§508 Departures for Criminal History
1st Circuit affirms where court understood it could depart down based on criminal history. (508) Defendant argued that his sentence for carjacking was too high and that the district court misunderstood its authority to depart downward based on overrepresented criminal history. The First Circuit rejected the argument, finding that the district court explicitly rejected defendant’s argument that it should depart downward based on defendant’s criminal history score. U.S. v. Pupo, __ F.3d __ (1st Cir. Apr. 20, 2021) No. 19-1505.
6th Circuit upholds finding that lack of criminal history is not a ground for a variance. (508) (742) Defendant participated in a fraud and pleaded guilty to fraud and tax offenses. At sentencing, he fell into criminal history category I because he had no prior convictions. He sought a one-level variance from the guideline range because he was a “first offender.” The district court denied this request because defendant had previously been fined and suspended by the National Association of Securities Dealers for another scheme. The Sixth Circuit held that the district court had not abused its discretion in denying defendant’s request for a one-level variance. U.S. v. Dyer, __ F.3d __ (6th Cir. Nov. 13, 2018) No. 17-6174.
Commission defines “court protection order” and how to treat tribal court convictions. (210)(508) Responding to issues raised by the Tribal Issues Advisory Group, the Sentencing Commission added a definition of “court protection order” to section 1B1.1, incorporating by reference the definition of “protection order” in 18 U.S.C. § 2266(5). Three guidelines provide an increase for violation of a court protection order: §2A2.2 (Aggravated Assault), §2A6.1 (Threatening Communications), and §2A6.2 (Stalking or Domestic Violence). The Commission also provided guidance on how to apply the departure provision in §4A1.3 for defendants with prior tribal convictions. Proposed Amendment 1, effective Nov. 1, 2018.
3rd Circuit reverses reliance on defendant’s bare arrest record. (508)(740) Defendant pled guilty to illegally reentering the U.S. after deportation. In calculating defendant’s sentence, the district court relied in part on defendant’s arrests that did not lead to conviction. The Third Circuit reversed, holding that it was plain error for the court to consider defendant’s bare arrest record. The case was controlled by U.S. v. Berry, 553 F.3d 273 (3d Cir. 2009), which rejected the use of a bare arrest record at sentencing. Moreover, since Berry, a wide body of scholarship indicated that socioeconomic factors influence disparities in arrest rates. The error violated defendant’s substantial rights. The court considered defendant’s arrest record even though the parties agreed to a lighter sentence, and in spite of defendant’s minimal record of only two prior convictions for nonviolent offenses since the 1980s. Although the sentencing court also referenced other appropriate factors, its sentence was nevertheless influence by its impermissible consideration of defendant’s arrest record. U.S. v. Mateo-Medina, 845 F.3d 546 (3d Cir. 2017).
9th Circuit includes severed counts in calculating criminal history. (504) Defendant was charged with a chemical weapons offense, making a false statement to an FBI agent, and possession of pipe bombs. Because the offenses occurred two years’ apart, the district court severed the chemical weapons and false statement offenses from the possession of pipe bombs offenses. Defendant was tried, convicted, and sentenced on the chemical weapons and false statement offenses. Defendant was then convicted of the possession-of-a-pipe-bomb offenses. At his sentencing on those offenses, the district court included in his criminal history score his convictions on the chemical weapons and false statement offenses. The Ninth Circuit held that the district court properly included the severed counts in calculating defendant’s criminal history score. U.S. v. Fries, __ F.3d __ (9th Cir. Aug. 10, 2015) No. 13-10654.
Supreme Court reverses departure for low likelihood of recidivism in Rodney King case. (508) The district court departed downward in sentencing the officers who were convicted of beating Rodney King on the ground that the officers were particularly unlikely to commit crimes in the future, and the need to protect the public from their future criminal conduct was absent “to a degree not contemplated by the guidelines.” The Supreme Court held that this was an abuse of discretion because guideline § 4A1.3 specifically states that “a departure below the lower limit of the guideline range for criminal history category I on the basis of the adequacy of criminal history cannot be appropriate.” Therefore low likelihood of recidivism is not a basis for departure. Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).
Supreme Court declines to review departure based on nonsimilar outdated convictions. (508) The Supreme Court noted that the guidelines explicitly authorize a district court to base a departure on outdated convictions that are “evidence of similar misconduct,” see U.S.S.G. 4A1.2, comment., n.8. But the circuits are divided as to whether by implication they prohibit a departure based on nonsimilar outdated convictions. Compare U.S. v. Aymelek, 926 F.2d 64, 72-73 (1st Cir. 1991) and U.S. v. Russell, 905 F.2d 1439, 1444 (10th Cir. 1990), which permit nonsimilar, outdated convictions to be used for departure, with U.S. v. Leake, 908 F.2d 550, 554 (9th Cir. 1990), holding that an upward departure can never be based on nonsimilar, outdated convictions. Since the issue was not clearly presented here, the Supreme Court declined to resolve the conflict. Williams v. U.S., 503 U.S. 193, 112 S.Ct. 1112 (1992).
1st Circuit holds that nine-year sentence for drug dealer was not unreasonable given his history of violence. (508) Defendant pled guilty to two counts of possessing and distributing crack cocaine, and received a nine-year sentence, which was three and one half years below the bottom of the advisory guideline range. Defendant nonetheless appealed the sentence as unreasonably high because of various mitigating circumstance, primarily, his multiple serious medical problems. The First Circuit upheld the sentence as reasonable, finding the district court gave adequate consideration to defendant’s medical problems. The court found that defendant’s medical condition was “obviously a serious situation,” and this was the court’s primary rationale for imposing a sentence below the guideline sentencing range. However, the court felt that other statutory factors, including the public’s need to be protected from defendant’s “demonstrably violent personality,” warranted a “substantial sentence.” The court also expressed skepticism that defendant’s medical condition would prevent him from continuing his lifelong pattern of domestic violence, and discredited defendant’s argument that his forced sobriety while incarcerated would cure his lifetime alcohol abuse. U.S. v. Caraballo, 447 F.3d 26 (1st Cir. 2006).
1st Circuit says failure to meet note’s departure requirements did not limit court’s discretion to make other departure. (508) Defendants who re-enter the United States after being deported following an aggravated felony conviction are subject to a 16-level increase under USSG § 2L1.2(b)(1)(A). Application Note 5 authorizes a downward departure from the 16-level increase if the defendant meets three conditions: (1) he has only one prior felony conviction; (2) it was not for a crime of violence or a firearms offense; and (3) the term of imprisonment imposed did not exceed one year. Defendant did not meet the third condition because he was sentenced to more than a year for his aggravated felony conviction. The district court concluded that defendant’s failure to meet the application note’s departure requirements precluded it from making a criminal history departure. The First Circuit disagreed, holding that the prerequisites of note 5 govern only the decision to depart from the aggravated felony enhancement in calculating a defendant’s offense level. Nothing in that note limits a court’s discretion to make a criminal history departure. U.S. v. Delgado-Reyes, 245 F.3d 20 (1st Cir. 2001).
1st Circuit holds court may depart downward from career offender category. (508) Defendant contended that criminal history category VI, resulting from his career offender status, over-represented his criminal history and warranted a § 4A1.3 departure. The district court ruled that the neither the career offender guideline nor 28 U.S.C. § 994(h) permitted such a departure. The First Circuit reversed, ruling that a sentencing court may invoke § 4A1.3 to depart downward from the career offender category if it concludes that the category inaccurately reflects the defendant’s actual criminal history. Section 994(h) does not preclude a departure. U.S. v. Lindia, 82 F.3d 1154 (1st Cir. 1996), abrogation on other grounds recognized by U.S. v. Westmoreland, 240 F.3d 618 (7th Cir. 2001).
2nd Circuit says criminal history departure did not make (508) Defendant had four criminal history points. The district court found that this overstated his criminal history, and departed downward from category III to I. Category I is reserved for defendants who have zero or one criminal history points. To be eligible for protection from a mandatory minimum under the so-called safety valve” of 18 U.S.C. § 3553(f), a defendant may not have more than one criminal history point. The Second Circuit ruled that defendant had too many criminal history points to qualify under § 3553(f). Although the judge elected to place defendant in category I rather than III, he nonetheless had four criminal history points and was ineligible for the safety valve provision. U.S. v. Resto, 74 F.3d 22 (2d Cir. 1996).
2nd Circuit says departure for risk of recidivism should be under § 4A1.3 rather than § 5K2.0. (508) Defendant was convicted of possessing cars with altered VINs. The government moved for an upward departure based on evidence that he was a drug trafficker. The district court departed upward by seven levels under § 5K2.0, stating that defendant was a “confirmed recidivist” at the “peak of his criminal career” who had to be sentenced harshly for “incapacitation.” The Second Circuit reversed, holding that a departure based on these criminal history concepts must be under § 4A1.3 rather than § 5K2.0. A district court cannot avoid the step-by-step framework required under § 4A1.3 by classifying a departure based on criminal history as an offense level departure under § 5K2.0. Although § 5K2.0 permits an upward departure based on misconduct related to the offense of conviction, the government did not prove that defendant’s offenses had such a relationship. U.S. v. Tropiano, 50 F.3d 157 (2d Cir. 1995).
2nd Circuit permits downward departure in both offense level and criminal history for career offender. (508) Defendant was classified as a career offender based on four 1974 robberies. The district court believed that career offender status, which raised defendant’s criminal history category and offense level, overstated his likelihood of recidivism. The court departed downward from criminal history category VI to IV, but refused to make a corresponding decrease in defendant’s offense level. The Second Circuit held that where a defendant’s offense level is raised by his career offender status, the district court has the discretion to depart downward in either offense level or criminal history, or both. The record suggested that the judge’s refusal to depart in offense level was based on the erroneous belief that he lacked authority to do so. Accordingly, the case was remanded for reconsideration. U.S. v. Rivers, 50 F.3d 1126 (2d Cir. 1995).
2nd Circuit refuses to require extrapolation to hypothetical criminal history categories above VI. (508) Defendant’s guideline range was 12 to 18 months, but the district court found his criminal history category VI inadequate, and departed upward to 36 months. Defendant said the court should have been required to generate hypothetical criminal history categories above VI, and consider each until an appropriate range was found. The 2nd Circuit refused to require “such a mechanistic, level-by-level departure.” The guidelines at the time defendant was sentenced provided little guidance, and the caselaw shows a clear trend away from this sort of “rigid exactitude.” Moreover, this approach was rejected by the Sentencing Commission when it amended section 4A1.3 in 1992. The court was also not required to use the offense level approach mandated by the Sentencing Commission in the 1992 amendment, because the amendment was not yet in effect. U.S. v. Thomas, 6 F.3d 960 (2nd Cir. 1993).
2nd Circuit prohibits section 5K2.0 departure based on past criminal conduct and likelihood of recidivism. (508) The 2nd Circuit found an upward departure to be “procedurally defective” where the district court failed to state the section number of upon which it relied in making the departure. The court gave every indication that it was making a section 5K2.0 departure, but nonetheless based the departure upon defendant’s criminal record and likelihood of recidivism. The strictures of section 4A1.3 (which requires a step-by step procedure) may not be avoided by classifying a departure as one under section 5K2.0. Past criminal conduct and likelihood of recidivism may not be the basis for a section 5K2.0 departure. U.S. v. Deutsch, 987 F.2d 878 (2nd Cir. 1993).
3rd Circuit holds that court was not required to use ratcheting procedure to impose sentence above guideline range. (508) At defendant’s initial sentencing, the district court rejected the government’s request to sentence defendant as a career offender. The court imposed a 180-month sentence, a 50 percent increase over the applicable mandatory minimum, but lower than the 262-327 month range that would have applied to defendant as a career offender. On appeal, the Third Circuit directed the court to reconsider any upward departure by using the ratcheting procedure set forth in U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990). Prior to resentencing, the Supreme Court decided U.S. v. Booker, 543 U.S. 220 (2005). Thus, at resentencing, the court did not ratchet up the sentence in Kikumura fashion. Instead, it based its sentence on all the § 3553(a) sentencing factors, particularly defendant’s criminal history, and again imposed a 180-month sentence. The Third Circuit found no error. Although ratcheting is still necessary to determine the propriety of an upward departure, the court did not depart upward. Where a court sentences above the guideline range based on the § 3553(a) factors, without granting a departure from the guideline range, it is not bound by the ratcheting procedures set forth in Kikumura. When a court sentences post-Booker and views all of the § 3553 factors, the guideline range is simply one factor for it to consider in arriving at the sentence. U.S. v. Colon, 474 F.3d 95 (3d Cir. 2007).
3rd Circuit says criminal history departure cannot make defendant eligible for safety valve. (508) The district court found that Criminal History Category II overstated the seriousness of defendant’s past criminal conduct and departed downward to a Criminal History Category of I. The Third Circuit held that defendant did not qualify for the safety valve provision in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 because he had more than one criminal history point. The commentary to § 5C1.2 defines “more than 1 criminal history point, as determined under the sentencing guidelines” to mean “more than one criminal history point as determined under § 4A1.1 (Criminal History Category).” Thus, the safety valve provision is written in terms of criminal history points, not criminal history category. This definition precludes a court from applying the safety valve provision where a defendant has more than one criminal history point as determined under § 4A1.1, notwithstanding the fact that the court granted a downward departure after finding that the criminal history category was overstated. U.S. v. Boddie, 318 F.3d 491 (3d Cir. 2003).
3rd Circuit approves downward departure where career offender status overrepresented criminal history. (508)) In defendant’s previous appeal, U.S. v. Shoupe, 988 F.2d 440 (3rd Cir. 1993), the 3rd Circuit held that a court may depart downward in the criminal history category where defendant’s career offender status overrepresents his criminal history and likelihood of recidivism. Here, the 3rd Circuit held that because career offender status enhances both criminal history and base offense level categories, in such a situation, a court may also depart downward on a defendant’s base offense level. Section 4A1.3 makes clear that an overstated criminal history triggers departures, but does not make clear that such departures are limited to the criminal history category. The express reference in § 4A1.3 to offense level departures shows the Sentencing Commission intended § 4A1.3 to govern more than just departures in the criminal history category. Judge Alito dissented. U.S. v. Shoupe, 35 F.3d 835 (3rd Cir. 1994).
4th Circuit says court may consider relevant conduct in determining if prior offenses were similar to current offense. (508) Defendant pled guilty to being an illegal alien in possession of a firearm, 18 U.S.C. § 922(g)(5)(A). The district court excluded from defendant’s criminal history a 1984 drug conviction and four pending charges, three of which were drug-related. The court departed upward under § 4A1.3 on the ground that defendant’s four pending charges involved criminal conduct similar to the offense of conviction. Defendant argued that the prior misconduct was not similar to the federal firearm offense because the prior misconduct involved drug activity, not firearms. The government contended that the criminal conduct was similar to the conduct involved in the offense of conviction because the present conviction and the earlier arrests all involved drug activity. The Fourth Circuit held that in determining whether prior criminal conduct is similar to the offense of conviction for purposes of § 4A1.3, a district court may consider the relevant conduct surrounding that offense. Here, it was clear that the criminal conduct underlying defendant’s prior arrest on a firearm possession charge was similar to the offense of conviction involving illegal possession of a firearm. Further, the misconduct underlying his three pending drug charges was similar to the relevant conduct surrounding his federal firearms conviction, which included possession of drugs with the intent to distribute. U.S. v. Dixon, 318 F.3d 585 (4th Cir. 2003).
4th Circuit permits criminal history departure despite criminal livelihood enhancement. (508) Defendant argued that an upward criminal history departure under § 4A1.3 and a criminal livelihood enhancement under § 4B1.3 was improper double counting. The Fourth Circuit found no double counting. Although both guideline sections examine past criminal conduct, each provision is designed to penalize a different type of criminal behavior. Section 4B1.3 attempts to ensure adequate punishment for those who prey on society for their livelihood. Section 4A1.3 is designed to deal with defendants who possess an “extensive record” that is not adequately reflected by their criminal history category or those whose criminal background shows them to “pose a greater risk of serious recidivism.” Moreover, double counting is not a problem unless the guidelines expressly prohibit it. U.S. v. Blake, 81 F.3d 498 (4th Cir. 1996).
4th Circuit upholds use of invalid conviction to depart to career offender level. (508) The 4th Circuit outlined three approaches to take if the defendant’s criminal history score of VI is inadequate, or if he would be sentenced as a career offender but for the constitutional invalidity of a predicate offense. First, a court may exercise its discretion not to depart. Second, a court may determine the extent of a departure by extrapolating from the existing sentencing table. Third, if the defendant’s criminal conduct is sufficiently serious to conclude that he should be treated as a career offender, the court may depart directly to the career offender guideline. When this last approach is used, there is an implicit finding that each successive criminal history category inadequately represents the seriousness of defendant’s conduct. Here, defendant had 39 criminal history points, triple the minimum necessary for category VI. He did not dispute that he committed the criminal conduct underlying the constitutionally invalid conviction. The departure to career offender level was proper. U.S. v. Cash, 983 F.2d 558 (4th Cir. 1992).
4th Circuit says that old convictions may be grounds for departure even if not evidence of similar misconduct. (508) Note 8 to guideline section 4A1.2 authorizes an upward criminal history departures based upon outdated sentences that provide evidence of similar misconduct. The 4th Circuit found this did not implicitly prohibit using dissimilar old convictions to depart. The guidelines should be read to allow old convictions to be used as reliable information to depart even if the convictions are not evidence of similar misconduct. However, the old convictions may only be used if they “evince some significantly unusual penchant for serious criminality, sufficient to remove the offender from the mine-run of other offenders.” U.S. v. Rusher, 966 F.2d 868 (4th Cir. 1992).
4th Circuit adopts category-by-category approach to criminal history departures. (508) At sentencing, the court asked the probation officer how far he would have to depart to impose a 120-month sentence. The probation officer said he would have to depart from criminal history category III to VI, to obtain a maximum sentence of 105 months. The court then found that defendant fell within category VI and imposed a 105-month sentence. The 4th Circuit held that the district court bypassed the criminal history categories entirely in its desire to impose a particular sentence. The appellate court adopted a category-by category approach: once the district court has decided to depart upward in the criminal history category, the judge must refer first to the next higher category and can move on to a still- higher category only upon a finding that the next higher category failed to adequately reflect the seriousness of the defendant’s record. Judge Luttig dissented, and expressed his belief that the majority’s adoption of a category-by category approach was dictum, and invited another 4th Circuit panel to reconsider this issue. U.S. v. Rusher, 966 F.2d 868 (4th Cir. 1992).
4th Circuit permits downward departure from career offender guidelines where criminal history is overstated. (508) The 4th Circuit held that where the seriousness of a defendant’s criminal history has been overstated, a district court may depart downward from the career offender guidelines. Guideline § 4B1.1 is not an exception to the general rules governing criminal history departures under guideline § 4A1.3. Because the district court concluded that it lacked the discretion to depart downward from the criminal history guidelines, the case was remanded for resentencing. U.S. v. Pinckney, 938 F.2d 519 (4th Cir. 1991).
4th Circuit finds district court failed to adequately explain reasons for downward criminal history departure. (508) The presentence report indicated that defendant had a criminal history category of III, based on his attempted assault of his girlfriend, for which he received a sentence of probation, and driving a rental car without permission, for which he received a 60-day sentence. Defense counsel argued for a downward departure based on the “snowball effect” his earlier conviction for use of the rental car had caused. The judge stated that he made a “factual finding” that defendant’s criminal history category was II rather than III. Since under “simple counting,” defendant fell within category III, the 4th Circuit found that it was appropriate to review the district court’s action as a downward criminal history departure. Under this standard, the district court had failed to identify an aggravating or mitigating circumstance not adequately considered by the sentencing commission, so the case was remanded for the district court to establish reasons for its findings. U.S. v. Chester, 919 F.2d 896 (4th Cir. 1990).
5th Circuit does not require court to calculate departure before sentencing above guidelines. (508) Defendant pled guilty to escape from a halfway house, resulting in a guideline range of 15-21 months. He requested a 15-month sentence, in light of his two serious health conditions and drug addiction. The court noted defendant’s health issues and drug and alcohol abuse, but determined that the guideline range was not appropriate, and sentenced him to 50 months. Defendant argued that the district court was required to calculate a departure under § 4A1.3(a) before it imposed a non-guidelines sentence. The Fifth Circuit disagreed. In U.S. v. Mejiaa-Huerte, 480 F.3d 713 (5th Cir. 2007), it held that a district court is not required to use the methodology in § 4A1.3 before imposing a non-guidelines sentence. Other cases cited by defendant were not controlling or considered a slightly different issue. U.S. v. Gutierrez, 635 F.3d 148 (5th Cir. 2011).
5th Circuit reverses where court gave improper reason for refusing reduction for retroactive amendment. (508) Defendant pled guilty to manufacturing marijuana. He later filed a motion under 18 U.S.C. § 3582 to reduce his sentence in light of a 1995 amendment to § 2D1.1. Amendment 516, which was designated for retroactive application, altered the method for calculating the weight of marijuana plants. In refusing to retroactively apply the amendment, the district court noted that defendant’s criminal history did not adequately reflect his past criminal conduct because of an out-of-date drug crime. The court thus concluded that § 4A1.3 permitted an upward departure in such a situation, and held that the decision not to reduce his sentence was well within its authority. The Fifth Circuit held that the court’s decision to depart upward to a sentence appropriate for a criminal history category of VI was directly at odds with circuit precedent. When making such a departure, the district court should consider each intermediate criminal history category before arriving at the ultimate sentence. Here, the district court did not explicitly state why it rejected the intermediate categories. U.S. v. Boe, 117 F.3d 830 (5th Cir. 1997).
5th Circuit, en banc, reaffirms need to evaluate each intermediate criminal history category prior to departing. (508) In U.S. v. Lopez, 871 F.2d 513 (5th Cir. 1989), the 5th Circuit held that in considering an upward criminal history departure, the court must evaluate each successive criminal history category. In this case, the 5th Circuit, en banc, reaffirmed this step-by-step approach and overruled more recent opinions limiting the application of Lopez, i.e. . U.S. v. Harvey, 897 F.2d 1300 (5th Cir. 1990) and U.S. v. Geiger, 891 F.2d 512 (5th Cir. 1989). When making a departure to a higher criminal history category, the district court should explain why the criminal history category under the guidelines is inappropriate and why the category it chooses is appropriate. If it is necessary to go beyond the guidelines, the court must give adequate reasons why the guideline calculation is inadequate. Nonetheless, the district court need not go through a “ritualistic exercise” in which it mechanically discusses each criminal history category it rejects, since normally the court’s reasons for rejecting intermediate categories will be implicit or explicit in the court’s explanation for the departure. U.S. v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en banc).
6th Circuit approves upward variance even though court rejected upward departure. (508) Defendant and an accomplice stole personal checks from mailboxes, altered the checks to purchase items at retail stores, and then returned those items to the stores for cash. The court denied the government’s motion for an upward departure and defendant’s motion for a downward departure, both of which were based on § 4A1.3. The court did, however, vary upward after considering the § 3553(a) sentencing factors. Defendant argued that his sentence was substantively unreasonable because the district court granted an upward variance based on his criminal history after denying an upward departure based on the same criminal history. The Sixth Circuit held that the upward variance was not an abuse of discretion. The court carefully balanced the § 3553(a) factors to arrive at its upward variance. Even though the court concluded that defendant’s criminal history and likelihood of reoffending did not warrant an upward departure under § 4A1.3, these very same factors may properly be taken into account in the court’s decision to impose an upward variance under 18 U.S.C. § 3553(A). U.S. v. Lanning, 633 F.3d 469 (6th Cir. 2011).
6th Circuit does not require court to explain whether above-Guideline sentence was departure or variance. (508) Defendant argued that the court erred in failing to explain its methodology for calculating his sentence. In particular, he claimed the district court was required to specify whether its decision to impose an above-Guidelines sentence was a departure or a variance. The Sixth Circuit found this unnecessary. Unlike some other circuits, the Sixth Circuit does not require district courts to carefully distinguish between departures and variances from the Guidelines. Because the sentencing court has authority to deviate from the advisory Guidelines under either § 3553(a) or § 4A1.3, the failure to specify how each factors into the sentence does not affect the appellate court’s ability to review the reasonableness of the deviation. The only statutory requirement is that the district court impose a sentence that accords with, but is “not greater than necessary” to achieve the goals identified by Congress. 18 U.S.C. § 3553(a). U.S. v. Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009).
6th Circuit says court may not have been aware of authority to depart from career offender guideline. (508) Defendant sought a downward departure from the career offender guideline because each of his predicate prior convictions involved a fairly small amount of crack cocaine. In refusing to depart, the district court noted that “[T]his is a sad situation, but I do not believe that the career offender provision was not intended for people like [defendant]…. And although [defendant’s] drugs sale for which he was convicted were not all that great, they were still drug sales.” The Sixth Circuit found the record ambiguous as to whether the district judge was aware that he could depart downward from the career offender guideline based on the relatively small quantities of drugs involved in the predicate conviction. In U.S. v. Washington, 2001 WL130177 (6th Cir. Aug. 8, 2001) (table, unpublished) decided after defendant was sentenced, a 6th Circuit panel approved a downward departure where the defendant’s three previous convictions involved, respectively, 11 rocks of cocaine, one rock of cocaine, and 20 grams of cocaine, and he had never served time in jail for any of the offenses. Because the sentencing court did not have the benefit of the Washington case at the time defendant was sentenced, the 6th Circuit remanded for the district court to clarify whether it was aware that a departure may have been granted. U.S. v. Smith, 278 F.3d 605 (6th Cir. 2002).
7th Circuit affirms sentence at top of guideline range based on defendant’s 41 arrests. (508) Defendant pled guilty to being in the U.S. after deportation, and was sentenced to 71 months, the top of his advisory guideline range. His principal ground of appeal was that the judge should not have taken into account his 41 arrests that had not resulted in convictions. The Seventh Circuit found no error. Although a sentencing court may not rely on the prior arrest record itself in deciding on a sentence, the court may still consider the underlying conduct detailed in arrest records where there is a sufficient factual basis to conclude that the conduct actually occurred. Of the defendant’s 41 arrests, 26 listed merely the date, the defendant’s age, the charge, the agency making the arrest, and the disposition. With regard to each of the remaining 15 arrests, there was a summary either of a petition for an adjudication of wardship (4 arrests) or of the police department’s arrest report (11 arrests). Since defendant did not question the accuracy of any of the summaries, the judge was entitled to take account of the 15 arrests for which there were summaries in deciding whether to sentence defendant at the top of the guidelines range. Moreover, defendant did not suggest that the other 26 arrests were ungrounded in facts. In light of the defendant’s failure to challenge the accuracy of anything in his lengthy arrest record, the judge was entitled to assume that the 41 arrests considered as a whole, when coupled with the defendant’s five convictions, justified a sentence at the top of the guidelines range. U.S. v. Lopez-Hernandez, 687 F.3d 900 (7th Cir. 2012).
7th Circuit approves upward variance based on excessive criminal history. (508) The district court, focusing on defendant’s unusually extensive criminal history, sentenced defendant to 96 months, which exceeded the top of his advisory guideline range by 18 months. Defendant argued that the court erred by (1) failing to adhere to the § 4A1.3 policy statement for upward departures; (2) overestimating the severity of his criminal history; (3) relying on unpaid fines; and (4) failing to consider his youth and borderline intellectual functioning. The Seventh Circuit held that the sentence was both procedurally sound and substantively reasonable. First, after Booker, a court is no longer required to follow § 4A1.3 when imposing an above-guideline sentence. Defendant’s 32 criminal history points more than doubled the 13-point threshold for the highest criminal history category. The court only mentioned defendant’s unpaid traffic fines in a brief, offhand manner. Defendant’s youth cut against him, since his accumulation of 32 criminal points by the age of 25 reflected “an alarming recidivism.” The claim about defendant’s borderline intellectual functioning was neither fully developed nor supported by a compelling factual basis. U.S. v. Jackson, 547 F.3d 786 (7th Cir. 2008).
7th Circuit employs three-part test to review guideline departures. (508) The Seventh Circuit uses a three-part test to review departures based on criminal history. See U.S. v. Duncan, 230 F.3d 980, 986 (7th Cir. 2000). First, the court reviews de novo whether the district court articulated adequate grounds for the departure. Second, it examines the facts cited by the district court in support of the departure, ensuring that such facts actually exist in the record. This review is for clear error. Finally, the court determines whether the degree of the district court’s departure is “linked to the structure of the sentencing guidelines.” This aspect of the court’s departure is reviewed “deferentially.” Applying the test here, the Seventh Circuit upheld a two-level upward departure based on (1) defendant’s 19 criminal history points, (2) a number of pending charges not used to calculate his offense level, and (3) the fact that he had “made a full time career of defrauding individuals and financial institutions.” U.S. v. Peterson, 256 F.3d 612 (7th Cir. 2001).
7th Circuit holds that PSR’s suggestion gave adequate notice of upward departure. (508) Defendant’s plea agreement contemplated a 46-57 month guideline range, and the government recommended a 48-month sentence. However, the PSR excluded many of defendant’s convictions from his criminal history because of their age, resulting in a 27-33 month range. It also stated that a § 4A1.3 upward departure might be appropriate. The district court departed upward to a 48-month sentence. The Seventh Circuit held that the PSR gave defendant adequate Burns notice of the possibility of an upward departure. The report cited the appropriate guideline section, detailed the exact grounds for departure, and referred to facts to support the grounds. Moreover, during a status hearing the court alerted defendant of the potential for an upward departure. U.S. v. Johnson, 53 F.3d 831 (7th Cir. 1995).
7th Circuit finds court may not have known it could depart downward for criminal history. (508) Dissatisfied with his trial attorney, defendant presented his own objections to his presentence report. The objections showed that defendant believed that the report overrepresented his criminal history, since certain of his crimes were committed as a juvenile and others were petty crimes related to his substance addictions. The district court apparently believed that defendant’s criminal record exaggerated the seriousness of his criminal conduct, but concluded the guidelines did not authorize a sentence reduction. The 7th Circuit remanded for the district court to consider whether a downward departure under § 4A1.3 was appropriate. An appellate court will ordinarily assume that a district court’s failure to use a guideline provision showed that the court had considered and rejected its application. Here, however, the district court made it known that it believed it did not have the authority to depart from what it considered an inappropriate sentence. U.S. v. Abbott, 30 F.3d 71 (7th Cir. 1994).
7th Circuit suggests enhancement and departure for crimes committed while on release may be double counting. (508) The district court departed upward by one criminal history level on two grounds. First, defendant’s criminal history was low due to the leniency of her state court sentences, and did not adequately reflect the likelihood of recidivism. Second, defendant had continued to engage in fraud following her initial arrest. She committed the acts charged in counts II-IV after being released on bond for the conduct charged in count I. The 7th Circuit approved the first ground for departure, but suggested that the second ground might constitute double-counting, since defendant had already received a three-level increase in offense level under section 2J1.7 for committing offenses while released on bond. On remand, the district court was directed to reconsider the departure. U.S. v. Panadero, 7 F.3d 691 (7th Cir. 1993).
7th Circuit says uncharged robberies should have been used for criminal history departure. (508) Defendant pled guilty to six bank robberies and confessed to five more. The district court departed upward for the five uncharged robberies by including them in the multiple count sentencing calculations under §3D1.4, thus raising defendant’s offense level. The 7th Circuit rejected this methodology, holding that these uncharged crimes should have been the basis for a criminal history departure under §4A1.3. Although “relevant conduct” adjustments may be made under §1B1.3 for some offenses, bank robbery is not one of them. Moreover, before the district court could depart based on the uncharged robberies under the “general departure” section, §5K2.0, it must first find that a “criminal history” departure under §4A1.3 was not appropriate. Judge Crabb disagreed with the majority’s conclusion that §5K2.0 was unavailable as a basis for departure. U.S. v. Dawson, 1 F.3d 457 (7th Cir. 1993).
7th Circuit affirms upward departure even though it should have been a criminal history departure. (508) Defendant was convicted of bank fraud after submitting two fraudulent loan applications to two different lenders. The 7th Circuit affirmed the district court’s two level upward departure in offense level based on defendant’s extensive history of similar fraudulent conduct. Defendant had escaped the consequences of much of this fraud by persuading his parents and friends to pay his debts. Defendant had a pattern of seeking to acquire expensive goods and services by fraudulent means and without any means to pay for them. Although the court should have more properly increased defendant’s criminal history rather than offense level, the appellate court did not remand for resentencing because the sentence imposed was within the range that would have applied had defendant’s criminal history been properly increased. U.S. v. De Felippis, 950 F.2d 444 (7th Cir. 1991).
7th Circuit upholds validity of criminal history departure section of guidelines. (508) Section 4A1.3 permits a court to make an upward departure if defendant’s criminal history does not adequately represent the extent of defendant’s criminal background. The commentary notes that a prior arrest record alone does not constitute reliable information for a departure under § 4A1.3. Application note 6 to 4A1.2 states that reversed, vacated, or constitutionally invalid convictions should not be counted, while any conviction not otherwise counted may be counted for departure purposes “if it provides reliable evidence of past criminal activity.” Defendant argued that § 4A1.3 is invalid because possible conflicting interpretations of the provision do not comply with congressional directive that the guidelines provide certainty and fairness in sentencing. The 7th Circuit rejected this argument, holding that the combined meaning of these provisions is that invalid convictions may only be used during sentencing if there is reliable information of defendant’s guilt. U.S. v. Gaddy, 909 F.2d 196 (7th Cir. 1990).
8th Circuit finds error in procedure for criminal history departure was harmless. (508) Defendant was convicted of money laundering, resulting in an advisory guideline range of 0 to six months. The district court imposed an upward Booker variance, finding that defendant’s criminal history was not adequately represented, and sentenced him to 18 months. Defendant argued for the first time on appeal that the district court procedurally erred by failing to consider a guidelines departure under § 4A1.3(a) before imposing a Booker variance. The Eighth Circuit held that the district court’s sentencing error, if any, did not affect her substantial rights, and was harmless. Defendant had four prior convictions for offenses related to drug trafficking, and had only received criminal history points for two of them. Based on these factors, the district court would have been justified in imposing an 18-month sentence as a departure. U.S. v. Mireles, 617 F.3d 1009 (8th Cir. 2010).
8th Circuit upholds refusal to grant downward departure or variance. (508) Defendant argued that the district court erred in denying his request for a downward departure based on his allegedly overstated criminal history. The Eighth Circuit rejected this argument, since the district court recognized its authority to depart downward, yet decided not to do so. The court stated “I don’t believe there’s any proper grounds for downward departure because the criminal history category does not substantially over represent the seriousness of your situation and your criminal history.” The panel also rejected defendant’s claim that the court committed procedural error by not adequately considering the § 3553(a) sentencing factors. Contrary to defendant’s contention, there is no requirement that the district court recite every § 3553(a) factor. U.S. v. Bryant, 606 F.3d 912 (8th Cir. 2010).
8th Circuit affirms unward departure where court would have granted variance anyway. (508) Defendant was convicted of possessing a firearm as an unlawful user of a controlled substance. His advisory guideline range was 18-24 months, but the district court found that criminal history category II underrepresented the seriousness of his criminal history. The court treated defendant’s prior juvenile offenses as adult convictions, and departed upward to category III. Defendant argued that the court committed a procedural error because his juvenile convictions were already accounted for in his initial guideline range. The Eighth Circuit ruled that the 48-month sentence was reasonable based on the court’s alternative decision to impose an upward variance. The district court said it would have imposed the same 48-month sentence based on the § 3553(a) factors, even if it had not departed upward. Given defendant’s involvement with drugs and firearms less than two years after his release from federal custody, the heinous nature of his previous crimes, and his relatively lenient prior sentences, the district court did not abuse its discretion. U.S. v. Johnson, 572 F.3d 449 (8th Cir. 2009).
8th Circuit holds that under-represented criminal history did not justify doubling sentence. (508) Defendant pled guilty to conspiracy to commit commercial check fraud. The district court sentenced him to 60 months’ imprisonment, which represented upward variance from the advisory guideline range of 27-33 months. The Eighth Circuit held that the sentence, which represented a near doubling of the upper limit of the advisory guideline range, was not reasonable based on the court’s expressed concerns regarding punishment and adequate deterrence. The court’s brief discussion focused on defendant’s serious criminal history and the fact that while he was in prison, he had used the time to plan and assist in carrying out the current offense. However, these were all factors that were taken into account by the guidelines. While it was not unreasonable for the court to find that defendant’s incorrigibility warranted additional prison time, the recommended range did not so substantially under-represent the seriousness of defendant’s criminal history as to justify imposing a sentence almost twice as long as the top of the advisory guideline range. U.S. v. Wiley, 509 F.3d 474 (8th Cir. 2007).
8th Circuit affirms upward variance based on criminal history despite decision not to depart. (508) The district court declined to impose an upward departure under U.S.S.G. § 4A1.3(a)(1). However, it did impose a sentence 14 months above the upper end of the advisory guideline range, finding that defendant’s prior conduct was not adequately reflected by the advisory guideline range, and emphasizing his commission of a serious crime each time he reentered the country following deportation. Defendant argued that the district court acted inconsistently by declining to depart under § 4A1.3(a) for an underrepresented criminal history and then varying upward based on defendant’s commission of serious crimes and his potential for recidivism. The Eighth Circuit found no inconsistency, noting that the standards for departure in § 4A1.3(a) and the standards in § 3553(a)(1) and (a)(2)(C) are not identical. Here, defendant’s history of deportation and illegally reentry, together with his serious criminal record, justified the upward variance – only one of his three illegal entries was represented in the court’s advisory guideline calculation. Moreover, a little more than a year after his third illegal entrance, defendant was arrested for sexually assaulting his two young nieces. His repeated illegal reentry into the U.S. was strong evidence of his propensity to recidivate. U.S. v. Solis-Bermudez, 501 F.3d 882 (8th Cir. 2007).
8th Circuit says court had authority to depart downward both horizontally and vertically for career offender. (508) The district court departed downward from criminal history category VI to III, finding the facts underlying defendant’s two prior felonies insufficient to justify a career offender status. The court noted that it could not reduce defendant’s offense level based on its finding that defendant’s two crimes of violence overrepresented the seriousness of his past criminal conduct. The Eighth Circuit held that the district court had the authority to depart both horizontally in criminal history category and vertically in offense level to account for the overrepresentation of defendant’s criminal history based on his career offender status. Career offender status raises a defendant’s placement on both axes of the sentencing table. Thus, a downward departure should have the potential to address, within a court’s discretion, both consequences of the career offender enhancement. U.S. v. Gregor, 339 F.3d 666 (8th Cir. 2003).
8th Circuit says court not obligated to depart simply because prior court also departed. (508) Defendant argued that the district court should have been collaterally estopped from assessing points for three prior offenses because another federal district court, in sentencing defendant on a previous matter, concluded that no points should be assessed for the offenses. The 8th Circuit found that defendant misrepresented the prior court’s determination. The prior court assessed defendant one point for each of the three offenses. However, it then found that defendant’s criminal history was overrepresented, and departed downward pursuant to § 4A1.3. The court here assessed exactly the same number of points, but differed only in declining to depart downward. This decision was not surprising, since defendant by this time had committed another offense. U.S. v. Frieberger, 28 F.3d 916 (8th Cir. 1994).
8th Circuit rejects downward departure for ancient felony in deportation case. (508) Defendant illegally reentered the country after being deported. He received a 16-level enhancement under section 2L1.2(b)(2) because his deportation followed an aggravated felony conviction. The district court departed downward, finding that because defendant’s 1977 burglary conviction was too old to be counted for criminal history purposes, it should not be the basis of a 16-level enhancement. The court also found that the 16-level enhancement significantly overrepresented defendant’s criminal history. The 8th Circuit reversed, noting that the Sentencing Commission took its definition of “aggravated felony” directly from the statute, and thus expressly considered this factor in § 2L1.2. The departure based on the overrepresentation of defendant’s criminal history was a misapplication of the guidelines. Section 4A1.3 authorizes departures from a defendant’s criminal history category, while section 2L1.2 provides an enhancement to a defendant’s base offense level. The court did suggest, however, that in unusual circumstances, a downward departure might be appropriate. U.S. v. Maul-Valverde, 10 F.3d 544 (8th Cir. 1993).
8th Circuit remands to consider downward departure for career offender. (508) Defendant argued that the district court should have departed downward because his career offender classification exaggerated the gravity of his earlier criminal activities. The 8th Circuit remanded for consideration of this issue. At the sentencing hearing, the district court did not acknowledge its power to depart under section 4A1.3 or address defendant’s argument for departure. This was understandable because defendant only raised this issue in a paper filed 10 minutes before sentencing. Because the district court did not realize that defendant was seeking a departure under section 4A1.3, the case was remanded. Senior Judge Lay, believing defendant’s 30-year sentence was extreme, concurred separately to emphasize prior opinions that have approved downward departures in similar situations. U.S. v. Gayles, 1 F.3d 735 (8th Cir. 1993).
8th Circuit holds that defendant received adequate notice of criminal history departure. (508) The 8th Circuit affirmed that defendant received adequate notice under Burns v. U.S., 111 S.Ct. 2182 (1991) of the district court’s intent to make an upward criminal history departure. Defendant’s PSR initially suggested an upward departure from category VI, but that became moot when defendant received a lengthy mandatory minimum sentence. When that sentence was vacated because it was based on two invalid prior convictions and defendant was placed in category V, he should have anticipated that the departure issue would revive. He did not object nor request more time to prepare when an updated PSR was delivered to the court immediately following its ruling that the prior convictions were invalid. U.S. v. Day, 998 F.3d 622 (8th Cir. 1993).
8th Circuit holds defendant received notice of departure where grounds were stated in presentence report. (508) The 8th Circuit rejected defendant’s claim that the district court failed to give adequate notice of its intent to depart from the guidelines range. Under Burns v. U.S., 111 S.Ct 2182 (1991), formal notice is not required if (1) the presentence report recognizes that certain factors could justify a departure, or (2) the government requests such a departure. Here, the presentence report expressly noted the presence of factors which might warrant departure. Additionally, prior to the sentencing hearing, the government requested that the district court depart upward from the guideline range. U.S. v. Andrews, 948 F.2d 448 (8th Cir. 1991).
8th Circuit holds that district court can depart downward in sentencing career offender. (508) A 20 year old drug defendant was sentenced to 210 months in prison after the district court designated him as a career offender. The court stated that it felt the sentence was too harsh, but felt that it could not depart because “Congress and the Sentencing Commission had spoken emphatically on the subject of career offenders.” The 8th Circuit vacated the sentence and remanded for resentencing. The court found that § 4A1.3 and the accompanying commentary allowed for downward departures when a defendant’s criminal history category significantly overrepresents the seriousness of his criminal history. The court found this section to be applicable even in the case of career offenders. Thus, the case was remanded for resentencing for the limited purpose of determining whether a downward departure would be appropriate. U.S. v. Brown, 903 F.2d 540 (8th Cir. 1990).
9th Circuit superseding opinion holds that departure based on inaccurate characterization of prior criminal history must be vacated. (508) Defendant, convicted of illegal entry after deportation, had two prior convictions involving controlled substances, one in 1995 and one in 1998. The district court concluded that the 1995 conviction required a 16-level enhancement under § 2L1.2(b) because it was “a drug-trafficking offense.” It then departed downward four levels because of the relatively minor nature of the conviction. The court based the extent of its departure on its conclusion that the 1998 conviction would have resulted in a 12-level increase in offense level if the court had not already increased the offense level by 16. In a superseding opinion that did not change the result of its earlier decision, the Ninth Circuit held that because the 1998 conviction would not have resulted in a 12-level enhancement, the district court’s departure decision rested on an incorrect legal premise and must be vacated. U.S. v. Almazan-Becerra, 482 F.3d 1085 (9th Cir. 2007).
9th Circuit says pre-Booker departure based on criminal history violated Apprendi. (508) Under § 4A1.3, a district court may depart upward if the defendant’s guideline range inadequately represented the seriousness of defendant’s prior criminal conduct and the likelihood of recidivism. The Ninth Circuit held that upward departures under § 4A1.3 involve facts beyond the fact of a prior conviction and therefore that under the mandatory guidelines regime in effect before U.S. v. Booker, 543 U.S. 220 (2005), a departure based on the defendant’s prior criminal history violated the rule announced in Apprendi v. New Jersey, 530 U.S. 4667 (2000), which requires that any fact, other than the fact of a prior conviction, that increases a defendant’s sentence must be admitted by the defendant or proved beyond a reasonable doubt to the jury. U.S. v. Kortgaard, 425 F.3d 602 (9th Cir. 2005).
9th Circuit reverses upward departure for defendant with 95 prior convictions. (508) Defendant had 35 prior convictions in state court (mostly for petty theft or shoplifting) and 60 prior convictions in tribal court (mostly for disorderly conduct). Because of the nature of defendant’s prior convictions, defendant fell into criminal history category III. The district court departed upward under § 4A1.3 on the ground that the defendant’s criminal history score did not adequately “reflect the seriousness of the defendant’s past criminal conduct.” The Ninth Circuit held that “the seriousness of a defendant’s prior convictions,” and not just the number of prior convictions, “must be a significant factor in the decision to depart under § 4A1.3. Applying this analysis, the court held that the district court erred in departing upward. U.S. v. Bad Marriage, 392 F.3d 1103 (9th Cir. 2004).
9th Circuit says departure for likelihood of recidivism must use criminal history category, not offense level. (508) Because the guidelines take the likelihood of defendant’s recidivism into account in setting defendant’s criminal history score, the Ninth Circuit held that a district court may not depart upward in setting the defendant’s offense level based on that ground. Instead, a departure for likelihood of recidivism must rest on a finding that defendant’s criminal history score fails to account for the possibility of defendant’s recidivism, and must be accomplished by an adjustment in defendant’s criminal history category. U.S. v. Martin, 278 F.3d 988 (9th Cir. 2002).
9th Circuit affirms upward departure based on seriousness of fraud and likelihood of recidivism. (508) Two prior Ninth Circuit cases have held that uncounted criminal conduct must be “serious” to support a criminal history departure. Nonetheless, other cases have upheld departures without an explicit showing of seriousness. The panel in the present case found it unnecessary to resolve this question because defendant’s thefts and frauds in the present case were clearly more serious than other crimes found to be serious¾including shoplifting, marijuana possession, and misdemeanor assault and battery. Moreover, the departure in this case was also justified “purely on the basis of defendant’s likelihood of recidivism.” Defendant’s earlier unauthorized use of credit cards was strikingly similar to the instant credit card fraud, and all of his uncounted conduct, like the instant offenses, involved stealing from people who trusted him. Moreover, his prior sentences had been relatively ineffective in deterring him from committing other frauds. Judge Reinhardt dissented. U.S. v. Connelly, 156 F.3d 978 (9th Cir. 1998).
9th Circuit reviews departures for abuse of discretion. (508) A district court’s decision to depart from the sentencing guidelines is reviewed for abuse of discretion. U.S. v. Sablan, 114 F.3d 913, 916 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 851 (1998). This standard also applies where the court departs from a criminal history category. U.S. v. Goshea, 94 F.3d 1361, 1363 (9th Cir. 1996). Under U.S. v. Koon, 518 U.S. 81 (1996) the abuse of discretion standard includes review to determine whether the district court’s discretion was guided by erroneous legal conclusions. A sentencing court engages in a four step departure analysis: (1) it identifies what features of the case potentially take it outside the guidelines “heartland”; (2) it determines whether the Commission has forbidden departures based on those features; (3) if not, it determines whether the Commission has encouraged departures based on those features; and (4) if not, it determines whether the Commission has discouraged departures based on those features. U.S. v. Sablan, 114 F.3d 913, 916 (9th Cir. 1997) (en banc). U.S. v. G.L., 143 F.3d 1249 (9th Cir. 1998).
9th Circuit says information in Tribal Court file was sufficiently reliable for departure. (508) Information is reliable if it comes from percipient witnesses during trial or from evidence presented at a sentencing hearing. U.S. v. Ponce, 51 F.3d 820, 828 (9th Cir. 1995). Although a “prior arrest record” by itself is not reliable, a “police record”¾which “covers all aspects of a prosecuted offense” and “detail[s] [ ] underlying conduct during [an] offense”¾is reliable information. U.S. v. Durham, 995 F.2d 936, 938 & n.1 (9th Cir. 1993). In this case, the court’s data on the assault charge came from a detailed Tribal Court file. Indeed, it appeared that defendant was convicted on the assault charge, but was not sentenced pending disposition of the present charges. Defendant did not object to the reliability of this information at sentencing. U.S. v. G.L., 143 F.3d 1249 (9th Cir. 1998).
9th Circuit says court’s refusal to depart was discretionary, despite words “no choice.” (508) The district court refused to depart downward to Criminal History Category I. During sentencing, the court said it was “required” to consider defendant’s 25-year-old conviction. Defense counsel asked if the court was saying “you feel you have no choice in the matter,” and the court replied, “It’s my understanding.” On appeal, the Ninth Circuit rejected defendant’s argument that this indicated that the district court did not realize it had discretion to depart. Rather, the court was simply “making clear that the Guidelines required it to take the conviction into account in initially computing [defendant’s] criminal history category, despite the fact that he had been pardoned.” The court’s silence regarding authority to depart was not sufficient to indicate that the court believed it lacked power to depart. U.S. v. Ladum, 141 F.3d 1328 (9th Cir. 1998).
9th Circuit reviews criminal history departure for abuse of discretion. (508) Relying on Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035, 2047-48 (1996), the Ninth Circuit held that a district court’s decision to depart from the sentencing guidelines is reviewed for abuse of discretion. As the Supreme Court noted in Koon, district courts see many more sentencing petitions than appellate courts and thus have a “special competence” to determine whether a defendant’s criminal history is more serious than other defendants in the same category. The extent of the departure (from criminal history category II to category III) was reasonable. The court rejected defendant’s argument that the court was required to precisely determine the sentence he would have received for his prior unconvicted misconduct, and then mechanically add the criminal history points to determine the extent of the upward departure. The court found no requirement for the court to engage in such “mechanical” calculations. U.S. v. Goshea, 94 F.3d 1361 (9th Cir. 1996).
9th Circuit finds it improper to dismiss for preindictment delay even if delay might increase total sentence. (508) The FBI ran a sting operation videotaping traffickers in stolen goods. Defendant pled guilty in 1993 stipulating that his relevant conduct would be limited to $60,000 worth of toys. He was sentenced to 8 months in custody. Thereafter, the government sorted through more of the videotapes from the sting operation and indicted him for selling stolen cookie jars, frozen shrimp, sweaters and VCRs worth $4 million. The district court dismissed the new indictments for preindictment delay finding that defendant was prejudiced because (1) he would not get the benefit of the “multiple count” rule under the guidelines, (2) he did not get “good time” credits on his 8 months sentence because it was less than a year, (3) two separate convictions and separate sentences might have exposed him to harsher sentences if he committed more crimes in the future, and (4) at the trial on the new indictments, the government would be able to impeach him with his conviction in the stolen toys case. The Ninth Circuit reversed, finding that the prejudice was either speculative, or could be accommodated by departures from the sentencing guidelines. U.S. v. Martinez, 77 F.3d 332 (9th Cir. 1996).
9th Circuit finds “safety valve” inapplicable despite downward criminal history departure. (508) The “safety valve,” 18 U.S.C. § 3553(f) and guideline § 5C1.2, permit a sentence below a statutory mandatory minimum if the defendant has no more than one criminal history point, and meets certain other criteria. Defendant argued that he was eligible for the “safety valve,” because the district court granted him a downward departure from criminal history category II to category I pursuant to guideline § 4A1.3. The Ninth Circuit found this argument contrary to the plain language of § 3553(f). That section expressly precludes application of the safety valve to defendants who have more than one criminal history point. U.S. v. Valencia-Andrade, 72 F.3d 770 (9th Cir. 1995).
9th Circuit says state immunity for murder did not prevent federal judge from departing upward based on it. (508) The defendants were given transactional immunity for all offense related an apparent homicide. In return, one defendant led police to the body. An investigation indicated that the defendants were responsible for the murder. Thereafter, defendants were convicted in federal court of attempting to rob an armored truck. At sentencing the district court departed upward on the ground that their criminal history categories did not adequately reflect the seriousness of their past criminal conduct under § 4A1.3 because their role in the homicide was not taken into account. The Ninth Circuit originally reversed, but after reconsideration, that opinion was withdrawn and a new opinion was filed upholding the departure. The court found inapplicable Murphy v. Waterfront Commission, 378 U.S. 52, 79 (1964), because the immunity agreement did not compel self-incrimination. U.S. v. Camp, 72 F.3d 759 (9th Cir. 1995).
9th Circuit says departure may be based on offenses committed while awaiting sentencing. (508) Believing it could not depart based on offenses committed while the defendant was awaiting sentencing, the district court did not consider the fact that defendant escaped, allegedly assaulted a sheriff’s deputy and used her gun to kill a passing motorist. In reversing the sentence on other grounds, the Ninth Circuit noted in a footnote that that it recently held that “a district court may take postconviction offenses that occur pending sentencing into account in deciding whether to depart upward from the guidelines.” U.S. v. Myers, 41 F.3d 531, 534 (9th Cir. 1994). The court said that on remand, the district court “may properly consider the alleged escape and murder in arriving at a new sentence.” U.S. v. George, 56 F.3d 1078 (9th Cir. 1995).
9th Circuit says applying “clarifying” amendment to criminal history would violate ex post facto clause. (508) The Commentary to §4A1.2 was amended effective November 1, 1992 to permit departures for serious dissimilar crimes committed more than fifteen years earlier. Although this amendment was designated as a “clarifying” change, the 9th Circuit refused to apply it retroactively, stating that doing so would violate the ex post facto clause. U.S. v. Donaghe, 50 F.3d 608 (9th Cir. 1994).
9th Circuit reverses for failure to explain extent of departure. (508) The 9th Circuit noted that the presentence report’s recommended departure levels appeared to have been “chosen at random,” and the district court made no attempt to explain the extent of the departure when it adopted the recommendations of the PSR. On resentencing, the district court must explain the extent of its departure by analogizing the increase criminal history category for offense level to the next relevant category or offense level. U.S. v. Donaghe, 50 F.3d 608 (9th Cir. 1994).
9th Circuit permits downward departure for “comparatively minor” career offender. (508) Defendant was convicted of selling .14 grams of cocaine to an undercover officer. Because he had two prior felony convictions for selling 2.8 and 2.7 grams of marijuana, he was a career offender within the meaning of §4B1.1. However, because he was a “comparatively minor offender”, the district court departed downward from the guideline range of 210-262 months to 33 months, the low end of the guideline range that would have applied in the absence of the career offender finding. In a 2-1 decision, the Ninth Circuit held the departure was authorized because guidelines do not consider the discrepancies between offenses involving drug quantities of exceptionally different orders of magnitude. The case was remanded to permit the district court to state its reasons for the extent of the departure. U.S. v. Reyes, 8 F.3d 1379 (9th Cir. 1993).
9th Circuit reverses criminal history departure above Category VI. (508) The district court departed upward from criminal history category VI because of defendant’s “constant” violations and the probation officer’s conclusion that defendant’s 19 criminal history points placed him in a hypothetical category VIII. Defendant, age 25, was convicted of alien smuggling and had a prior criminal record of four misdemeanors and three felonies. The Ninth Circuit reversed, finding defendant’s criminal history was not egregious enough to warrant departure above category VI. None of the prior crimes involved physical assault and the fact that defendant had previously committed a similar offense was already considered in the offense level for alien smuggling. Finally, the sheer number of a defendant’s criminal history points cannot justify an upward departure. Departure above category VI is reserved for those whose records are extreme by comparison to others in category VI. U.S. v. Carrillo-Alvarez, 3 F.3d 316 (9th Cir. 1993).
9th Circuit upholds criminal history extrapolation to Category X. (508) Defendant’s adjusted base offense level was 24 and his criminal history category topped the chart at VI. The district court departed upward 85 months from the recommended sentencing range of 100-125 months and imposed a 210 month sentence. The district court reached its sentence by adding one level for each of the four reasons for departure, arriving at a criminal history level of X. The district court then used the 10-15% sentencing range increment found between one criminal history category to the next higher category. This horizontal extrapolation was a viable option and the degree of departure reasonable. U.S. v. Durham, 995 F.2d 936 (9th Cir. 1993).
9th Circuit reverses upward departure based on severity of already-counted prior convictions. (508) Defendant pled guilty to being a felon in possession of a firearm. The district court departed upward 6 offense levels because defendant’s prior convictions were extremely violent and serious. The 9th Circuit reversed because the prior convictions had been assigned criminal history points and were already counted. The district court’s belief that the Sentencing Commission did not assign enough points to defendant’s prior convictions may have been morally correct but could not be the basis for an upward departure. U.S. v. Henderson, 993 F.2d 187 (9th Cir. 1993).
9th Circuit says analogy is required for criminal history departure. (508) In departing upward from 37 months to 50 months imprisonment, the district court failed to give “a reasoned explanation of the extent of the departure founded on the structure, standards and policies of the Act and guidelines,” as required by U.S. v. Lira-Barraza, 941 F.2d 745, 751 (9th Cir. 1991) (en banc). Generally, this means that “when a district court departs upward for underrepresented criminal history, “the degree of departure must be guided by analogy to higher criminal history categories.” U.S. v. Streit, 952 F.2d 894, 905 (9th Cir.), cert. denied, 113 S.Ct. 431 (1992). When the defendant is already in the top criminal history category, analogy to undefined levels is difficult. Nevertheless, the district court should “follow some reasonable, articulated methodology consistent with the purposes and structure of the guidelines” to justify the degree of departure. Id. at 906. The case was remanded to permit the district court to explain its reasons. U.S. v. Beck, 992 F.2d 1008 (9th Cir. 1993).
9th Circuit authorizes downward departure for career offender based on nature of priors and defendant’s youth at the time. (508) Defendant argued the nature of his prior crimes (several DUI’s) and his youth at the time of one of the prior convictions (age 18) rendered his criminal history significantly less serious than a typical career offender. The 9th Circuit held that while age is not ordinarily relevant it becomes relevant when it causes a defendant’s criminal history score to significantly overstate the severity of his or her criminal record. Accordingly, a downward departure from the career offender guideline range could be justified based on the nature of prior convictions and the defendant’s youth at the time of a prior conviction. The case was remanded to permit the court to consider whether to depart. U.S. v. Brown, 985 F.2d 478 (9th Cir. 1993).
9th Circuit holds that violation of “judicial order” in 2F1.1(b)(3)(B) does not include bail order. (508) Guideline Section 2F1.1(b)(3)(B) provides: “If the offense involved . . . violation of any judicial or administrative order, injunction, decree or process, increase by two levels.” The defendant here committed his mail fraud offenses while under a bail order containing a condition that he commit no crimes. The district court concluded that the bail order was a “judicial order” and increased his base offense level by two. On appeal, the 9th Circuit reversed, holding that the Sentencing Commission did not intend to include general bail conditions under the judicial orders covered by section 2F1.1. The court noted that two other guideline sections were applicable. Section 2J1.7 requires a three level enhancement for offenses committed while on release, and 4A1.3 allows the district court to depart upward if “the defendant was pending trial, sentencing or appeal or another charge at the time of the instant offense.” U.S. v. Scarano, 975 F.2d 580 (9th Cir. 1992).
9th Circuit holds prior convictions for stolen property and embezzlement are similar to bank robbery. (508) Guideline section 4A1.2(e)(2) forbids including in the criminal history score any offense for which the sentence was imposed more than ten years before commission of the instant offense. However, a departure may be based on more remote offenses if they are “evidence of similar misconduct.” See Application Note 8. In this case, the 9th Circuit found it unnecessary to inquire into the specific facts of the prior convictions, ruling that defendant’s 1975 and 1976 convictions for possession of stolen property and embezzlement were similar to bank robbery, thus permitting a “criminal history” departure to be based on them. U.S. v. Starr, 971 F.2d 357 (9th Cir. 1992).
9th Circuit does not require any particular approach to departures beyond criminal history category VI. (508) The 9th Circuit declined to mandate that sentencing judges adhere to any one particular approach to departures beyond category VI. However, the sentencing court must follow some “reasonable, articulated methodology consistent with the purposes and structure of the guidelines.” Here, the district court apparently “dis-aggregated” defendant’s prior consolidated sentences to derive a new criminal history point total. The court and counsel made reference to hypothetical criminal history categories of IX, X, and XII and the judge remarked that he was increasing the criminal history category from category VI to “category IX.” The 9th Circuit found the district judge’s efforts “commendable” but nevertheless remanded because the court failed to explain adequately its reasoning process. The 9th Circuit rejected the use of so-called “vertical” analogies to more serious offenses, because there is no obvious limit on the district court’s discretion. U.S. v. Streit, 962 F.2d 894 (9th Cir. 1992).
9th Circuit requires similarity of remote prior crimes before they are used to support upward departure. (508) In calculating defendant’s criminal history score, the sentencing judge ignored all but seven of defendant’s 35 convictions because they were too remote in time to be calculated in the score. But the judge relied on those convictions to justify an upward departure on the grounds that the criminal history score failed adequately to capture defendant’s past record. The 9th Circuit agreed that convictions not reflected in the criminal history score may justify an upward departure, but remanded because the sentencing judge did not examine the similarity of the present offense to those on which the judge relied to support departure. Only similar offenses may support departure. U.S. v. Notrangelo, 909 F.2d 363 (9th Cir. 1990).
9th Circuit holds that remote prior crimes used for departure must be similar to offense of counts. (508) In computing a defendant’s criminal history score, certain remote convictions are excluded. The 9th Circuit held that since these remote convictions are not counted by the guidelines, they may be an appropriate basis for departure, but only of they are “similar” to the offense of conviction. Here, the court found that defendant’s five remote convictions for “fraudulent activity” were sufficiently similar to her current convictions for passing forged checks that those remote convictions could justify departure. Defendant’s two remote convictions for assault and battery, however, should not have been considered. Since one of the reasons for departure was thus improper, the case was remanded for resentencing. U.S. v. Leake, 908 F.2d 550 (9th Cir. 1990).
9th Circuit requires criminal history departures to be justified by analogy to other guidelines sentences. (508) Withdrawing its May 10, 1990 opinion in this case, the 9th Circuit affirmed the district judge’s determination that some upward departure was justified, but remanded because the extent of the departure was not justified by analogy to the guideline sentences of defendants with a higher criminal history category than defendant’s. This step was necessary because the departure was grounded in part on the failure of the defendant’s criminal history category to capture accurately the severity of defendant’s criminal history. On remand, the district court need only draw an analogy that is “reasonable.” U.S. v. Rodriguez-Castro, 908 F.2d 438 (9th Cir. 1990).
9th Circuit files amended opinion requiring criminal history departures to be guided by analogy. (508) The district judge departed from defendant’s guideline sentence because defendant had provided authorities with fictitious names previously when arrested; had disciplinary trouble while incarcerated; had repeatedly committed his crimes through use of public transportation in a manner that endangered the public; and had assaulted a border patrol officer while resisting arrest. Amending their earlier opinion, the 9th Circuit found each factor justified an upward departure, but remanded because the district judge had not analogized the sentence to the guideline sentence for a defendant with a criminal history score resembling the severity of defendant’s prior conduct. U.S. v. Montenegro-Rojo, 908 F.2d 425 (9th Cir. 1990).
9th Circuit permits reliance on some prior crimes to justify departure, but rejects reliance on arrest records alone. (508) The district judge justified his upward departure from the guidelines sentence by reference to three categories of prior bad acts. The 9th Circuit found two of the categories appropriate but rejected the third. The court approved the district judge’s reliance on prior convictions that occurred over ten years earlier and therefore were not included under the guidelines in computing defendant’s criminal history score. The court also approved reliance on a prior conviction that had been reversed on appeal. Such prior convictions may be relied upon to support departure if they “provide reliable evidence of past criminal activity.” But the court disapproved reliance on prior charges on which defendant had not been tried. Though the district judge was permitted to consider reliable information of “prior similar adult criminal conduct not resulting in a criminal conviction,” the judge erred in relying entirely on arrest records as evidence of such conduct. U.S. v. Cota-Guerrero, 907 F.2d 87 (9th Cir. 1990).
9th Circuit holds that district court must state reasons for choosing a particular criminal history category in departing. (508) The 9th Circuit noted that “even though the departure based on criminal history was papropriate,” the district court “failed to state reasons” for placing defendant in category IV instead of some lesser category. Thus the court was unable to tell “what it is about [defendant’s] criminal record that makes him suitable for placement in on e category rather than another.” The court said that on remand the judge shoul dconsider whether defendant’s criminal history most closely resembles that of defedeants with a category II criminal history or is so egregious that further departure is warranted. The district court was also directed to consider “the extent to which teh guidelines have already considereed whether old sentences should be counted, .ÿ.ÿ. and the specific reasons why this particular defendant’s criminal history is more serious than others in category I.” U.S. v. Richison, 901 F.2d 778 (9th Cir. 1990).
9th Circuit holds that departure based on criminal history must use criminal history category as a reference. (508) Citing guideline § 4A1.3, Judges Browning, Alarcon and Hall held that “[w]hen the court departs from the guidelines because a defendant’s criminal history category is inadequate, the court is to ‘use as a reference, the guideline range for a defendant with a higher .ÿ.ÿ. criminal history category.’” U.S. v. Cervantes-Lucatero, 889 F.2d 916 (9th Cir. 1989).
10th Circuit says court need not make express findings concerning each offense level departure. (508) In the case of an upward departure from criminal history category VI, § 4A1.3 instructs the court to consider the nature rather than just the number of the defendant’s prior offenses, and to “structure the departure by moving incrementally down the sentencing table to the next highest offense level in Criminal History Category VI until it finds a guideline range appropriate to the case.” Defendant argued that this required the district court to explain why one or two offense levels was not sufficient to account for his criminal history. The Tenth Circuit held that the directive to proceed incrementally down the sentencing table does not require express findings be made concerning each incremental level. The guideline gives instructions concerning the methodology for structuring the departure; it does not require that express findings be made concerning each incremental step. Nonetheless, the panel was unable to review the degree of departure because the record did not sufficiently indicate why the district court chose the degree of departure it did. Although a court need not give a mathematically precise explanation of the degree of departure, it must “specifically articulate reasons for the degree of departure using any reasonable methodology hitched to the Sentencing Guidelines, including extrapolation from or analogy to the Guidelines.” U.S. v. Hannah, 268 F.3d 937 (10th Cir. 2001).
10th Circuit upholds criminal history departure but remands for district court to explain reasons for extent of departure. (508) Under the guidelines, defendant’s three felony convictions for first-degree murder, solicitation and kidnapping were treated as one prior sentence. The district court departed upward on the basis that treating these three convictions as one did not adequately reflect the seriousness of the defendant’s criminal history. The 10th Circuit upheld this as a proper ground for an upward departure, but remanded the case for the district court to articulate reasons for the degree of the departure. A court may use “any reasonable methodology hitched to the Sentencing Guidelines to justify the reasonableness of the departure . . . [W]hatever the method of reference is, it must be explicit.” The 10th Circuit also found there was no error in the district court’s refusal to consider as a mitigating factor the fact that defendant alleged that he had been beaten by prison guards after he attempted to escape. U.S. v. Rivas, 922 F.2d 1501 (10th Cir. 1991).
10th Circuit holds giving drugs to child may be grounds for upward criminal history departure. (508) Defendant pled guilty to conspiracy to distribute methamphetamine. The district court departed upward in offense level because defendant admitted giving drugs to her minor daughter. The 10th Circuit held that the act of giving drugs to one’s minor child might justify an upward departure, but only in criminal history category rather than offense level. Defendant’s prior acts of giving drugs to her child were not part of the crime of conspiracy for which defendant was charged convicted. Therefore, it was not an “extraordinary aspect of the offense for which [she] was charged.” The prior acts were, however, prior criminal conduct which were not considered in her criminal history, and thus could be the basis for making an upward criminal history departure. U.S. v. Thornton, 922 F.2d 1490 (10th Cir. 1991).
10th Circuit finds record insufficient as to whether court believed it lacked authority to depart downward. (508) In denying defendant’s motion for a downward departure, the judge stated that he was concerned that defendant’s prior minor offense was treated as a more serious crime, “but I fought these Sentencing Commission guidelines long enough and I think its up to the Courts of Appeals to give us some direction on it. But I will state for the record, that I find that particular part of the sentencing guidelines that requires a Category III is too harsh and inflexible, but I feel that I’m committed under the sentencing guidelines to impose that kind of sentence.” Defendant argued that the district court mistakenly believed it lacked authority to depart downward based on his criminal history. The 10th Circuit found that it lacked a sufficient record to determine whether the district court would have departed downward had it thought it had the power. The case was already being remanded for other reasons, and the 10th Circuit would not “speculate as to whether the district court will exercise its discretion to depart on remand, and if so, what its reasoning will be.” U.S. v. Maldonado-Campos, 920 F.2d 714 (10th Cir. 1990).
10th Circuit holds that upward departures from criminal history category VI are guided by proportionality, not next highest offense level. (508) Defendant pled guilty to bank fraud. Although several previous convictions were not counted, defendant had 25 criminal history points, 12 higher than the threshold for the highest criminal history category of VI. Additionally, defendant’s instant offense was of a similar nature to his previous offenses. The district court departed upward from a range of 18-24 months to five years based on a finding that the sentencing guidelines did not take into account defendant’s long criminal history. On appeal, defendant argued that a departure upward from criminal history category VI must be guided by the next highest offense level. The 10th Circuit disagreed, holding that the Commission did not intend such a procedure. The court held that it must use its own judgment as to whether the sentence imposed is proportional to the crime, and in this case held that, although near the limit, the sentence was proportional. U.S. v. Bernhardt, 905 F.2d 343 (10th Cir. 1990).
10th Circuit holds that reasonableness of departure from criminal history category VI depends upon whether uniformity and proportionality will be preserved. (508) The 10th Circuit ruled that determining the reasonableness of an upward departure beyond criminal history category VI requires regard for the factors in 18 U.S.C. § 3553, including uniformity and proportionality. The district court must clearly articulate its reasons for the extent of the departure in order to enable the appellate court to effectively supervise the sentencing process and enforce the principles of uniformity and proportionality implicit in the concept of reasonableness. In the present case, the sentencing court adequately articulated the reasons behind its choice of sentence. The 10th Circuit emphasized that “the district judge retains discretion to select an appropriate methodology or rationale to set an enhanced sentence so long as it is not inconsistent with the guideline objectives of uniformity and proportionality.” U.S. v. Gardner, 905 F.2d 1432 (10th Cir. 1990).
10th Circuit holds that departure from criminal history category VI is guided only by court’s own judgment. (508) After finding that criminal history category VI underrepresented defendant’s criminal history, the district court imposed the statutory maximum sentence, which was almost three times the guideline range. The 10th Circuit found that the Sentencing Commission had provided no guidance for determining the reasonableness of departures where criminal history category VI underrepresented defendant’s criminal history. Accordingly, the court held that it was required to “simply use its own judgment as to whether the sentence imposed was proportional to the crime committed in light of the past criminal history.” The court found that this case stretched proportionality to the limit, but that this was ameliorated by the fact that the sentence was ordered to run concurrently to a state prison sentence. Seen in context, the statutory maximum sentence did not violate the sentencing guidelines proportionality requirements since the defendant had been defrauding people nearly his entire adult life. U.S. v. Bernhardt, 905 F.2d 343 (10th Cir. 1990).
10th Circuit holds that reasonableness of departure from criminal history category VI depends upon whether uniformity and proportionality will be preserved. (508) The 10th Circuit ruled that determining the reasonableness of an upward departure beyond criminal history category VI requires regard for the factors in 18 U.S.C. § 3553, including uniformity and proportionality. The district court must clearly articulate its reasons for the extent of the departure in order to enable the appellate court to effectively supervise the sentencing process and enforce the principles of uniformity and proportionality implicit in the concept of reasonableness. In the present case, the sentencing court adequately articulated the reasons behind its choice of sentence. The 10th Circuit emphasized that “the district judge retains discretion to select an appropriate methodology or rationale to set an enhanced sentence so long as it is not inconsistent with the guideline objectives of uniformity and proportionality.” U.S. v. Gardner, 905 F.2d 1432 (10th Cir. 1990).
11th Circuit holds that court applied wrong guideline in refusing to depart for career offender. (508) Defendant qualified as a career offender based on two prior convictions for carrying concealed weapons. In rejecting defendant’s request for a downward departure from the career offender guideline, the district court stated that the comparison it should make was not between defendant and “the ordinary or usual Category VI defendant” (who has 12 criminal history points), but between defendant and “the ordinary or usual person who gets a Category VI because he meets the career offender provision.” The court found that defendant did not fall outside the “heartland” of most career offenders. The Eleventh Circuit reversed, finding that the district court applied the wrong guideline when it analyzed defendant’s motion for a downward departure. Downward departures for overrepresentations of criminal history are specifically provided for in § 4A1.3. The district court instead applied the heartland analysis of § 5K2.0. Moreover, even under § 4A1.3, defendant would not receive a downward departure. Defendant’s 1994 and 1997 concealed weapons offenses were not so temporally remote from his current offense. In addition, there was evidence of intervening criminal behavior beyond the two concealed weapons offenses. U.S. v. Adams, 316 F.3d 1196 (11th Cir. 2003).
11th Circuit holds court can depart downward from career offender guideline. (508) Defendant argued that the sentencing court misunderstood its authority to depart downward from the career offender guideline. The Eleventh Circuit agreed, holding that § 4A1.3 authorizes a sentencing court to depart downward regardless of a defendant’s status as a career offender under § 4B1.1. Although the record was somewhat ambiguous, it more strongly suggested that the court believed that it was not authorized to depart downward. The court resolved this ambiguity in favor of the defendant and found that the court’s refusal to depart was based on its belief that it lacked the discretion to grant defendant’s request. In holding that § 4A1.3 allows a departure from the career offender guideline, the court joined all the other circuits to have decided this issue. U.S. v. Webb, 139 F.3d 1390 (11th Cir. 1998).
11th Circuit rules district court sufficiently articulated reasons for criminal history departure. (508) The 11th Circuit rejected defendant’s claim that the district court failed to state sufficiently specific reasons for making an upward criminal history departure. The district court stated that defendant’s criminal history did not adequately reflect his criminal history, and indicated that it had reviewed the presentence report. The presentence report concluded that defendant’s criminal history score was inadequate because although defendant had 17 criminal history points, which placed him in criminal history category VI, an additional two points were not counted because some of his prior convictions were consolidated for sentencing. The extent of the departure was also reasonable. Defendant had a guideline range of 41 to 51 months, and received a 60-month sentence. The district court noted that if those additional points had been counted, and the criminal history categories went that high, defendant would fall into criminal history category VIII. With a criminal history of VIII and an offense level of 15, the applicable guideline range would be 61 to 71 months. U.S. v. Suarez, 939 F.2d 929 (11th Cir. 1991).
11th Circuit remands because district court incorrectly increased defendant’s offense level rather than criminal history category. (508) Defendant robbed a bank and a credit union, but pursuant to a plea agreement, pled guilty only to the robbery of the credit union. Defendant’s resulting offense level was 17, which when combined with his criminal history category III, resulted in a guideline range of 30 to 37 months. The district court determined that defendant’s criminal history did not adequately reflect the seriousness of his past criminal conduct, as evidenced by the bank robbery for which the government did not prosecute defendant. However, in departing, the court sentenced defendant as if he had been convicted of a level 21 offense, but did not adjust his criminal history category. The 11th Circuit remanded for resentencing, finding that in departing upward on criminal history grounds, the district court should have looked to the next higher criminal history category and determined whether that category was more appropriate, rather than increasing defendant’s offense level. U.S. v. Johnson, 934 F.2d 1226 (11th Cir. 1991).
D.C. Circuit considers arrest record as one factor warranting sentence at top of guideline range. (508) The district court imposed a sentence at the high end of defendant’s guideline range based on its consideration of numerous factors, including defendant’s arrest record. Defendant argued that § 4A1.3(a)(3), which provides that a prior arrest record shall not be considered for purposes of an upward departure, and caselaw interpreting § 4A1.3 to prohibit reliance on an arrest record for a downward departure, together prohibited consideration of his arrest record. However, the district court did not view defendant’s arrests in isolation, but in the context of numerous other contacts he had had with the criminal justice system. The court’s reference to defendant’s arrest record “simply catalogued an additional example of [defendant’s] repeated contact with the criminal justice system over a short period of time at a young age.” The district court did not err in considering defendant’s arrest record as one of many factors warranting a sentence at the top of the Guideline range. U.S. v. Brown, 516 F.3d 1047 (D.C. Cir. 2008).
D.C. Circuit rules it has no authority to review methodology employed in downward departure. (508) Defendant was classified as a career offender based on two prior felony convictions. The district court found that defendant’s criminal history was over-represented because one of his prior convictions arose under the Federal Youth Corrections Act. Accordingly, it departed downward from criminal history category VI to category IV. Defendant contended that in departing downward, the district court failed to follow the methodology in guideline § 4A1.3. The D.C. Circuit ruled that it had no authority to review the methodology employed by the district court in fashioning the downward departure. Defendant’s argument would place an appellate court in the inconsistent position of being able to review the methodology and justifications for the degree of a downward departure, while leaving it unable to review a decision not to depart. The court also rejected defendant’s argument that the district court misunderstood the scope of its authority to depart from the guidelines. U.S. v. Hazel, 928 F.2d 420 (D.C. Cir. 1991), overruled on other grounds by U.S. v. Dorcely, 454 F.3d 366 (D.C.Cir. 2006).
D.C. Circuit upholds constitutionality of career offender guideline. (508) Defendant qualified as a career offender, which subjected him to 30 years to life. The district court found the career offender guideline unconstitutional as applied to defendant, and sentenced him to the mandatory minimum 10 years’ imprisonment. The D.C. Circuit reversed, holding that the career offender guidelines did not violate either the 8th Amendment or the 5th Amendment. The 30-year sentence for defendant’s drug offense was not cruel and unusual punishment. Section 4B1.1’s failure to consider an offender’s individual circumstances did not violate due process. However, the district court may have misunderstood its authority to depart downward. If the court determined that defendant’s criminal history was so minor that it made his an “unusual” career offender case, a departure under § 4A1.3 would be permitted. Finally, at resentencing, defendant might not qualify as a career offender. The district court must determine whether defendant’s “attempt” conviction was a predicate career offender offense in light of U.S. v. Price, 990 F.2d 1367 (D.C. Cir. 1993) U.S. v. Spencer, 25 F.3d 1105 (D.C. 1994), reversing U.S. v. Spencer, 817 F.Supp. 176 (D.D.C. 1993).
D.C. Circuit holds that downward criminal history departures may be made for career offenders. (508) Defendant argued for a downward departure based on several factors, including the fact that he “just barely” qualified as a career offender, and that one of his two predicate convictions for applying career offender status occurred 15 years before the instant offense. The district court found that it lacked discretion to depart downward. The D.C. Circuit reversed, holding that section 4A1.3 authorizes a downward departure when criminal history category VI, assigned pursuant to the career offender guideline, significantly overrepresents the seriousness of a defendant’s past criminal conduct and the likelihood of recidivism. In authorizing criminal history departures under section 4A1.3, the commission did not exclude category VI or career offenders. The case was remanded for the district court to consider whether defendant qualified for a downward departure on these grounds. U.S. v. Beckham, 968 F.2d 47 (D.C. Cir. 1992).
D.C. Circuit directs district courts to supply “some reasoned basis” for extent of departures. (508) The district court found that criminal history VI was inadequate. It departed upward from 30 months and imposed a 60-month sentence, the statutory maximum. The D.C. Circuit remanded for resentencing, ruling that the district court failed to adequately justify the extent of the departure. Although several Circuits have developed specific procedures for district courts to use in structuring criminal history departures, the court declined to adopt any particular procedure. Instead, trial courts must “supply some reasoned basis” for the extent of a departure for a defendant who falls in criminal history category VI. The “percentage” approach adopted by the 7th Circuit and the analogy to the career offender provisions used by the 10th Circuit both have merit in certain cases. Here, the district court failed to follow any discernible methodology in departing, simply stating that the unusual factors in this case warranted a five-year sentence. U.S. v. Molina, 952 F.2d 514 (D.C. Cir. 1992).
D.C. Circuit adopts 1st Circuit test for departures based on permissible and impermissible grounds. (508) The D.C. Circuit adopted the test articulated by the 1st Circuit in U.S. v. Diaz-Bastardo, 929 F.2d 798 (1st Cir. 1991) for reviewing the validity of a departure based upon permissible and impermissible grounds. Such a departure will be affirmed so long as (1) the direction and degree of the departure are reasonable in relation to the remaining valid ground(s), (2) the excision of the improper ground does not obscure or defeat the expressed reasoning of the district court as a whole, and (3) the reviewing court is left, on the record as a whole, with the definite and firm conviction that removal of the inappropriate ground would not be likely to alter the district court’s view of the sentence rightfully to be imposed. Such a test meets the twin goals of insuring that a sentence is imposed for proper reasons and conserving judicial resources. U.S. v. Jones, 948 F.2d 732 (D.C. Cir. 1991).
Commission restricts criminal history departures. (508) The Commission amended § 4B1.3 to prohibit criminal history departures for defendants who are Armed Career Criminals within the meaning of §4B1.4 or Repeat and Dangerous Sex Offenders Against Minors within the meaning of §4B1.5. In addition, defendants who are Career Offenders under § 4B1.2 can only receive a one-level downward departure. The amendment also provides that a departure to Category I does not qualify an otherwise ineligible defendant for “safety valve” relief from a mandatory minimum sentence, under § 5C1.2. Finally, the amendment requires the court to state its reasons in writing why the criminal history category underrepresents or overrepresents the seriousness of the defendant’s criminal history. Amendment 651, October 27, 2003.
Article recommends criminal history departure approach used in U.S. v. Jackson. (508) A student author reviews the detailed procedure the 10th Circuit set forth in U.S. v. Jackson, 921 F.2d 985 (10th Cir. 1990) for structuring departures above criminal history category VI. The opinion requires a trial court to rely on the guidelines to find analogous levels and principles to guide its degree of departure, rather than simply making a “reasonable” departure. The comment concludes that the 10th Circuit’s approach best promotes the goal of uniformity in sentencing, and recommends that other circuits which apply a different standard follow the 10th Circuit’s approach. Note, United States v. Jackson — Uniform Standards for Departure from the Federal Sentencing Guidelines, 69 Den. U. L. Rev. 779-90 (1992).
Article suggests that departure arguments too frequently focus on criminal history. (508) Judge Gerald Bard Tjoflat of the Eleventh Circuit argues that advocates have too frequently failed to call judicial attention to offense-specific factors that could justify departure from the guidelines sentence. “[P]erhaps unable to rid themselves of the vestiges of rehabilitative sentencing,” advocates commonly urge the court to make criminal history departures, based on the characteristics of the offender. But the author argues that the court’s discretion to make such departures is more limited than is its discretion to depart on offense-specific grounds. For example, the author suggests that departures from guidelines sentences might be appropriate for crimes based on the relative frequency with which they are committed in a particular jurisdiction, with alien smuggling justifying a higher sentence in Southern California than in other areas. Note, The Untapped Potential for Judicial Discretion Under the Federal Sentencing Guidelines: Advice for Counsel, 55 Federal Probation 1 (Dec. 1991).
Commission amends criminal history guideline to explain how to depart. (508) In an amendment effective November 1, 1992, the Commission amended section 4A1.3 to state that in departing upward from category history VI, “the court should structure the departure by moving incrementally down the sentencing table to the next higher offense level in history category VI until it finds a guideline range appropriate to the case.” The Commission added that “[t]his provision is not symmetrical.” “The lower limit of the range for criminal history category I is set for a first offender with the lowest risk of recidivism. Therefore, a departure below the lower limit of the guideline range for criminal history category I on the basis of the adequacy of criminal history cannot be appropriate.”