United States v. Clyde Frank Martinez

905 F.2d 251, 1990 U.S. App. LEXIS 8425, 1990 WL 68245

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 25, 1990
• Docket: 88-3240
• Status: Published

Opinions

JAMES R. BROWNING, Circuit Judge:

Defendant-appellant Clyde Martinez appeals from his sentence following his conviction for unarmed bank robbery.

I.

Martinez pled guilty to an indictment for unarmed bank robbery in violation of 18 U.S.C. § 2113(a). A probation officer’s pre-sentence report submitted pursuant to the Sentencing Guidelines determined Martinez’s total offense level to be 17. The report then calculated Martinez’s criminal history, adding one point for each of four prior convictions, including a conviction for public indecency. The report added two more points because Martinez was on probation from the indecency conviction when he committed the robbery, for a total criminal history score of six, placing defendant in criminal history category III. A total offense score of 17, coupled with a category III history, resulted in a sentencing range of 30-37 months. See United States Sentencing Commission, Guidelines Manual (U.S.S.G.) ch. 5, Part A, Table (Oct. 1987).

The district court granted Martinez’s request for a downward departure due to mitigating circumstances, reducing his incarceration from 30 to 27 months, but denied Martinez’s objections to the report in other respects. Martinez appealed.

The district court exercised jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291.

II.

Martinez argues the district court erred in including his prior conviction for public indecency as part of his criminal history.

The inclusion or exclusion of prior offenses from a defendant’s criminal history is governed by U.S.S.G. § 4A1.2(c). All felony sentences are to be included. Sentences for misdemeanors and petty offenses are also to be included subject to two provisions.

The first provision, found in subsection (1), is that prior sentences for certain listed offenses are to be included only if the sentences imposed exceed a specified limit, or if the prior offense was similar to that for which the sentence under appeal was being imposed. This provision offers no relief to Martinez because his sentence for public indecency was not less than that specified in subsection (1), and public indecency is not similar to bank robbery.

Martinez argues the second provision does apply. This provision, found in subsection (2) of U.S.S.G. § 4A1.2(c), provides that sentences for certain listed prior offenses — hitchhiking, juvenile status offenses and truancy, loitering, minor traffic infractions, public intoxication, and vagrancy — “and offenses similar to them, by whatever name they are known, are never counted.” Public indecency is not among the listed offenses. The question is whether it is “similar to them.”

The parties assume we are to look to the law of the particular jurisdiction which convicted defendant of a prior offense to determine whether, under local law, the offense is treated as analogous to any of the offenses excluded by U.S.S.G. § 4A1.2(c)(2). We reject this approach as inconsistent with the primary purpose of the Sentencing Reform Act of 1984 to “provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records.” 28 U.S.C. § 991(b)(1)(B); see Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 651, 102 L.Ed.2d 714 (1989).

It is apparent the offenses listed in U.S. S.G. § 4A1.2(c)(2) are excluded from the defendant’s criminal history because they are of such minor significance to the goals of sentencing, see 18 U.S.C. § 3553(a)(2), that inclusion would more likely distort than improve the process established by the guidelines for determining an appropriate sentence. The listed offenses offer no basis for predicting future significant criminal activity by the defendant;¹ the conduct they involve is not uniformly criminalized, and when it is, the penalty is usually light.² Consideration of convictions for such conduct in determining sentences would be inimical to the realization of the goal of uniformity in sentencing since the sentence calculation under the guidelines would vary with the jurisdiction in which a person who engaged in such conduct resided.

The offense punishable under Oregon law as public indecency³ is an offense of a different order. It falls within the category of offenses prohibited by MPC § 251.1 as “Open Lewdness.”⁴ As Comment 2 to MPC § 251.1 points out, this category of penal provisions “reaches the open flouting of community standards regarding sexual and related matters.” Id. at 449. There is a consensus that such conduct is culpable. Every American jurisdiction treats it as criminal; most provide a range of penalties above that for the lowest level of offense. See Comment 3 to MPC § 251.1, at 453 (“The majority of revised statutes ... impose maximum terms of six months to one year.”). Society has a substantial interest in punishing such conduct as a breach of public order, and in discouraging its repetition. Because public indecency is universally regarded as culpable, conviction of such an offense is relevant to the likelihood the offender will engage in criminal conduct in the future and is significant for sentencing purposes. We conclude public indecency is not “similar” to the offenses listed in subsection (2).

Since the Oregon misdemeanor of public indecency does not fall within either of the exceptions in U.S.S.G. § 4A1.2(c), the district court properly refused to exclude the conviction from Martinez’s criminal history score.

III.

Martinez contends it was error to add two points to his criminal history score under U.S.S.G. § 4Al.l(d)⁵ because he committed the robbery while on “bench” probation imposed as part of his sentence for public indecency.

Martinez’s first argument rests on a premise we have rejected-that public indecency is excluded from Martinez’s criminal history by U.S.S.G. § 4A1.2(c)(2).

His second argument is that U.S.S.G. § 4Al.l(d) does not apply to “bench” probation at all. Martinez points out that all of the sentences listed in subsection (d), except escape, involve active supervision, which is not characteristic of bench probation. He argues that the Commentary to U.S.S.G. § 4Al.l(d) indicates points are to be added only when the offense for which the defendant is being sentenced was committed while defendant was “under criminal justice control,”⁶ which does not describe a defendant on “bench” probation.

We have recently disapproved this precise argument. United States v. McCrudden, 894 F.2d 338 (9th Cir.1990). The district court properly added two points to Martinez’s criminal history score because he was on bench probation for his public indecency conviction at the time he committed the robbery.

IV.

Martinez contends the district court erred by refusing to grant a greater downward departure from the guideline range because (1) his criminal history overrepresented the seriousness of his past offenses and his future dangerousness, and (2) mitigating circumstances justified a greater reduction in sentence than the three-month departure granted by the district court.

Martinez does not assert the sentence imposed was in violation of law, involved an incorrect application of the guidelines, exceeded the guideline range, or was imposed for an offense for which there is no sentencing guideline and was “plainly unreasonable"-grounds upon which a defendant is expressly authorized to appeal. See 18 U.S.C. § 3742(a). Absent such challenges we have no basis to review the district court’s downward departure.

AFFIRMED.

1 . It is significant that Parole Commission regulations for determining parole eligibility, 28 C.F.R. § 2.20, at 104 (Salient Factor Scoring Manual, Item A.2(c)) (1988), exclude from consideration essentially the same offenses as those listed in U.S.S.G. § 4A1.2(c)(2).

2 . The Model Penal Code (MPC) (1980) ranks public drunkenness, MPC § 250.5, and loitering, MPC § 250.6, as mere "violations” (a "non-criminal” class of offense, by contrast with "open lewdness,” a petty misdemeanor, discussed infra at note 5 and accompanying text). See also MPC § 1.04 (distinguishing crimes from violations).

"[A] number of states have chosen to eliminate vagrancy and loitering from their penal codes altogether." Comment 4 to MPC § 250.6, at 393. Many of the traditional vagrancy and loitering statutes have been found unconstitutional. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); see also Comment 5 to MPC § 250.6 (discussing constitutional challenges to vagrancy and loitering statutes).

Oregon provides an example of this broader pattern. In Oregon, public intoxication and vagrancy are not offenses, ORS § 430.325, and hitchhiking is classified as a minor traffic violation, ORS § 814.080.

3 .Martinez was sentenced for violating Oregon Revised Statute (ORS) § 163.465 which reads:

163.465 Public Indecency.

(1) A person commits the crime of public indecency if while in, or in view of, a public place the person performs:

(a) An act of sexual intercourse; or

(b) An act of deviate sexual intercourse; or

(c) An act of exposing the genitals of the person with the intent of arousing the sexual desire of the person or another person.

(2) Public indecency is a Class A misdemean- or.

4 . Section 251.1 of the Code reads:

251.1 Open Lewdness

A person commits a petty misdemeanor if he does any lewd act which he knows is likely to be observed by others who would be affronted or alarmed.

5 . U.S.S.G. § 4Al.l(d) provides:

Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.

6 .In order to "conform the commentary to the guideline,” the Commission recently amended U.S.S.G. § 4A1.1, Comment, (backg'd.) by replacing the phrase "under criminal justice control” with “under a criminal justice sentence.” U.S.S.G. App. C, amendment 261 (Nov.1989).