from the United States District Court for the District of
Colorado (D.C. No. 1:16-CR-00213-WYD-1)
Sanderford, Assistant Federal Public Defender (Virginia L.
Grady, Federal Public Defender, with him on the briefs),
Office of the Federal Public Defender for the District of
Colorado, Denver, Colorado, appearing for Appellant.
Michael C. Johnson, Assistant United States Attorney (Robert
C. Troyer, Acting United States Attorney, with him on the
brief), Office of the United States Attorney for the District
of Colorado, Denver, Colorado, appearing for Appellee.
BRISCOE, EBEL, and PHILLIPS, Circuit Judges.
BRISCOE, Circuit Judge.
a direct criminal appeal in which Defendant Thomas Jeremy
Abeyta ("Abeyta") challenges his sentence. Abeyta
pled guilty to being a previously convicted felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). The district court enhanced Abeyta's sentence
pursuant to United States Sentencing Guidelines (the
"U.S.S.G." or the "guidelines") §
4A1.2(c), counting Abeyta's prior conviction for
"damaging, defacing or destruction of private
property" under Denver Revised Municipal Code
("Den.") § 38-71 as a local ordinance
violation that also violates state criminal law. Abeyta now
appeals the sentencing enhancement. Exercising jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. §
1291, we remand with direction to vacate Abeyta's
sentence and resentence him.
October 12, 2016, Abeyta pled guilty to being a previously
convicted felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). In Abeyta's Presentence
Investigation Report (the "PSR"), the probation
office determined that Abeyta's prior conviction for
"damaging, defacing or destruction of private
property" under Denver ordinance, Den. § 38-71,
counted for one criminal history point pursuant to U.S.S.G.
§ 4A1.2(c)(1), (d)(2)(B). The PSR also noted that Abeyta
committed the instant offense while on probation for his Den.
§ 38-71 conviction, which led to an additional 2-point
increase under U.S.S.G. § 4A1.1(d).
the PSR counted Abeyta's conviction under Den. §
38-71, his criminal history points increased from 7 to 10.
This is due to the 1-point increase for the Den. § 38-71
conviction itself, and the 2-point increase for committing
the instant offense (violation of 18 U.S.C. § 922(g)(1))
while on probation for a countable conviction (violation of
Den. § 38-71). These three points increased his criminal
history points from 7 to 10, with the resulting change in
criminal history category from category IV to category V and
an increased guideline range from 21-27 months to 27-33
the guidelines count misdemeanors and petty offenses for
purposes of calculating a defendant's criminal history
score, but § 4A1.2(c)(2) provides a list of exceptions:
(c) Sentences Counted and Excluded
Sentences for all felony offenses are counted. Sentences for
misdemeanor and petty offenses are counted, except as
follows: . . . .
(2) Sentences for the following prior offenses and offenses
similar to them, by whatever name they are known, are never
. . .
Local ordinance violations (except those violations that are
also violations under state criminal law)[.]
U.S.S.G. § 4A1.2(c). More specifically, subsection
(c)(2) lists "[l]ocal ordinance violations" as an
offense that is not counted under the guidelines, but there
is an exception to this exception: "(except those
violations that are also violations under state criminal
law)." Id. Because a Den. § 38-71 offense
is a local ordinance violation, it qualifies as an exception
under § 4A1.2(c)(2), meaning that it does not
count toward Abeyta's criminal history score. But, if a
Den. § 38-71 offense also violates state criminal law,
then the exception to the exception applies, meaning that it
does count under the guidelines.
December 27, 2016, Abeyta filed a written objection to the
PSR, arguing (among other things) that his Den. § 38-71
conviction is a local ordinance violation that does not
necessarily violate state criminal law. He noted that
Colorado has a similar offense, Colo. Rev. Stat.
("Colo.") § 18-4-501 (making it "unlawful
for any person knowingly to damage, deface, destroy or
injure" another person's property), but argued that
the Colorado statute only criminalizes conduct that actually
damages property, whereas Den. § 38-71 criminalizes
broader conduct, including defacement that does not cause
damage. Because a violation of Den. § 38-71 does not
necessarily violate Colo. § 18-4-501, Abeyta argued, the
"exception to the exception" does not apply.
January 17, 2017, the district court held a sentencing
hearing. At the hearing, Abeyta repeated his objection to the
PSR. The government responded by arguing that a Den. §
38-71 violation also violates Colo. § 18-4-501 under a
"common sense approach, " referencing text in the
commentary of the guidelines. Aplt. App., Vol. III at 42. The
district court agreed with the government and overruled
Abeyta's objection, holding "because destruction of
property could be charged under the state statute for
criminal mischief, that there is sufficient similarity
between the two that, using a common sense approach, it's
okay to count as Probation did." Id. at 43.
district court determined that the PSR correctly calculated
the sentencing guideline range as 27-33 months. The district
court sentenced Abeyta to 27 ...