United States v. Roberto Sandoval

481 F. App'x 218

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 25, 2012
• Docket: 11-20644
• Status: Unpublished

Opinion

PER CURIAM: *

Roberto Alvarez Sandoval (Alvarez) appeals his sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326(a), (b)(2). He argues that the district court erred in assessing criminal history points based on his prior misdemean- or conviction for displaying a fictitious or counterfeit inspection certificate in violation of Tex. TraNSp. Code Ann. § 548.603(a)(1). Under that section, a person commits an offense if he “displays or causes or permits to be displayed an inspection certificate ... knowing that the certificate is counterfeit, tampered with, altered, fictitious, issued for another vehicle, issued for a vehicle failing to meet all emissions inspection requirements, or [otherwise issued in violation of law].” § 548.603(a)(1). Alvarez was convicted of the offense after being stopped for speeding while driving a car with an inspection sticker issued for a different vehicle.

In determining a defendant’s criminal history score, “[sjentences for misdemean- or and petty offenses are counted,” except for offenses listed under U.S.S.G. § 4A1.2(c)(1) and “offenses similar to them.” See § 4A1.2(e)(1). In determining whether a prior offense is “similar” to a listed offense in § 4A1.2(c)(1), this court employs a “common sense approach which relies on all possible factors of similarity.” United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991).

Alvarez argues that the fictitious inspection certificate offense is similar to the offenses of driving without a license or with an invalid license and giving false information to a police officer, which are listed offenses excludable from a defendant’s criminal history under § 4A1.2(c)(1). He acknowledges that we have held that a misdemeanor conviction for violating § 548.603 counts as a conviction for criminal history purposes. See United States v. Guajardo, 218 Fed.Appx. 294 (5th Cir. 2007). 1

To commit the offense of displaying a fictitious or counterfeit inspection certifí-cate, Alvarez had to knowingly display a fictitious or counterfeit certifícate or cause or permit such certificate to be displayed. See § 548.603(a)(1). The district court did not err in determining that the conviction should be counted in determining his criminal history because displaying a counterfeit inspection certificate requires affirmative and knowing activity and, thus, involves a greater level of culpability than the offenses of omission listed in § 4A1.2(c)(1). See Hardeman, 933 F.2d at 281. Accordingly, the district court did not err in assessing criminal history points based on Alvarez’s conviction for displaying a fictitious or counterfeit inspection certifícate. Id.

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

1 . Although Guajardo is not precedential, it is persuasive authority. See 5th Cir. R. 47.5.4.