responsibility 24 based on his failure to admit one of the overt acts of the 25 conspiracy to which he pled; assigning a criminal history 26 point to a conviction for disorderly conduct; and making 27 certain findings by a preponderance of the evidence. 28 Ubiera s principal challenge is to the assessment Ubiera contends that shoplifting Ubiera also argues that the court erred by: We affirm the judgment. 2 I 1 2 On February 4, 2004, Ubiera pled guilty to both counts 3 of the indictment against him. The first count was 4 conspiracy to distribute ecstasy pills in violation of 21 5 U.S.C. § 846, and specified two overt acts committed in or 6 about February 2003: [i] Ubiera s sale of approximately 1000 7 pills, and [ii] Ubiera s delivery of approximately 800 8 pills. 9 act, and alleged that Ubiera had distributed, and possessed The second count was predicated on the second overt 10 with the intent to distribute, approximately 800 ecstasy 11 pills, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 12 841(b)(1)(C). 13 At his allocution, though Ubiera admitted to the 14 conspiracy and to the delivery of the 800 pills, he denied 15 selling the 1000 pills. 16 the consequences of his incomplete allocution: The district court warned Ubiera of 17 18 19 20 21 22 23 24 25 26 [W]hat I want you to be aware of is that one consequence of my allocuting you to less than all of the issues that may be involved in the indictment is that . . . if I find that there really was a lot more to what you did than what are you are ready to admit to, I may find that you are not entitled to the credit for acceptance of responsibility. At a subsequent hearing held pursuant to United States v. 27 Fatico, 579 F.2d 707 (2d Cir. 1978), Ubiera repeated his 3 1 2 denial of the 1000 pill transaction. At sentencing on October 14, 2004, the district court 3 found that Ubiera had in fact sold the 1000 pills. 4 responsibility for a total of 1800 ecstasy pills yielded an 5 offense level of 26. 6 court declined Ubiera s request to reduce the offense level 7 for acceptance of responsibility: 8 9 10 11 12 13 14 15 16 See U.S.S.G. § 2D1.1. Ubiera s The district I don t believe you clearly demonstrated acceptance of responsibility. I found that you were a drug dealer and you tried to hide that and you have not accepted that. And by denying something, admitting a little bit, you are creating a deception to yourself, perhaps to the probation officer, to others. The district court concluded that Ubiera fell within 17 Criminal History Category II. 18 this computation, which yielded a guidelines range of 70 to 19 87 months imprisonment. 20 months imprisonment, three years supervised release and a 21 $200 mandatory special assessment. 22 Neither party objected to Ubiera was then sentenced to 75 Ubiera appealed his sentence on various grounds, but 23 was ultimately granted a remand for resentencing pursuant to 24 United States v. Fagans, 406 F.3d 138 (2d Cir. 2005), 25 because he had preserved an objection to mandatory 26 application of the Guidelines, id. at 140-41. 4 1 At resentencing on September 16, 2005, the district 2 court declined to revisit its factual findings or the 3 resulting offense level calculation. 4 argued that the criminal history computation was an 5 overstatement, citing cases that allow a downward 6 departure if the criminal history category substantially 7 over-represents the seriousness of the defendant s criminal 8 history. 9 Thorn, 317 F.3d 107, 128-31 (2d Cir. 2003); United States v. Ubiera s counsel U.S.S.G. § 4A1.3(b)(1); see also United States v. 10 Resto, 74 F.3d 22, 28 (2d Cir. 1996). The district court 11 refused to depart, citing Ubiera s criminal background, 12 specifically a conviction for attempted petit larceny in New 13 York and two convictions for shoplifting from retailers in 14 New Jersey. 15 disorderly conduct. The court also referenced a conviction for 16 After hearing argument pursuant to United States v. 17 Booker, 543 U.S. 220 (2005), on the application of 18 U.S.C. 18 § 3553(a) to Ubiera s case, the district court declined to 19 deviate from its original sentence. 20 21 II 22 Ubiera argues that his convictions for shoplifting 5 1 should have been excluded from his criminal history 2 computation because shoplifting is similar to passing a bad 3 check--in the Guidelines parlance, an insufficient funds 4 check --an offense which (along with similar offenses) is 5 excluded from such computation by U.S.S.G. § 4A1.2(c)(1), 6 set out in the margin.1 7 only one basic form of conduct, its similarity to an 8 offense listed in § 4A1.2(c)(1) is a question of law we 9 review de novo. 10 11 Where, as here, a statute punishes United States v. Morales, 239 F.3d 113, 117-18 (2d Cir. 2000). As the government contends, Ubiera failed to raise the 12 § 4A1.2(c)(1) argument below. Although Ubiera argued to the 13 district court that his criminal history computation was an 14 overstatement, that argument was (as previously noted) 1 Sentences for the following prior offenses and 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 year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense: Careless or reckless driving, Contempt of court, Disorderly conduct or disturbing the peace, Driving without a license or with a revoked or suspended license, False information to a police officer, Fish and game violations, Gambling, Hindering or failure to obey a police officer, Insufficient funds check, Leaving the scene of an accident, Local ordinance violations (excluding local ordinance violations that are also criminal offenses under state law), Non-support, Prostitution, Resisting arrest, Trespassing. 6 1 based on U.S.S.G. § 4A1.3(b)(1). 2 substantially different argument on appeal, we review the 3 district court s decision to count the shoplifting 4 convictions only for plain error. 5 52(b); Johnson v. United States, 520 U.S. 461, 466-67 6 (1997). 7 there was no error, plain or otherwise. 8 9 Since Ubiera raises a See Fed. R. Crim. P. For the reasons set forth below, we conclude that Among those considerations courts have focused on in determining whether a prior offense is similar to an 10 offense listed in § 4A1.2(c) are: the relative punishments 11 prescribed and the relative seriousness implied by those 12 punishments, the elements of the offenses, the level of 13 culpability, and the degree to which the commission of the 14 offense predicts recidivism. 15 Hardeman, 933 F.2d 278, 281 (5th Cir. 1991). 16 adopted this multifactor test (though not in haec verba), 17 but also consider any other factor [we] reasonably find[] 18 relevant. 19 206 (2d Cir. 1999). 20 See, e.g., United States v. We have United States v. Martinez-Santos, 184 F.3d 196, We have not previously applied the test to a 21 shoplifting conviction. Because Ubiera s brief compares his 22 shoplifting offenses only to the offense of passing a bad 7 1 check, we limit ourselves to that comparison and do not 2 consider the similarity (if any) between shoplifting and the 3 other offenses excluded by § 4A1.2(c). 4 The question posed by § 4A1.2(c)(1) is whether the 5 unlisted offense under scrutiny is categorically more 6 serious than the Listed Offenses to which it is being 7 compared. 8 States v. Caputo, 978 F.2d 972, 977 (7th Cir. 1992)). 9 our analysis also considers the actual conduct involved and Martinez-Santos, 184 F.3d at 206 (quoting United But 10 the actual penalty imposed. United States v. Sanders, 205 11 F.3d 549, 553 (2d Cir. 2000) (per curiam). 12 categorically might be misunderstood to mean that the 13 unlisted offense is within a category that is more serious 14 than the Listed Offenses, we . . . use[] the adverb in its 15 ordinary sense to mean without qualification or 16 reservation. 17 underlying Ubiera s prior convictions are therefore 18 relevant: his first shoplifting conviction, in March 1999, 19 was for the theft of $248 worth of merchandise from a 20 department store in Paramus, New Jersey; he was fined $553. 21 His second conviction, in March 2001, was for the attempted 22 theft of $903 merchandise from a department store in Although Morales, 239 F.3d at 118 n.5. 8 The facts 1 Hackensack; he was fined $550. 2 In comparing an unlisted offense to the Listed 3 Offenses, we look to the law of the state that obtained the 4 prior conviction. 5 Jersey law, shoplifting and passing a bad check generally 6 entail comparable penalties for comparable values of the 7 property taken: thus shoplifting less than $200 worth of 8 merchandise and passing a bad check for less than $200 are 9 disorderly persons offenses, see N.J. Stat. Ann. § 2C:20- 10 11(c)(4) and § 2C:21-5(c)(4), and both are punished by a 11 statutory maximum of six months in prison, see id. § 2C:43- 12 8. 13 that shoplifting carries a minimum sentence of community 14 service, the length of which depends on the number of 15 shoplifting offenses; third-time offenders are punished not 16 only with 25 days of community service but with 90 days of 17 incarceration. 18 bad checks is subject to no such minimums.2 See Sanders, 205 F.3d at 552. Under New One key difference in relative punishment, however, is See id. § 2C:20-11(c). 2 A repeat passer of Changes in New Jersey law explain why it is that Ubiera s first shoplifting conviction yielded only a fine, and not community service. Prior to a 2000 amendment to the New Jersey Code of Criminal Justice, all shoplifting offenses were classified as disorderly persons offenses, repeat offenders were fined, and any person convicted of a third or subsequent shoplifting offense received a minimum 9 1 Naturally, the elements of the two offenses are 2 different. 3 the purposeful carrying away of merchandise, the alteration 4 of a price tag, the under-ringing of merchandise, or the 5 theft of a shopping cart with the intent to deprive the 6 merchant of the value thereof. 7 Passing a bad check consists of writing a check knowing 8 that it will not be honored by the drawee. 9 In New Jersey, shoplifting consists chiefly of See id. § 2C:20-11(b). Id. § 2C:21-5. In weighing relative culpability, i.e. the degree of 10 moral guilt, Morales, 239 F.3d at 119, two observations 11 made by other circuits are useful. 12 loss is much harder for the victim to detect; a department 13 store stuck with a bad check can be certain only of how much 14 was lost in terms of inventory or receivables--not the 15 identity of the thief. 16 the Guidelines exclude from consideration only bad check First, a shoplifting This difference is germane because of 30 days in prison. See 1997 N.J. Sess. Law Serv. Ch. 319 (Assembly 2484) (West). The amendment introduced the gradations of punishment based upon the value of property stolen and the mandatory terms of community service for repeat offenders. See 2000 N.J. Sess. Law Serv. Ch. 16 (Senate 267) (West). It is unclear, however, why Ubiera s Presentence Investigation Report suggests that he was only sentenced to a fine for the second shoplifting conviction, as the conviction occurred after the effective date of the 2000 amendment. 10 1 offenses involving an existing account bearing the 2 defendant s real name, i.e. where the fraud can easily be 3 traced to the defendant. 4 F.3d 865, 873 (7th Cir. 2003) (citing U.S.S.G. § 4A1.2, 5 Applic. Note 13). 6 See United States v. Harris, 325 Second, shoplifting is a trespassory offense that 7 poses dangers that do not arise when a bad check is written 8 or negotiated. 9 (5th Cir. 2004); Harris, 325 F.3d at 872-73; United States See United States v. Lamm, 392 F.3d 130, 133 10 v. Spaulding, 339 F.3d 20, 22 (1st Cir. 2003). 11 risks head-to-head confrontation with shop personnel and 12 physical touching or struggle, as well as danger to 13 bystanders and the erroneously accused.3 14 facts, Morales, 239 F.3d at 118, of Ubiera s prior offenses 15 illustrate this distinction: he stole (or attempted to 16 steal) property directly from merchants premises. 3 Shoplifting The particular The Ninth Circuit has found these concerns unpersuasive on balance, in light of the additional element of deception in passing a bad check. See Lopez-Pastrana, 244 F.3d at 1030 n.8. As noted above, however, the guidelines distinguish bad check offenses that involve the more serious deception of writing checks on accounts other than one s own. We are persuaded by the view of Judge Graber dissenting in Lopez-Pastrana: physical taking without consent is simply different from the act of obtaining property by fraud. Id. at 1035. 11 1 Moreover, because shoplifting diminishes trust in the 2 retail marketplace, it has insidious collateral impacts on 3 the public as a whole. 4 to reduce the shopper s opportunity to handle the 5 merchandise or try it on, leads to security measures such as 6 the scrutiny of bags and parcels, raises costs and prices, 7 and heightens the risk of accusing the innocent. 8 these problems are caused when an individual writes a bad 9 check on his own account: scrutiny falls on the check-writer The incidence of shoplifting tends Few of 10 alone; the risk of loss is quantified by the amount of the 11 check; and loss can be controlled or eliminated by 12 restricted policies that impinge less on the shopping 13 public. 14 It is unclear in the cases how recidivism can be 15 predicted on the basis of having committed one offense or 16 another. 17 cases do not offer any unifying principle for how one 18 offense, but not another, indicates a likelihood of future 19 criminal conduct ). 20 offenses tend to escape detection more readily than passing 21 bad checks that bear one s real name, so that two 22 shoplifting convictions are more likely to bespeak more than See Harris, 128 F.3d at 855 (concluding that prior As noted above, however, shoplifting 12 1 two prior offenses than would two convictions for passing 2 bad checks. 3 considerations under this factor, it thus weighs somewhat 4 against finding the two offenses similar. 5 Assuming that these are the relevant We therefore conclude that Ubiera s convictions for 6 shoplifting are not similar to passing a bad check, and 7 that the district court committed no error by including them 8 in the criminal history computation.4 9 III 10 11 Ubiera argues further that the district court erred by 12 [A] declining to credit him for acceptance of 13 responsibility, [B] assigning a criminal history point to 14 his disorderly conduct conviction, and [C] making findings 15 of fact by a preponderance of the evidence. 16 17 [A] The district court declined to reduce Ubiera s 18 offense level for acceptance of responsibility because he 19 had refused to admit conduct beyond the offense of 4 We similarly reject Ubiera s argument that his trial counsel s failure to raise the § 4A1.2(c)(1) argument to the district court constituted ineffective assistance of counsel. 13 1 conviction. Ubiera contends that this was error. Our 2 review on this point is particularly deferential: 3 the judge s determination as to acceptance of responsibility 4 is without foundation, it may not be disturbed. 5 States v. Zhuang, 270 F.3d 107, 110 (2d Cir. 2001) (per 6 curiam). Unless United 7 Ubiera says that he told the district court he was 8 sorry, that he was too embarrassed to have his family come 9 to the sentencing (allegedly out of contrition), that he 10 promised not to commit another crime, and that he did admit 11 other, uncharged drug transactions to the probation officer. 12 None of this establishes that the district court s finding 13 lacked foundation. 14 Ubiera argues further that the district court erred by 15 requiring him to allocute to the 1000 pill transaction. We 16 disagree. 17 conspiracy to which Ubiera pled guilty. 18 commits no error in requiring allocution to the full scope 19 of the conspiracy that formed the basis for . . . the 20 indictment, to which [the defendant] pleaded guilty. 21 United States v. McLean, 287 F.3d 127, 134 (2d Cir. 2002). 22 [A]s to the offense that is the subject of the plea, the That transaction was an overt act within the 14 A district court 1 district court may require a candid and full unraveling . . 2 . . 3 1993). United States v. Reyes, 9 F.3d 275, 279 (2d Cir. 4 5 [B] Ubiera contends that the district court erred by 6 assigning a criminal history point to a conviction for 7 disorderly conduct, which is generally excluded from the 8 criminal history computation. 9 A colloquy between the district court and Ubiera s trial 10 counsel, Mark Cohen, reflects that the disorderly conduct 11 conviction was not, in fact, included in the criminal 12 history computation: See U.S.S.G. § 4A1.2(c)(1). 13 14 15 16 17 18 19 20 21 Mr. Cohen: [T]he Nassau County conviction for disorderly conduct . . .doesn t count in his criminal history calculation. . . . Had the district court assessed an additional criminal 22 history point for the disorderly conduct conviction, the 23 resulting criminal history category would have been III, not 24 II. The Court: They don t -- there is no Criminal History point but I look at this as a pattern, Mr. Cohen. See U.S.S.G. Ch. 5 Pt. A. 25 26 [C] Finally, Ubiera argues that because his complicity 15 1 in the 1000 pill transaction was found by a judge and only 2 by a preponderance of the evidence5 , his sentencing was 3 inconsistent with United States v. Booker, 543 U.S. 220 4 (2005). 5 beyond a reasonable doubt, but only where the fact is 6 necessary to support a sentence exceeding the maximum 7 authorized by the facts established by a plea of guilty. 8 Id. at 244. 9 (and allocution to the 800 pill transaction) would have Booker does require factfinding by a jury and Ubiera s guilty plea to the conspiracy count 10 supported a sentence up to a statutory maximum of 20 years 11 imprisonment. 12 sentenced only to 75 months, his argument is without merit. 21 U.S.C. § 841(b)(1)(C). Because Ubiera was 13 14 15 16 * * * For the reasons set forth above, the judgment of the district court is affirmed. 5 Given the uncertainty prevailing at the time of sentencing as to the appropriate burden of proof for such findings, the district court noted for the record that the government had not proven the 1000 pill transaction beyond a reasonable doubt. 16

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