United States v. Robert Coleman

MEMORANDUM

Robert Eugene Coleman appeals his sentence pursuant to a conviction of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841 (a), (b)(l)(B)(iii). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

The district court did not plainly err in basing Coleman’s Guidelines Range in part on a prior conviction for vandalism. As we held in United States v. Grob, 625 F.3d 1209, 1213 (9th Cir.2010), Application Note 12 to § 4A1.2 of the Sentencing Guidelines is the applicable test and it requires courts to apply a “common sense” approach in determining “similarity” as used in § 4A1.2(c). Applying the common sense approach to Coleman’s case, vandalism is not similar to loitering.

In California, loitering is a type of disorderly conduct offense that is always a misdemeanor whereas vandalism is a waffler. See Cal.Penal Code §§ 594(b), 647(h). This said, Coleman received a probationary sentence, which makes it a misdemeanor. See CaLPenal Code § 17(a). Whether considering California law or the Model Penal Code, the elements are quite different in that loitering involves lingering, while vandalism involves destruction of property. That both may…