United States v. Horton

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED No. 97-5146 Non-Argument Calendar U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT 10/30/98 D. C. Docket No. 96-8027-CR-DTKHTHOMAS K. KAHN CLERK UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

TRAVIS HORTON, Defendant-Appellant.

________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (October 30, 1998) Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges.

PER CURIAM:

Appellant Travis Horton appeals his 126-month sentence for possession with

intent to distribute crack cocaine, in violation of 21 U.S.C. § 841 (a)(1). Appellant

contends that the district court erred by including his prior conviction for simple

assault in his criminal history calculation.

Appellant argues that his simple assault conviction is similar to convictions for

disorderly conduct, disturbing the peace, hindering or failing to obey a police officer,

and resisting arrest, all of which, under U.S.S.G. § 4A1.2(c)(1), are not included in a defendant's criminal history calculation.1 Appellant's argument is without merit;

assault is not similar to the offenses listed in U.S.S.G. § 4A1.2(c)(1). See United

States v. Elmore, 108 F.3d 23, 26-27 (3d Cir.) (assault not similar to disorderly

conduct), cert. denied, __U.S. __, 118 S. Ct. 110 (1997); United States v. Russell, 913

F.2d 1288, 1294 (8th Cir. 1990) (affirming district court's inclusion of convictions for

assault and criminal damage to property in criminal history calculation; court stated

that appellant “submitted no authority for the proposition that assault and criminal

damage to property is akin to disorderly conduct or disturbing the peace”); see also

United States v. Norman, 129 F.3d 1393 , 1401 & n.12 (10th Cir. 1997) (stating it

would be an absurd result to exclude assault from the criminal history calculation

pursuant to U.S.S.G. § 4A1.2(c)(1)); United States v. Kemp, 938 F.2d 1020, 1023 (9th

Cir. 1991) (stating that “the crime of 'domestic violence' under Arizona law includes 1 U.S.S.G. § 4A1.2(c) provides in part: Sentences for all felony offenses are counted. 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 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: ... Disorderly conduct or disturbing the peace ... Hindering or failure to obey a police officer ... Resisting arrest ....

2 both disorderly conduct, which is excluded by the explicit language of the Guidelines,

and assault, which is included” (footnote omitted)); United States v. Hoelscher, 914

F.2d 1527, 1537 (8th Cir. 1990) (court noted that assault is not similar to offenses set

out in U.S.S.G. § 4A1.2(c)(1) and (2)). We therefore affirm the judgment entered by

the district court.

AFFIRMED.

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