United States v. Ubiera ( 2007 )


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  •      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
    
    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.   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 
    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.   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, 
    579 F.2d 707
     (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, 
    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.     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, 
    317 F.3d 107
    , 128-31 (2d Cir. 2003); 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.     The court also referenced a conviction for
    15   disorderly conduct.
    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   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, 
    239 F.3d 113
    ,
    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, 
    520 U.S. 461
    , 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, 
    933 F.2d 278
    , 281 (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, 
    184 F.3d 196
    ,
    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, 
    184 F.3d at 206
     (quoting United
    8    States v. Caputo, 
    978 F.2d 972
    , 977 (7th Cir. 1992)).    But
    9    our analysis also considers “the actual conduct involved and
    10   the actual penalty imposed.”   United States v. Sanders, 205
    
    11 F.3d 549
    , 553 (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, 
    239 F.3d at
    118 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, 
    239 F.3d at 119
    , 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   
    F.3d 865
    , 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, 
    392 F.3d 130
    , 133
    9    (5th Cir. 2004); Harris, 325 F.3d at 872-73; United States
    10   v. Spaulding, 
    339 F.3d 20
    , 22 (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, 
    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
    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, 
    270 F.3d 107
    , 110 (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, 
    287 F.3d 127
    , 134 (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, 
    9 F.3d 275
    , 279 (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, 
    543 U.S. 220
    4    (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    
    Id. at 244
    .   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.   
    21 U.S.C. § 841
    (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