United States v. Ubiera

05-5256-cr
United States v. Ubiera
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2006 5
6
7
(Argued: March 1, 2007 Decided: May 15, 2007) 8
9
Docket No. 05-5256-cr 10
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UNITED STATES OF AMERICA, 14
15
Appellee, 16
17
- v.- 18
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HENRY UBIERA, 20
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Defendant-Appellant. 22
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Before: JACOBS, Chief Judge, CARDAMONE and 26
SOTOMAYOR, Circuit Judges. 27
28
Appeal from a sentence imposed in the United States 29
District Court for the Southern District of New York 30
(Hellerstein, J.), following a plea to distribution and 31
possession with the intent to distribute and conspiracy to 32
distribute ecstasy. 33
AFFIRMED. 34
ARZA FELDMAN and STEVEN A. 35
FELDMAN, Feldman & Feldman, 36

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2
Uniondale, New York, for 1
Defendant-Appellant. 2
3
STEVEN D. FELDMAN, Assistant 4
United States Attorney (Celeste 5
L. Koeleveld, on the brief) for 6
Michael J. Garcia, United States 7
Attorney, Southern District of 8
New York, for Appellee. 9
10
DENNIS JACOBS, Chief Judge: 11
12
Following his plea to drug offenses in the United 13
States District Court for the Southern District of New York 14
(Hellerstein, J.), Henry Ubiera appeals his post-Fagans 15
sentence. Ubiera’s principal challenge is to the assessment 16
of a criminal history point for each of two prior 17
shoplifting convictions. Ubiera contends that shoplifting 18
is similar to passing a bad check, which is excluded from 19
the criminal history computation by the United States 20
Sentencing Guidelines § 4A1.2(c)(1) along with “similar” 21
offenses. Ubiera also argues that the court erred by: 22
declining to credit him for acceptance of responsibility 23
based on his failure to admit one of the overt acts of the 24
conspiracy to which he pled; assigning a criminal history 25
point to a conviction for disorderly conduct; and making 26
certain findings by a preponderance of the evidence. 27
We affirm the judgment. 28

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3
I 1
On February 4, 2004, Ubiera pled guilty to both counts 2
of the indictment against him. The first count was 3
conspiracy to distribute ecstasy pills in violation of 21 4
U.S.C. § 846, and specified two overt acts committed in or 5
about February 2003: [i] Ubiera’s sale of approximately 1000 6
pills, and [ii] Ubiera’s delivery of approximately 800 7
pills. The second count was predicated on the second overt 8
act, and alleged that Ubiera had distributed, and possessed 9
with the intent to distribute, approximately 800 ecstasy 10
pills, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 11
841(b)(1)(C). 12
At his allocution, though Ubiera admitted to the 13
conspiracy and to the delivery of the 800 pills, he denied 14
selling the 1000 pills. The district court warned Ubiera of 15
the consequences of his incomplete allocution: 16
[W]hat I want you to be aware of is that one 17
consequence of my allocuting you to less than all 18
of the issues that may be involved in the 19
indictment is that . . . if I find that there 20
really was a lot more to what you did than what 21
are you are ready to admit to, I may find that you 22
are not entitled to the credit for acceptance of 23
responsibility. 24
25
At a subsequent hearing held pursuant to United States v. 26
Fatico, 579 F.2d 707 (2d Cir. 1978), Ubiera repeated his 27

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4
denial of the 1000 pill transaction. 1
At sentencing on October 14, 2004, the district court 2
found that Ubiera had in fact sold the 1000 pills. Ubiera’s 3
responsibility for a total of 1800 ecstasy pills yielded an 4
offense level of 26. See U.S.S.G. § 2D1.1. The district 5
court declined Ubiera’s request to reduce the offense level 6
for acceptance of responsibility: 7
I don’t believe you clearly demonstrated 8
acceptance of responsibility. I found that you 9
were a drug dealer and you tried to hide that and 10
you have not accepted that. And by denying 11
something, admitting a little bit, you are 12
creating a deception to yourself, perhaps to the 13
probation officer, to others. 14
15
The district court concluded that Ubiera fell within 16
Criminal History Category II. Neither party objected to 17
this computation, which yielded a guidelines range of 70 to 18
87 months’ imprisonment. Ubiera was then sentenced to 75 19
months’ imprisonment, three years’ supervised release and a 20
$200 mandatory special assessment. 21
Ubiera appealed his sentence on various grounds, but 22
was ultimately granted a remand for resentencing pursuant to 23
United States v. Fagans, 406 F.3d 138 (2d Cir. 2005), 24
because he had preserved an objection to mandatory 25
application of the Guidelines, id. at 140-41. 26

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5
At resentencing on September 16, 2005, the district 1
court declined to revisit its factual findings or the 2
resulting offense level calculation. Ubiera’s counsel 3
argued that the criminal history computation was an 4
“overstatement,” citing cases that allow a downward 5
departure if the criminal history category “substantially 6
over-represents the seriousness of the defendant’s criminal 7
history.” U.S.S.G. § 4A1.3(b)(1); see also United States v. 8
Thorn, 317 F.3d 107, 128-31 (2d Cir. 2003); United States v. 9
Resto, 74 F.3d 22, 28 (2d Cir. 1996). The district court 10
refused to depart, citing Ubiera’s criminal background, 11
specifically a conviction for attempted petit larceny in New 12
York and two convictions for shoplifting from retailers in 13
New Jersey. The court also referenced a conviction for 14
disorderly conduct. 15
After hearing argument pursuant to United States v. 16
Booker, 543 U.S. 220 (2005), on the application of 18 U.S.C. 17
§ 3553(a) to Ubiera’s case, the district court declined to 18
deviate from its original sentence. 19
20
II 21
Ubiera argues that his convictions for shoplifting 22

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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 at least 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, Fish and game
violations, Gambling, Hindering or failure to obey a police
officer, Insufficient funds check, Leaving the scene of an
accident, Local ordinance violations (excluding local
ordinance violations that are also criminal offenses under
state law), Non-support, Prostitution, Resisting arrest,
Trespassing.”
6
should have been excluded from his criminal history 1
computation because shoplifting is similar to passing a bad 2
check--in the Guidelines’ parlance, an “insufficient funds 3
check”--an offense which (along with “similar” offenses) is 4
excluded from such computation by U.S.S.G. § 4A1.2(c)(1), 5
set out in the margin.1 Where, as here, a statute “punishes 6
only one basic form of conduct,” its similarity to an 7
offense listed in § 4A1.2(c)(1) is a question of law we 8
review de novo. United States v. Morales, 239 F.3d 113, 9
117-18 (2d Cir. 2000). 10
As the government contends, Ubiera failed to raise the 11
§ 4A1.2(c)(1) argument below. Although Ubiera argued to the 12
district court that his criminal history computation was an 13
“overstatement,” that argument was (as previously noted) 14

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7
based on U.S.S.G. § 4A1.3(b)(1). Since Ubiera raises a 1
substantially different argument on appeal, we review the 2
district court’s decision to count the shoplifting 3
convictions only for plain error. See Fed. R. Crim. P. 4
52(b); Johnson v. United States, 520 U.S. 461, 466-67 5
(1997). For the reasons set forth below, we conclude that 6
there was no error, plain or otherwise. 7
Among those considerations courts have focused on in 8
determining whether a prior offense is “similar” to an 9
offense listed in § 4A1.2(c) are: the relative punishments 10
prescribed and the relative seriousness implied by those 11
punishments, the elements of the offenses, the level of 12
culpability, and the degree to which the commission of the 13
offense predicts recidivism. See, e.g., United States v. 14
Hardeman, 933 F.2d 278, 281 (5th Cir. 1991). We have 15
adopted this multifactor test (though not in haec verba), 16
but also consider “any other factor [we] reasonably find[] 17
relevant.” United States v. Martinez-Santos, 184 F.3d 196, 18
206 (2d Cir. 1999). 19
We have not previously applied the test to a 20
shoplifting conviction. Because Ubiera’s brief compares his 21
shoplifting offenses only to the offense of passing a bad 22

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8
check, we limit ourselves to that comparison and do not 1
consider the similarity (if any) between shoplifting and the 2
other offenses excluded by § 4A1.2(c). 3
The question posed by § 4A1.2(c)(1) is “whether the 4
unlisted offense under scrutiny is ‘categorically more 5
serious’ than the Listed Offenses to which it is being 6
compared.” Martinez-Santos, 184 F.3d at 206 (quoting United 7
States v. Caputo, 978 F.2d 972, 977 (7th Cir. 1992)). But 8
our analysis also considers “the actual conduct involved and 9
the actual penalty imposed.” United States v. Sanders, 205 10
F.3d 549, 553 (2d Cir. 2000) (per curiam). “Although 11
‘categorically’ might be misunderstood to mean that the 12
unlisted offense is within a category that is more serious 13
than the Listed Offenses, we . . . use[] the adverb in its 14
ordinary sense to mean ‘without qualification or 15
reservation.’” Morales, 239 F.3d at 118 n.5. The facts 16
underlying Ubiera’s prior convictions are therefore 17
relevant: his first shoplifting conviction, in March 1999, 18
was for the theft of $248 worth of merchandise from a 19
department store in Paramus, New Jersey; he was fined $553. 20
His second conviction, in March 2001, was for the attempted 21
theft of $903 merchandise from a department store in 22

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2 Changes in New Jersey law explain why it is that
Ubiera’s first shoplifting conviction yielded only a fine,
and not community service. Prior to a 2000 amendment to the
New Jersey Code of Criminal Justice, all shoplifting
offenses were classified as disorderly persons offenses,
repeat offenders were fined, and any person convicted of a
third or subsequent shoplifting offense received a minimum
9
Hackensack; he was fined $550. 1
In comparing an unlisted offense to the Listed 2
Offenses, we look to the law of the state that obtained the 3
prior conviction. See Sanders, 205 F.3d at 552. Under New 4
Jersey law, shoplifting and passing a bad check generally 5
entail comparable penalties for comparable values of the 6
property taken: thus shoplifting less than $200 worth of 7
merchandise and passing a bad check for less than $200 are 8
disorderly persons offenses, see N.J. Stat. Ann. § 2C:20- 9
11(c)(4) and § 2C:21-5(c)(4), and both are punished by a 10
statutory maximum of six months in prison, see id. § 2C:43- 11
8. One key difference in relative punishment, however, is 12
that shoplifting carries a minimum sentence of community 13
service, the length of which depends on the number of 14
shoplifting offenses; third-time offenders are punished not 15
only with 25 days of community service but with 90 days of 16
incarceration. See id. § 2C:20-11(c). A repeat passer of 17
bad checks is subject to no such minimums.2
18

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of 30 days in prison. See 1997 N.J. Sess. Law Serv. Ch. 319
(Assembly 2484) (West). The amendment introduced the
gradations of punishment based upon the value of property
stolen and the mandatory terms of community service for
repeat offenders. See 2000 N.J. Sess. Law Serv. Ch. 16
(Senate 267) (West). It is unclear, however, why Ubiera’s
Presentence Investigation Report suggests that he was only
sentenced to a fine for the second shoplifting conviction,
as the conviction occurred after the effective date of the
2000 amendment.
10
Naturally, the elements of the two offenses are 1
different. In New Jersey, shoplifting consists chiefly of 2
the purposeful carrying away of merchandise, the alteration 3
of a price tag, the “under-ringing” of merchandise, or the 4
theft of a shopping cart with the intent to deprive the 5
merchant of the value thereof. See id. § 2C:20-11(b). 6
Passing a bad check consists of writing a check “knowing 7
that it will not be honored by the drawee.” Id. § 2C:21-5. 8
In weighing relative culpability, i.e. the “degree of 9
moral guilt,” Morales, 239 F.3d at 119, two observations 10
made by other circuits are useful. First, a shoplifting 11
loss is much harder for the victim to detect; a department 12
store stuck with a bad check can be certain only of how much 13
was lost in terms of inventory or receivables--not the 14
identity of the thief. This difference is germane because 15
the Guidelines exclude from consideration only bad check 16

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3 The Ninth Circuit has found these concerns
unpersuasive on balance, in light of the “additional element
of deception” in passing a bad check. See Lopez-Pastrana,
244 F.3d at 1030 n.8. As noted above, however, the
guidelines distinguish bad check offenses that involve the
more serious deception of writing checks on accounts other
than one’s own. We are persuaded by the view of Judge
Graber dissenting in Lopez-Pastrana: “physical taking
without consent is simply different from the act of
obtaining property by fraud.” Id. at 1035.
11
offenses involving an existing account bearing the 1
defendant’s real name, i.e. where the fraud can easily be 2
traced to the defendant. See United States v. Harris, 325 3
F.3d 865, 873 (7th Cir. 2003) (citing U.S.S.G. § 4A1.2, 4
Applic. Note 13). 5
Second, shoplifting is a “trespassory” offense that 6
poses dangers that do not arise when a bad check is written 7
or negotiated. See United States v. Lamm, 392 F.3d 130, 133 8
(5th Cir. 2004); Harris, 325 F.3d at 872-73; United States 9
v. Spaulding, 339 F.3d 20, 22 (1st Cir. 2003). Shoplifting 10
risks head-to-head confrontation with shop personnel and 11
physical touching or struggle, as well as danger to 12
bystanders and the erroneously accused.3 “The particular 13
facts,” Morales, 239 F.3d at 118, of Ubiera’s prior offenses 14
illustrate this distinction: he stole (or attempted to 15
steal) property directly from merchants’ premises. 16

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12
Moreover, because shoplifting diminishes trust in the 1
retail marketplace, it has insidious collateral impacts on 2
the public as a whole. The incidence of shoplifting tends 3
to reduce the shopper’s opportunity to handle the 4
merchandise or try it on, leads to security measures such as 5
the scrutiny of bags and parcels, raises costs and prices, 6
and heightens the risk of accusing the innocent. Few of 7
these problems are caused when an individual writes a bad 8
check on his own account: scrutiny falls on the check-writer 9
alone; the risk of loss is quantified by the amount of the 10
check; and loss can be controlled or eliminated by 11
restricted policies that impinge less on the shopping 12
public. 13
It is unclear in the cases how recidivism can be 14
predicted on the basis of having committed one offense or 15
another. See Harris, 128 F.3d at 855 (concluding that prior 16
cases “do not offer any unifying principle for how one 17
offense, but not another, indicates a likelihood of future 18
criminal conduct”). As noted above, however, shoplifting 19
offenses tend to escape detection more readily than passing 20
bad checks that bear one’s real name, so that two 21
shoplifting convictions are more likely to bespeak more than 22

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4 We similarly reject Ubiera’s argument that his trial
counsel’s failure to raise the § 4A1.2(c)(1) argument to the
district court constituted ineffective assistance of
counsel.
13
two prior offenses than would two convictions for passing 1
bad checks. Assuming that these are the relevant 2
considerations under this factor, it thus weighs somewhat 3
against finding the two offenses similar. 4
We therefore conclude that Ubiera’s convictions for 5
shoplifting are not “similar” to passing a bad check, and 6
that the district court committed no error by including them 7
in the criminal history computation.4
8
9
III 10
Ubiera argues further that the district court erred by 11
[A] declining to credit him for acceptance of 12
responsibility, [B] assigning a criminal history point to 13
his disorderly conduct conviction, and [C] making findings 14
of fact by a preponderance of the evidence. 15
16
[A] The district court declined to reduce Ubiera’s 17
offense level for acceptance of responsibility because he 18
had refused to admit conduct beyond the offense of 19

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14
conviction. Ubiera contends that this was error. Our 1
review on this point is particularly deferential: Unless 2
the judge’s determination as to acceptance of responsibility 3
is “without foundation,” it may not be disturbed. United 4
States v. Zhuang, 270 F.3d 107, 110 (2d Cir. 2001) (per 5
curiam). 6
Ubiera says that he told the district court he was 7
“sorry,” that he was too embarrassed to have his family come 8
to the sentencing (allegedly out of contrition), that he 9
promised not to commit another crime, and that he did admit 10
other, uncharged drug transactions to the probation officer. 11
None of this establishes that the district court’s finding 12
lacked foundation. 13
Ubiera argues further that the district court erred by 14
requiring him to allocute to the 1000 pill transaction. We 15
disagree. That transaction was an overt act within the 16
conspiracy to which Ubiera pled guilty. A district court 17
commits no error in requiring allocution to the “full scope 18
of the conspiracy that formed the basis for . . . the 19
indictment, to which [the defendant] pleaded guilty.” 20
United States v. McLean, 287 F.3d 127, 134 (2d Cir. 2002). 21
“[A]s to the offense that is the subject of the plea, the 22

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15
district court may require a candid and full unraveling . . 1
. .” United States v. Reyes, 9 F.3d 275, 279 (2d Cir. 2
1993). 3
4
[B] Ubiera contends that the district court erred by 5
assigning a criminal history point to a conviction for 6
disorderly conduct, which is generally excluded from the 7
criminal history computation. See U.S.S.G. § 4A1.2(c)(1). 8
A colloquy between the district court and Ubiera’s trial 9
counsel, Mark Cohen, reflects that the disorderly conduct 10
conviction was not, in fact, included in the criminal 11
history computation: 12
Mr. Cohen: [T]he Nassau County conviction for 13
disorderly conduct . . .doesn’t count in his 14
criminal history calculation. . . . 15
16
The Court: They don’t -- there is no Criminal 17
History point but I look at this as a pattern, Mr. 18
Cohen. 19
20
Had the district court assessed an additional criminal 21
history point for the disorderly conduct conviction, the 22
resulting criminal history category would have been III, not 23
II. See U.S.S.G. Ch. 5 Pt. A. 24
25
[C] Finally, Ubiera argues that because his complicity 26

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5 Given the uncertainty prevailing at the time of
sentencing as to the appropriate burden of proof for such
findings, the district court noted for the record that the
government had not proven the 1000 pill transaction beyond a
reasonable doubt.
16
in the 1000 pill transaction was found by a judge and only 1
by a preponderance of the evidence5, his sentencing was 2
inconsistent with United States v. Booker, 543 U.S. 220 3
(2005). Booker does require factfinding by a jury and 4
beyond a reasonable doubt, but only where the fact “is 5
necessary to support a sentence exceeding the maximum 6
authorized by the facts established by a plea of guilty.” 7
Id. at 244. Ubiera’s guilty plea to the conspiracy count 8
(and allocution to the 800 pill transaction) would have 9
supported a sentence up to a statutory maximum of 20 years’ 10
imprisonment. 21 U.S.C. § 841(b)(1)(C). Because Ubiera was 11
sentenced only to 75 months, his argument is without merit. 12
13
* * * 14
For the reasons set forth above, the judgment of the 15
district court is affirmed. 16

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