Mark Booker pleaded guilty to the charge of knowingly, intentionally and unlawfully possessing approximately ten grams of crack cocaine, in violation of 21 U.S.C. Sec. 844. On November 29, 1994, Mr. Booker was sentenced to sixty months of imprisonment. The issue before the sentencing court and on appeal is the appropriateness of assigning one criminal history point for a prior state conviction of criminal damage to property. For the reasons discussed in the following opinion, we reverse the judgment of the district court and remand for resentencing.

* BACKGROUND

Among the five prior convictions listed by the probation office in its presentence investigation report ("PSR") was a July 7, 1992 misdemeanor conviction in St. Clair County, Illinois Circuit Court for the offense of knowing damage to property. The PSR included this explanatory comment:

Court records reflect that the defendant did knowingly break the glass window out of the front door of 1425 Gross, East St. Louis, without the consent of Patricia Hawkins.

PSR at 6. For that conviction Mr. Booker was sentenced to one month of court supervision. The PSR assessed one criminal history point for that misdemeanor offense and one point for a later battery conviction, and calculated Mr. Booker's Criminal History Category at II.1

Mr. Booker objected to the inclusion of this property damage conviction; however, the district court rejected Mr. Booker's argument. The court explained its reason for counting this misdemeanor sentence by noting the relationship between the window-breaking incident at his girlfriend's home and the subsequent misdemeanor conviction for intentionally causing bodily harm to the same woman five months later. The court then imposed a sentence of sixty months of incarceration, three years of supervised release, and a fine and special assessment.2 Mr. Booker appeals the sentencing court's assessment of an additional criminal history point for the prior misdemeanor conviction.

Section 4A1.1 of the United States Sentencing Guidelines sets forth the general method for assessing criminal history points to reflect a defendant's record of past criminal conduct. Its Introductory Commentary states that a "defendant's record of past criminal conduct is directly relevant" to the purposes of sentencing and that "the likelihood of recidivism and future criminal behavior must be considered." This appeal involves the subsequent section, Sec. 4A1.2, that deals with how previous criminal convictions are to be counted in determining a guidelines sentence. Because the subsection is central to our decision, we set it out in its entirety:

Sec. 4A1.2(c). Sentences Counted and Excluded

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:

Driving without a license or with a revoked or suspended license

Hindering or failure to obey a police officer

Local ordinance violations (excluding local ordinance violations that are also criminal offenses under state law)

Trespassing.

(2) Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are never counted:

Vagrancy.

U.S.S.G. Sec. 4A1.2(c) (1994).

We now examine the earlier conviction that Mr. Booker submits ought not have been counted in the calculation of his sentence. For his prior offense, Mr. Booker was sentenced under the Illinois statute entitled "Criminal Damage to Property." This provision states in pertinent part:

Sec. 21-1. Criminal damage to property. (1) A person commits an illegal act when he:

(a) knowingly damages any property of another without his consent[.]

Ill.Rev.Stat.1991, ch. 38, par. 21-1 (1991) (now 720 ILCS 5/21-1(1)(a) (West 1992)).

An examination of the text of U.S.S.G. Sec. 4A1.2(c)(1) makes clear that the guideline does not list a sentence for "criminal damage to property" among those crimes that are not counted in the calculation of a criminal history; therefore, it must be counted in computing the criminal history, unless it is found to be "similar to" one of the excepted offenses listed in subsection (c). In determining that the previous conviction was not "similar to" any of the listed offenses, the district court expressed the view that the underlying facts of the previous conviction--breaking the window on the door of his girlfriend's house--ought to be assessed in the cross-light of another prior offense that occurred several months later--battery upon the same woman. In the district court's view, especially when the prior offense is assessed in light of this subsequent incident, there was an "element of violence" to his conduct that was not reflected in the excepted offenses on the list.

Mr. Booker concedes that the misdemeanor offense is not one of those specific exceptions listed. He submits, however, that the offense can be excluded under the provisions of U.S.S.G. Sec. 4A1.2(c)(1). He first points out that his sentence for the state misdemeanor, one month of court supervision, was neither one year of probation nor thirty days of imprisonment. He then submits that the offense can be characterized as "similar to" the listed offenses and therefore excludable from the computation. In his view, his prior conviction for criminal damage to property is similar to the excludable offense of "disorderly conduct."3 According to Mr. Booker, both offenses involve the commission of an act that is unreasonable, alarming and disturbing. He also points out that their penalties are similar and contends that the penalty for "criminal damage to property" is the less serious of the two crimes.4

Mr. Booker submits, as well, that the sentencing court erred when it emphasized that the use of violence in committing "criminal damage to property" distinguished that conviction from the offenses listed in Sec. 4A1.2(c)(1). By basing its decision on an "element of violence," he contends, the sentencing court introduced a criterion absent from the guideline itself. He points out that "use of force" is an element of the listed offense of "resisting arrest" and may also be an element of fish and game violations, also a listed offense.

Our review of a district court's interpretation of the scope of the guidelines is de novo, and our review of its factual findings is for clear error. United States v. Linnear, 40 F.3d 215, 218 (7th Cir.1994). The specific question whether the district court correctly determined that a prior conviction is to be counted as a prior sentence under Chapter 4 of the Sentencing Guidelines is subject to plenary review. United States v. LeBlanc, 45 F.3d 192, 193 (7th Cir.1995). The government has sustained its threshold burden of proving the fact of his state conviction for criminal damage to property. Mr. Booker therefore has the burden of demonstrating that the conviction is subject to the exception. United States v. Unger, 915 F.2d 759, 761 (7th Cir.1990), cert. denied, 498 U.S. 1104, 111 S. Ct. 1005, 112 L. Ed. 2d 1088 (1991).

At the outset, we note our agreement with our colleagues in other circuits that, even though the predicate offense and sentence are defined under state law, the classification of each offense as excluded or included under guideline Sec. 4A1.2(c) is a matter of federal law.5 The guideline presents broadly titled categories of minor offenses and allows for the exclusion of a specific prior offense if it is similar to one of those listed and if the punishment is minimal (a term of probation of less than one year or a term of imprisonment of less than thirty days). Our consideration of the possible similarities of any statutes must be made in light of the Sentencing Reform Act's goal of "avoiding unwarranted sentencing disparities among defendants with similar records." 28 U.S.C. Sec. 991(b)(1)(B).

Mr. Booker's claim is that "criminal damage to property" is similar to "disorderly conduct," an excluded misdemeanor offense. In assessing this contention, we begin with our decision in United States v. Caputo, 978 F.2d 972, 977 (7th Cir.1992). In that case, Judge Posner, writing for the court, set forth succinctly the goal of our inquiry--to determine whether the prior offense before us is "categorically more serious" than the listed offenses. In an effort to ensure that the determination enunciated in Caputo reflects, as it must, the goal of the guidelines, see supra, two circuits have fashioned multi-factored analytical approaches.6 Although our court has not adopted formally any such pattern, the approach of the Court of Appeals for the Fifth Circuit, which that court describes as "a common sense approach which relies on all possible factors of similarity," is indeed a helpful device for accomplishing the task described in Caputo. Under that approach, a court attempting to determine the federal question of whether a previous conviction is "similar to" one of the listed offenses ought to consider the following: (1) a comparison of punishments imposed for the listed and unlisted offenses, (2) the perceived seriousness of the offense as indicated by the level of punishment, (3) the elements of the offense, (4) the level of culpability involved, and (5) 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).

When we turn to the Hardeman factors in the context of this case, we find that the situation is further complicated by the fact that both the previous offense at issue here, damage to property, and the listed offense, disorderly conduct, are crimes of generic definition that proscribe a great variety of activity and, depending on type of behavior involved, can be classified as a minor misdemeanor or a felony. In this situation, we take counsel from our colleagues in the Ninth Circuit, see Kemp, 938 F.2d at 1023, and focus not so much on the elements of each offense or on the possible range of punishments in abstracto, but rather on the actual offense conduct and the actual penalty deemed appropriate by the sentencing court.

Certainly, the seriousness of the penalty imposed by the state court--one month's supervision--militates strongly in favor of treating the crime for purposes of this guideline provision as akin to a relatively minor breach of the peace.7 The underlying behavior is a more subtle issue. Any destruction of property is a serious matter. It is clear, however, that the act involved here was a single incident of breaking the glass in the door of his paramour's home. There is no claim that it was part of a breaking and entering or other serious crime.8 The government does not challenge Mr. Booker's characterization that it occurred during a domestic argument. In assessing whether the act was indicative of recurring conduct, we cannot say that, when the act is viewed in isolation, it can be characterized in such a way. In that respect, we think it revealing that the sentencing court imposed no period of incarceration or probation but, in its discretion, limited the entire sentence to a month's supervision.9

The district court, assessing the situation with the benefit of hindsight obviously not available to the sentencing judge, concluded that Mr. Booker's later assault of the same woman indicated that the glass-breaking incident ought to be viewed more seriously. We do not believe such a methodology is compatible with the approach mandated by Sec. 4A1.2(c)(1). Rather, the court should have compared the factual basis for the offense of criminal damage to property with the offense of disorderly conduct. See Unger, 915 F.2d at 762-63.

The circumstances surrounding the glass-breaking incident were litigated fully in the district court. On the basis of the record before us, we conclude that Mr. Booker's conviction for criminal damage to property was a minor petty offense similar to disorderly conduct and of the sort meant to be excluded under Sec. 4A1.2(c)(1). It is not "categorically more serious" than many forms of conduct that would be considered relatively minor acts of disorderly conduct.10 We emphasize that our decision today does not preclude a contrary result when the circumstances surrounding the commission of the damage to property offense are different.11 Inclusion of this conviction, however, "would more likely distort than improve the process established by the guidelines for determining an appropriate sentence." United States v. Martinez, 905 F.2d 251, 253 (9th Cir.1990).

Our conclusion that Mr. Booker's criminal damage to property conviction should have been excluded under Sec. 4A1.2 necessitates a remand to the district court for resentencing. Because Mr. Booker now has only one criminal history point, the district court must determine whether Mr. Booker qualifies for the "safety valve" provision added by the September 1994 Crime Bill and incorporated verbatim into the Sentencing Guidelines. Under 18 U.S.C. Sec. 3553(f) and U.S.S.G. Sec. 5C1.2, the sentencing court can grant a downward departure below a statutorily imposed mandatory minimum sentence when certain factors are met.12 See United States v. Rodriguez, 69 F.3d 136, 140-41 (7th Cir.1995) (discussing Sec. 5C1.2 criteria). On remand, the sentencing court should consider those factors when deciding whether a departure downward is warranted.

Accordingly, the sentence imposed by the district court is reversed, and the case is remanded to permit the district court to resentence the defendant without considering the previous conviction for criminal damage to property.