United States of America, Appellee, v. Marlan Sanders, Defendant-appellant, 205 F.3d 549 (2d Cir. 2000)

Defendant Marlan Sanders appeals from a judgment of conviction and sentence entered on August 13, 1999, following a one-day bench trial in the United States District Court for the Southern District of New York (Richard C. Casey, Judge). The District Court found Sanders guilty of: (1) possessing a firearm after having been convicted of a felony, in violation of 18U.S.C. 922(g) (1); (2) being in possession of a firearm while subject to a court restraining order, in violation of 18 U.S.C. 922(g) (8); and (3) possessing a firearm on which the manufacturer's serial number had been removed and obliterated, in violation of 18 U.S.C. 922(k).¹  The District Court sentenced Sanders principally to 77 months of imprisonment and three years of supervised release. On appeal, Sanders raises multiple challenges to his conviction and sentence. We address here only his claim that the District Court erred in counting his prior conviction for fare-beating in calculating his criminal history score.²  For the reasons stated below, we vacate the judgment of the District Court and remand for resentencing.

The District Court based its calculation of Sanders's criminal history category on the Presentence Report ("PSR") prepared by the United States Probation Office ("Probation Office"). The PSR determined that Sanders had three prior convictions, earning him a total of seven criminal history points. Included in that total, pursuant to U.S.S.G. 4A1.1(c),³  was one point for Sanders's April 12, 1995 misdemeanor conviction for fare-beating (i.e., jumping a turnstile to enter a subway without paying), which is a form of theft of services violating New York Penal Law 165.15(3),⁴  for which he was sentenced to a discharge conditioned on performance of one day of community service. Based on these calculations, the PSR determined that Sanders had a criminal history category of IV, and recommended that he be sentenced to between 51 months and 63 months' imprisonment. Prior to sentencing, Sanders filed a letter objecting to the inclusion of the point for his fare-beating conviction. Without the point for fare-beating, Sanders noted, his criminal history score would be six, and he would fall into criminal history category III, rather than IV,⁵  with the result that his sentence range would be 41 to 51 months. The District Court rejected Sanders's argument and, relying on United States v. Martinez-Santos, 184 F.3d 196 (2d Cir. 1999), counted Sanders's fare-beating conviction in his criminal history computation. This appeal followed.

As a general rule, 4A1.1(c)⁶  of the Sentencing Guidelines provides that any misdemeanor conviction that carries a fine or term of imprisonment of fewer than sixty days results in a single criminal history point. Section 4A1.2(c) (1), however, provides an exception to this rule, listing 15 specific offenses ("Listed Offenses") "and offenses similar to them" that are to be counted only if "(A) the sentence [for the prior offense] 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 [for which sentence is to be imposed]." U.S.S.G.4A1.2(c) (1).⁷  The question in this case is whether Sanders's fare-beating conviction fits within this exception. Because fare-beating is an offense entirely different from Sanders's instant firearm-related offenses, because Sanders was sentenced to only conditional discharge with one day of community service for the offense,⁸  and because fare-beating is not one of the Listed Offenses, this question turns on the similarity vel non of the offense to the Listed Offenses.

We recently have held, in United States v. Martinez-Santos, 184 F.3d 196, 205-06 (2d Cir. 1999), that district courts should evaluate whether a prior offense is "similar" to the Listed Offenses in 4A1.2(c) by applying the "multi-factor" analysis adopted by the Fifth Circuit in United States v. Hardeman, 933 F.2d 278 (5th Cir. 1991). Under this approach, courts are to evaluate: (1) the similarity of the offense elements; (2) the comparative punishments imposed for the offenses; (3) the perceived seriousness of the unlisted offense, as indicated by the level of punishment; (4) the level of culpability associated with the unlisted offense; and (5) the degree to which the commission of the unlisted offense indicates a likelihood of recurring criminal conduct. See Martinez-Santos, 184 F.3d at 200 (citing Hardeman, 933 F.2d at 281). A district court also may consider "any other factor" that it "reasonably finds relevant" in comparing the prior and Listed Offenses, keeping in mind that "the goal of the inquiry is to determine whether the unlisted offense under scrutiny is 'categorically more serious' than the Listed Offenses to which it is being compared." Martinez-Santos, 184 F.3d at 206 (quoting United States v. Caputo, 978 F.2d 972, 977 (7th Cir. 1992)).

We review the District Court's interpretation and application of 4A1.2(c) de novo, and note that the classification of offenses as "similar" to those listed in 4A1.2(c) is a matter of federal law, though the prior offenses are defined and the sentences are imposed under state law. See id. at 198. The District Court in the instant case determined that Sanders's conviction for fare-beating was "categorically more serious" than the Listed Offenses because: (1) intent to obtain transportation without paying is a Class A misdemeanor punishable by up to one year in prison under New York law; and (2) the "fraudulent and larcenous" nature of fare-beating renders it more culpable than the Listed Offenses.⁹  Sanders argues that the District Court's analysis was both misguided and incomplete, in that it failed to engage in the multi-factor analysis articulated in Hardeman and adopted in Martinez-Santos. We agree.

The District Court's rationale for counting Sanders's fare-beating conviction is unacceptable for several reasons. First, although thefts of services, including fare-beating, qualify as Class A misdemeanors under New York state law, we, like the Seventh and Ninth Circuits, look to the actual conduct involved and the actual penalty imposed-rather than to the range of possible conduct or the range of possible punishments-when determining whether a prior offense is "similar" to a Listed Offense. See United States v. Booker, 71 F.3d 685, 689 (7th Cir. 1995); United States v. Kemp, 938 F.2d 1020, 1023 (9th Cir. 1991). In this respect, fare-beating convictions for jumping a subway turnstile, despite their general classification as Class A misdemeanors, often result in lenient punishments of at most a few days' imprisonment. See, e.g., Martinez-Santos, 184 F.3d at 199 n.2 (noting that defendant's fare-beating conviction resulted in a mere five days' imprisonment). Second, while fare-beating may be "fraudulent and larcenous," this does not distinguish it from Listed Offenses such as " [f]alse information to a police officer" or " [i]nsufficient funds check." Indeed, jumping a turnstile to avoid paying the $1.50 fare for a subway ride is arguably less "fraudulent" or "larcenous" than knowingly writing a bad check for a larger sum.

Further, while Martinez-Santos does not require District Courts to apply the Hardeman multi-factor test verbatim, or in some robotic fashion, it does dictate that the similarity of prior and Listed Offenses be evaluated in light of these (and any other reasonably relevant) factors. Accordingly, we think it significant that all of the Hardeman factors point to a finding that Sanders's fare-beating offense was similar to the Listed Offenses. Notably, fare-beating by jumping a subway turnstile: (1) shares elements in common with at least one of the Listed Offenses (i.e., " [i]nsufficient funds check"); (2) is an offense often subject to lenient punishment; (3) is perceived as a relatively minor offense, as indicated by the level of punishment; (4) is arguably less culpable than several of the Listed Offenses, including " [p]rostitution," " [r]esisting arrest," " [n]on-support," " [l]eaving the scene of an accident," and " [h]indering or failure to obey a police officer;" and (5) does not necessarily "indicate [] a likelihood of recurring criminal conduct."

In Martinez-Santos, we left it to the District Court, on remand, to determine whether the defendant's conviction for fare-beating by jumping a subway turnstile was similar to the Listed Offenses. For the reasons stated above, and in the interest of securing uniform treatment of prior convictions for the same offense,¹⁰  we now conclude that a single prior fare-beating conviction based on the jumping of a subway turnstile cannot be considered "categorically more serious" than the offenses listed in 4A1.2(c) (1). Accordingly, we hold that the District Court erred in including Sanders's fare-beating conviction in his criminal history score.

The sentence imposed by the District Court is vacated and the cause remanded for resentencing only.