USA v. DeJesus-Conception (Vallejo), No. 09-1673 (2d Cir. 2010)
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09-1673-cr USA v. DeJesus-Conception (Vallejo) 1 UNITED STATES COURT OF APPEAL 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2009 (Submitted: March 8, 2010 5 Decided: June 11, 2010) Docket No. 09-1673-cr 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 21 B e f o r e: 22 UNITED STATES OF AMERICA, Appellee, v. ANGEL DEJESUS-CONCEPCION, JUAN FRANCISCO GUERRA-PENA, ADRIAN GONZALEZ-RUELAS, FRANCES SANTOS, Defendants, JULIO VALLEJO, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - WINTER, CABRANES, RAGGI, Circuit Judges. Appeal from the April 15, 2009 judgment of the United States 23 District Court for the Southern District of New York (George B. 24 Daniels, Judge) sentencing Julio Vallejo to 144 months 25 imprisonment. 26 Section 4A1.2(c)(1) of the United States Sentencing Guidelines, 27 we affirm the sentence. 28 29 30 31 32 33 34 35 36 Because we find that the court did not misapply Laurie S. Hershey, Manhasset, New York, for Appellant. Preet Bharara, United States Attorney for the Southern District of New York (Howard S. Master and Katherine Polk Failla, Assistant United States Attorneys, of counsel), New York, New York, for Appellee. 1 1 2 PER CURIUM: Julio Vallejo appeals from the sentence of 144 months 3 imprisonment imposed by Judge Daniels. 4 district court misapplied Section 4A1.2(c)(1) of the United 5 States Sentencing Guidelines when it included in its criminal 6 history calculation Vallejo s New York state convictions for 7 unauthorized use of a vehicle in the third degree. 8 9 He argues that the Section 4A1.2(c)(1) provides that a court may not consider prior sentences for certain listed offenses and offenses similar 10 to them in calculating a defendant s criminal history unless 11 the sentence was a term of probation of more than one year or a 12 term of imprisonment of at least thirty days or the prior 13 offense was similar to an instant offense. 14 4A1.2(c)(1). 15 sentences for unauthorized use of a vehicle satisfy the quoted 16 preconditions, the only question is whether unauthorized use of a 17 vehicle in New York is an offense similar to the listed offense 18 of [c]areless or reckless driving under Section 4A1.2(c)(1). 19 See U.S.S.G. § 4A1.2(c)(1). 20 U.S.S.G. § Because the parties agree that neither of Vallejo s In applying Section 4A1.2(c)(1), [t]he goal of the inquiry 21 is to determine whether the unlisted offense under scrutiny is 22 categorically more serious than the Listed Offenses to which it 23 is being compared. 24 (2d Cir. 2000) (quoting United States v. Martinez-Santos, 184 25 F.3d 196, 206 (2d Cir. 1999)). 26 be misunderstood to mean that the unlisted offense is within a United States v. Morales, 239 F.3d 113, 118 Although categorically might 2 1 category that is more serious than the Listed Offenses, we . . . 2 use[] the adverb in its ordinary sense to mean without 3 qualification or reservation. Id. at 118 n.5. (quoting 4 Webster s Third New International Dictionary (1993) 5 ( categorically )). 6 factors in making its determination, including: 7 comparison of punishments imposed for the listed and unlisted 8 offenses, [2] the perceived seriousness of the offense as 9 indicated by the level of punishment, [3] the elements of the A district court may consider multiple [1] a 10 offense, [4] the level of culpability involved, and [5] the 11 degree to which the commission of the offense indicates a 12 likelihood of recurring criminal conduct. 13 F.3d at 200, 206 (quoting United States v. Hardeman, 933 F.2d 14 278, 281 (5th Cir. 1991). 15 relevant factor, including the actual conduct involved and the 16 actual penalty imposed. 17 553 (2d Cir. 2000) (per curiam). 18 Martinez-Santos, 184 It may also consider any other United States v. Sanders, 205 F.3d 549, We ordinarily review a district court s seriousness 19 determination de novo. 20 But where the unlisted offense encompasses a wide range of 21 conduct and thus the inquiry will necessarily focus on the 22 particular conduct of the defendant, we give due deference to a 23 court s application of the Guidelines to the facts. 24 239 F.3d at 118. 25 26 See Martinez-Santos, 184 F.3d at 198. See Morales, Vallejo has waived any objection to the district court s assessment of a criminal history point for his 2001 conviction. 3 1 At an evidentiary hearing to determine whether unauthorized use 2 was similar to the offenses enumerated in Section 4A1.2(c)(1), 3 Vallejo not only declined to contest the government s factual 4 assertions about the conduct underlying the conviction, but 5 expressly acknowledged that such conduct warranted the assessment 6 of a criminal history point for the 2001 conviction. 7 thus knowingly and intentionally waived any argument on appeal 8 that Section 4A1.2(c)(1) prevented the court from assessing a 9 criminal history point for the 2001 unauthorized use conviction. Vallejo has 10 See United States v. Jackson, 346 F.3d 22, 24 (2d Cir. 2003) 11 ( Where . . . a claim has been waived through explicit 12 abandonment, rather than forfeited through failure to object, 13 plain error review is not available. ). 14 Moreover, because the conduct underlying the 1997 conviction 15 is indistinguishable from the conduct underlying the 2001 16 conviction for the same offense, Vallejo has waived any objection 17 to the assessment of a criminal history point for the 1997 18 conviction. 19 of his attempt to strip parts from a stolen car, and there is 20 ample evidence to support the district court s finding that the 21 1997 conviction for the same offense arose out of Vallejo s 22 attempt to strip another stolen car of its parts. 23 is no material difference between the two convictions and because 24 Vallejo has already admitted that the 2001 conviction warranted a 25 criminal history point, Vallejo cannot argue that the court erred 26 in reaching the same result with respect to the 1997 conviction. Vallejo admitted that the 2001 conviction arose out 4 Because there 1 In any event, the district court did not err in determining 2 that Vallejo s convictions for unauthorized use of a vehicle were 3 categorically more serious than careless or reckless driving. 4 Unauthorized use is a Class A misdemeanor under New York law and 5 carries a maximum sentence of up to one year imprisonment for a 6 first offense. 7 driving, by contrast, is a misdemeanor and carries with it a 8 maximum sentence of only thirty days imprisonment for a first 9 offense. See N.Y. Penal Law §§ 165.05, 70.15(1). N.Y. Veh. & Traf. Law §§ 1212, 1801. Reckless In addition, the 10 state must prove a higher degree of moral culpability to secure 11 an authorized use conviction than to secure a reckless driving 12 conviction. 13 defendant at least knew that he lacked a vehicle owner s consent 14 at the time he exercised control over a vehicle. 15 Law § 165.05. 16 need show only that a defendant used a vehicle in a manner which 17 unreasonably interferes with the free and proper use of the 18 public highway, or unreasonably endangers users of the public 19 highway. 20 conduct underlying Vallejo s unauthorized use convictions 21 confirms the district court s conclusion that those convictions 22 were for offenses categorically more serious than the offense of 23 careless or reckless driving. 24 that both convictions arose out of Vallejo s attempt to scrap 25 parts from a stolen vehicle. 26 As to the former, the state must prove that a See N.Y. Penal Whereas to secure conviction for the latter, it N.Y. Veh. & Traf. Law § 1212. Finally, the actual As noted, the record clearly shows Vallejo argues that unauthorized use of a vehicle is 5 1 actually a less serious offense because it does not inherently 2 involve the same serious risks of physical danger as reckless 3 driving. 4 is a trespassory offense and as such, it poses a serious risk 5 of head-to-head confrontations with owners, police and 6 bystanders. See United States v. Ubiera, 486 F.3d 71, 76 (2d 7 Cir. 2007). Second, as the multifactored nature of the relevant 8 inquiry makes clear, the seriousness of the offense is not 9 measured merely by looking at the degree of physical danger We disagree. First, the unauthorized use of a vehicle 10 posed. 11 consider the degree of moral culpability required to obtain a 12 conviction, how the state perceives the offense s seriousness, as 13 well as other societal costs associated with it. 14 76; see also United States v. Caputo, 978 F.2d 972, 977-78 (7th 15 Cir. 1992); United States v. Hardeman, 933 F.2d 278, 281-3 (5th 16 Cir. 1991). 17 application of Section 4A1.2(c)(1) to the facts, we cannot say 18 that the court erred. Rather, an assessment of an offense s seriousness should Giving due deference to the district court s 19 20 See id. at 74, CONCLUSION We therefore affirm. 21 22 6
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