United States v. Benjamin ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5971
DARLENE BENJAMIN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-95-645-3-19)
Submitted: March 27, 1997
Decided: April 9, 1997
Before RUSSELL, LUTTIG, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Gordon Widenhouse, Assistant Federal Public Defender, Raleigh,
North Carolina, for Appellant. J. Rene Josey, United States Attorney,
Jane B. Taylor, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Darlene Benjamin pled guilty to conspiracy to distribute and pos-
sess with intent to distribute crack cocaine, 21 U.S.C. § 846 (1994),
and received a sentence of 63 months imprisonment. Benjamin
appeals her sentence, arguing that the district court plainly erred in
determining her criminal history score. We affirm.
The probation officer assigned Benjamin two criminal history
points, one of which was for a $137 fine she received for shoplifting
in 1991. See United States Sentencing Commission, Guidelines
Manual § 4A1.1(c) (Nov. 1995). With an offense level of 27 and a
criminal history category of II, Benjamin's guideline range was 78-97
months. Benjamin did not object to the presentence report. At sen-
tencing, the district court departed downward two levels for substan-
tial assistance, giving her a new guideline range of 63-78 months, and
imposed sentence at the bottom of the range.
Benjamin now contends that the district court committed plain
error when it awarded her one criminal history point for the fine she
received for the shoplifting conviction. Under United States v. Olano,
507 U.S. 725, 732-36 (1993), an appellate court may notice an error
not raised in the district court if an error indeed was made which
affected the defendant's substantial rights and should be corrected
because it "seriously affects the fairness, integrity or public reputation
of judicial proceedings."
Benjamin points out that certain offenses listed in USSG
§ 4A1.2(c)(1) "and offenses similar to them, by whatever name they
are known," are not counted in determining a defendant's criminal
history score. She argues that shoplifting, which is not listed, is simi-
lar to writing an insufficient funds check, an offense which is listed,
under a test used in the Fifth Circuit. See United States v. Gadison,
8 F.3d 186, 193 (5th Cir. 1993) (finding Texas conviction for "theft
by check" similar to offense of "insufficient funds check"); United
States v. Hardeman, 933 F.2d 278, 281-83 (5th Cir. 1991) (finding
Texas conviction for driving without insurance generally similar to
listed offenses). The Hardeman test requires a comparison of "all pos-
2
sible factors of similarity," including punishment, elements of the
offense, level of culpability, and likelihood of recurring criminal con-
duct. Hardeman, 933 F.2d at 281. Benjamin argues that, under this
test, shoplifting is so similar to the offense of writing an insufficient
funds check that the district court should have sua sponte refused to
award the criminal history point recommended by the probation offi-
cer.
While Benjamin has raised an arguable issue, we cannot say that
the district court plainly erred. Moreover, because Benjamin's offense
involved 48 grams of crack, the statute required a mandatory five-
year sentence. See 21 U.S.C. § 841(b)(1)(B) (1994). She received
only three months more. She suggests that, had her guideline range
been recalculated to fall below 60 months, the court would also have
found that she qualified for sentencing below the mandatory mini-
mum under the safety valve provision. See 18 U.S.C. § 3553(f)(1)-(5)
(1994); USSG § 3C1.2. However, we cannot say with certainty that
the district court would have made all the necessary factual findings
in her favor. The sentence is therefore affirmed. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
3