United States v. Washington

103 F.4th 917

UNITED STATES of America, Appellee, v. Brandon WASHINGTON, a.k.a. Goldie, Defendant-Appellant.^*

No. 21-1809

August Term 2022

United States Court of Appeals, Second Circuit

Submitted: April 12, 2023

Decided: June 10, 2024

Appeal from the United States District Court for the Western District of New York, No. 19-cr-125-4, Richard J. Arcara, Judge.

Michael J. Stachowski, Michael J. Stachowski, P.C., Buffalo, NY, for Defendant-Appellant.

Katherine A. Gregory, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY, for Appellee.

Before: Sullivan, Merriam, and Kahn, Circuit Judges.

Judge Merriam dissents in a separate opinion.

Richard J. Sullivan, Circuit Judge:

Brandon Washington appeals from a judgment of conviction in the United States District Court for the Western District of New York (Arcara, J.) following his guilty plea to possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Washington principally argues that the district court erroneously determined his criminal history category under the United States Sentencing Guidelines (the "Guidelines") by improperly assessing a criminal history point for a prior state-court conviction for harassment.¹ We disagree. The district court's addition of this point was not error because section 4A1.2(c)(1)(B) of the Guidelines provides that certain offenses normally excluded from the criminal history calculation will nonetheless be counted if they are "similar to" the instant offense. U.S.S.G. § 4A1.2(c)(1)(B). Since Washington's prior state-court harassment conviction stemmed from the same conduct - the sale of controlled substances (from the same house, no less) - as did his current federal conviction, we hold that the prior offense was "similar to" the instant offense and the district court did not err in adding the extra criminal history point. The rest of Washington's arguments are meritless, so we affirm the district court's judgment.

I. BACKGROUND

In June 2020, Washington pleaded guilty to possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). At sentencing, the district court determined that Washington's prior state-court conviction for second-degree harassment - which, according to information in the Presentence Report ("PSR"), resulted from his guilty plea after being charged with selling controlled substances outside the same house at issue in the current case - was similar to the instant offense of possession with intent to distribute. Applying section 4A1.2(c)(1)(B), the district court determined that a one-point increase to Washington's total criminal history points was warranted because of the similarity between the prior and instant offenses. The district court then sentenced Washington to sixty months' imprisonment, to be followed by six years' supervised release. On appeal, Washington makes several arguments, all to the effect that the district court erroneously determined his criminal history category under the Guidelines.

II. DISCUSSION

We review the district court's factual findings for clear error and its interpretation and application of the Sentencing Guidelines de novo. See United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008). We address Washington's arguments in turn below.

A. The district court did not err in assessing a criminal history point for Washington's prior conviction for harassment when calculating his criminal history category.

Washington principally argues that the district court erred in adding one criminal history point for his second-degree harassment conviction, which he contends is a noncountable misdemeanor offense under section 4A1.2(c)(1) of the Guidelines. We are not persuaded.

Section 4A1.2(c) provides, in relevant part:

Sentences for misdemeanor and petty offenses are counted, except as follows:

(1) Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense:

Careless or reckless driving

Contempt of court

Disorderly conduct or disturbing the peace

Driving without a license or with a revoked or suspended license

False information to a police officer

Gambling

Hindering or failure to obey a police officer

Insufficient funds check

Leaving the scene of an accident

Non-support

Prostitution

Resisting arrest

Trespassing.

U.S.S.G. § 4A1.2(c) (emphasis added).

Section 4A1.2(c)'s baseline rule is that misdemeanors are counted in a defendant's criminal history calculation. Nevertheless, certain offenses listed in section 4A1.2(c)(1) "and offenses similar to them" (together, the "Excluded Offenses") are generally not counted. U.S.S.G. § 4A1.2(c)(1). Relying on that exclusion, Washington argues that his prior conviction for harassment should not have been counted because it is "similar to" disorderly conduct. Id. But Washington overlooks the rest of section 4A1.2(c)(1), which withholds from repeat offenders the leniency that the section otherwise provides. Specifically, section 4A1.2(c)(1)(B) states that Excluded Offenses are counted in a defendant's criminal history calculation if "the prior offense was similar to an instant offense." Id. § 4A1.2(c)(1)(B). Thus, as the district court correctly noted, even if Washington's prior conviction for harassment is an Excluded Offense, the offense must nevertheless be counted if it is similar to the instant offense. The district court concluded it was. The central question on appeal, then, is not whether Washington's prior offense is similar to a listed offense under section 4A1.2(c)(1), but whether his prior offense is similar to his instant offense under section 4A1.2(c)(1)(B). To answer either question, we must determine the meaning of "similar to."

"Our analysis begins and ends with the text." Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 591 U.S. 657, 676, 140 S.Ct. 2367, 207 L.Ed.2d 819 (2020) (internal quotation marks omitted). "Similar" means "[h]aving a significant or notable resemblance or likeness, in appearance, form, character, quantity, etc., to something stated or implied (though generally without being identical)." Similar, Oxford English Dictionary (July 2023), https://doi.org/10.1093/OED/8482586673; see also Similar, New Oxford American Dictionary 1629 (3d ed. 2010) ("resembling without being identical"); Similar, American Heritage Dictionary 1633 (5th ed. 2011) ("[h]aving a resemblance in appearance or nature; alike though not identical"); Similar, Webster's Third New International Dictionary 2120 (2002) ("having characteristics in common . . . alike in substance or essentials").

As these definitions make clear, the word "similar" does not limit courts to comparing offenses along only a single dimension, such as the elements of the offense, the conduct underlying the offense, or the punishment corresponding to the offense. On the contrary, the word contemplates a range of analytical criteria, including "appearance, form, character, quantity, etc." Similar, Oxford English Dictionary (July 2023). And no other clause in section 4A1.2(c)(1)(B) limits the "similar to" inquiry to any single factor. Section 4A1.2(c)(1)(B) does not, for example, require that a prior offense be similar "by its nature" to the instant offense. Cf. United States v. Davis, 588 U.S. 445, 457, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019) (holding that a "by its nature" qualifier indicated that courts could not make a conduct-specific inquiry when determining whether a defendant committed a crime of violence). Nor does section 4A1.2(c)(1)(B) refer to the elements of an offense or otherwise suggest that it calls for an element-by-element comparison between offenses. Cf. U.S.S.G. § 4B1.2(a)(1) (defining "crime of violence" to include any offense punishable by more than one year of imprisonment that "has as an element the use, attempted use, or threatened use of physical force").

Though we have not had occasion to interpret the "similar to" phrase found in section 4A1.2(c)(1)(B) in a published opinion, we have consistently interpreted the identical phrase immediately preceding it in section 4A1.2(c)(1) as allowing courts comparing listed and unlisted offenses to take into account "any . . . relevant factor, including the actual conduct involved." United States v. DeJesus-Concepcion, 607 F.3d 303, 305 (2d Cir. 2010) (internal quotation marks omitted); see also United States v. Ubiera, 486 F.3d 71, 75 (2d Cir. 2007) ("[O]ur analysis [under section 4A1.2(c)(1)] also considers the actual conduct involved and the actual penalty imposed." (internal quotation marks omitted)); United States v. Morales, 239 F.3d 113, 118 (2d Cir. 2000) ("[T]he 'similar to' comparison should focus on the particular facts of the prior offense whenever the statute that was violated covers a broad range of conduct."); United States v. Sanders, 205 F.3d 549, 553 (2d Cir. 2000) ("[W]e, like the Seventh and Ninth Circuits, look to the actual conduct involved and the actual penalty imposed - rather than to the range of possible conduct or the range of possible punishments - when determining whether a prior offense is 'similar' to a [l]isted [o]ffense.").

In DeJesus-Concepcion, we considered whether a defendant's prior convictions for unauthorized use of a vehicle were similar to careless or reckless driving, an Excluded Offense listed in section 4A1.2(c)(1). See 607 F.3d at 304. In concluding that they were not, we noted that "the actual conduct underlying [the defendant]'s unauthorized[-]use convictions confirms the district court's conclusion that those convictions were for offenses [clearly]² more serious than the [listed] offense of careless or reckless driving." Id. at 306 (emphasis added). Although the defendant's prior...