The defendant, Noe Mendez-Guerra, possession marijuana in excess of 100 kilograms with intent to distribute. He has had the criminal history of misdemeanor theft conviction. His criminal conduct appeared to be similar to either the offense of an insufficient funds check or trespassing.
The United States Court of Appeals affirmed the conviction.
In order an offense to resemble criminal acts listed in U.S. Sentencing Guidelines Manual § 4A1.2(c) (1), a court should take into account all possible factors of similarity. These factors are (1) a comparison of punishments imposed for the listed and unlisted offenses, (2) the perceived seriousness of the offense as indicated by the level of punishment, (3) the elements of the offense, (4) the level of culpability involved, and (5) the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct. Yet, no factor is accorded dispositive weight.
An act has to be evaluated as theft if delinquent unlawfully appropriates property with intent to deprive the owner of property [Tex. Penal Code Ann. § 31.03(a) (1998)]. The offense is a Class C misdemeanor if the value of the property stolen is less than fifty dollars [ Tex. Penal Code Ann. § 31.03(e)(1)(A) (1998)]. If the value of the property stolen is between fifty and five hundred dollars, the offense belongs to Class B misdemeanor [Tex. Penal Code Ann. §§ 31.03(e)(2)(A) and 12.22 (1998)].
Whether defendant’s theft conviction was similar to either the offense of an insufficient funds check or the offense of trespassing.
The appellate court held that “defendant’s contention that his petty theft offense was similar to the offense of trespassing listed in U.S. Sentencing Guidelines Manual § 4A1.2(c)(1) also failed. It could not be said that defendant’s prior petty theft offense was a serious crime, nor could it be said that petty theft was so similar to trespassing that it was embraced by the Guidelines’ instruction to exclude trespassing and similar offenses from his criminal history score. The district court did not err by finding that defendant’s prior theft offense was not similar to an insufficient funds check offense or a trespassing offense and counting it in his criminal history score”.
The appellate court admitted that defendant’s previous conviction for petty theft is not similar to the listed offense of an insufficient funds check as it is prescribed in U.S. Sentencing Guidelines Manual § 4A1.2(c)(1). It was further determined that “petty theft involves a heightened risk of physical confrontation and harm to others relative to an insufficient funds check.”