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Click here for the full text of this decision FACTS:Paul Darvin Lamm, Jr., pleaded guilty to being a controlled-substance user in possession of a firearm, in violation of 18 U.S.C. 922(g)(3) (the instant offense). Appealing only his sentence, he contests the addition of one criminal history point, under U.S. Sentencing Guidelines 4A1.2(c), for his prior conviction for shoplifting. At issue is whether shoplifting an item valued less than $50 (petty theft) should be excluded from the criminal history calculation. That turns on whether the petty-theft offense is similar to the crime of insufficient funds check, which is excludable from criminal history, under certain conditions, pursuant to Guidelines 4A1.2(c)(1). HOLDING:Affirmed. Lamm claims that, pursuant to 4A1.2(c)(1), he should not receive a criminal-history point for his petty-theft conviction, because it is similar to the listed excludable offense of insufficient funds check. Lamm maintains that, according to United States v. Hardeman, 933 F.2d 278 (5th Cir. 1991) and United States v. Reyes-Maya, 305 F.3d 362 (5th Cir. 2002), punishment is the most important factor in determining offense similarity. Lamm notes that, under Texas law, the potential sentences for issuance of a bad check and for shoplifting an item worth less than $50 are identical: both are Class C misdemeanors punishable by a fine not to exceed $500. Texas Penal Code 12.23, 31.03(e)(1), 32.41(f). In this regard, Lamm contends an even more important factor in determining offense similarity is the punishment imposed; he compares his shoplifting sentence ($257 fine) to those imposed in Hardeman (one day in jail and $250 fine) and Reyes-Maya ($182.50 fine). Lamm’s premise that petty theft and theft by check are similar is inaccurate, the court states. The offenses are meaningfully different because petty theft poses a risk of physical confrontation, placing others at risk. This risk is heightened if the offender is apprehended during the attempted theft. There is much less risk of physical confrontation for theft by check, just as there is much less risk for insufficient funds check, the court states. Lamm’s reliance on United States v. Gadison, 8 F.3d 186 (5th Cir. 1993), is misplaced because Gadison’s holding (issuance of a bad check and theft by check are similar) was based on a prior version of the Texas theft by check statute, the court finds. In that earlier version, the requisite intent for theft by check was presumed, under certain conditions, when a bad check was issued. Under the current version, there is no such presumption (instead, issuance is prima facie evidence of intent). Arguably, under the former statutory scheme, due to the presumption of intent for theft by check, issuance of a bad check could often constitute theft by check. Under the current statute, given there is no presumption of intent, the Gadison court may have found issuance of a bad check and theft by check were not similar. In any event, under the current statute, petty theft and theft by check are less analogous than under the theft by check statute relied upon in Gadison. To the extent there is any ambiguity in 4A1.2(c)(1), it does not rise to the level required for application of the rule of lenity. Weighing the Hardeman factors as a whole, under the requisite common sense and fact specific approach, Lamm’s petty theft offense is not similar to the offense of issuance of a bad check (Texas’ equivalent to insufficient funds check). This is primarily because petty theft involves a heightened risk of physical confrontation and harm to others. Moreover, Lamm’s petty theft offense, when viewed in the context of his recent criminal history � four convictions from 1997 to 2001 � indicates a likelihood of recurring criminal conduct. Finally, one other meaningful distinction involves the difficulty in detecting and apprehending the perpetrator of petty theft. In the light of an insufficient funds check offense not involving use of a false name or non-existent account, consistent with the limitation imposed by comment 13 to 4A1.2(c)(1), the identity and account information of the person issuing the check is known, whereas the perpetrator of petty theft is more difficult to apprehend. OPINION:Barksdale, J.; Garwood, Jolly and Barksdale, JJ.

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