United States v. Hildreth

In United States v. Hildreth, —- F.4th —-, No. 22-20301 (5th Cir. July 22, 2024), the Fifth Circuit rejected the defendant’s arguments and affirmed his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and it affirmed his 80-month prison sentence. The court rejected four of Hildreth’s arguments, but we focus only on the first.

Issue: Should Hildreth have received criminal history points for his Texas misdemeanor conviction for interference with public duties? Yes.

Under USSG § 4A1.2(c)(1), certain misdemeanor and petty offenses, and offenses “similar to” them, do not count unless (A) the sentence was more than one year probation or at least thirty days’ imprisonment or (B) the offense is similar to the instant offense. That Guideline lists “hindering or failure to obey a police officer” as one of the non-counted offenses, so the question here was whether Hildreth’s Texas conviction was “similar to” that crime.

The Fifth Circuit applies a “common sense approach” to this “similar to” test,” and it looks at factors including the punishments, “perceived seriousness,” and elements of the offenses, as well as the level of culpability and the “degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.” United States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991).

Because Hildreth did not raise this argument in the district court, the Fifth Circuit applied plain error review, and Hildreth could not prove a “clear or obvious error” because people could “reasonabl[y] dispute” whether his Texas conviction was “similar to” hindering or failing to obey a police officer. To buttress that view, the Fifth Circuit surveyed the PSR’s description of the prior offense because these questions are “fact specific.”