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United States v. Abeyta

United States Court of Appeals, Tenth Circuit

December 18, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
THOMAS JEREMY ABEYTA, Defendant-Appellant.

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CR-00213-WYD-1)

          Dean 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.

          Before BRISCOE, EBEL, and PHILLIPS, Circuit Judges.

          BRISCOE, Circuit Judge.

         This is 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.

         I

         On 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).

         Because 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).[1] 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 months.

         Generally, 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 counted:
. . .
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.

         On 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.

         On 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.

         The district court determined that the PSR correctly calculated the sentencing guideline range as 27-33 months. The district court sentenced Abeyta to 27 ...


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