05-5256-cr United States v. Ubiera

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2006 6 7 8 (Argued: March 1, 2007 Decided: May 15, 2007) 9 10 Docket No. 05-5256-cr 11 12 - - - - - - - - - - - - - - - - - - - -x 13 14 UNITED STATES OF AMERICA, 15 16 Appellee, 17 18 - v.- 19 20 HENRY UBIERA, 21 22 Defendant-Appellant. 23 24 - - - - - - - - - - - - - - - - - - - -x 25

26 Before: JACOBS, Chief Judge, CARDAMONE and 27 SOTOMAYOR, Circuit Judges. 28 29 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 ARZA FELDMAN and STEVEN A. 36 FELDMAN, Feldman & Feldman, 1 Uniondale, New York, for 2 Defendant-Appellant. 3 4 STEVEN D. FELDMAN, Assistant 5 United States Attorney (Celeste 6 L. Koeleveld, on the brief) for 7 Michael J. Garcia, United States 8 Attorney, Southern District of 9 New York, for Appellee. 10 11 DENNIS JACOBS, Chief Judge: 12 13 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. Ubiera’s principal challenge is to the assessment

17 of a criminal history point for each of two prior

18 shoplifting convictions. Ubiera contends that shoplifting

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. Ubiera also argues that the court erred by:

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 We affirm the judgment.

2 1 I

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

, 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. The second count was predicated on the second overt

9 act, and alleged that Ubiera had distributed, and possessed

10 with the intent to distribute, approximately 800 ecstasy

11 pills, in violation of

, 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. The district court warned Ubiera of

16 the consequences of his incomplete allocution:

17 [W]hat I want you to be aware of is that one 18 consequence of my allocuting you to less than all 19 of the issues that may be involved in the 20 indictment is that . . . if I find that there 21 really was a lot more to what you did than what 22 are you are ready to admit to, I may find that you 23 are not entitled to the credit for acceptance of 24 responsibility. 25 26 At a subsequent hearing held pursuant to United States v.

27 Fatico,

(2d Cir. 1978), Ubiera repeated his

3 1 denial of the 1000 pill transaction.

2 At sentencing on October 14, 2004, the district court

3 found that Ubiera had in fact sold the 1000 pills. Ubiera’s

4 responsibility for a total of 1800 ecstasy pills yielded an

5 offense level of 26. See U.S.S.G. § 2D1.1. The district

6 court declined Ubiera’s request to reduce the offense level

7 for acceptance of responsibility:

8 I don’t believe you clearly demonstrated 9 acceptance of responsibility. I found that you 10 were a drug dealer and you tried to hide that and 11 you have not accepted that. And by denying 12 something, admitting a little bit, you are 13 creating a deception to yourself, perhaps to the 14 probation officer, to others. 15 16 The district court concluded that Ubiera fell within

17 Criminal History Category II. Neither party objected to

18 this computation, which yielded a guidelines range of 70 to

19 87 months’ imprisonment. Ubiera was then sentenced to 75

20 months’ imprisonment, three years’ supervised release and a

21 $200 mandatory special assessment.

22 Ubiera appealed his sentence on various grounds, but

23 was ultimately granted a remand for resentencing pursuant to

24 United States v. Fagans,

(2d Cir. 2005),

25 because he had preserved an objection to mandatory

26 application of the Guidelines,

.

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. Ubiera’s counsel

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.” U.S.S.G. § 4A1.3(b)(1); see also United States v.

9 Thorn,

(2d Cir. 2003); United States v.

10 Resto,

(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. The court also referenced a conviction for

15 disorderly conduct.

16 After hearing argument pursuant to United States v.

17 Booker,

(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 Where, as here, a statute “punishes

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. United States v. Morales,

,

10 117-18 (2d Cir. 2000).

11 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). Since Ubiera raises a

2 substantially different argument on appeal, we review the

3 district court’s decision to count the shoplifting

4 convictions only for plain error. See Fed. R. Crim. P.

5 52(b); Johnson v. United States,

, 466-67

6 (1997). For the reasons set forth below, we conclude that

7 there was no error, plain or otherwise.

8 Among those considerations courts have focused on in

9 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. See, e.g., United States v.

15 Hardeman,

(5th Cir. 1991). We have

16 adopted this multifactor test (though not in haec verba),

17 but also consider “any other factor [we] reasonably find[]

18 relevant.” United States v. Martinez-Santos,

,

19 206 (2d Cir. 1999).

20 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.” Martinez-Santos,

(quoting United

8 States v. Caputo,

(7th Cir. 1992)). But

9 our analysis also considers “the actual conduct involved and

10 the actual penalty imposed.” United States v. Sanders, 205

(2d Cir. 2000) (per curiam). “Although

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.’” Morales,

n.5. The facts

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

8 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. See Sanders, 205 F.3d at 552. Under New

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. One key difference in relative punishment, however, is

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. See id. § 2C:20-11(c). A repeat passer of

18 bad checks is subject to no such minimums.2

2 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. In New Jersey, shoplifting consists chiefly of

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. See id. § 2C:20-11(b).

7 Passing a bad check consists of writing a check “knowing

8 that it will not be honored by the drawee.” Id. § 2C:21-5.

9 In weighing relative culpability, i.e. the “degree of

10 moral guilt,” Morales,

, two observations

11 made by other circuits are useful. First, a shoplifting

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. This difference is germane because

16 the Guidelines exclude from consideration only bad check

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. See United States v. Harris, 325

4

, 873 (7th Cir. 2003) (citing U.S.S.G. § 4A1.2,

5 Applic. Note 13).

6 Second, shoplifting is a “trespassory” offense that

7 poses dangers that do not arise when a bad check is written

8 or negotiated. See United States v. Lamm,

, 133

9 (5th Cir. 2004); Harris, 325 F.3d at 872-73; United States

10 v. Spaulding,

(1st Cir. 2003). Shoplifting

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 “The particular

14 facts,” Morales,

, of Ubiera’s prior offenses

15 illustrate this distinction: he stole (or attempted to

16 steal) property directly from merchants’ premises.

3 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. The incidence of shoplifting tends

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. Few of

8 these problems are caused when an individual writes a bad

9 check on his own account: scrutiny falls on the check-writer

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. See Harris, 128 F.3d at 855 (concluding that prior

17 cases “do not offer any unifying principle for how one

18 offense, but not another, indicates a likelihood of future

19 criminal conduct”). As noted above, however, shoplifting

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

12 1 two prior offenses than would two convictions for passing

2 bad checks. Assuming that these are the relevant

3 considerations under this factor, it thus weighs somewhat

4 against finding the two offenses similar.

5 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

10 III

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: Unless

3 the judge’s determination as to acceptance of responsibility

4 is “without foundation,” it may not be disturbed. United

5 States v. Zhuang,

(2d Cir. 2001) (per

6 curiam).

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. That transaction was an overt act within the

17 conspiracy to which Ubiera pled guilty. A district court

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,

(2d Cir. 2002).

22 “[A]s to the offense that is the subject of the plea, the

14 1 district court may require a candid and full unraveling . .

2 . .” United States v. Reyes,

(2d Cir.

3 1993).

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. See U.S.S.G. § 4A1.2(c)(1).

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:

13 Mr. Cohen: [T]he Nassau County conviction for 14 disorderly conduct . . .doesn’t count in his 15 criminal history calculation. . . . 16 17 The Court: They don’t -- there is no Criminal 18 History point but I look at this as a pattern, Mr. 19 Cohen. 20 21 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. 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,

(2005). Booker does require factfinding by a jury and

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

. Ubiera’s guilty plea to the conspiracy count

9 (and allocution to the 800 pill transaction) would have

10 supported a sentence up to a statutory maximum of 20 years’

11 imprisonment.

(b)(1)(C). Because Ubiera was

12 sentenced only to 75 months, his argument is without merit.

13

14 * * *

15 For the reasons set forth above, the judgment of the

16 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