United States v. 2010-11-10 | 09-30262 | USA V. JEFFREY GROB | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 09-30262
Plaintiff-Appellee, D.C. No.
v. 9:08-cr-00036-  DWM-1JEFFREY DOUGLAS GROB,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
May 4, 2010—Seattle, Washington
Filed November 10, 2010
Before: Kim McLane Wardlaw and Ronald M. Gould,
Circuit Judges, and Richard Mills, Senior District Judge.*
Opinion by Judge Wardlaw
*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
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COUNSEL
Anthony R. Gallagher, Federal Defender, John Rhodes and
Andrew J. Nelson, Assistant Federal Public Defenders, and
Jessica L. Weltman, Research and Writing Attorney, Federal
Defenders of Montana, Missoula, Montana, for the defendant-
appellant, Jeffrey Douglas Grob.
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Michael W. Cotter, United States Attorney, and Marcia Kay
Hurd, Assistant United States Attorney, Billings, Montana,
for the plaintiff-appellee, United States of America.
OPINION
WARDLAW, Circuit Judge:
Jeffrey Grob, who was sentenced to 37 months imprison-
ment following his conviction of one count of cyberstalking
in violation of 18 U.S.C. § 2261A(2)(B), appeals his sentence,
arguing that the district court’s criminal history calculation
improperly included a prior misdemeanor conviction for crim-
inal mischief. Because Grob’s prior Montana criminal mis-
chief conviction should not have been counted under the
applicable sentencing guideline, U.S.S.G. § 4A1.2(c), the dis-
trict court committed procedural error. See United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (“It would
be procedural error for a district court to fail to calculate—or
to calculate incorrectly—the Guidelines range.”) (citing Gall
v. United States, 552 U.S. 38, 51 (2007)). We therefore vacate
Grob’s sentence and remand to the district court for resen-
tencing.
I. BACKGROUND
Jeffrey Grob’s girlfriend broke up with him during the
summer of 2007 after she suffered a miscarriage. To put it
mildly, Grob did not take the end of either the pregnancy or
the relationship well. Beginning in October of 2007, Grob
sent his ex-girlfriend twenty-two threatening e-mails and fifty
threatening text messages. Illustrative of the content of these
threats is an excerpt from the text message Grob sent on
November 27, 2007, with the subject heading “I’m going to
slit your throat”:
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If you ever come back to Montana again I am going
to slit your throat. I am not even kidding. It would
make be fill [sic] so good to see you bleed as you
gasp for air. I hope your are [sic] ready for retribu-
tion, because it is coming. You are going down
bitch.
Photographs of dead and dismembered women accompanied
some messages. Grob went so far as to attach a photograph of
a dead infant to an e-mail entitled “OMG our baby.” In an e-
mail entitled “I can’t believe you killed our baby,” sent on
November 12, 2007, Grob wrote that he was not going away
and was “not going to forget about the horrible shit you did
to me.” “Vengeance,” he added, “will be mine. I will get you
even if it is the last thing I do.”
Having reason to fear for her life, Grob’s ex-girlfriend con-
tacted law enforcement. When officers interviewed Grob, he
initially denied sending the messages, but eventually admitted
he sent them to “scare” his ex-girlfriend. Grob was indicted
for cyberstalking in violation of 18 U.S.C. § 2261A(2)(B),
and was granted pretrial release. Grob’s pretrial release was
revoked, however, on October 17, 2008, due to his arrest for
public intoxication and carrying a concealed weapon. Grob’s
subsequent conduct was far from exemplary: while in federal
custody, for example, he was caught in possession of a home-
made knife fashioned out of a razor blade.
Grob ultimately pled guilty to one count of cyberstalking.
In the Presentence Investigation Report (PSR), the United
States Probation Office recommended a base offense level of
nineteen and a criminal history score of four, resulting in a
Criminal History Category of III. One of the counted convic-
tions was for vandalizing a house Grob had rented in Flathead
County, Montana. In that case, Grob admitted that he inten-
tionally trashed the house in retaliation against his landlord,
who had contacted police to break up a party Grob was giving
and who later turned off Grob’s power and water. Grob was
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convicted of criminal mischief in violation of Montana Code
Annotated § 45-6-101, fined $130, and ordered to pay a court
fee of $80 and restitution of $750.
Over Grob’s objections, the district court adopted the
PSR’s calculation of the criminal history score, which
included the criminal mischief conviction, and determined an
advisory sentencing range of thirty-seven to forty-six months.
Without inclusion of the criminal mischief conviction, the
guideline range would have been thirty-three to forty-one
months. The court imposed a sentence of incarceration of
thirty-seven months, and Grob timely appeals.
II. DISCUSSION
We review de novo the district court’s inclusion of a prior
conviction in the Sentencing Guidelines criminal history cal-
culation. United States v. Bays, 589 F.3d 1035, 1037 (9th Cir.
2009).
[1] As a general rule, sentences for prior misdemeanor or
petty convictions are counted in assigning criminal history
points. U.S.S.G. § 4A1.2(c) (2007). Under U.S.S.G.
§ 4A1.2(c), however, in order “to screen out past conduct
which is of such minor significance that it is not relevant to
the goals of sentencing,” United States v. Hardeman, 933
F.2d 278, 281 (5th Cir. 1991); see also U.S. Sentencing
Guidelines Manual supp. to app. C at 239 (2009), certain enu-
merated prior offenses and offenses “similar to [those enu-
merated offenses], by whatever name they are known,” are
not counted unless: “(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,” U.S.S.G. § 4A1.2(c); see also United States v.
Hernandez-Hernandez, 431 F.3d 1212, 1220 (9th Cir. 2005);
United States v. Lopez-Pastrana, 244 F.3d 1025, 1027 (9th
Cir. 2001).
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[2] Grob was convicted in Montana of committing crimi-
nal mischief in 2000. See Mont. Code Ann. § 45-6-101
(2009). Criminal mischief is not an enumerated offense under
U.S.S.G. § 4A1.2(c)(1). If, however, criminal mischief under
Montana law is “similar to” the offense of disorderly conduct,
which is enumerated in § 4A1.2(c)(1), then Grob’s sentence
for criminal mischief should not be counted unless either of
the two exceptions in U.S.S.G. § 4A1.2(c) applies.
A. Similarity of the Prior Offense to the Enumerated
Offense
1. The “Common Sense” Approach to Determining
Similarity
[3] We first address the test for determining “similarity” as
used in U.S.S.G. § 4A1.2(c). Before 2007, there was disagree-
ment among the circuits (and even within our own circuit)
about what test courts should apply in this context. See gener-
ally Lopez-Pastrana, 244 F.3d at 1027-30 & nn.2-3. One of
the two broad tests articulated by the Ninth Circuit, which
was similar to the “common sense” test used by the Second,
Fifth, and Seventh Circuits, “[i]n essence” defined “similar
to” on “the basis of the underlying seriousness of the
offense.” Id. at 1027 & n.2. The other test, which was similar
to the “elements” test used in the First, Third, Fourth, and
Eleventh Circuits, defined “similar to” with “reference only to
‘whether the activity underlying [the prior offense] is similar
to the activities underlying the listed offenses.’ ” Id. at 1027
& n.3 (quoting United States v. Martinez, 69 F.3d 999, 1000
(9th Cir. 1995)). In 2007, the United States Sentencing Com-
mission responded by promulgating Application Note 12 to
U.S.S.G. § 4A1.2, in which the Commission explicitly
adopted the “common sense” test employed by the Second,
Fifth, and Seventh Circuits. U.S. Sentencing Guidelines Man-
ual § 4A1.2 cmt. n.12 (2009); U.S. Sentencing Guidelines
Manual supp. to app. C at 240 (2009); United States v.
Martinez-Santos, 184 F.3d 196 (2d Cir. 1999); United States
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v. Booker, 71 F.3d 685 (7th Cir. 1995); Hardeman, 933 F.2d
at 281. Application Note 12 provides
In determining whether an unlisted offense is similar
to an [enumerated] offense . . . the court should use
a common sense approach that includes consider-
ation of relevant factors such as (i) a comparison of
punishments imposed for the listed and unlisted
offenses; (ii) the perceived seriousness of the offense
as indicated by the level of punishment; (iii) the ele-
ments of the offense; (iv) the level of culpability
involved; and (v) the degree to which the commis-
sion of the offense indicates a likelihood of recurring
criminal conduct.
U.S. Sentencing Guidelines Manual § 4A1.2 cmt. n.12(A)
(2009). Although the guidelines themselves are advisory only,
the applicable guidelines sentence must be calculated cor-
rectly. See, e.g., Carty, 520 F.3d at 993. Commentary in the
Application Notes interpreting or explaining a guideline “is
authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading
of, that guideline.” Stinson v. United States, 508 U.S. 36, 38
(1993); Bays, 589 F.3d at 1037. In determining the similarity
of prior and enumerated offenses, we are therefore guided by
Application Note 12 to U.S.S.G. § 4A1.2(c), and so apply the
“common sense” approach.
Both the Fifth and Seventh Circuits have employed this
approach in addressing whether the crime of criminal mis-
chief (or, in the case of the Seventh Circuit, criminal damage
to property) is similar to disorderly conduct. In United States
v. Reyes-Maya, 305 F.3d 362, 366-67 (5th Cir. 2002), the
Fifth Circuit, applying Texas law, began by noting that a com-
parison of the authorized statutory punishments demonstrated
that “the offense of criminal mischief can be more serious
than the offense of disorderly conduct,” but that “[m]ore
important than the statutory range of punishments is the actual
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punishment given.”1 The Fifth Circuit also observed that a
comparison of the statutory elements of the two crimes
“shows both similarity and difference,” but that “[t]he fact
that the elements are somewhat different is not dispositive,”
because the “different elements do not necessarily make crim-
inal mischief a more serious offense than disorderly conduct.”
Id. at 367. (citing Hardeman, 933 F.2d at 281). Ultimately,
the Fifth Circuit concluded that, given the “similarity in pun-
ishments between Appellant’s criminal mischief conviction
and disorderly conduct and . . . the small fine Appellant
received suggest[ing] low culpability and low predictiveness
of future criminal conduct,” criminal mischief under Texas
law was similar to the enumerated crime of disorderly con-
duct. Id. at 368. Therefore, the district court had erred by
counting Reyes-Maya’s criminal mischief conviction. Id.
In Booker, 71 F.3d at 690-91, the Seventh Circuit similarly
concluded that, given the particular circumstances of
Booker’s prior conviction for damage to property under Illi-
nois law, that crime was similar to the enumerated crime of
disorderly conduct. The Seventh Circuit began by observing
that a comparison of the two offenses was “complicated by
the fact” that both offenses “are crimes of generic definition
that proscribe a great variety of activity and, depending on
type of behavior involved, can be classified as a minor misde-
meanor or a felony.” Id. at 689. “[T]ak[ing] counsel from our
colleagues in the Ninth Circuit,” the Seventh Circuit con-
cluded that it should instead “focus not so much on the ele-
ments of each offense or on the possible range of punishments
in abstracto, but rather on the actual offense conduct and the
actual penalty deemed appropriate by the sentencing court.”
Id. (citing United States v. Kemp, 938 F.2d 1020, 1023 (9th
Cir. 1991)). For breaking a window at his girlfriend’s apart-
ment, Booker had been sentenced to one month’s supervision
—a light sentence that “militate[d] strongly in favor of treat-
1Reyes-Maya had been fined $182.50, an amount “similar to the minor
punishments for offenses excluded” under U.S.S.G. § 4A1.2(c). Id. at 367.
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ing the crime for purposes of this guideline provision as akin
to a relatively minor breach of the peace.” Id. at 689-90.
Emphasizing that its decision “does not preclude a contrary
result when the circumstances surrounding the commission of
the damage to property offense are different,” the Seventh
Circuit concluded that Booker’s conviction for criminal dam-
age to property “was a minor petty offense similar to disor-
derly conduct and of the sort meant to be excluded under
§ 4A1.2(c)(1).” Id. at 690-91.
2. Applying the Common Sense Approach to Grob’s
Case
Grob’s prior act of criminal mischief is similar to disor-
derly conduct for purposes of U.S.S.G. § 4A1.2, even though,
as in Reyes-Maya, 305 F.3d at 367, the statutory punishments
for the crimes differ slightly. Under Montana law
(1) A person commits the offense of criminal mis-
chief if the person knowingly or purposely:
(a) injures, damages, or destroys any prop-
erty of another or public property without
consent; [or]
(b) without consent tampers with property
of another or public property so as to
endanger or interfere with persons or prop-
erty or its use;
* * *
(2) A person convicted of criminal mischief must be
ordered to make restitution in an amount and manner
to be set by the court.
* * *
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(3) A person convicted of the offense of criminal
mischief shall be fined not to exceed $1,500 or be
imprisoned in the county jail for any term not to
exceed 6 months, or both. If the offender commits
the offense of criminal mischief and causes pecuni-
ary loss in excess of $1,500, injures or kills a com-
monly domesticated hoofed animal, or causes a
substantial interruption or impairment of public com-
munication, transportation, supply of water, gas, or
power, or other public services, the offender shall be
fined an amount not to exceed $50,000 or be impris-
oned in the state prison for a term not to exceed 10
years, or both.
Mont. Code Ann. § 45-6-101(1)-(3).
[4] There is no federal definition of the crime of disorderly
conduct, the closest offense to criminal mischief enumerated
in U.S.S.G. § 4A1.2(c). Therefore, “we may look to either
state law or the Model Penal Code” for a definition of the
crime. Lopez-Pastrana, 244 F.3d at 1028 n.4 (citing Kemp,
938 F.2d at 1023-24 (examining disorderly conduct under
Arizona law); and Martinez, 69 F.3d at 1001 (examining loi-
tering under the Model Penal Code)). Under Montana law
(1) A person commits the offense of disorderly con-
duct if the person knowingly disturbs the peace by:
(a) quarreling, challenging to fight, or fight-
ing;
(b) making loud or unusual noises;
(c) using threatening, profane, or abusive
language;
* * *
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(i) creating a hazardous or physically offen-
sive condition by any act that serves no
legitimate purpose; or
(j) transmitting a false report or warning of
an impending explosion in a place where its
occurrence would endanger human life.
(2) Except as provided in subsection (3), a person
convicted of the offense of disorderly conduct shall
be fined not to exceed $100 or be imprisoned in the
county jail for a term not to exceed 10 days, or both.
(3) A person convicted of a violation of subsection
(1)(j) shall be fined not to exceed $1,000 or be
imprisoned in the county jail for a term not to exceed
1 year, or both.
Mont. Code Ann. § 45-8-101.2
[5] In Montana, the statutory punishment for committing
criminal mischief can be, but need not be, more serious than
the statutory punishment for disorderly conduct. In the ordi-
nary case, a defendant convicted of disorderly conduct can be
fined up to $100, imprisoned in the county jail for up to ten
days, or both. Mont. Code Ann. § 45-8-101(2). In the most
extreme case, if the conviction is for transmitting a false
warning regarding the imminence of an explosion, a defen-
dant can be fined up to $1,000, imprisoned for up to one year,
or both. Id. § 45-8-101(3). In contrast, in the ordinary case, a
defendant convicted of criminal mischief can be fined up to
$1,500, imprisoned for up to six months, or both. Id. § 45-6-
101(3). The statutory punishment rises to a fine of up to
$50,000 and imprisonment of up to ten years if the defendant
also causes more than $1,500 worth of damages, “injures or
2The Model Penal Code and Montana definitions of disorderly conduct
are substantially similar. See Model Penal Code § 250.2.
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kills a commonly domesticated hoofed animal, or causes a
substantial interruption” of various public services. Id.
[6] Nonetheless, we agree with the Fifth Circuit’s observa-
tion that “[m]ore important than the statutory range of punish-
ments is the actual punishment given, as ‘[t]he level of
punishment imposed for a particular offense serves as a rea-
sonable proxy for the perceived severity of the crime.’ ”
Reyes-Maya, 305 F.3d at 367 (quoting Hardeman, 933 F.2d
at 282); see also Booker, 71 F.3d at 689 (citing Kemp, 938
F.2d at 1023). Following Grob’s prior conviction, the Flat-
head County Justice Court imposed a $130 fine and ordered
Grob to pay an $80 court fee and $750 in restitution.3 Grob’s
actual punishment for committing criminal mischief was thus
very similar to the $100 fine that can be imposed on those
convicted of disorderly conduct.
[7] By imposing such a light sentence, moreover, the Mon-
tana court deemed Grob’s crime fairly minor—an important
consideration in applying the second factor in Application
Note 12, the perceived seriousness of the offense as indicated
by the level of punishment. See Reyes-Maya, 305 F.3d at 367;
Booker, 71 F.3d at 689 & n.7; see also United States v. Mejia,
559 F.3d 1113, 1115-16 (9th Cir. 2009) (finding that a sus-
pended prison sentence and two years probation “indicates
that the offense of which he was convicted was not regarded
as serious”). Such a minor punishment “militates strongly in
favor of treating the crime for purposes of [§ 4A1.2(c)] as
akin to a relatively minor breach of the peace.” Booker, 71
F.3d at 689-90.
[8] Next we consider the elements of the two offenses. As
in Reyes-Maya, 305 F.3d at 367, “a comparison of the ele-
3The restitution award is not relevant to our comparison of punishments,
as in Montana a defendant convicted of disorderly conduct can also be
ordered to pay appropriate restitution. See Mont. Code Ann. § 46-18-241
(2009).
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ments of the prior offense with the elements of the exempted
offense . . . shows both similarity and difference.” Criminal
mischief under Montana law involves the knowing or pur-
poseful injuring or destruction of property. Mont. Code Ann.
§ 45-6-101(1). Disorderly conduct involves the knowing dis-
turbance of the peace in various ways, including by quarrel-
ing, fighting, making “loud or unusual noises,” using
threatening, profane, or abusive language, or “creating a haz-
ardous or physically offensive condition by any act that serves
no legitimate purpose.” Id. § 45-8-101(1).
[9] That criminal mischief and disorderly conduct have
some distinct elements, however, is not dispositive of the
question of whether the offenses are similar for the purposes
of U.S.S.G. § 4A1.2. See Hardeman, 933 F.2d at 281. Indeed,
in promulgating Application Note 12, the Sentencing Com-
mission explicitly rejected the strict “elements” test under
which courts determine similarity by comparing only the ele-
ments of two separate offenses. See U.S. Sentencing Guide-
lines Manual supp. to app. C at 240 (2009). Especially where
both offenses are “crimes of generic definition that proscribe
a great variety of activity,” see Booker, 71 F.3d at 689, we
instead focus “on the actual offense conduct,” see id. (citing
Kemp, 938 F.2d at 1023), and on whether the enumerated
offense covers the prior conduct. Grob’s vandalism in 2000
could have been described (and prosecuted) as “disturbing the
peace” by “creating a hazardous or physically offensive con-
dition by any act that serves no legitimate purpose.” See
Mont. Code Ann. § 45-8-101(1)(i). Put another way, the Mon-
tana criminal mischief and disorderly conduct statutes can
reach similar conduct, and in this case seem to do so. Cf.
Montana v. Vukasin, 75 P.3d 1284 (Mont. 2003) (addressing
an appeal by a defendant convicted of both criminal mischief
and disorderly conduct after “breaking things and yelling” in
his apartment following a fight with his girlfriend).
[10] In considering the fourth factor in Application Note
12, we conclude that Grob’s prior conviction for criminal mis-
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chief does not evidence a level of culpability suggesting dis-
similarity with the minor offenses which are enumerated
under U.S.S.G. § 4A1.2. While, as the government argues, the
fact that Grob’s prior offense was motivated by a desire for
revenge against his landlord may indicate a heightened level
of culpability, we must examine “the entire episode which led
to the prior conviction.” Reyes-Maya, 305 F.3d at 367 (citing
United States v. Moore, 997 F.2d 30, 34 (5th Cir. 1993)). We
note that Grob committed this offense at the age of nineteen,
and that it was his first conviction as an adult. Grob, more-
over, fully cooperated with law enforcement by agreeing to
answer questions and by confessing to the crime. Cf. id. at
367-68. (holding that failure to cooperate with the police was
“suggestive of both a greater degree of culpability and
increased likelihood of future criminal conduct”). Most
importantly, the Flathead County Justice Court, having had
the opportunity to observe Grob and review the factual basis
of the underlying offense, imposed a light punishment by
ordering Grob to pay a $130 fine and restitution to his land-
lord. This “extremely light sentence . . . suggests a low level
of culpability and low predictive capacity for future criminali-
ty.” See id. at 367; see also Booker, 71 F.3d at 690; Harde-
man, 933 F.2d at 283.
[11] Finally, we conclude that Grob’s prior conviction for
criminal mischief, in isolation, does not evidence a strong
likelihood of recurring criminal conduct. The government,
assessing the situation with the benefit of hindsight, suggests
that Grob’s attempt to take revenge against his ex-girlfriend
indicates that the prior acts of criminal mischief—in which he
took revenge against his landlord—demonstrated a serious
risk of recurring revenge-based criminal conduct. Like the
Seventh Circuit, however, “[w]e do not believe such a meth-
odology is compatible with the approach mandated by
§ 4A1.2(c)(1).” Booker, 71 F.3d at 690. Application Note 12
makes it clear that, rather than employing hindsight in light of
the instant offense, when determining whether a prior offense
demonstrated a risk of recurring criminal conduct, courts
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should look only to the circumstances present at the time of
that prior offense. See id. Although it is true that Grob ulti-
mately sent threatening messages to his ex-girlfriend indicat-
ing that he was seeking vengeance, the fact that at the age of
nineteen he sought to “get back” at his landlord by vandaliz-
ing a rented house simply does not demonstrate that he was
likely to engage in future revenge-based criminal conduct.
[12] To summarize: the punishment Grob received for his
prior act of criminal mischief and the punishment he could
have received for disorderly conduct are quite similar, as are
his actual conduct in vandalizing the house in 2000 and the
conduct covered by disorderly conduct. The minimal punish-
ment Grob received for his act of criminal mischief, more-
over, demonstrates that Grob’s prior act was of similar
perceived seriousness to disorderly conduct, and that his ear-
lier vandalism did not indicate a likelihood of recurring crimi-
nal conduct. We therefore conclude that, under these
circumstances, criminal mischief under Montana law is “simi-
lar to” the enumerated offense of disorderly conduct within
the meaning of U.S.S.G. § 4A1.2(c).
B. Similarity of the Prior Offense to the Instant
Offense
[13] Even though Grob’s prior act of criminal mischief is
“similar to” disorderly conduct, Grob’s sentence for criminal
mischief should still be counted if: (A) the sentence was for
a term of probation of more than one year or a term of impris-
onment of at least thirty days; or (B) the prior offense of crim-
inal mischief is similar to the instant offense. See U.S.S.G.
§ 4A1.2(c). Grob’s sentence (a $130 fine, an $80 court fee,
and $750 in restitution) was not for a term of probation of
more than one year or a term of imprisonment of at least thirty
days. We must therefore determine whether Grob’s prior
offense of criminal mischief is similar to the instant offense
of cyberstalking. We are again guided by the “common sense”
approach in Application Note 12. See United States v. King,
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506 F.3d 532, 536 (7th Cir. 2007) (using the five-part com-
mon sense approach in comparing the prior unlisted offense
to the instant offense).
[14] Applying this approach, it is immediately clear that
Grob’s prior act of criminal mischief is in no way “similar to”
the instant offense of cyberstalking. One goal of this inquiry
is to determine whether one offense is “categorically more
serious” than the other. See Booker, 71 F.3d at 689 (quoting
United States v. Caputo, 978 F.2d 972, 977 (7th Cir. 1992)).
In almost every possible way, cyberstalking under 18 U.S.C.
§ 2261A(2)(B) is more serious than was Grob’s prior act of
criminal mischief. An individual commits cyberstalking
when, with the intent to kill, injure, or harass, he or she “uses
the mail, any interactive computer service, or any facility of
interstate or foreign commerce to engage in a course of con-
duct that causes substantial emotional distress to [another]
person or places that person in reasonable fear of the death of,
or serious bodily injury to” that person, that person’s immedi-
ate family, or that person’s spouse or intimate partner. 18
U.S.C. § 2261A(2)(A)-(B). Any person who commits this
crime can be fined and imprisoned in a federal penitentiary
for, at the least, up to five years; if the stalking results in the
death of the victim, the perpetrator can be imprisoned for life.
Id. § 2261(b). This statutory punishment is far more serious
than that provided for criminal mischief in Montana, which in
minor cases permits imprisonment in a county jail (rather than
state prison) for at most six months. See Mont. Code Ann.
§ 45-6-101(2)-(3). More importantly, the actual punishments
imposed for these two offenses differed dramatically: after his
conviction for criminal mischief, Grob was ordered to pay a
fine of $130 and to make restitution; after pleading guilty to
one count of cyberstalking, Grob was sentenced to serve over
three years in federal prison, a sentence that would have been
within the applicable guideline range even without including
Grob’s prior criminal mischief conviction in the criminal his-
tory calculation. These different levels of imposed punish-
ment “serve[ ] as a reasonable proxy for the perceived
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severity of the crime[s].” Reyes-Maya, 305 F.3d at 367 (quot-
ing Hardeman, 933 F.2d at 282); see also Booker, 71 F.3d at
689.
Applying the remaining factors, we reach the same conclu-
sion. Not only are the statutory elements of these offenses so
different that it is difficult to imagine conduct that could be
reached by both statutes, but Grob’s actual conduct in van-
dalizing the house in 2000 in no way comes within the con-
duct prohibited by 18 U.S.C. § 2261A(2)(A)-(B). Moreover,
Grob’s conduct in sending volleys of explicit, violent, and
threatening messages to his ex-girlfriend evidences a high
level of culpability and concomitant likelihood of recurring
criminal conduct.
[15] Accordingly, we conclude that Grob’s prior offense of
criminal mischief was not “similar to” the instant offense of
cyberstalking within the meaning of U.S.S.G. § 4A1.2.
III. CONCLUSION
The district court committed procedural error by counting
Grob’s prior offense of criminal mischief in Montana in deter-
mining Grob’s criminal history category. This error placed
Grob in Criminal History Category III rather than in Criminal
History Category II, which increased the Guidelines sentenc-
ing range. In calculating the Guidelines range, the district
court committed a significant procedural error which in this
case requires us to remand for resentencing. We therefore
vacate Grob’s sentence and remand for resentencing.
VACATED and REMANDED.
18489 UNITED STATES v. GROB

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