§510 Departures for Criminal History, Cases Upholding
1st Circuit affirms upward criminal history variance for possession of a firearm by a felon. (330)(510) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 33 to 41 months, but the court varied upward to the statutory maximum of 120 months based on his criminal history. Defendant argued that his criminal history was already taken into account by the guidelines and that his sentence was “too long.” The First Circuit rejected the argument, holding that the district court adequately explained why defendant’s criminal history score did not adequately account for seriousness of his prior criminal conduct. The sentence, while long, was “plausible.” U.S. v. Gonzalez, __ F.3d __ (1st Cir. Feb. 18, 2021) No. 18-1607.
6th Circuit upholds upward departure for identity thief. (510) Defendant broke into his victims’ house multiple times to accomplish an identity theft. Defendant fell into criminal history category VI, and the district court departed upward under § 4A1.3 to impose a 108-month sentence because defendant’s criminal history underrepresented his criminal background. The Sixth Circuit found the sentence to be procedurally and substantively reasonable. As to procedure, the court found that the district court had followed the proper procedural steps by giving defendant notice of the upward departure, following the structure of the guidelines, and addressing the applicable factors. As to substance, the court rejected defendant’s arguments that the district court failed to consider defendant’s remorse and his desire to be a better father to his son. U.S. v. Potts, __ F.3d __ (6th Cir. Jan. 13, 2020) No. 18-4092.
8th Circuit affirms upward departure based on criminal history. (510) At sentencing for possession of a firearm by a felon, the court departed upward by three levels under § 4A1.3 on the ground that defendant’s criminal history score of VI underrepresented his criminal history. Defendant argued that two levels would have been sufficient because many of his convictions were for property crimes, or were committed when he was a minor. The Eighth Circuit affirmed the three-level departure, noting that defendant had a greater number of criminal history points than was typical for Category VI. In addition, he posed an extremely high risk of recidivism, and was a danger to the community. U.S. v. Green, __ F.3d __ (8th Cir. Dec. 27, 2019) No. 18-3589.
8th Circuit finds criminal history was adequately considered in upholding departure. (510) Defendant pleaded guilty to drug-trafficking offenses in connection with his sale of fentanyl-laced heroin. Defendant fell into criminal history Category VI because he had 40 criminal history points. His guidelines range was 41 to 51 months. The district court departed upward by 15 months based on defendant’s criminal history. The court examined the seriousness of the defendant’s prior crimes, including his 255 violations of a no-contact order issued to defendant for his ex-girlfriend. The court also noted defendant’s inability to remain law abiding while on supervised release. The Eighth Circuit found that the district court did not err. U.S. v. Edmonds, __ F.3d __ (8th Cir. Apr. 15, 2019) No. 18-2776.
8th Circuit affirms upward departure based on tribal convictions. (510) Defendant pleaded guilty to domestic assault by a habitual offender, in violation of 18 U.S.C. § 117. Defendant fell into criminal history category I, but had 100 convictions in tribal court, which do not count in a criminal history score. The district court found that defendant’s criminal history score under-represented his prior criminal history, found that he should be in criminal history category IV, and departed upward from the guidelines range of 30 to 37 months to impose a 45-month sentence. Reviewing for plain error, the Eighth Circuit noted that the guidelines explicitly contemplate in § 4A1.3(a)(2)(A) an upward departure for tribal offenses that are not used in computing the criminal history score. The district court need not mechanically discuss its reasons for rejecting each criminal history category en route to the category it selects. U.S. v. Eagle Pipe, __ F.3d __ (8th Cir. Jan. 7, 2019) No. 17-3039.
8th Circuit finds number of tribal convictions not relevant to upward departure. (510)(770) The presentence report prepared for defendant’s sentencing for domestic assault by a habitual offender, in violation of 18 U.S.C. § 117, stated that he had 100 prior convictions in tribal court. Tribal court convictions are not used in calculating a criminal history score, and defendant fell into criminal history category I. The district court found that defendant’s criminal history score under-represented his tribal convictions, and departed upward to criminal history category IV. On appeal, defendant argued that the court relied on “clearly erroneous facts,” because it did not find precisely how many tribal convictions he had. The Eighth Circuit found this claim “frivolous,” because defendant had at least 69 tribal convictions and the district court had found that defendant was “about as far away” from criminal history category I as possible. U.S. v. Eagle Pipe, __ F.3d __ (8th Cir. Jan. 7, 2019) No. 17-3039.
8th Circuit upholds departure based on uncounted criminal history. (510) Defendant was convicted of smuggling human growth hormone (HGH) into the U.S. His offense level was 16, and his criminal history category was I, for a guidelines range of 21 to 27 months. However, he had five uncounted criminal convictions, including two for international drug distribution, so the district court sentenced him to 40 months based on his understated criminal history. On appeal, The Eighth Circuit found no abuse of discretion. The district court adequately explained why defendant’s criminal history score understated his prior criminal conduct. U.S. v. Patino, __ F.3d __ (8th Cir. Jan. 8, 2019) No. 17-3199.
6th Circuit afirms upward variance for underrepresented criminal history. (510) Defendant pled guilty to conspiring to distribute methamphetamine. The district court calculated a guideline range of 120-125 months, but varied upward and sentenced him to 200 months. The Sixth Circuit held that the sentence was substantively reasonable. The district court found that defendant’s guidelines range did not adequately account for his criminal history, noting that but for the fact some of his convictions were old or had been “reduced down,” defendant would have qualified as a career offender. Defendant’s prior burglary and robbery charges were reduced from first-degree to second-degree even though he had entered a woman’s home with a deadly weapon, threatened to harm her and another woman with the weapon, and taken over $500 in goods. The court then reasoned that this variance was necessary to provide just punishment, protect the public, and adequately deter defendant from continuing to break the law. The sentence was reasonable. U.S. v. Pyles, __ F.3d __ (6th Cir. Sept. 17, 2018) No. 17-6339.
1st Circuit affirms upward criminal history departure and rejects variance request. (510)(742) Defendant was convicted of possessing a firearm while subject to a qualifying court order, resulting in a guideline range of 15-21 months. The government urged an upward departure from criminal history level III to V, and an upward variance to a 60-month sentence. The district court departed upward to he criminal history level V, but refused to vary upward, and rejected defendant’s request for a downward variance. The court sentenced defendant to 33 months, at the top of his revised guideline range. The First Circuit held that the sentence was procedurally and substantively reasonable. The court took seriously defendant’s family and medical history, but concluded that while some of these factors explained defendant’s past conduct, a “risk of future conduct” also had to be given weight. U.S. v. Tosi, __ F.3d __ (1st Cir. July 24, 2018) No. 17-1340.
8th Circuit allows use of in absentia Rwanda tribal conviction for criminal history departure. (510) Defendant challenged the district court’s upward departure from criminal history category I to IV, claiming it improperly relied on his in absentia conviction by Rawandan tribal courts (known as GACACA courts) for participating in the Rwandan Genocide. He argued that those courts did not afford due process and procedural rights. The Eighth Circuit found no error. The district court independently accessed the voluminous evidence before it to make its own judgment as to whether defendant participated in the Rwandan Genocide. It found the eyewitness reports of defendant’s acts of violence constituted “reliable information” and therefore Criminal History Category I underrepresented the severity of his criminal history. The district court properly used the GACACA convictions as proxies for criminal history. U.S. v. Ngombwa, __ F.3d __ (8th Cir. June 22, 2018) No. 17-1688.
8th Circuit affirms upward departure based on tribal convictions and uncounted state convictions. (510) The district court departed upward from a guideline range of 151-188 months to a sentence of 293 months, citing four guideline provisions, including §4A1.3 (inadequacy of criminal history category). The district court relied on five convictions in state court for which defendant received no criminal history points, six convictions in tribal court that were not counted, and a larceny offense while serving in the military. The Eighth Circuit found no error. Tribal convictions are a proper basis for departure under §4A1.3(a)(2)(A). Although many of the uncounted convictions in state and tribal courts were driving offenses, “even offenses which are minor and dissimilar to the instant crime may serve as evidence of the likelihood of recidivism if they evince the defendant’s incorrigibility.” U.S. v. End of Harm, __ F.3d __ (8th Cir. July 15, 2016) No. 15-2150.
8th Circuit finds PSR gave defendant notice of potential criminal history departure. (510)(760) Defendant pled guilty to voluntary manslaughter and assault with a dangerous weapon. The district court departed upward in part under §4A1.3 because defendant’s criminal history category under-represented her criminal record and likelihood of recidivism. Defendant argued for the first time on appeal that she had no notice that the court might depart upward. The Eighth Circuit disagreed. Paragraph 50 of defendant’s PSR listed 11 convictions, and stated that “sentences resulting from tribal court convictions are not counted, but may be considered under §4A1.3.” Defendant thus had notice of a potential upward departure under §4A1.3. U.S. v. Brave Bull, __ F.3d __ (8th Cir. July 11, 2016) No. 15-2143.
11th Circuit approves upward criminal history departure based on unscored convictions. (510) Defendant fell within criminal history category II. However, he had more than a dozen convictions that were unscorable either because they were too old or because the sentences were too short. The district court treated the unscored convictions as if they were scorable, which yielded a total of 11 criminal history points and a criminal history category of V. The court then departed upward to category V. The Eleventh Circuit held that the district court did not abuse its discretion in departing upward. Defendant argued that many of his past crimes were low-level and old, but the record showed a life of crime with numerous convictions over four decades. Several of those convictions were for violent crimes. Several more involved fraud-based crimes similar to the ones defendant committed here. U.S. v. Sammour, __ F.3d __ (11th Cir. Mar. 16, 2016) No. 13-13962.
8th Circuit approves upward criminal history departure. (510)(741) Defendant was convicted of firearms charges. The district court departed upward from criminal history category III to IV, citing two main reasons. First, several convictions were unscored despite involving serious misconduct. Defendant argued that the lack of criminal history points for those convictions was offset by the points he received for other convictions, including what he characterized as minor shoplifting offenses. However, he did not explain how they otherwise overstated the seriousness of his criminal history. Second, the scores for several convictions were based on reduced sentences imposed after an Iowa court “reconsidered” the original sentences. The district court could consider “the historical facts of” defendant’s criminal behavior, not just the sentences eventually imposed. The district court also noted defendant’s “nonstop criminal history for about a three-year period” and failure to respond to correctional supervision in the past. The Eighth Circuit held that the district court’s decision to depart upward was based on a reasonable consideration of appropriate factors. U.S. v. Green-Bowman, __ F.3d __ (8th Cir. Mar. 2, 2016) No. 14-2826.
5th Circuit finds no evidence that court relied on improper criminal history statements. (510) At sentencing, the government stated that defendant had “several” possession of a controlled substance convictions and “several” DUI convictions. Defendant argued that the government inaccurately described his criminal history because he had only two DUI convictions and two drug possession convictions, and the word “several” implied “more than two.” The Fifth Circuit found no error in the district court’s criminal history assessment. Even assuming that “several” did mean “more than two” and that this statement contradicted defendant’s actual criminal history, the court committed no error. The record supported the court’s Category VI criminal history designation and defendant could not show that the district court relied on the government’s inaccurate statements. In its stated reasoning for the sentence, the district court made no explicit reference to these convictions. The court focused on defendant’s drug trafficking convictions rather than his possession convictions. It also referenced defendant’s drug use, but under the umbrella of a broader “alcohol, drug, [and] driving problem.” None of the court’s statements evidenced the court’s reliance on the misstatements by the prosecutor. U.S. v. Chatman, __ F.3d __ (5th Cir. Nov. 9, 2015) No. 14-2519.
4th Circuit approves upward departure based on stale juvenile convictions. (510)(741) Defendant was convicted of cocaine charges, resulting in a guideline range of 135-168 months. While a juvenile, defendant committed three felonies (two robberies and an assault) for which he was tried as an adult. Because defendant committed these offenses more than 15 years before the current offense, they were not included in his criminal history. The district court departed upward to count all three convictions, resulting in an additional eight points, placing defendant in criminal history category V with a guidelines range of 188-235 months. The court sentenced him to 188 months. The Fourth Circuit upheld the departure. A court may base a § 4A1.3 upward departure on a defendant’s prior convictions, even if they are too old to be counted in the guidelines range. The departure was relatively modest (from 168 months to 188 months). Although the government had only requested an increase to category IV, and the court departed to category V, the 188-month sentence was less than the 192 months requested by the government. U.S. v. McCoy, __ F.3d __ (4th Cir. Oct. 15, 2015) No. 14-4745.
8th Circuit approves criminal history departure based on prior similar criminal conduct. (510) Defendant fraudulently claimed large amounts of unclaimed property held by the state of California. The district court departed upward under §4A1.3 based on the inadequacy of defendant’s criminal history category. The court cited defendant’s “extraordinarily lengthy criminal history, going back more than 40 years” and observed that his multiple convictions did not count towards the criminal history guideline calculation because they were imposed over 15 years earlier. The Eighth Circuit affirmed the court’s upward departure to criminal history category V. In addition to defendant’s uncounted prior convictions, the district court also considered his numerous arrests for similar criminal conduct. Some of these arrests were for charges of wire fraud and mail fraud, the offenses in this case. Guideline §4A1.3(a)(2)(E) specifically authorizes consideration of similar criminal conduct which has not resulted in conviction. U.S. v. Bolt, __ F.3d __ (8th Cir. Apr. 3, 2015) No. 14-2621.
1st Circuit approves criminal history departure based on uncounted convictions and long string of arrests. (510) Defendant pled guilty to being a felon in possession of a firearm. In calculating his guideline sentencing range, the district court made a two-category upward departure under § 4A1.3(a)(1) from Category I to Category III. The departure was based on defendant’s three prior convictions, including a 1988 conviction for attempted murder and armed violence that resulted in a six-year prison sentence, and his long string of arrests and criminal charges in multiple jurisdictions. The First Circuit affirmed. Previous cases have found that an upward departure might be appropriate for “a series of past arrests” which “might legitimately suggest a pattern of unlawful behavior even in the absence of any convictions.” Given this, there was no reason why a series of arrests could not also be considered as a basis for departure due to underrepresentation of criminal history. U.S. v. Lozada-Aponte, 689 F.3d 791 (1st Cir. Aug. 24, 2012).
1st Circuit approves upward departure based on seriousness of interstate stalking crimes. (510) During a protracted custody dispute with his estranged wife, defendant sent her a number of threatening messages and telephoned her sister and described in gruesome detail how he would murder both his wife and son. The First Circuit upheld a two-level upward departure for the unusual seriousness of his interstate stalking crime. The sentencing court properly gave weight to the number and horrific nature of defendant’s threats, the length of time over which the threats were made, and the meticulousness of defendant’s plotting. Even though an upward adjustment was made for defendant’s “pattern” of behavior, § 2A6.2(b)(1)(D), the atypical extent of this pattern and the aggravating factors supported the upward departure. The court’s upward criminal history departure from category I to IV was also warranted. The court considered defendant’s criminal contempt conviction, which was unrelated to the instant pattern of stalking, the additional mailing of a threatening letter while imprisoned, and the fact that defendant engaged in stalking while on pretrial release for a separate violent crime. U.S. v. Walker, 665 F.3d 212 (1st Cir. 2011).
1st Circuit allows criminal history departure for committing offense while under indictment for another offense. (510) Defendant was convicted of various crimes related to an armed robbery of a firearms store. At his initial sentencing, the district court increased his criminal history category by two categories because he committed the crime while under indictment for another felony. On appeal, the First Circuit found an inadequate justification for this departure, noting that the two-category horizontal departure essentially added 4-6 points to defendant’s criminal history. If he had committed the robbery while under a criminal justice sentence, only two points would have been added to his criminal history. On remand, the district court found that an upward departure was still warranted, but a one-point increase would suffice. The First Circuit affirmed. Defendant’s flight and use of aliases indicated that he was well aware of the state criminal proceedings at the time of the robbery. The timing of the robbery, when “one would expect a careful abidance to the law … demonstrated his propensity for criminal behavior.” U.S. v. Wallace, 573 F.3d 82 (1st Cir. 2009).
1st Circuit rules that court gave adequate explanation for extent of modest five-month departure. (510) With 36 criminal history points, defendant fell within Criminal History Category VI. The district court departed upward from his 21 to 27-month sentencing range to impose a 32-month sentence. The First Circuit affirmed, ruling that the district court articulated a sufficient rationale for both the departure itself and the extent of that departure. Defendant’s criminal history was “overwhelming.” Not only did he have 36 criminal history points, “but his recidivism was nearly always immediate, and some of his crimes were violent.” The district court noted that defendant’s was “amazingly one of the worst record[s] I have seen in recent years,” and the appellate court deferred to that assessment. The court rejected defendant’s claim that the court made a “mechanical move through the guideline grid based purely on his criminal history score … without providing adequate reasoning for its decision to add five months specifically.” Although the court noted defendant’s excessive criminal history points, the court also expressed concern about the violent nature of his burglaries and his constant recidivism. “[W]e will not remand for an explanation that is so clearly implicit in what the district court found.” Moreover, the extent of the departure was relatively minor: five months. U.S. v. Chapman, 241 F.3d 57 (1st Cir. 2001).
1st Circuit affirms upward departure for numerous uncounted convictions. (510) Note 8 to § 4A1.2 authorizes an upward criminal history departure “[i]f the court finds that a sentence imposed outside [the applicable time period for counting prior sentences] is evidence of similar, or serious dissimilar, criminal conduct.” Defendant argued that the district judge made no findings that defendant’s six uncounted juvenile convictions and five uncounted adult convictions represented “similar, or serious dissimilar, criminal conduct.” The First Circuit upheld the departure, since defendant’s argument did “not capture what the district court actually did in its careful and attentive sentencing decision.” The district court found that defendant’s offenses were, in large part, serious; that they escalated; and that recidivism was characteristic. These were adequate bases to conclude that defendant’s criminal history category was too low. Moreover, Note 8 is “exemplary, not exclusive.” Evidence of an inadequate CHC “may include, but is not limited to,” specifically enumerated categories. In this case, in addition to analyzing defendant’s prior uncounted conviction, the judge considered defendant’s own bragging about how he had beaten previous charges and his plans to “pimp up again” after he beat the present charge. The court also considered a prostitute’s testimony about how defendant had intimidated her into not testifying against him. U.S. v. Footman, 215 F.3d 145 (1st Cir. 2000).
1st Circuit approves use of adjudication withheld in criminal history. (510) Defendant argued that a prior battery conviction to which he pled nolo contendere and received an adjudication withheld should not be included in his criminal history. The district court disagreed and placed defendant in criminal history category II. The court went on to hold, alternatively, that even if it sustained defendant’s objection, it would depart to category II because a criminal history I would be a “gross understatement” of defendant’s record. The First Circuit agreed that the inclusion of the battery conviction was correct. See U.S. v. Pierce, 60 F.3d 886 (1st Cir. 1995) (holding that a prior withheld adjudication in which defendant pled nolo contendere constituted a predicate career offender conviction). Moreover, the departure was proper. The reasons the court announced nearly parroted the language of the guidelines. There was an adequate factual foundation to support the departure. Since 1988, defendant had two DUI convictions and one conviction each for disorderly intoxication, battery, and drug offenses. At the time of sentencing, defendant was serving a 108-month federal sentence for drug trafficking. The extent of the departure, from category I to II, was reasonable. U.S. v. Cadavid, 192 F.3d 230 (1st Cir. 1999).
1st Circuit approves upward criminal history departure for uncharged spouse abuse. (510) Defendant pled guilty to being a felon in possession of a firearm. The government presented evidence at sentencing of 17 “horrific” years of domestic abuse that defendant had inflicted upon his wife. The district court made a criminal history departure from category III to V based on the uncharged spousal abuse and seven convictions that were excluded from defendant’s criminal history. The First Circuit held that a court may make an upward criminal history departure based on uncharged or unconvicted dissimilar criminal conduct. Although the guidelines specifically authorize an upward departure based on similar uncharged conduct, nothing bars a departure based on dissimilar uncharged conduct. The important issue is whether the criminal history category adequately reflects the seriousness of the defendant’s past criminal conduct. The information relied upon by the court was sufficiently reliable. Defendant’s wife provided a notarized statement detailing his history of abuse, and the statement was corroborated by police reports, a police interview transcript, a state protection order, and defendant’s refusal to challenge the facts of the abuse as contained in his PSR. The district court also properly relied on seven older convictions that were excluded from defendant’s criminal history. Although these offenses were committed between 17 and 20 years ago, when considered in conjunction with the counted offenses and the 17 years of domestic abuse, they showed a long chain of misconduct. U.S. v. Brewster, 127 F.3d 22 (1st Cir. 1997).
1st Circuit approves upward departure based on uncounted past criminal conduct. (510) Defendant was convicted of being a felon in possession of a firearm based on his involvement in a shooting spree at a housing development. He was originally sentenced as an armed career criminal; however, a state court later determined that his predicate convictions were invalid. At resentencing, the district court departed upward based in part on its finding that he committed the criminal conduct underlying the vacated convictions. The First Circuit affirmed. Section 4A1.3 encourages upward departures based on reliable information that a defendant previously engaged in prior similar adult criminal conduct not resulting in a conviction. This plainly encompasses charged conduct underlying vacated convictions. As the trier of fact, the district court was permitted to credit reliable evidence that defendant committed the criminal conduct underlying the two vacated assault and battery convictions. The unchallenged statement in defendant’s PSR that defendant kicked his girlfriend in the head and upper body, punched her in the head, and threw her over a third floor balcony provided a basis for the court’s finding. U.S. v. Hardy, 99 F.3d 1242 (1st Cir. 1996).
1st Circuit approves upward departure based on three “guilty filed” dispositions. (510) The district court departed upward by two criminal history levels and one offense level because defendant had committed three state crimes that were not included in his criminal history because they resulted in “guilty filed” dispositions as opposed to outright convictions. The First Circuit affirmed, reasoning that if the three “guilty filed” dispositions had been convictions, defendant would have been subject to a minimum sentence of 15 years under the ACCA. There were sufficient facts for the court to find by a preponderance of the evidence that the three state crimes were in fact committed. The ten year sentence imposed was reasonable. U.S. v. Tavares, 93 F.3d 10 (1st Cir. 1996).
1st Circuit affirms criminal history departure where reasons were implicit in court’s findings. (510) Based on defendant’s 21 criminal history points, the district court departed upward from offense level 14 to 17. The First Circuit affirmed, although it suggested the district court could have explained its reasons better. It did not mechanically depart, but recited defendant’s actual criminal history, which showed that in the 14 years since defendant turned 18, he had been in constant trouble except for one period in prison. His offenses involved drugs, theft, violence and guns. He had committed many crimes while on suspended sentence and probation. The judge could rationally conclude that a sentence of three to four years would not deter a defendant who had effectively shrugged off an 11 year sentence for armed robbery. It would have been helpful if these inferences had been spelled out, but no remand was necessary because the explanation was implicit in the court’s findings. U.S. v. Black, 78 F.3d 1 (1st Cir. 1996).
1st Circuit upholds departure from category II to IV where guidelines encouraged departure. (510) The district court departed from criminal history category II to IV because (1) defendant had engaged in prior similar criminal conduct that had not resulted in conviction, and (2) defendant committed the instant offense while on bail pending trial on local charges, thus demonstrating a high risk of recidivism. The First Circuit affirmed, since the reasons cited by the court are encouraged grounds for upward departure under § 4A1.3(d) and (e). U.S. v. Diaz-Martinez, 71 F.3d 946 (1st Cir. 1995).
1st Circuit approves upward departure based on defendant’s admissions of additional criminal conduct. (510) The district court departed upward after determining that defendant’s original criminal history category did not account for all of his prior criminal acts. The First Circuit found that there were several independent reasons that justified the departure. First, defendant admitted engaging in additional criminal conduct that had not been included in his criminal history category. Second, defendant committed the instant crimes shortly after being released from a significant prison term for similar conduct. He displayed a complete lack of contrition or remorse during the court proceedings, and was likely to return to similar criminal activity upon his release. U.S. v. Campbell, 61 F.3d 976 (1st Cir. 1995).
1st Circuit gives deference to court’s finding that criminal history understated defendant’s background and predisposition. (510) The district court departed upward because it found that defendant’s criminal history category of III significantly understated both his criminal history and his predisposition towards recidivist behavior. The First Circuit said this finding was entitled to deference. A district court may have a better understanding of the unique circumstances of the case before it and is likely to have seen more “ordinary” guidelines cases. Therefore, an appellate court should review a district court “unusualness” determination “with full awareness of, and respect for, the trier’s superior feel for the case, not with the understanding that review is plenary.” U.S. v. Shrader, 56 F.3d 288 (1st Cir. 1995).
1st Circuit finds defendant’s tendency to repeat DWI offense justified criminal history departure. (510) Defendant’s criminal history included five driving while intoxicated convictions, resulting in a criminal history category of III. The criminal history did not include two other DWI convictions and one careless driving conviction involving alcohol, and did not account for the fact that he was arrested again for DWI after his guilty plea but prior to sentencing. The First Circuit approved an upward criminal history departure based on defendant’s tendency to repeat his DWI offenses. The repeated offenses supported the court’s finding that defendant’s criminal history category underrepresented the seriousness of his criminal history and his recidivist tendencies. Defendant’s criminal history took into account only three of seven DWI incidents, and did not account for the fact that defendant had thrice been ordered to undergo rehabilitation programs. In light of the life-threatening nature of the illegal conduct, the departure was justified. The extent of the departure–10 months above the maximum guideline range–was reasonable. U.S. v. Shrader, 56 F.3d 288 (1st Cir. 1995).
1st Circuit approves upward departure for numerous outdated convictions. (510) Defendant had a lengthy criminal history, but a large number of his prior convictions did not result in criminal history points. The district court departed upward by awarding points for a prior armed burglary conviction that fell two years beyond the 15-year cut-off period. The Second Circuit affirmed. The district court did not make the adjustment solely because of the single prior conviction, but because of a substantial criminal career which, after a period of reasonably good behavior, defendant gave evidence of resuming. The 17-year old conviction, bearing some general resemblance in type to the current offense, was used simply as a benchmark to measure the departure. U.S. v. Connolly, 51 F.3d 1 (1st Cir. 1995).
1st Circuit approves earlier gun-related crime as grounds for upward departure. (510) Defendant was convicted of being a felon in possession of a firearm. Although he had three prior felony convictions, he was not subject to the mandatory minimum 15-year sentence because one of his felonies was not a violent felony. Nevertheless, the district court departed upward in part because of the nature of one of defendant’s earlier crimes — an armed bank robbery. The 1st Circuit upheld the consideration of the nature of defendant’s prior crime as grounds for departure. The fact that Congress had imposed a 15-year mandatory minimum sentence for felons with three prior violent felonies suggests that there is something special about one or two prior violent felonies. Defendant’s robbery of a bank was committed in daylight, with guns, and put employees and bystanders at risk of serious harm. The district court’s decision to use these facts as one of several bases for departure was lawful. U.S. v. Doe, 18 F.3d 41 (1st Cir. 1994).
1st Circuit says uncounted juvenile record may be grounds for upward departure. (510) The district court departed upward in part because defendant had a “virtually unbroken chain of assaultive behavior.” This behavior included two juvenile convictions which were not included in defendant’s criminal history. Defendant, relying on a D.C. Circuit and a 3rd Circuit case, argued that the guidelines forbid criminal history departures based on uncounted juvenile convictions. The 1st Circuit rejected these cases, finding them contrary to the 1st Circuit’s approach to departures. These cases conclude that the application notes to section 4A1.2 forbid a court from using an old juvenile conviction as a basis for departure because any other rule would exaggerate the sentencing disparities that the five-year cut-off was meant to curb. However, these application notes do not say anything about departures, which by their definition create non-uniformity. In addition, this approach is contrary to the 1st Circuit’s approach to departures as outlined in U.S. v. Rivera, 994 F.2d 942 (1st Cir. 1993). As noted in Rivera, only certain factors such as race or religion are explicitly prohibited as grounds for departure. U.S. v. Doe, 18 F.3d 41 (1st Cir. 1994).
1st Circuit upholds departure for pending charges not included in defendant’s criminal history. (510) The district court departed upward from criminal history category I to IV because defendant committed a similar offense while on bail pending sentencing for the instant offense. His criminal history category would have been much higher if any of several pending state and federal charges resulted in conviction. The 1st Circuit affirmed the extent of the departure. The finding that defendant’s criminal history was underrepresented was supported by defendant’s commission of similar credit fraud offenses within two years of the instant offense, evidencing a serious pattern of recidivism not reflected in his criminal history score. The four state cases and the one federal case pending against defendant plainly indicated that neither category II or III was adequate. U.S. v. Fahm, 13 F.3d 447 (1st Cir. 1994).
1st Circuit upholds prior unconvicted conduct as grounds for upward departure. (510) Defendant argued that the upward departure was improperly based on his prior arrest record. The 1st Circuit disagreed, finding instead that it was based upon prior similar adult criminal conduct, which can be the proper basis for an upward departure. Here, the prior conduct, assault with a broom handle, a BB gun, and a handgun, was sufficiently similar to the offense of conviction, discharging a firearm in a public place. Although the similarity between the instant firearm offense and a prior driving to endanger offense was less obvious, they still were sufficiently similar to form part of the justification for an upward departure. The district court based its finding on reliable information about the prior conduct. The PSR contained descriptions, taken from the original case files, of the conduct that led to each of the prior charges. Defendant had a full opportunity to object to these descriptions and did not do so. U.S. v. Ramirez, 11 F.3d 10 (1st Cir. 1993).
1st Circuit upholds prior unconvicted conduct as grounds for upward departure. (510) Defendant argued that the upward departure was improperly based on his prior arrest record. The 1st Circuit disagreed, finding instead that it was based upon prior similar adult criminal conduct, which can be the proper basis for an upward departure. Here, the prior conduct, assault with a broom handle, a BB gun, and a handgun, was sufficiently similar to the offense of conviction, discharging a firearm in a public place. Although the similarity between the instant firearm offense and a prior driving to endanger offense was less obvious, they still were sufficiently similar to form part of the justification for an upward departure. The district court based its finding on reliable information about the prior conduct. The PSR contained descriptions, taken from the original case files, of the conduct that led to each of the prior charges. Defendant had a full opportunity to object to these descriptions and did not do so. U.S. v. Ramirez, 11 F.3d 10 (1st Cir. 1993).
1st Circuit rejects need to “dissect” departure decision. (510) Defendant’s guideline range was 41-51 months, but the court departed to impose a 72-month sentence. The court justified its decision on three grounds: the likelihood of recidivism; defendant’s criminal history score, which far exceeded the minimum needed to qualify for category VI even though several prior offenses were not reflected in the score; and the fact that several of defendant’s prior sentences were for substantially more than one year. The 1st Circuit held that this “precise statement of reasons” satisfied the court’s obligation to justify the departure; the court need not explain “in mathematical or pseudo-mathematical terms each microscopic choice made in arriving at the precise sentence.” The 1st Circuit noted, however, that the version of 4A1.3 in effect at the time of defendant’s sentencing, which has since been amended, did not offer guidance on how to calculate the scope of a departure. The court also found the scope of the departure reasonable. U.S. v. Emery, 991 F.2d 907 (1st Cir. 1993).
1st Circuit upholds criminal history departure based on bench warrant for failure to appear. (510) The district court departed upward from criminal history category I to II because at the time defendant committed the instant offenses, there was an outstanding bench warrant for his arrest for failure to appear in state court on then-pending drug charges. The 1st Circuit affirmed, since guideline section 4A1.3 states that an upward departure may be proper if the defendant was pending trial, sentencing or appeal on another charge at the time of the instant offense. U.S. v. Garcia, 978 F.2d 746 (1st Cir. 1992).
1st Circuit affirms upward departure based on string of criminal behavior which continued while on pretrial release. (510) Although defendant fell into criminal history category IV resulting in a guideline range of 18 to 24 months, the district court sentenced defendant to 54 months. The 1st Circuit rejected defendant’s claim that the district court failed to adequately explain its reasons for the upward departure. The district court adopted the facts in the presentence report, which related defendant’s extensive criminal history in negotiating worthless instruments. Defendant received lenient treatment for these offenses. The court also cited defendant’s criminal behavior while on pretrial release, noting that defendant committed perjury several times, and committed an additional theft and forgery after the district court had found defendant in violation of his plea agreement due to his perjury. The fact that defendant disregarded the seriousness of the charges against him and continued to engage in criminal behavior while on pretrial release was sufficiently unusual to depart from the guidelines. U.S. v. Tilley, 964 F.2d 66 (1st Cir. 1992).
1st Circuit upholds departure where defendant admitted prior criminal acts which led to charges but not convictions. (510) The 1st Circuit affirmed the district court’s decision to depart upward from criminal history category IV to V based upon three prior instances of criminal behavior that had led to criminal charges but not convictions. Defendant did not deny the facts upon which the charges rested. The charges were dismissed, but not because of any finding on the merits. For example, two of the charges were dismissed because defendant was deported. A departure is authorized by section 4A1.3(e) in such a situation. U.S. v. Tabares, 951 F.2d 405 (1st Cir. 1991).
1st Circuit affirms criminal history departure where defendant committed offense while released on bail. (510) Defendant was arrested in July 1989 on cocaine charges. While released on bail, he was arrested and convicted of heroin charges, and sentenced to six months imprisonment. Upon his release, he was deported, and the cocaine charges remained pending. Defendant was subsequently arrested and pled guilty to reentering the United States illegally. The 1st Circuit affirmed an upward departure from criminal history category III to IV pursuant to guideline section 4A1.3(d). Defendant contended that criminal history category III did not seriously underrepresent his criminal history because conviction of the cocaine charge probably would have resulted in a probationary sentence for which only one additional criminal history point would have been assigned. However, defendant’s argument did not consider that the instant offense was the second offense defendant committed while on bail on the cocaine charges. Thus, category III did seriously underrepresent the seriousness of defendant’s criminal history and his likelihood of recidivism. U.S. v. Madrid, 946 F.2d 142 (1st Cir. 1991).
1st Circuit affirms upward criminal history departure despite failure to state criminal history was underrepresented. (510) The district court departed upward from criminal history category III to IV because defendant committed another drug offense while awaiting disposition of the instant offense. Defendant conceded that this might warrant an increase in his criminal history category, but argued that the court should first have determined that his criminal history category was underrepresented. The district court stated only that the additional offense warranted a criminal history departure. Acknowledging that the district court’s statement might imply a misconception, the 1st Circuit nevertheless affirmed, noting that the district court also stated that “the appropriate criminal history category here is not three but rather category four.” U.S. v. Calderon, 935 F.2d 9 (1st Cir. 1991).
1st Circuit upholds upward departure where 23 potential criminal history points were excluded from score. (510) Defendant pled guilty to three counts of possession of stolen mail. The district court departed upward from criminal history category V, finding that although defendant had 10 criminal history points, there were 23 potential criminal history points which were not included in the calculation. Some convictions were remote in time, and others were excluded because they culminated in short sentences. The district court found several of these convictions evidenced “similar misconduct” and others revealed “the same sort of dishonesty and misappropriation of other people’s property” as defendant’s instant offense. The 1st Circuit affirmed, finding that the case was “close to a textbook model of departure jurisprudence.” The district court made detailed findings anchored in the record and applied the proper methodology. U.S. v. Moore, 931 F.2d 3 (1st Cir. 1991).
1st Circuit upholds use of outdated dissimilar convictions as basis for departure in certain situations. (510) Defendant had seven prior convictions which were excluded from his criminal history score because they occurred more than 10 years prior to the offense of conviction. Because at least some of these convictions were serious, the district court used this as a basis for a departure from criminal history category V to VI. The 1st Circuit upheld the departure, holding that an upward criminal history departure may be based upon a defendant’s remote convictions, even if dissimilar to the offense of conviction, “if those convictions evince some significantly unusual penchant for serious criminality, sufficient to remove the offender from the mine-run of other offenders.” Here, the departure was justified because defendant’s seven earlier convictions, though outdated, were distinguished by their numerosity and dangerousness. U.S. v. Aymelek, 926 F.2d 64 (1st Cir. 1991).
1st Circuit upholds departure of three times guideline range. (510) Defendant had an offense level of 20, and fell within criminal history category III, resulting in a guideline range of 41 to 51 months. The district court departed upward, increasing the offense level to 28 and determining that defendant more properly fell within criminal history category VI. Defendant was sentenced to 135 months. The district court identified ten specific reasons for the departure, including the fact that defendant had ordered the murder of an informant, was implicated in another murder, had planned to murder a district attorney, had used a minor as a messenger in his drug business, was one of the most important drug traffickers in Puerto Rico, and derived significant income from drug trafficking. The 1st Circuit upheld the departure, finding the judge made a “well-supported determination that [defendant’s] conduct was so egregious as to merit upward departure.” Several of the factors relied upon by the judge (defendant’s importance as a drug supplier, his use of a minor in his business, the amount of money involved) were proper grounds for departure. The degree of the departure was also reasonable, for defendant appeared to be a “lifetime criminal offender, one who has shown no respect whatsoever for the law or any other social institutions.” U.S. v. Rodriguez-Cardona, 924 F.2d 1148 (1st Cir. 1991).
1st Circuit affirms upward departure where defendant was on conditional release when current offense was committed. (510) The district court departed upward from criminal history category I to criminal history category II because defendant committed the current offense while on conditional release pending final disposition of an unrelated state heroin trafficking charge. Defendant had pled guilty to the charge but had not yet been sentenced. The 1st Circuit upheld the departure, noting that guideline § 4A1.3 authorizes an upward departure if the defendant committed the instant offense while on bail or pretrial release for another serious offense. Although defendant contended that the amount of heroin involved was too small to give rise to any significant understatement of the seriousness of his criminal history, if defendant had been finally sentenced on the state court charge, he would have been subject to a mandatory minimum sentence of 10 years for the offense of conviction in the current case. U.S. v. Polanco-Reynoso, 924 F.2d 23 (1st Cir. 1991).
1st Circuit affirms upward departure based on past criminal conduct. (510) Defendant appealed the District Court’s upward departure based on his past criminal conduct. The 1st Circuit affirmed the departure, analyzing it under the three step Diaz-Villafane test. Defendant’s criminal history score was twenty, 50% higher than the maximum of thirteen. Additionally, defendant had six convictions excluded from the calculation and had seven state offenses pending which occurred after the offense of conviction. This was “unusual” enough to justify departure. The departure from a range of 3 to 9 months to 21 months was held to be within the realm of reasonableness. U.S. v. Brown, 899 F.2d 94 (1st Cir. 1990).
1st Circuit upholds upward departure where defendant was on bail when offense was committed. (510) U.S.S.G. 4A1.3 specifically authorizes a departure where the defendant committed the offense while awaiting trial on another serious charge. There was “no question” that defendant was actually awaiting trial on state charges when he committed the federal offense. The judge sentenced defendant as if he belonged in the next higher criminal history category, which is specifically recommended in the guidelines themselves. The 1st Circuit found no error. U.S. v. Hernandez, 896 F.2d 642 (1st Cir. 1990).
1st Circuit upholds upward departure where defendant was on bail when offense was committed. (510) U.S.S.G. 4A1.3 specifically authorizes a departure where the defendant committed the offense while awaiting trial on another serious charge. There was “no question” that defendant was actually awaiting trial on state charges when he committed the federal offense. The judge sentenced defendant as if he belonged in the next higher criminal history category, which is specifically recommended in the guidelines themselves. The 1st Circuit found no error. U.S. v. Hernandez, 896 F.2d 642 (1st Cir. 1990).
2nd Circuit affirms downward variance for defendant who received terrorism enhancement. (510) Rahman, who was serving a life sentence for terrorism-related crimes, was subject to “Special Administrative Measures” (SAMs) restricting his ability to communicate with persons outside of his prison. Defendant, a paralegal who worked on Rahman’s legal team, was convicted of various crimes arising from multiple violations of the SAMs. Although defendant’s guideline range was life imprisonment, the district court sentenced him to 24 years (288 months) and five years of supervised release. The Second Circuit affirmed the sentence. It was not clear error for the district court to find that a criminal history category of VI, as required by the terrorism enhancement in §3A1.4, significantly overstated defendant’s criminal history and likelihood of committing further offenses. Defendant’s conduct was grave, but the district court could properly find that of all those who merit this enhancement, others were more culpable and dangerous than defendant. In addition, the sentence imposed was more than twice what the maximum Guideline sentence would have been without the terrorism enhancement. U.S. v. Stewart, 590 F.3d 93 (2d Cir. 2009).
2nd Circuit affirms sentence more than twice Guideline maximum as reasonable. (510) Defendant pled guilty to two counts of bank burglary. The district court sentenced defendant, pursuant to an upward departure, to seven years in prison. Defendant argued that the sentence was substantively unreasonable because it was more than twice the maximum under the Guidelines, and it was based solely on defendant’s criminal history. The Second Circuit held that the seven-year sentence was not substantively unreasonable. The district court fully considered the sentencing factors listed in 18 U.S.C. § 3553(a). The court noted that it was considering not only the nature and circumstances of the offense and the history and characteristics of defendant, but also the need for deterrence and the need to protect the public from further crimes, all different factors enumerated under 18 U.S.C. § 3553(a). The fact that the court’s assessment of the weight of these factors was informed, in part, by defendant’s criminal history was appropriate. Defendant presented no compelling reasons to second-guess the determination of the district court that these factors warrant a variance from the Guidelines of the magnitude imposed here. U.S. v. Pope, 554 F.3d 240 (2d Cir. 2009).
2nd Circuit permits one-level upward criminal history departure as not unreasonable. (510) Defendant was convicted of being a felon in possession of a firearm. The district court found that criminal history category V underrepresented the seriousness of defendant’s past criminal conduct and the likelihood that he would commit another crime. Defendant had been convicted of 21 offenses, six of which were felonies, and many of which involved violence. Some of the convictions were not counted in the criminal history calculation because of their age. The court departed upward to category VI, which resulted in a guideline range of 70-87 months. The Second Circuit affirmed the upward departure. The district court did not clearly err in finding that the Guidelines calculation, which discounted several of defendant’s prior convictions, did not adequately represent the seriousness of defendant’s criminal history. Given defendant’s many convictions and the regularity with which he committed crimes, there was no clear error in the court’s conclusion that defendant was the type of person who is not easily deterred and was likely to commit future crimes. The scope of the departure was not unreasonable. U.S. v. White, 552 F.3d 240 (2d Cir. 2009).
2nd Circuit agrees that defendant’s heightened likelihood of recidivism was not reflected by criminal history category. (510) The district court departed upward on the grounds that defendant’s criminal history category did not account for his heightened likelihood of recidivism as reflected by the fact that all five prior convictions were for criminal possession of a firearm, and the leniency of the punishment for prior offenses. Although the district court’s theory was overbroad, the Second Circuit nonetheless affirmed the departure as to defendant. Repetition of similar offenses does not by itself provide a sufficient basis for finding that a defendant’s record was “of a kind” or “degree” different from the typical cases considered by the Sentencing Commission. However, defendant’s record clearly contained factors outside of the guidelines heartland that supported the upward departure, including committing the same offense repeatedly as well as proximately in time, continuing to flout the laws despite being the beneficiary of light prison term, uncharged criminal conduct, and re-entering and remaining in the country illegally following deportation for the purposes of committing additional crimes. These circumstances were not fully reflected in defendant’s otherwise applicable criminal history category. U.S. v. Gayle, 389 F.3d 406 (2d Cir. 2004).
2nd Circuit affirms upward departure where guidelines failed to account for significant part of defendant’s criminal history. (510) The Second Circuit ruled that the district court was well within its discretion to increase defendant’s criminal history category from III to IV. Absent the upward departure, the guidelines would have failed to account for a significant part of defendant’s criminal history. Under normal circumstances, an eight month sentence imposed in August 2000 in connection with defendant’s March 2000 convictions would have been counted as a “prior sentence” under the guidelines, and would have boosted defendant’s criminal history from III to IV. However, defendant’s violation of the terms of his supervised release, following imposition of the August 2000 sentence, caused the August 2000 sentence to be treated as if it had been for conduct that was part of the instant offense. Under § 4A1.2(k), the prison sentence imposed as a result of that violation must be treated as part of the August 2000 sentence. The effect of this treatment changed the analysis under § 4A1.2 (a)(1); the resultant sentence, taken as a whole, now reflected conduct that was “part of the instant offense[s],” and could not be used in calculating the criminal history category, even though only part of that sentence involved conduct relating to the instant offense. U.S. v. Loudon, 385 F.3d 795 (2d Cir. 2004).
2nd Circuit approves upward departure to category that would have applied if Canadian convictions had occurred in U.S. (510) The PSR placed defendant in criminal history category I despite his many prior convictions because they were all obtained in Canadian courts. See U.S.S.G. § 4A1.2(h). However, the district court concluded that the proper criminal history category for sentencing should be the category that would apply if the foreign convictions had occurred in the U.S. The Second Circuit affirmed an upward departure to category IV. A sentencing court considering an upward departure under § 4A1.3 is not required to pause at each category above the applicable one to consider whether the higher category adequately reflects the seriousness of the defendant’s record. As long as the reasons for such a departure are fully explained, “a mechanistic, step-by-step procedure is not required.” Here, given the stated grounds for departure, it would be “senseless formalism” to pause at Criminal History Categories II and III to consider whether they would have adequately reflected the seriousness of defendant’s criminal past. The district court properly considered defendant’s 1985 convictions and sentences for assault and extortion, even though the background information for those convictions was unavailable due to the passage of time. The nature of those offenses was not obscure. Also, Canadian convictions “are very similar to convictions here in this country.” U.S. v. Simmons, 343 F.3d 72 (2d Cir. 2003).
2nd Circuit upholds criminal history departure based on prior dissimilar criminal conduct. (510) Defendant argued that his 1998 arrest for drug possession was an improper basis for an upward departure because it was not similar to the instant crime of conviction, theft of government property. See USSG § 4A1.3(e) (permitting an upward departure for “prior similar adult criminal conduct not resulting in a criminal conviction). However, the court did not rely on § 4A1.3(e). The five factors listed in § 4A1.3 as evidence that a criminal history category is not adequate are not exclusive. The Second Circuit found that here, the 1998 arrest presented reliable information about defendant’s criminal history, specifically his possession of cocaine and drug paraphernalia. The court rejected defendant’s attempt to downplay the incident, and noted that police discovered defendant with drugs because they were responding to a woman’s screams for help from defendant’s hotel room. When the court noted the similarities between a 1995 conviction and the 1998 arrest, it did not double count the 1995 conviction but merely recognized a pattern of conduct. The court made a factual finding that reliable information about the 1998 arrest indicated that defendant’s criminal history was more serious than category I. That finding was not clearly erroneous. U.S. v. Cox, 299 F.3d 143 (2d Cir. 2002).
2nd Circuit departs upwards for police officer with three prior unprosecuted assaults. (510) Defendant, a police officer, put a choke hold on a man, resulting in the man’s death. The district court increased defendant’s criminal history category by one because of three prior assaults on arrestees that were not included in defendant’s criminal history: (1) defendant had choked Resto; (2) defendant had assaulted Bordoy, breaking his jaw in three places; and (3) defendant had assaulted Cruz, slapping him 10 to 15 times. Because these unprosecuted assaults were not reflected in defendant’s criminal history, and were remarkably similar to defendant’s current violent crime, the Second Circuit held that the one point criminal history departure was not an abuse of discretion. U.S. v. Livoti, 196 F.3d 322 (2d Cir. 1999).
2nd Circuit approves upward supervised release departure despite downward imprisonment departure. (510) The district court found that certain factors suggested a high likelihood that defendant would commit future crimes, while other factors suggested that defendant’s criminal history category of VI overstated the risk of recidivism. The court elected to depart from category VI to IV, but at the same time, the court departed upward to a five-year supervised release term as a “hedge” against possible recidivism. In view of the early start to defendant’s criminal career 18 tears before, and the fact that his law-abiding years largely coincided with a previous term of imprisonment, the Second Circuit held that the upward departure was not an abuse of discretion. Further, the upward departure was not “fatally inconsistent” with the downward departure in imprisonment. The sentence reflected the court’s finding that the risk of recidivism was high enough to warrant a prolonged period of supervised release, but not so high as to warrant the range of imprisonment contemplated by defendant’s uncorrected guideline range. U.S. v. Rivera, 192 F.3d 81 (2d Cir. 1999).
2nd Circuit upholds two-category criminal history departure based on outdated juvenile convictions. (510) Defendant pled guilty to possessing ammunition after having been convicted of a felony. His plea agreement called for a criminal history category of II based on defendant’s two prior adult convictions. The district court departed to category IV based on three prior juvenile convictions that were not counted in defendant’s criminal history because they were remote in time. In February 1988, when he was 17, defendant was arrested for a drug felony. Before his conviction on that charge, he committed two other crimes, one a misdemeanor drug offense and the other a felony firearm offense. At the time of his arrest, he was wearing a bulletproof vest and carrying $1500 in cash. The Second Circuit affirmed the court’s reliance on the outdated juvenile convictions. Note 8 to § 4A1.2 says that a court may consider for departure purposes outdated convictions that reflect either similar, or serious dissimilar, criminal conduct. The court did not, as defendant suggested, depart mechanically or mathematically. U.S. v. Franklyn, 157 F.3d 90 (2d Cir. 1998).
2nd Circuit approves upward departure from criminal history category VI. (510) Defendant’s original plea agreement recommended a guideline range of 77-96 months based on his status as a career offender. The parties then discovered that the guideline commentary in effect at the time provided that the career offender sentence should be based on the statutory maximum without enhancements. Defendant and the government then entered into a superseding plea agreement stating that the applicable guideline range was 37-46 months. The district court departed upward from defendant’s criminal history category of VI and imposed a 96-month sentence. The Second Circuit upheld the departure because it was properly based on the court’s finding that criminal history category VI did not adequately reflect the seriousness of defendant’s past record or the likelihood that he would commit future crimes. The court considered both the number of defendant’s prior offenses (more than twice the number of points needed to reach category VI) and the nature of the crimes. The court also noted the high degree of recidivism, pointing out that in one five-year period, defendant had 18 convictions, and had promptly been arrested following each imprisonment. U.S. v. Ashley, 141 F.3d 63 (2d Cir. 1998).
2nd Circuit bases upward departure on 23-year-old uncharged molestations. (510) Defendant was convicted of transporting a minor across state lines to sexually molest him. At trial and at sentencing, the government presented testimony from three other witnesses who had been similarly victimized by defendant when they were minors. One witness testified about events that had occurred 16-20 years ago and another testified as to events that had occurred 21-23 years ago. The Second Circuit approved an upward departure from criminal history I to II based on the prior molestations. So long as a sentencing court does not rely on misinformation, its discretion is largely unlimited as to the kind of information it may consider and the source from which the information comes. The district court found that the testimony of these three witnesses was sufficiently reliable. U.S. v. Larson, 112 F.3d 600 (2d Cir. 1997).
2nd Circuit approves upward departure based on similar misdemeanor and foreign convictions. (510) Defendant sent via electronic mail 10 pictures of minors engaging in sexually explicit conduct. Defendant also solicited sexual contact with the recipient of the pictures, who defendant believed was a 12‑year old boy. The Second Circuit affirmed an upward departure based on two convictions that were not counted in defendant’s criminal history: a 1970 misdemeanor conviction for unlawfully dealing with a minor and a conviction in Italy for sexual misconduct with three young boys. The 1970 conviction was sufficiently similar to the instant offense, because it involved subjecting a 15‑year old to sexual contact where the minor was incapable of consent by reason of a factor other than age. The district court also properly considered defendant’s conduct in Italy, based. Although the conviction was entered in absentia after he was expelled from Italy, the court considered the investigative report of the U.S. Military Police, which was accompanied by extensive documentation. The records showed that on several occasions, defendant had used his own children to encourage neighbors’ children to be overnight guests at his home. He then molested the children while they slept. U.S. v. Delmarle, 99 F.3d 80 (2d Cir. 1996).
2nd Circuit bases upward departure on prior crimes that were consolidated for sentencing. (510) Defendant pled guilty to one count of mail fraud. The Second Circuit approved an upward departure based on two prior fraud convictions that were consolidated for sentencing and thus counted as only one prior conviction for criminal history purposes. The Sentencing Commission recognized that there might be instances in which the definition of related cases was overly broad and would result in a criminal history score that underrepresented a defendant’s criminal history. That was the case here. The two state convictions were distinct crimes, committed over separate periods of time against different victims, consolidated merely for expediency. They were not part of a single common scheme or plan, since they involved separate victims and different locations. The district court did not double count the fact that defendant committed the present offense while on probation for the two state convictions. The court merely found that there was an “extremely high” likelihood that defendant would commit future crimes. U.S. v. Bauers, 47 F.3d 535 (2d Cir. 1995).
2nd Circuit approves departure from category I to III based on downward departure for previous crime. (510) In New York, defendant used stolen credit card numbers to place $34,600 worth of long-distance phone calls for customers. One month earlier, defendant had pled guilty to committing the same offense in Tennessee. The New York PSR reported defendant’s criminal history to be I. The low criminal history score resulted from the Tennessee’s court’s downward departure, which was based on the erroneous understanding that defendant would face immediate deportation. The New York district court departed upward to category III, based on the sentence defendant would have received had the Tennessee court not departed downward. The Second Circuit affirmed both the reasons for and extent of the departure. The court properly used a base offense of 11 in determining what defendant’s Tennessee sentence would be. Moreover, as an alternative basis for the departure, the New York judge properly concluded that defendant was a recidivist whose low criminal history score did not reflect his propensity to commit future crimes. The district court’s rationale for choosing category III was readily apparent, and therefore its failure to state why it rejected category II was not important. U.S. v. Kassar, 47 F.3d 562 (2d Cir. 1995), abrogation on other grounds recognized by U.S. v. Meyers, 200 F.3d 715 (10th Cir. 2000).
2nd Circuit finds prior arsons were similar to instant fraud so departure was permitted. (510) Defendant was convicted of fraud for various schemes to fraudulently obtain loans. The district court departed upward from criminal history category I to III based on two uncharged arsons which five different persons reported that defendant committed. The 2nd Circuit affirmed. Under section 4A1.3(e), prior similar adult conduct not resulting in a criminal conviction may justify a criminal history departure. Here, defendant set two fires to make it appear that his financial records had been burned, to avoid a threatened audit. There is not much difference between a fraud designed to obtain a loan in the first place and a fraud designed to avoid its repayment. Although the arsons would not qualify as “relevant conduct” under section 1B1.3, they were “similar” under section 4A1.3. U.S. v. Mayo, 14 F.3d 128 (2nd Cir. 1994).
2nd Circuit refuses to limit departures from criminal history VI to cases of wanton cruelty. (510) Defendant argued that a departure above criminal history category VI was warranted only for an extraordinary past record showing “wanton cruelty.” The 2nd Circuit rejected this interpretation. Section 4A1.3 permits upward departures from category VI for any “egregious, serious criminal record.” The section does not specify that the “egregious, serious” nature of prior offenses must involve violent or especially reckless behavior. Here, defendant had 17 criminal history points — well above the 13-point threshold for category VI. He committed a number of crimes that were not added to his criminal history score because they were outdated; he committed the current offense while awaiting trial on another offense; and he had numerous outstanding bench warrants. U.S. v. Thomas, 6 F.3d 960 (2nd Cir. 1993).
2nd Circuit affirms criminal history departure based on outdated non-similar convictions. (510) Defendant was convicted of drug charges. The district court departed upward from criminal history IV to V based on five prior convictions which were too old to be included in his criminal history. Four convictions involved auto thefts committed over the course of one year, and the fifth was a criminal mischief conviction. Defendant argued that non-similar outdated convictions may not be used to justify an upward departure unless there is something “unusual” about them. The 2nd Circuit assumed without deciding that under certain circumstances non-similar outdated convictions may be used as a basis for departure. Here, excluding the outdated convictions distorted defendant’s criminal past. Defendant had received extremely lenient sentences and demonstrated little respect for the law. Under these circumstances, the district court’s decision to depart on the basis of non-similar outdated convictions was not improper. U.S. v. Diaz-Collado, 981 F.2d 640 (2nd Cir. 1992).
2nd Circuit affirms upward departure in criminal history and offense level based upon the same conduct. (510) Defendant was deported after committing an aggravated felony. After illegally re-entering the United States and committing another crime, he pled guilty to unlawful presence in the United States. The district court departed from criminal history category IV to V pursuant to section 4A1.3, based in part upon the aggravated nature of the crimes underlying defendant’s prior convictions. The court also departed upward by two offense levels under application note 3 to section 2L1.2 because defendant’s deportation followed his conviction for an aggravated felony. The 2nd Circuit rejected defendant’s claim that the two departures constituted impermissible double counting, holding that a criminal history departure and an offense level departure can be based upon the same act. A defendant’s criminal history and offense level measure different things. Thus, this case involved the unusual situation where a prior act is relevant to determining both the defendant’s criminal history category and the offense level for the charged conduct. While this may be double counting in a literal sense, double counting is permissible where a single act is relevant to two dimensions of the guidelines analysis. U.S. v. Campbell, 967 F.2d 20 (2nd Cir. 1992).
2nd Circuit rules court need not assign points for each incident in criminal history departure. (510) The district court departed upward from criminal history category IV to VI because defendant had a prior sexual assault which did not result in a conviction and because at the time of the instant sexual assault, defendant had a pending drug charge and a pending driving while intoxicated charge. The 2nd Circuit affirmed the departure, despite the district court’s failure to assign specific point values to each prior incident used to support the criminal history departure. In making an upward criminal history departure, a court must first determine the defendant’s criminal history category, and then proceed sequentially through each subsequent category, considering whether it adequately reflects the seriousness of the defendant’s prior conduct. A district court need not, however, assign specific point values to the conduct evaluated. Comparisons to the guidelines may assist the appellate court in determining the reasonableness of the departure, but in some instances, there are no counterparts available. U.S. v. Jakobetz, 955 F.2d 786 (2nd Cir. 1992).
2nd Circuit affirms upward criminal history departure based upon pending state charges for crimes committed after instant offense. (510) The 2nd Circuit affirmed the district court’s decision to depart upward by one criminal history category based upon pending state charges. The fact that the state crimes for which defendant was awaiting sentencing were committed 20 months after the instant offense did not make this an improper ground for departure. The “critical question under guideline § 4A1.3 is whether the criminal history category adequately reflects the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” U.S. v. Keats, 937 F.2d 58 (2nd Cir. 1991).
2nd Circuit upholds upward departure from criminal history category III to criminal history category VI. (510) The 8th Circuit upheld the district court’s upward departure from criminal history category III to criminal history category VI on the basis of defendant’s violent criminal history. Defendant had one attempted murder conviction for which he received lenient juvenile offender treatment and was involved in another murder. The 8th Circuit also found that defendant’s involvement in the murder had been established by a preponderance of the evidence. A confidential informant provided a detailed account of the murder and defendant’s role in the murder. It was proper for the sentencing judge to rely on the information provided by the confidential informant because it was corroborated by the physical evidence from the murder scene, by interviews conducted by the police, and by the testimony of another witness. Defendant’s violent nature provided good cause for not revealing the confidential informant’s identity. U.S. v. Nichols, 912 F.2d 598 (2nd Cir. 1990).
2nd Circuit holds upward departure warranted when defendant had not yet been sentenced for two similar offenses. (510) Defendant pled guilty to one count of bank robbery. The defendant stipulated as to the facts of a second robbery for which he had been charged, and the government agreed to recommend against any upward departure. The plea agreement stated that if the court departed upward, the defendant could withdraw his plea. He declined to do so. The trial court departed upward by 14 months. The 2nd Circuit held it was proper for the court to consider the fact that the defendant had two pending felony convictions and three prior misdemeanor arrests within two months of the instant offense. Such factors indicated that the defendant was likely to commit more crimes and that the seriousness of his criminal history was underrepresented by the exclusion of the two pending convictions (§ 4A1.3). U.S. v. Sturgis, 869 F.2d 54 (2nd Cir. 1989).
3rd Circuit holds that criminal history departure may not be based on offense levels. (510) In U.S. v. Shoupe, 35 F.3d 835 (3d Cir. 1994), the Third Circuit held that a prior version of § 4A1.3 authorized district courts to reduce a career offender’s offense level and criminal history category when his career offender status over-represented his criminal history and likelihood of recidivism. The Third Circuit held that Shoupe was no longer valid in light of the 2003 amendments to the Guidelines, which added a definition of “departure” in § 4A1.3 as “assignment of a criminal history category other than the otherwise applicable criminal history category,” and nothing else. See § 1B1.1 Note 1(E). Departures under other guideline sections are defined as “a sentence outside the applicable guidelines range,” which includes offense level departures. Thus it is clear that offense level departures are not permitted in departing for criminal history under the current version of § 4A1.3. U.S. v. Grier, 585 F.3d 138 (3d Cir. 2009).
3rd Circuit approves upward variance based on criminal history although court did not follow departure methodology. (510) Over a twenty-year period, defendant engaged in identity theft, using the social security number and date of birth of another man with the same name, and causing losses exceeding $166,000. Although defendant’s guideline range was 30-37 months, the district court sentenced him to 72 months. He argued that the court erred by not following the methodology established prior to Booker for imposing a sentence above the guideline range. When departing upward based on an under-representation of criminal history, district courts are required to apply U.S.S.G. § 4A1.3 and consider each higher criminal history category in sequence. See U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990). If the court were under the pre-Booker mandatory guideline scheme, the failure of the district court to have expressly followed that approach would have required remand because the appellate court would have assumed prejudice. Post-Booker, the Third Circuit ruled that it would not presume prejudice, but would review the sentence for plain error. The court here provided an adequate explanation for the sentence on the record. It gave extensive attention to the circumstances of defendant’s life and offense and the harm done to the victim. Defendant was a career criminal who was not deterred by prosecution in state or federal court. A lengthy prison sentence was clearly warranted to prevent and deter defendant from re-offending. Because the district court “did in fact touch all the bases required,” the panel affirmed the sentence imposed. Nonetheless, it emphasized that “the sentencing courts in this Circuit should continue to follow the requirement to ‘consider’ the guidelines by calculating a guidelines sentence as they would have before Booker, including formally ruling on the motions of both parties and stating on the record whether they are granting a departure and how that departure affects the guidelines calculation, and taking into account this Circuit’s pre-Booker caselaw, which continues to have advisory force.” U.S. v. King, 454 F.3d 187 (3d Cir. 2006).
3rd Circuit relies on Mexican conviction to support criminal history departure. (510) The district court departed from criminal history category I to II based on a foreign conviction: in 1990, defendant was arrested by Mexican police, while carrying 3.7 kilograms of marijuana, which he intended to transport to the U.S. He was convicted and sentenced in Mexico for possession of marijuana. The Third Circuit held that the district court did not err in relying on defendant’s foreign conviction in departing upward. The district court was apprised of the possible infirmities surrounding the foreign conviction, but identified evidence that it believed justified the upward departure. Specifically, the court remarked that the defendant would have occupied a higher category had the foreign conviction been counted in his criminal history category before departure. Additionally, although the court was not certain whether the Mexican authorities adhered to due process in sentencing, the court stated that it was confident that the conviction was fair. These reasons were well within the court’s sound discretion. U.S. v. Fordham, 187 F.3d 344 (3d Cir. 1999).
3rd Circuit says upward departure from criminal history category VI is appropriate only in extraordinary circumstances. (510) The district court departed upward from criminal history category VI, the highest criminal history category, based upon on various circumstances. The 3rd Circuit, in considering what circumstances would justify an upward departure from this highest level, noted that the 2nd Circuit has interpreted guideline section 4A1.3 to only permit a departure beyond category VI in “extraordinary circumstances.” Defendant’s criminal record, amounting to 15 criminal history points, was not significantly more serious than that of most defendants in his criminal history category. Therefore, an upward departure beyond category VI was presumptively unjustified, unless there existed circumstances not adequately taken into consideration by the sentencing commission. U.S. v. Thomas, 961 F.2d 1110 (3rd Cir. 1992).
3rd Circuit affirms upward departure to criminal history category VI for terrorist. (510) Defendant was arrested transporting a homemade bomb which he intended to detonate in New York City. Defendant had no prior criminal convictions and fell into criminal history category I. However, defendant had received terrorist training in Lebanon. He also provided training in the use of explosives to members of a group publicly committed to perpetrating acts of terrorism against Americans. Although defendant had been arrested in 1986 in the Netherlands in connection with terrorist activities, he was subsequently released due to an illegal search. The 3rd Circuit found that these facts justified an upward departure from criminal history category I to category VI. “Defendant is a professional terrorist who is extremely likely to commit other equally serious crimes in the future.” Therefore, it was reasonable to analogize defendant to a category VI offender. U.S. v. Kikumura, 918 F.2d 1084 (3rd Cir. 1990), overruled on other grounds by U.S. Grier, 449 F.3d 558 (3d Cir. 2006).
3rd Circuit upholds departure based on other pending criminal charges. (510) The district court departed upward from the guidelines from Criminal History Category I to Category II pursuant to § 4A1.3(d), which authorizes a departure when the defendant has pending a trial, sentencing or appeal on another charge at the time of the offense. Defendant had pled guilty to several drug charges in another state, but planned to withdraw his guilty pleas as permitted by such state. Defendant argued that it was therefore improper to use these charges as the basis of a departure. The 3rd Circuit disagreed, noting that even if defendant withdrew his guilty pleas, the charges would still be “pending.” U.S. v. Touby, 909 F.2d 759 (3rd Cir. 1990), affirmed on other grounds, sub nom. Touby v. U.S., 500 U.S. 160, 111 S.Ct. 1752 (1991).
4th Circuit approves upward departure to de facto career offender status. (510) Defendant was convicted of multiple drug offenses. He was subject to a mandatory minimum sentence of 10 years, resulting in a guideline range of 120-121 months. The district court found that an upward departure was warranted, based on a serious record that would have warranted 18 criminal history points but the age of the offenses. The Fourth Circuit held that the upward departure to sentence defendant as a de facto career offender was proper. Defendant had a “serious criminal record,” but only one of his four previous convictions had been counted in his PSR due to his intervening term of imprisonment from 1990 to 2006. Three of defendant’s earlier convictions would have made him a career offender. The district court found that, despite his incarceration from 1990 to 2006, he had not been rehabilitated. He became involved in the instant offense almost immediately after being released from prison in 2006 and while he was on supervised release. Because three of defendant’s stale sentences were for similar, or serious dissimilar conduct, the court did not abuse its discretion in departing upward. U.S. v. Myers, 589 F.3d 117 (4th Cir. 2009).
4th Circuit affirms above-Guideline sentence where court adequately explained sentence on alternate grounds. (510) Defendant pled guilty to multiple counts relating to his molestation of a minor. Based on nine additional victims, the district court departed upward from a range of 151-188 months to a sentence of 240 months. The Fourth Circuit found the sentence was procedurally reasonable. The criminal history departure was proper under § 4A1.3(a)(1). Given defendant’s 20-year history of molesting middle school boys, the district court found that criminal history I seriously underrepresented defendant’s criminal history and the likelihood that he would commit future crimes. Although the district court may have erred in relying on § 5K2.0 for the offense level departure, the resulting sentence was procedurally reasonable because the district court adequately explained its sentence on alternate grounds, by reference to the 18 U.S.C. § 3553(a) factors. The court recounted defendant’s substantial uncharged conduct, both in the form of additional incidents of abuse against the victims identified in the charged offenses and additional victims not identified in those convictions. It also observed defendant’s persistent and increasing abuse over the years. U.S. v. Grubbs, 585 F.3d 793 (4th Cir. 2009).
4th Circuit affirms significant upward variance for bank robber. (510) Defendant pled guilty to robbery and firearms charges. For the robbery count, the district court sentenced him to 240 months, about double the guidelines advisory range of 100-125 months, and then a concurrent 120-months for the firearms charge. Defendant argued that the court failed to adequately explain its reasons for making the upward departure. After defendant was sentenced, the Supreme Court decided Gall v. U.S., 552 U.S. 38, 128 S.Ct. 586 (2007). The Fourth Circuit found that the court did not commit any significant procedural error, and the sentence was not substantively unreasonable. The district court adopted the PSR, which correctly calculated the sentencing guideline range. the court allowed both sides to argue for the sentence that each considered appropriate, and it carefully considered the factors set forth in § 3553(a). As for the extent of the departure, defendant admitted that he had “the proverbial record as long as your arm and [had] acted violent, possessed weapons and, in common parlance, [had] been a bad actor all his life.” U.S. v. Heath, 559 F.3d 263 (4th Cir. 2009).
4th Circuit approves upward departure for history of downloading child porn and defying court orders. (510) Defendant was convicted of receiving on a computer 20 obscene Japanese anime cartoons depicting children engaged in sexually explicit conduct. The district court departed upward to 240 months’ imprisonment, which was 60 months above the Guidelines range, but within the lower half of the statutory range of 180-480 months. The Fourth Circuit found the sentence was reasonable. The court relied on a number of circumstances, including (1) defendant’s extensive history of downloading child pornography, much of which was not reflected in his criminal history; (2) his repeated disobedience of court orders attempting to regulate his deviant conduct; (3) his almost continuous pursuit of criminal conduct since 1998; and (4) his failure to show any progress in reforming his conduct. The court’s consideration of defendant’s sentence was thorough, and the sentence was amply supported by the facts. U.S. v. Whorley, 550 F.3d 326 (4th Cir. 2008).
4th Circuit approves variance for defendant who had 43 similar crimes in 11 years. (510) Defendant received a 125-month sentence for identity fraud, which was a substantial variance from the guideline range of 24-30 months. The Fourth Circuit found the sentence both procedurally and substantively reasonable, and affirmed. There was no evidence of procedural error—the court properly calculated the advisory Guideline range, did not treat the Guidelines as mandatory, and considered all of the § 3553(a) factors. As for the extent of the variance, the district court found that defendant had “repeatedly perpetrated fraud and theft crimes,” but had served relatively little time in jail. Between 1991 and 2001, defendant was convicted of 43 crimes. Although he received a 46-month sentence for various federal frauds, this did not deter him from engaging in additional fraud while on supervised release. The 125-month sentence was reasonable even though it was a significant upward variance from the guideline range. U.S. v. Evans, 526 F.3d 155 (4th Cir. 2008).
4th Circuit finds criminal history departure reasonable but remands for use of incremental approach. (510) Defendant was convicted of credit card fraud, in violation of 18 U.S.C. § 1029(a)(2). His offense level was 16, and he fell into criminal history category VI, for an advisory guidelines range of 46-57 months’ imprisonment. At sentencing, the district court found that defendant had 23 criminal history points above the 13 points needed to place him in category VI. Defendant did not receive criminal history points for nine older offenses and for at least 16 arrests that did not result in conviction. The district court concluded that defendant’s criminal history score substantially under-represented his prior criminal conduct and departed upward to a sentence of 105 months. The Fourth Circuit held that an upward departure based on defendant’s criminal history was “undeniably reasonable.” The court noted, however, that a court departing based on a defendant’s criminal history must move incrementally up through higher offense levels, finding that the prior category does provide a sentence that adequately reflects the seriousness of defendant’s conduct. Because the district court did not use that incremental approach, the Court of Appeals vacated the sentence and remanded. U.S. v. Dalton, 477 F.3d 195 (4th Cir. 2007).
4th Circuit holds that upward departure from mandatory guideline range violated Sixth Amendment. (510) Defendant pled guilty to several fraud offenses and was sentenced under the then-mandatory guidelines. His guideline range was 140-175 months, but the district court found that his criminal history score was inadequate, and departed upward to 180 months. The Fourth Circuit held that the upward departure violated the Sixth Amendment. The top of his mandatory guideline range was 175 months, and then the court departed upward based on additional facts not admitted by defendant: the likelihood that he would return to crime, the character of his criminal history, and the inadequacy of a 175-month sentence. The error was not harmless. But for the error, defendant would have received a shorter sentence. U.S. v. Guyon, 474 F.3d 114 (4th Cir. 2006).
4th Circuit approves upward departure to sentence defendant as de facto career offender. (510) The court found that an upward departure from criminal history category V to VI failed to capture the full seriousness of defendant’s past offenses. Since defendant had only one predicate career offender offense under U.S.S.G. § 4B1.1, he could not be formally classified as a career offender. However, the district court found that a number of defendant’s previous crimes and convictions were sufficiently analogous to qualifying felonies that they could be considered for all intents and purposes of second predicate conviction. As a result, the court found that defendant was a de facto career offender, and also departed from offense level 22 to 33, resulting in a 240-month sentence. The Fourth Circuit affirmed the upward departure. A district court may sentence a defendant as a de facto career offender if two of defendant’s prior crimes of violence are consolidated for sentencing purposes and thus did not constitute two separate predicate offense. U.S. v. Harrison, 58 F.3d 115 (4th Cir. 1995). That is what happened here. Defendant committed two bank robberies, which were consolidated for sentencing. These robberies occurred within 53 minutes of each other and were treated as related under the guidelines. However, they were factually distinct. The fact that the two bank robberies were treated as related and not counted separately under the guidelines did not bar the finding that the crimes were factually distinct, and thus not adequately considered under the guidelines for purposes of an upward departure. U.S. v. Lawrence, 349 F.3d 724 (4th Cir. 2003).
4th Circuit upholds two level departure where court considered intervening level. (510) Defendant, a disbarred attorney who worked as an insurance agent, diverted money he received from clients and deposited them into his own personal account. The district court departed upward from category I to III based on defendant’s prior illegal conduct as an attorney. The Fourth Circuit held that the court adequately considered category II before choosing category III. After discussing the offenses committed by defendant while he was a practicing attorney, the court asked the government why category II should not apply. The government reiterated its position that category II was intended for defendants with only minor past criminal conduct. This exchange showed that the court adequately considered the appropriateness of category II. U.S. v. Walker, 112 F.3d 163 (4th Cir. 1997).
4th Circuit affirms upward departure where two unrelated felony-murders were counted as single offense under guidelines. (510) The district court departed upward from criminal history category III to sentence defendant as a career offender, based upon defendant’s two prior felony-murders which the state had consolidated for sentencing. The 4th Circuit affirmed. Defendant received a criminal history category III because the guidelines treated as a single offense the two felony-murder convictions. However, the convictions arose from separate armed robberies occurring on different days and resulted in the unrelated murders of two different victims. Had the sentencing of these offenses occurred independently of one another, defendant would have been classified as a career offender. U.S. v. Hines, 943 F.2d 348 (4th Cir. 1991).
4th Circuit holds a court may depart downward where career offender status overstates seriousness of criminal history. (510) Following the 8th and 9th Circuits, the 4th Circuit held that a district court may, in an atypical case, downwardly depart from the guidelines where career offender status overstates the seriousness of a defendant’s past conduct. Such departures are reserved for “truly unusual” cases, and in deciding to depart a district court should follow the procedures outlined in the court’s prior cases. Because it was unclear from the record whether the district court thought it had the authority to depart downward, the case was remanded for resentencing. District Judge Ellis dissented, concluding that sentencing judges have no authority to depart downward from the career offender guidelines on the ground that they overstate the seriousness of the defendant’s past conduct. U.S. v. Adkins, 937 F.2d 947 (4th Cir. 1991).
4th Circuit affirms upward departure based on arrest record, breach of restitution agreement, and failure to pay taxes. (510) Defendant had one prior conviction and numerous arrests. In addition, the State’s Attorney’s Office had required defendant to refund money to his customers as a result of defendant’s business practices. Rather than repay the money, defendant moved his office, changed his telephone number, and began operating under a different name. Moreover, defendant did not pay federal income taxes over a three-year period. The 4th Circuit found that this record justified the district court’s departure from criminal history category II to III. The court also rejected defendant’s argument that the upward departure was based upon unreliable information. The district court relied almost entirely upon information contained in the presentence report. Defendant failed to meet his burden of proving that the presentence report was inaccurate. U.S. v. Terry, 916 F.2d 157 (4th Cir. 1990).
4th Circuit upholds upward criminal history departure on the basis of 55 minor criminal convictions. (510) Guideline § 4A1.1(c) provides that in calculating a defendant’s criminal history score, a court should add one point for each prior sentence of less than 60 days duration, up to a total of four points. The district court counted four points against defendant, who had been convicted of 55 worthless check charges over the previous five years. The district court departed upward and increased defendant’s criminal history category from category III to category IV. Defendant argued that § 4A1.1(c) reflects the Sentencing Commission’s intent to limit the penalty for minor past criminal conduct to a total of four points, and the district court’s upward departure improperly exceeded this ceiling. The 4th Circuit rejected this argument, finding that the limitation in § 4A1.1(c) restricted only the calculation of defendant’s original criminal history category, it does not in an way restrict a court’s ability to depart upward. U.S. v. Wilson, 913 F.2d 136 (4th Cir. 1990).
4th Circuit rules that past acquittals by reason of insanity can be used in an upward departure. (510) Citing defendant’s two past acquittals by reason of insanity, the district court determined that defendant’s criminal history category did not reflect his dangerousness and departed upward. One acquittal was for second degree murder and attempted murder, and a second for four counts of attempted murder. The 4th Circuit affirmed the departure, holding that “an acquittal by reason of insanity is reliable information that a district court may consider in assessing whether a defendant’s criminal history category . . . adequately reflects a defendant’s past criminal conduct or his potential for future criminal behavior.” The defendant is not punished for his past conduct but instead the conduct is used for the “limited purpose of ensuring that the sentence adequately takes account of defendant’s ‘dangerousness.’” U.S. v. McKenley, 895 F.2d 184 (4th Cir. 1990).
5th Circuit upholds six-month upward departure for previous immigration encounters and removals. (510) Defendant pled guilty to illegal reentry of a deported alien, resulting in an advisory guideline range of zero to six months. The district court departed upward to 12 months based on defendant’s five previous immigration encounters and four prior removals. The Fifth Circuit held that the 12-month sentence was reasonable. The district court gave an individualized assessment of the § 3553(a) factors, and determined that in light of defendant’s five previous immigration encounters and four prior removals, the maximum sentence under the guidelines range was inadequate to deter him from reentering the United States illegally. The district court did not abuse its discretion because it was permitted to consider the need for deterrence as a sentencing factor and defendant’s previous immigration encounters and removals in departing upward from his sentencing range. See § 4A1.3(a)(2)(C), (E); § 3553(a)(2)(B). U.S. v. Zelaya-Rosales, 707 F.3d 542 (5th Cir. 2013).
5th Circuit upholds reasons for rejecting mitigating evidence and applying upward variance. (510) Defendant pled guilty to failing to register as a sex offender, and was sentenced to 27 months, which was an upward departure from his advisory guideline range of 12-18 months. The Fifth Circuit held that the 27-month sentence was procedurally and substantively reasonable. The sentencing judge adequately explained her reasons for: (1) rejecting defendant’s mitigating evidence; and (2) imposing an upward variance. She found that the upward variance was necessary to deter future criminal conduct and to protect the public. Both are proper considerations under § 3553(a)(2)(B) and § 3553(a)(2)(C). The judge listened to the government’s testimony regarding defendant’s willingness to cooperate and, after hearing that testimony and questioning the prosecutor, concluded that his willingness to cooperate did not mitigate his offense or criminal history. The judge did not abuse her discretion in giving significant weight to defendant’s criminal history, and giving it more weight than defendant’s willingness to cooperate. U.S. v. Fraga, 704 F.3d 432 (5th Cir. 2012).
5th Circuit holds improper consideration of arrest record did not cause prejudice. (510) Defendant was arrested in possession of a firearm. At the time, he was on probation for a drug conviction 11 days earlier in state court. He received a sentence of 60 months, a departure of 23 months from the top of his guideline range. The court noted defendant’s extensive arrest record, although none were included in his criminal history. Defendant argued, for the first time on appeal, that it was inappropriate for the district court to consider his arrest record. The Fifth Circuit agreed that it was plain error for the court to consider defendant’s arrest record, but found that the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Defendant had a history with guns, and the court was “particularly disturbed” by defendant’s possession of a gun little more than a week after a state court felony conviction. The court engaged in a lengthy discussion of the defendant’s criminal history and the offense characteristics, and it addressed the arguments raised by defense counsel. Finally, the court sought to align defendant’s sentence with similarly situated defendants. Cases cited by defendant involved more egregious errors. U.S. v. Jones, 489 F.3d 679 (5th Cir. 2007).
5th Circuit holds that non-guidelines sentences were reasonable, and not result of departures. (510) In six cases consolidated on appeal, defendants argued that their sentences were unreasonable because the district court failed to comply with or consult the methodology established in § 4A1.3 for an upward departure. The Fifth Circuit disagreed, since each sentence was the result of a variance and not a departure. The courts’ decisions to impose non-guidelines sentences were not based solely on the defendants’ criminal histories, but on a number of § 3553(a) factors. Moreover, defendants ignored the circuit test for determining the reasonableness of a non-guidelines sentence. A non-guidelines sentence is unreasonable when it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to irrelevant or improper factors, or (3) represents a clear error of judgment in balancing the sentencing factors. The district court in the six cases here calculated the proper guideline range, considered multiple § 3553(a) factors, explained its reasons for imposing non-guidelines sentences, and imposed non-guidelines sentences that were not unreasonable. There was no error. U.S. v. Mejia-Huerta, 480 F.3d 713 (5th Cir. 2007).
5th Circuit approves upward criminal history departure to double initial guideline range. (510) Defendant pled guilty to illegal reentry after deportation. At sentencing, the district court commented on defendant’s length criminal history, multiple deportations, and use of eleven aliases. The court concluded that defendant’s three criminal history points understated his criminal history, and departed under § 4A1.3 to impose a 60-month sentence. The Fifth Circuit affirmed the upward criminal history departure. The court’s reasons advanced the objectives set forth in 18 U.S.C. § 3553(a)(2) and were justified by the facts of the case. Defendant was a determined recidivist who posed an extra danger through his frequent use of false names. The fact that the 60-month sentence was nearly double the initial sentence range did not render this departure abusive considering all of the circumstances. U.S. v. Zuniga-Peralta, 442 F.3d 345 (5th Cir. 2006).
5th Circuit approves upward departure to statutory maximum for “habitual criminal.” (510) Defendant routinely met women in internet chat rooms with the intent to defraud them. He described himself as a “con man” and admitted that he had been “conning women for over 11 years, averaging one woman every three months but occasionally juggling as many as five women at a time. His PSR detailed defendant’s extensive criminal history, involving 20 years’ worth of convictions and probation revocations arising out of persistent theft, forgery, and fraud. Although defendant only pled guilty to a single count, the district court departed upward from the 33-41 month guideline range to the statutory maximum 120 months. The Fifth Circuit affirmed, finding that the district court followed the direction given by the policy statement in § 4A1.3 for upward departures from a criminal history category of VI. Defendant had 29 criminal history points, which reflected “large-scale fraud cases, similar in nature to the instant offense.” The district court found that defendant was a “habitual criminal” who had not been deterred by probation or parole, or prison sentences. Although defendant’s sentence was increased by nearly 300%, this by itself did not indicate the departure was unreasonable. U.S. v. Smith, 417 F.3d 483 (5th Cir. 2005).
5th Circuit holds that upward criminal history was not foreclosed by mandate. (510) The district court sentenced defendant as a career offender, based on its finding that his prior conviction for Unauthorized Use of a Motor Vehicle (UUMV) constituted a crime of violence. On appeal, the Fifth Circuit vacated his sentence in light of U.S. v. Charles, 301 F.3d 309 (5th Cir. 2002), a recent case which held that simple vehicle theft is not a crime of violence under § 4B1.2(a). The panel directed the district court to resentence defendant “in light of this [court’s] opinion … and our decision in Charles.” On remand, the court concluded that defendant’s UUMV conviction was not a crime of violence. The court departed upward, deciding that defendant’s Criminal History Category of VI (based on his 21 criminal history points) did not adequately reflect the seriousness of his criminal record. The Fifth Circuit held that the upward departure was not foreclosed by the scope of the appellate mandate. Nothing in the mandate required or precluded the court’s consideration on remand of a discretionary upward departure pursuant to § 4A1.3. The upward departure was not an abuse of discretion. Defendant had been afforded considerable leniency over the past 14 years, yet continued to re-offend despite several opportunities to undergo treatment for his drug abuse. U.S. v. Lee, 358 F.3d 315 (5th Cir. 2004).
5th Circuit approves upward departure based on prior instances of sexual conduct with young girls. (510) Defendant was convicted of charges relating to his sexual molestation of a seven-year old girl who lived near him. The PSR included four examples of defendant’s alleged previous involvement in sexual conduct with minors. At sentencing, the government presented the testimony of a number of victims from these alleged incidents. A ten-year old child testified that on three separate occasions, defendant exposed himself to her when she was six. A 19-year old testified that defendant fondled her when she was 15. A 16-year old testified that defendant enticed her to into entering his apartment when she was six. Before she could leave, he showed her a pornographic movie and asked her to take pants off. The district court found the testimony credible, and found that this criminal behavior had persisted for a long time. The Fifth Circuit affirmed an upward departure based on the inadequacy of defendant’s criminal history, rejecting defendant’s assertion that these incidents were factually dissimilar. The three incidents all involved young girls as the victim and the behavior attributed to defendant was sexual in nature. U.S. v. Hefferon, 314 F.3d 211 (5th Cir. 2002).
5th Circuit approves departure based on three DWIs that were not counted in criminal history. (510) Defendant’s criminal history included three DWI convictions for which he received very light sentences and for which no criminal history points were assessed. One of the DWIs had resulted in an accident and, in another, defendant was driving over 100 miles per hour. The Fifth Circuit affirmed a criminal history departure under § 4A1.3 based on the uncounted DWI convictions. It was not unreasonable for the court to conclude that their exclusion from his criminal history led to an underestimation of “the seriousness of the defendant’s past criminal conduct.” Under a deferential abuse of discretion standard, there was no reason to reverse. Moreover, the commentary to § 4A1.3 notes that a court can take into account the fact that a defendant had “received what might now be considered extremely lenient treatment in the past.” U.S. v. Delgado-Nunez, 295 F.3d 494 (5th Cir. 2002).
5th Circuit approves criminal history departure based on dismissed conduct. (510) Defendant was convicted of cocaine conspiracy charges. The government moved for an upward departure based on the inadequacy of his criminal history. It presented evidence underlying heroin and money laundering charges that were dismissed following his conviction, as well as uncharged instances of heroin trafficking and tax evasion. The district court departed upward from category I to III. The Fifth Circuit found it did not violate due process to base the upward departure on evidence of crimes charged in dismissed counts. In U.S. v. Ashburn, 38 F.3d 803 (5th Cir. 1994) (en banc), the court held that a district court can depart upward under § 4A1.3 to account for conduct alleged in counts of an indictment that were dismissed pursuant to a plea agreement. Section 4A1.3 expressly authorizes a court to consider prior adult criminal conduct not resulting in a conviction. The departure was not excessive. The court considered defendant’s tax, heroin, and money-laundering activities to be worth one criminal history point each, for a criminal history score of four points. The court did not rely on six arrests that appeared in the PSR. U.S. v. Millsaps, 157 F.3d 989 (5th Cir. 1998).
5th Circuit affirms three-level criminal history departure despite failure to discuss intervening levels. (510) The court departed from criminal history category III to VI, noting that defendant had numerous convictions that were excluded from his criminal history because of their age. Although defendant did not qualify as a career offender, the judge had seen defendant before in his court and believed that defendant was a career offender. The Fifth Circuit affirmed the departure, even though the district court failed to discuss intervening criminal history levels. Defendant did not object in the district court. Under the plain error standard of review, an appellate court will uphold a defendant’s sentence if on remand the district court could reinstate the same sentence by relying on a reasonable application of the guidelines. Here, the district court could reasonably conclude that criminal history category III did not reflect the seriousness of defendant’s prior conduct. Three of defendant’s points resulted from a prior conviction of ten drug counts. Defendant also had six criminal convictions that were not considered in his criminal history score because of their age. Even if the court’s statement of its reasons for departing three levels was inadequate, on remand the court could impose the same sentence by stating on the record that it had considered and rejected intermediate criminal history levels. Thus, the departure was not plain error. U.S. v. Alford, 142 F.3d 825 (5th Cir. 1998).
5th Circuit finds no plain error where correct departure method could have resulted in same sentence. (510) Defendant pled guilty to various fraud counts. While on bond awaiting sentencing, she continued her fraudulent conduct and the court revoked the bond. The district court departed because the monetary loss did not reflect the seriousness of her conduct. The court also found the departure was permissible under § 4A1.3 because defendant committed the charged conduct while awaiting sentencing for a state theft conviction. Defendant argued for the first time on appeal that the departure was plain error because the court increased her offense level rather than her criminal history category. The Fifth Circuit affirmed, even though the factors relied on by the court did not adequately account for the 33-month sentence defendant received. A proper criminal history departure would have raised her criminal history category to II and resulted in a sentencing range of 24-30 months. However, defendant’s conduct while released on bond could have further justified a departure to criminal history category III, which would have resulted in a sentencing range of 27-33 months. Although the district court may have been mistaken in its method of departure, the departure did not substantially affect defendant’s rights because, if the court had departed in the correct manner, the same sentence could have been imposed. U.S. v. Ravitch, 128 F.3d 865 (5th Cir. 1997).
5th Circuit approves upward departure where prior convictions showed disregard for judicial system. (510) Defendant, a licensed attorney, pled guilty to smuggling illegal aliens into the U.S. He later pled guilty to obstruction of justice charges after he tried to have the aliens sign an affidavit denying that defendant had transported them into the U.S. The Fifth Circuit approved an upward departure from criminal history category I to III based on four prior convictions. Three of the prior convictions were for contempt of court, including one for providing false information to the court. The fourth conviction was for reckless driving that resulted after defendant led police on a high-speed chase and ran six cars off the road. Although non-violent, each of defendant’s prior convictions clearly demonstrated his manifold disrespect for the law and our judicial system. Furthermore, defendant’s prior and current convictions bore a striking similarity. All were based on defendant’s attempts to hinder, obstruct, or pervert the judicial system to his personal advantage. U.S. v. Harrington, 114 F.3d 517 (5th Cir. 1997).
5th Circuit rules one level criminal history departure was reasonable. (510) Defendant argued that the district court, as a basis for upward departure, improperly considered three theft offenses committed when he was 18‑21 years old. Defendant filed written objections to the PSR, and argued orally that the offenses—two of which did not receive any criminal history points—were too remote in time and too dissimilar to warrant consideration. The court noted defendant’s objection but concluded that his criminal history category of VI did not adequately reflect the seriousness of his past conduct or the likelihood that he would commit future crimes. The court made a one level upward departure. The Fifth Circuit affirmed, ruling the court gave acceptable reasons for the departure and the extent of the departure was reasonable. U.S. v. Route, 104 F.3d 59 (5th Cir. 1997).
5th Circuit says PSR supported criminal history departure for juvenile crimes. (510) The district court departed upward in part because it found defendant’s criminal history probably did not reflect his true criminal activity in the past because he was a juvenile. The Fifth Circuit held that the PSR’s information regarding his juvenile criminal conduct substantiated the departure. Defendant was 16 at the time of the instant offense. He had no prior convictions, so his criminal history category was I. The PSR noted that defendant had no juvenile adjudications, but listed numerous instances of criminal conduct that defendant committed as a juvenile, beginning at age 10, that did not result in convictions. Defendant did not object to the reliability of the information contained in these paragraphs. Therefore, it was not error for the district court to rely on it. U.S. v. Hawkins, 87 F.3d 722 (5th Cir. 1996).
5th Circuit approves methodology for departing above criminal history category VI. (510) The district court departed from the guideline range of 57-71 months to a sentence of 240 months. The court found that defendant’s criminal history category of VI did not adequately reflect the seriousness of his past conduct. His score of 24 points was nearly twice the 13 points required for category VI, and did not take into account his conduct in prison, including the repeated discovery of weapons and escape plans that including taking hostages and killing guards. The district court raised his offense level from 18 to 32, explaining that it had consider all of the other offense levels up to a level of 35. The Fifth Circuit held that the district court’s methodology complied with U.S. v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en banc). Lambert requires only that the district court consider each intermediate adjustment, state that it has done so, and explain why the guideline category is inappropriate. The explanation here implicitly made clear why the intermediate adjustments were inadequate. The extent of the departure, although extensive, was reasonable given defendant’s unusually violent propensities. U.S. v. Daughenbaugh, 49 F.3d 171 (5th Cir. 1995).
5th Circuit, en banc, uses counts dismissed in plea bargain to depart upward. (510) Defendant was originally charged with four bank robberies. He pled guilty to two of the robberies, and the government agreed to dismiss two of the counts and forego prosecution of two additional attempted robberies. The district departed upward on the ground that defendant’s criminal history was underrepresented because of the dismissed robberies. The 5th Circuit, en banc, held that criminal conduct underlying counts dismissed in a plea agreement may be used to justify an upward departure. Section 4A1.3(e) expressly authorizes a court to depart based on prior similar adult criminal conduct not resulting in conviction. There is no exception for conduct that is the subject of dismissed counts. The court’s acceptance of the plea agreement did not preclude it from finding that defendant’s criminal history score did not adequately reflect his past criminal conduct. The plea agreement here did not prevent the court from using the dismissed counts as a basis for a departure. Judge Goldberg and Judge DeMoss dissented. U.S. v. Ashburn, 38 F.3d 803 (5th Cir. 1994) (en banc).
5th Circuit, en banc, says departure to twice guideline range did not require detailed explanation. (510) With a criminal history category of II and an offense level of 25, defendant had a guideline range of 63 to 78 months. The district court found that defendant’s criminal history score was inadequate due to several offenses for which he was never convicted. The court departed upward to a 180-month sentence, by indexing a criminal history category of VI with an offense level of 29. The 5th Circuit held that the court adequately explained the reasons for the extent of the departure. The departure was not the sort of drastic departure that required a detailed explanation of why a lesser adjustment in the defendant’s criminal history score was inadequate. Although the court did not expressly examine each intervening criminal history category, such a “ritualistic exercise” was not necessary where, as here, it was evident from the stated grounds for departure why the bypassed criminal history categories were inadequate. U.S. v. Ashburn, 38 F.3d 803 (5th Cir. 1994) (en banc).
5th Circuit upholds departure for almost double the criminal history points for category VI. (510) With an offense level of 12, defendant’s 23 criminal history points resulted in a guideline range of 30-37 months. The district court departed by adding one offense level for each criminal history point above the 13 points required for category VI, and assessing four additional points for the following reasons: defendant’s 23 criminal history points were almost double those necessary for category VI, he used 26 different aliases, had been convicted of more than 10 crimes in a 10-year period, had been imprisoned in three state systems, and had been deported twice. The court found that defendant represented a high risk of recidivism, and nothing short of imprisonment stopped him from committing additional crimes. The 5th Circuit found these reasons adequate and the extent of the departure reasonable. U.S. v. Rosogie, 21 F.3d 632 (5th Cir. 1994).
5th Circuit upholds departure based on prior similar offense and sexual abuse of minor. (510) Defendant was convicted of receiving child pornography. The district court departed upward because of defendant’s sexual abuse of children and his possession of the same type of pornographic material in his previous conviction. The 5th Circuit affirmed. The essential similarity of a prior conviction supports a departure because it may indicate the defendant’s increased likelihood of recidivism or lack of recognition of the gravity of the original wrong. The application notes to §2G2.2 require an upward departure if the defendant sexually exploited or abused a minor at any time. U.S. v. Schmeltzer, 20 F.3d 610 (5th Cir. 1994).
5th Circuit approves departure from category VI for defendant with 25 criminal history points. (510) The 5th Circuit approved an upward departure from criminal history category VI for a defendant with a criminal history score of 25. This far exceeded the minimum score for category VI and did not take into account several stale counterfeiting and forgery offenses. These facts fully supported the district court’s conclusion that category VI inadequately reflected the seriousness of defendant’s criminal background and likelihood of recidivism. U.S. v. Chappell, 6 F.3d 1095 (5th Cir. 1993).
5th Circuit affirms upward departure based on victim’s death and underrepresentative criminal history score. (510) Defendant was convicted of being a felon in possession of a firearm based on an incident in which he fatally shot a victim. The district court departed upward by 33 months from the guideline sentence of 327 months under 4B1.4, relying on the death, the failure of defendant’s criminal history score to reflect offenses committed as a youth, defendant’s tendency toward recidivism, and defendant’s criminal history score of 20. The 5th Circuit affirmed. U.S. v. Ford, 996 F.2d 83 (5th Cir. 1993).
5th Circuit upholds departure despite failure to explicitly state reasons for rejecting intermediate criminal history categories. (510) The 5th Circuit upheld a criminal history departure even though the district court failed to expressly state why it was rejecting intermediate levels. The court concluded that the proportionality of defendant’s criminal history score would be better reflected in a higher criminal history category. A one level departure would only have increased defendant’s sentence by eight months, while a two level departure would only have increased his sentence by 13 months. Because the court’s reasons for upward departure demonstrated that an additional 13 months would have been inadequate, the court’s explanation also explained why it rejected intermediate categories. U.S. v. McKenzie, 991 F.2d 203 (5th Cir. 1993).
5th Circuit upholds departure based on constant recidivism and violent behavior. (510) The presentence report stated that defendant had been convicted seven times over a span of six years for offenses involving theft and burglary. Moreover, defendant repeatedly violated parole and probation. The district court departed upward to a 175-month sentence, 25 months above the guideline range, citing defendant’s “constant recidivism and displaying of violent behavior.” The 5th Circuit affirmed that defendant’s criminal history category did not adequately reflect the seriousness of his criminal history. Defendant’s criminal history points (20) were well above the minimum required (13) to place him in category VI. The extent of the departure was reasonable, since the offenses carried a maximum statutory sentence of 240 months. U.S. v. Laury, 985 F.2d 1293 (5th Cir. 1993).
5th Circuit, en banc, finds court properly used step-by-step approach in departing upward. (510) Defendant fell within criminal history category V. The district court departed upward from 18 months to a sentence of 36 months. The 5th Circuit, en banc, found that the district court adequately based its decision on the step-by-step approach to criminal history departures in U.S. v. Lopez, 871 F.2d 513 (5th Cir. 1989). The district court specifically set out the factors the guidelines did not take into account: defendant used weapons in two of his crimes, two of his previous crimes were committed while serving time for other crimes, and two crimes were counted as only one because they had been consolidated. The court explicitly noted that an upward departure to category VI, the highest category, would only have increased defendant’s maximum sentence by three months. These reasons demonstrated that an additional three months of incarceration would have been inadequate. The 18-month departure was reasonable in light of the articulated basis for departure. U.S. v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en banc). .
5th Circuit upholds 25-year departure for defendant with 57 criminal history points. (510) The 5th Circuit affirmed that a 25-year departure above defendant’s 15-year sentence was reasonable. He had an unprecedented criminal history score of 57, more than four times the minimum score for criminal history category VI. This score did not take into account five burglary charges dismissed as part of a plea agreement, or even an appreciable fraction of the estimated 1200 to 1300 burglaries that defendant admitted to the probation officer during the presentence interview. Even if the court erred in failing to indicate on the record its reasons for refusing to impose some sentence greater than 15 and less than 40 years, the result of the review was the same. The procedure suggested by defendant would have produced an identical sentence. U.S. v. Fitzhugh, 984 F.2d 143 (5th Cir. 1993).
5th Circuit affirms criminal history departure in addition to 924(e) gun enhancement. (510) Defendant was convicted of being a felon in possession of a firearm, and was subject to a minimum 15-year sentence for three prior violent felony convictions. The district court departed upward by 10 years and sentenced him to 25 years based on his criminal history. The 5th Circuit agreed that criminal history category VI did not adequately reflect the seriousness of defendant’s past conduct. Defendant received no criminal history points for three prior felony convictions because the sentences were consolidated. Moreover, defendant’s 24 criminal history points were almost double the 13 points necessary to place him in category VI. The extent of the departure, while large, was significantly less than many other departures affirmed by the appellate courts and the 25-year sentence fell well within section 924(e)’s maximum penalty of life imprisonment. U.S. v. Doucette, 979 F.2d 1042 (5th Cir. 1992).
5th Circuit affirms upward departure based in part upon dismissed charge. (510) Defendant was arrested on burglary charges which were eventually dismissed by the state because of insufficient evidence. However, based on a weapon he possessed at the time of his arrest, he was convicted of being a felon in possession of a firearm. The 5th Circuit affirmed an upward departure based in part upon the alleged burglary for which he had been arrested. The fact that the burglary charge was dismissed by the state was irrelevant. The standard of proof necessary to support an enhancement, preponderance of the evidence, was not nearly as demanding as the beyond a reasonable doubt standard necessary to support a conviction. U.S. v. Carpenter, 963 F.2d 736 (5th Cir. 1992).
5th Circuit says court gave sufficient reasons for upward departure. (510) Defendant’s sentence was enhanced under 18 U.S.C. section 924(e)(1) to a mandatory minimum 180 months. The court departed upward based on defendant’s extensive criminal history. However, since defendant already fell within criminal history category V, the court found that an increase in criminal history would not be appropriate. Since a 180-month sentence with a category V criminal history would be an offense level of 30, the court departed two levels to an offense level of 32. This resulted in a guideline range of 188 to 235 months. The court imposed a 230-month sentence. The 5th Circuit affirmed, rejecting defendant’s claim that the district court failed to articulate sufficient reasons for the departure. It was clear that the court found a criminal history departure was warranted. There was no doubt that the court based its decision to depart on the grounds urged by the government. The sentence was affirmed because the departure reflected a reasonable upward adjustment. U.S. v. Carpenter, 963 F.2d 736 (5th Cir. 1992).
5th Circuit rules that upward departure for armed career offender was not cruel and unusual or double punishment. (510) Defendant’s guideline range was enhanced under the armed career criminal statute from 33 to 41 months to a mandatory minimum 180 months based on his three prior convictions. The 5th Circuit rejected defendant’s claim that an upward departure to a sentence of 230 months based on the seriousness of his criminal history was cruel and unusual or a double penalty for the same conduct. In U.S. v. Fields, 923 F.2d 358 (5th Cir. 1990), the court held that an upward departure of a sentence already enhanced under 18 U.S.C. section 924(e)(1) was permissible. U.S. v. Carpenter, 963 F.2d 736 (5th Cir. 1992).
5th Circuit affirms upward criminal history departure based upon commission of similar offenses which were never prosecuted. (510) Defendant fell within criminal history category V and had an applicable guideline range of 21 to 27 months. The district court sentenced defendant to 60 months, justifying the upward departure upon defendant’s commission of other similar offense which were not prosecuted to conviction as well as defendant’s bond status on numerous pending charges at the time of the instant offense. In addition, the presentence report listed a series of convictions for assault, disorderly conduct and criminal mischief which were punished by fine only. The 5th Circuit affirmed, ruling that guideline sections 4A1.3(d) and (e), and the commentary to guideline section 4A1.3 authorized the upward departure on these grounds. Given the extensiveness of defendant’s criminal history, the extent of the departure was not unreasonable. U.S. v. Lee, 955 F.2d 14 (5th Cir. 1992).
5th Circuit affirms upward departure based upon concurrent sentences for independent crimes. (510) The district court departed upward from criminal history category IV to category VI because defendant’s prior three year term actually represented concurrent sentences for five convictions for possession of controlled substances arising from several independent occasions. Had each of these offenses been counted separately, defendant probably would have fallen within category VI. The 5th Circuit affirmed, ruling that the district court’s primary reason for the departure was sanctioned by guideline section 4A1.3(b). U.S. v. Carter, 953 F.2d 1449 (5th Cir. 1992).
5th Circuit upholds five year criminal history departure based on numerous convictions more than 15 years old. (510) The district court found that criminal history category VI did not adequately reflect the seriousness of defendant’s past criminal conduct, since he had numerous convictions which were more than 15 years old and thus were excluded from the calculation of his criminal history. Accordingly, it departed upward by adding five years to defendant’s mandatory 15-year sentence for possession of a firearm by a felon. The 5th Circuit affirmed the departure, finding both bases for the departure and the extent of the departure to be reasonable. U.S. v. Webb, 950 F.2d 226 (5th Cir. 1991).
5th Circuit finds upward departure warranted for defendant’s criminal history. (510) The district court departed upward on the ground that the guideline range did not adequately reflect the seriousness of defendant’s past conduct or the likelihood of recidivism. Section 4A1.3 authorizes departures on these grounds and lists the types of factors which may be considered. The 5th Circuit affirmed the sentence, stating that because the defendant had been continuously involved with stolen trucks since 1978, the only lapses in his criminal activity were when he was in prison or a fugitive from justice. The present offense occurred less than one month after his release from a half-way house. Considering his record, the sentence imposed by the district court was not unreasonable under 18 U.S.C. § 3553(a). “The district court was justified in concluding that only prison would keep the defendant from stealing trucks.” U.S. v. Fisher, 868 F.2d 128 (5th Cir. 1989).
5th Circuit holds criminal history was underrepresented because separate crimes were consolidated for sentencing. (510) Defendant argued that the court should not have considered the fact that his 1979 conviction included three burglary cases that were consolidated for sentencing. The Fifth Circuit rejected the argument, noting that Guideline § 4A1.3 specifically calls for a departure in such cases, on the ground that the true criminal history will be underrepresented. U.S. v. Roberson, 872 F.2d 597 (5th Cir. 1989).
5th Circuit rules defendant’s propensity for future criminal conduct was not reflected in his criminal history. (510) The district court concluded that criminal history Category VI did not fairly reflect defendant’s propensity for future criminal conduct because he had never completed successfully a period of parole or probation and had been incarcerated for felony convictions almost continuously since he was seventeen years old. The Fifth Circuit upheld an upward departure on this and other grounds. U.S. v. Roberson, 872 F.2d 597 (5th Cir. 1989).
5th Circuit holds similar prior conviction may justify upward departure based upon its underrepresentation in defendant’s criminal history. (510) The district court departed upward from the 46-57 month guideline range and imposed a 72 month sentence on the ground that defendant’s criminal history category did not reflect either the amount of drugs involved in the prior offense–1,653 lbs.–or the fact that the prior conviction was for a similar offense, i.e., marijuana. Section 4A1.2(e) sets forth the factors a court may consider when computing a defendant’s criminal history. That section generally provides for departure when the criminal history category does not indicate the seriousness of the past criminal conduct. The 5th Circuit found the district court properly considered the fact that 1,653 lbs. were involved in a similar prior offense. Effectively increasing the criminal history category from Level II to Level IV was not an abuse of discretion. U.S. v. DeLuna-Trujillo, 868 F.2d 122 (5th Cir. 1989).
6th Circuit approves upward departure where defendant would have been career offender but for suspended sentence. (510) Despite an extensive criminal history, which included breaking into a woman’s house and forcibly raping her, shooting a person during a robbery, and brutally beating the mother of his child, defendant had only five criminal history points. His eight-year sentence for the rape conviction had been suspended, resulting in no criminal history points. Had the rape sentence not been suspended, defendant would have been classified as a career offender. The district court departed upward from criminal history category III to VI, which would have applied had defendant been a career offender. The court also indicated that even if it had not departed upward under § 4A1.3, it would have imposed the same 420-month sentence by varying upward under 18 U.S.C. § 3553(a). The Sixth Circuit held that the 420-month sentence was reasonable. The court outlined defendant’s prior record at sentencing, and found his likelihood of recidivism was high. The court expressly found a need to protect the public. It did not appear that defendant could be rehabilitated, and he showed no remorse. The court did not act unreasonably in sentencing defendant as though he were a career offender. U.S. v. Hardy, 643 F.3d 143 (6th Cir. 2011).
6th Circuit finds any error in court’s failure to explain criminal history departure was harmless. (510) After explaining why it rejected a criminal history category of III, the district court then did not say why it passed over category IV before settling on category V. Even assuming this was error, the Sixth Circuit found it was harmless error, because defendant could not show it had any effect on his substantial rights. Raising defendant’s criminal history one category would only have increased his guideline range to 84-105 months, no increase at all considering his 120-month mandatory minimum. Putting his criminal history at V still subjected defendant to a guideline range of only 120-125 months. Defendant could not show a reasonable probability that, but for the error, he would have received a more favorable sentence. U.S. v. Woodard, 638 F.3d 506 (6th Cir. 2011).
6th Circuit approves upward variance on top of criminal history departure. (510) 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 district court made a criminal history departure from category IV to V, resulting in a guideline range of 15-21 months. The court then varied upward to a sentence of 42 months. Defendant argued that the district court gave unreasonable weight to her criminal history, departing upward from criminal history category IV to V, and then basing its upward variance primarily on defendant’s criminal history category. The Sixth Circuit found no error. The district court did not rely exclusively on defendant’s criminal history in varying upward, but rather discussed at length the § 3553(a) factors. Moreover, the very same factors that influence a district court to impose an upward departure in a defendant’s criminal history category might be evaluated differently in imposing an upward variance under 18 U.S.C. 3553(a). U.S. v. Lanning, 633 F.3d 469 (6th Cir. 2011).
6th Circuit approves upward variance for defendant with extensive history of fraud offenses. (510) Defendant was convicted of several counts relating to an investment fraud scheme. His advisory guideline range was 84-105 months, but the district court sentenced defendant to 125 months, citing his extensive criminal history (he had 15-20 prior felony convictions), and the fact that he had previously been given great leniency and it had not dissuaded him from further criminal conduct. The Sixth Circuit upheld the 125-month sentence as reasonable. In pre-Gall cases, the court had repeatedly approved upward departures where the Sentencing Guideline did not adequately reflect defendant’s criminal history. The court also considered the consequences of defendant’s fraud, noting that one victim became depressed and actually killed herself. U.S. v. Miller, 531 F.3d 340 (6th Cir. 2008).
6th Circuit affirms six-level departure for defendant with 29 criminal history points. (510) Defendant had 29 criminal history points, well over the 13-point threshold for criminal history category VI, the highest criminal history category. His guideline range was 37-46 months, but the district court departed under § 4A1.3(a) to a sentence of 70 months. The Sixth Circuit upheld the sentence as reasonable. Although the court did not follow the methodology for departing from category VI outlined in U.S. v. Williams, 238 F.3d 426 (6th Cir. 2000), the Williams methodology was not binding on the court. Given defendant’s extensive criminal history, the court’s finding that he was likely to reoffend, and the court’s finding that he committed perjury while testifying at a co-defendant’s trial, a six-level upward departure was not unreasonable. U.S. v. Griffin, 530 F.3d 433 (6th Cir. 2008).
6th Circuit finds sentence reasonable as either upward criminal history departure or variance. (510) Defendant pled guilty to bank fraud. The applicable guideline range was 33-41 months, but based on defendant’s understated criminal history, he was sentenced to 84 months. The sentence was the result of either a § 4A1.3(a)(4)(B) departure or a § 3553(a) variance. The Sixth Circuit found the sentence reasonable under either method. The court properly calculated the applicable guideline range, and then adequately explained its justifications for a higher sentence, including the fact that there were only two five-year periods during defendant’s adult life when he was not under supervision, incarceration, or involved in criminal activity. His first conviction was over 40 years earlier, but he had only had brief respites from prison, supervision and commission of new offenses. The court noted that previous sentences had not deterred defendant, and that without an upward departure his sentence would be shorter than many of his previous sentences. U.S. v. Hill, 513 F.3d 894 (6th Cir. 2008).
6th Circuit holds that upward departure and denial of credit for time served did not require remand. (510) Defendant’s original guideline range was 41-51 months. However, because he had 31 criminal history points (significantly higher than the 13 needed to place him in the Criminal History Category of VI), the district court departed upward by adding four points to his offense level. This resulted in a sentencing range of 63-78 months, and the court imposed a sentence 68 months. Defense counsel requested that defendant receive credit for the nine months he had already served for a previous conviction. The district court refused, concluding that, because of the likelihood of recidivism, the 68-month sentence was appropriate. Defendant argued that this was improper under U.S.S.G. § 5G1.3. The Sixth Circuit found no error. The court’s sentencing procedure was consistent with both Booker and Williams v. U.S., 503 U.S. 193 (1992) (sentence is imposed “as a result of” misapplication of the Guidelines if the sentence would have been different but for the district court’s error). The court properly calculated defendant’s guideline range of 41-51 months, made an informed decision to depart, and rejected his request for credit for time served. U.S. v. Lane, 509 F.3d 771 (6th Cir. 2007).
6th Circuit approves above-guideline sentence for defendant with extraordinary criminal history who posed exceptional danger to public. (510) Defendant pled guilty to one count of bank robbery. Because defendant committed the robbery while on supervised release for two other federal felonies, had 22 prior state convictions, and continued to commit crimes while in custody, the district court sentenced him to 132 months, even though his guideline range was 46-57 months. The court found that defendant’s criminal history was extraordinary and he posed an exceptional danger to public safety. The Sixth Circuit held that the sentence was both procedurally and substantively reasonable. Although the court did not expressly reference § 3553(a) in imposing defendant’s sentence, the record showed that it considered the § 3553(a) factors and defendant’s arguments. Moreover, while the degree of variance from the guidelines range was significant, the sentence was substantively reasonable, given defendant’s extensive criminal history. U.S. v. Smith, 505 F.3d 463 (6th Cir. 2007).
6th Circuit holds that 36 percent variance below advisory range for drug/firearm offenses was reasonable. (510) Defendant pled guilty to crack and firearms offenses, resulting in an advisory guideline range of 188-235 months. The court varied downward to impose a 120-month sentence (the statutory minimum for the charges involved), citing defendant’s personal history, his criminal history, and his age. Although defendant’s criminal history was IV, he had never been in custody for any substantial period of time, having only been imprisoned for seven months before this crime. In addition, the criminal history did not reflect that this was the first time that this quantity of drug and guns had been found in defendant’s possession. The court also noted that defendant’s father had been murdered when defendant was nine, and his mother died of cancer two years later. As a result, the court ordered defendant to undergo mental health counseling. The Sixth Circuit held that the sentence, which represented a 36 percent variance below the bottom of the advisory guideline range, was both procedurally and substantively reasonable. The court explained its analysis in reaching this sentencing determination and its analysis was sound. “This Court must show some level of deference to the district court in sentencing, especially when that district court provides this court with a factor-by-factor consideration of the relevant § 3553(a) factors.” U.S. v. Collington, 461 F.3d 805 (6th Cir. 2006).
6th Circuit approves large upward departure for fraud defendant who killed three people. (510) Defendant was convicted of a variety of fraud counts for fraudulently forging and cashing Social Security checks that were made payable to Newman. After a two-day evidentiary hearing, the district court concluded that defendant murdered Newman and that the murder constituted relevant conduct because it facilitated the fraud offense. The court applied a 23-level increase under § 5K2.1 because a death resulted from defendant’s crime. In addition, the court increased defendant’s criminal history category from I to IV after finding that defendant was also responsible for the deaths of two other men in 1990 and 1994, respectively. The Sixth Circuit agreed that there was sufficient evidence that defendant killed the three men in order to obtain their government checks. The district court also properly found that the killing of Newman occurred during the commission of the fraud offense and thus, was relevant conduct. The fraud guideline, § 2F1.1, did not factor in the unique circumstances of this case. Causing death is sufficiently outside of the heartland of the fraud, forgery, and false statement offenses to warrant a departure. Under the circumstances of this case, § 2K2.1 authorized a “substantial” departure. Finally, the court made specific findings to support the three-category criminal history departure. The court stated that category II was equivalent to one felony conviction, and that while two deaths could result in six points, which would be covered by category II, category III would understate the seriousness of the risk defendant posed to the public. The overall departure was reasonable, given that defendant’s relevant conduct and uncharged criminal history involved murder. U.S. v. Mayle, 334 F.3d 552 (6th Cir. 2003).
6th Circuit approves criminal history departure. (510) Defendant assaulted a fellow prison inmate with a razor blade, and was convicted of assault resulting in serious bodily injury. Based on defendant’s well-documented history of violent misconduct, the district court concluded that defendant’s criminal history category of III understated both the seriousness of his past conduct and the potential for recidivism, and departed upward to category V. Also, the court highlighted the prison setting and the victim’s status as a vulnerable victim. The Sixth Circuit affirmed. The written judgment, PSR, and sentencing transcript provided more than ample support for the court’s finding that defendant’s offense fell outside the heartland of typical assault cases. U.S. v. Camejo, 333 F.3d 669 (6th Cir. 2003).
6th Circuit upholds offense level increase under § 4A1.3. (510) The government recommended an upward departure from criminal history category IV to VI. The district court agreed that defendant’s history of “unrelenting lawlessness” warranted a departure, and increased his offense level from 21 to 24. The court also explained that, “looked at another way, it’s an increase in criminal history category to VI.” Defendant argued that the district court erred in departing three levels on the offense level axis, rather than the criminal history axis, when the stated reasons for departure had to do with prior or future criminal conduct. The Sixth Circuit found that reversing the departure would “elevate form above substance.” The district court stated that by increasing the offense level, it was reaching the same result as if it increased by two levels the criminal history category. Moreover, § 4A1.3 encourages courts to “consider imposing a sentence departing from the otherwise applicable guideline range.” The language does not limit a court to departing in the criminal history category alone and does not prohibit a court from using an increase in the offense level to accomplish the same result. U.S. v. Barber, 200 F.3d 908 (6th Cir. 2000).
6th Circuit departs where defendant committed offense while on lifetime parole. (510) Defendant was convicted of 15 criminal offenses from 1984 through 1996. He received no criminal history points for the first nine convictions because he was a minor at the time he committed the offenses. Further, defendant had recently been released onto lifetime parole in Alabama at the time the current offense occurred. The district court ruled that defendant’s history of “unrelenting lawlessness” warranted an upward departure. The Sixth Circuit upheld the sentencing court’s consideration of defendant’s juvenile convictions as a ground for departure, since they were evidence of defendant’s recidivist tendencies. The district court also properly considered the fact that defendant was serving a term of lifetime parole in Alabama at the time of the current offense, even though he already received two points for committing the current offense while on parole. District courts may consider the length of the term of probation, the temporal proximity to the current offense, and the basis for probation in the first instance. The term of probation here was for life, and the current offense occurred shortly after the imposition of probation. U.S. v. Barber, 200 F.3d 908 (6th Cir. 2000).
6th Circuit says court was free to make criminal history departure on remand. (510) A jury convicted defendant of conspiracy and armed bank robbery. In U.S. v. Bond, 22 F.3d 662 (6th Cir. 1994), the Sixth Circuit vacated his sentence. At resentencing, the district court departed upward from criminal history category III to V. The Sixth Circuit held that because the remand order did not restrict the district court from reassessing its determination of defendant’s criminal history, the court was free to depart based on any legitimate factors, provided its motivation was not vindictive. The departure here was not an abuse of discretion. The district court’s opinion closely adhered to the parameters of the appellate court’s remand order. The district court properly considered, and then rejected, the next higher criminal history category before sentencing defendant as a category V offender. The court took pains to provide detailed reasons for its decision that closely tracked the policy underlying § 4A1.3. Judge Merritt dissented, because he did not believe it was fair to increase defendant’s criminal history at resentencing when there had been no intervening conduct since the initial sentencing to warrant a change in his category. U.S. v. Bond, 171 F.3d 1047 (6th Cir. 1999).
6th Circuit departs from category VI for extremely high risk of recidivism. (510) Defendant pled guilty to interstate transportation of stolen property. He fell within criminal history category VI based on numerous prior theft and fraud convictions. The Sixth Circuit approved a one point departure in offense level because defendant’s continuing criminal conduct showed an extremely high risk of recidivism. Among other things, defendant ignored warrants, violated probation, escaped from detention, and committed new crimes while charges were pending against him. Section 4A1.3 says that in deciding whether to make a criminal history departure, a court may consider whether the defendant was pending trial or sentencing on another charge at the time of the current crime. Other charges were pending here. The section also allows consideration of whether a defendant committed the current offense while on bail or pretrial release for another serious offense. This also was true here. U.S. v. Koeberlein 161 F.3d 946 (6th Cir. 1998).
6th Circuit approves criminal history departure for armed career criminal. (510) Defendant pled guilty to being a felon in possession of a firearm and was sentenced as an armed career criminal. The district court departed upward under § 4A1.3 for his lengthy and violent criminal history, demonstrated by his 25 criminal history points, and his repeated violations of bond, probation and parole. The Sixth Circuit affirmed. A § 4A1.3 departure is appropriate, through an offense level increase, even if the defendant is already in criminal history category VI. Defendant’s criminal history included a laundry list of violent offenses ranging from battery to aggravated assault. His offenses were aggravated by his love of firearms. State courts gave defendant lenient sentences in hopes of rehabilitating him, but were unsuccessful. Defendant also repeatedly violated the conditions of his parole, probation, and pre-trial release by engaging in serious criminal offenses. Even while in prison, defendant was involved in assault, loan sharking and selling drugs. Finally, this was defendant’s second conviction for being a felon in possession of a firearm. U.S. v. Pluta, 144 F.3d 968 (6th Cir. 1998).
6th Circuit permits downward criminal history departure for armed career criminal. (510) Defendant fell within criminal history category IV based on his status as an armed career criminal. The district court rejected defendant’s request for a downward criminal history departure, ruling it did not have the authority to depart from the criminal history category mandated by § 4B1.4(c). The Sixth Circuit reversed, holding that a court may make a downward criminal history departure for an armed career criminal. Although the guidelines prescribe category IV as the “minimum” starting point for the criminal history of armed career criminals, there is nothing in the guidelines that would prohibit a departure below this level. In fact, the background to § 4B1.4 notes that in some cases the criminal history category pre-scribed may not adequately reflect the defendant’s criminal history and makes reference to § 4A1.3. Section 4A1.3 authorizes downward departures when a defendant’s criminal history overrepresents the seriousness of a defendant’s criminal history. U.S. v. Sanders, 97 F.3d 856 (6th Cir. 1996).
6th Circuit approves upward departure for repeat rapist with irreparable sexual dysfunction. (510) Defendant was convicted of being a felon in possession of a firearm after he raped a woman at gunpoint. The Sixth Circuit approved an upward criminal history departure to a life sentence based on the seriousness of defendant’s criminal behavior, and the high probability of recidivism given his severe sexual dysfunction. Defendant had twice committed rapes at gunpoint, and his criminal background was full of instances of sexual misconduct. He was under the care of a psychiatrist for his sexual dysfunction when he committed the present rape. He presented a very high risk of recidivism, having been in custody for 12 of the last 15 years. He was free from prison only six months before committing the instant offense. Judge Contie dissented. U.S. v. Little, 61 F.3d 450 (6th Cir. 1995).
6th Circuit says court departing above category VI is not required to state it has rejected intervening offense levels. (510) Defendant had 43 criminal history points, more than triple the 13-point threshold for category VI. He had received lenient treatment in the past, but nonetheless continued to commit crimes. The district court departed upward from a guideline range of 24 to 30 months and imposed a sentence of 60 months. The 6th Circuit held that defendant’s extremely high criminal history score and high likelihood of recidivism were proper grounds for departure. The extent of the departure was also reasonable, given defendant’s “persistent determination to commit crimes.” The district court was not required to state that it had considered and rejected each of the six intermediate gridblocks between the original guideline range (offense level 10 and criminal history category VI) and the range in which the actual sentence fell (offense level 17 and criminal history category VI). Section 4A1.3 only requires the court to use the offense level ranges as a reference. A departure can be no further than required to reach a gridblock that contains a reasonable sentence for the defendant. U.S. v. Thomas, 24 F.3d 829 (6th Cir. 1994).
6th Circuit permits departure for career offender based on age of priors, rehabilitation, and family. (510) After drinking and using cocaine, defendant robbed a bank. Before his arrest, he voluntarily began a detoxification program, was referred for psychiatric treatment, and was prescribed anti-psychotic drugs. Because of an aggravated assault in 1976 and a felonious assault in 1985, defendant was classified as a career offender. This raised his criminal history category from IV to VI, and his offense level from 20 to 32. The district court departed down to category V and offense level 19 based on the age of the prior convictions, the time intervening between his convictions, and his family responsibilities (he was the sole caretaker for his ill elderly parents). The 6th Circuit affirmed. A court may consider the age of prior convictions in determining the likelihood of recidivism. U.S. v. Fletcher, 15 F.3d 553 (6th Cir. 1994).
6th Circuit upholds departure based on excluded misdemeanor and murder convictions. (510) The district court departed upward from criminal history category I to II because, due to their age, two misdemeanor convictions and a murder conviction were excluded from defendant’s criminal history. The 6th Circuit found no plain error. The presentence report provided defendant with notice that a departure might be in order. At sentencing the court explicitly set forth its reasons for departing from the guideline range, finding that defendant’s criminal history was “dramatically understated.” The decision to depart was supported by the guidelines and the law of the circuit. U.S. v. Fountain, 2 F.3d 656 (6th Cir. 1993), overruling on other grounds recognized by Burchett v. Kiefer, 310 F.3d 937 (6th Cir. 2002).
6th Circuit affirms unusually high likelihood of recidivism as basis for criminal history departure. (510) The 6th Circuit affirmed that defendant’s unusually high likelihood of recidivism justified a five-month upward departure. The court acknowledged that upward departures for reasons of recidivism should be “rare events.” However, guideline section 4A1.3 suggests that while the criminal history scoring system accounts for a “general” recidivist tendency among criminal defendant, certain defendants pose a significantly greater risk. Defendant had been tried eight times in the past 18 years for over a dozen offenses, excluding the present case. He was sentenced to more than 12 years in prison, served nearly eight of those years, and escaped from prison once. In addition to the instant offense, defendant had three prior federal convictions for illegal possession of firearms. He committed the instant offense nine days after being released from custody for a prior firearms offense. U.S. v. Bennett, 975 F.2d 305 (6th Cir. 1992).
6th Circuit upholds upward departure from criminal history category III to category VI. (510) The 6th Circuit upheld a departure from criminal history III to category VI based upon defendant’s likelihood of recidivism, his history of drug abuse, the fact that he committed the instant offenses while out on bond on a state court indictment for drug law violations, the fact that he committed some of the charged offenses three days after he was released after arrest for the other charged offenses, and his history of violent crime. Defendant’s claim that he should have only received one point under section 4A1.1(c) for a sentence of probation misunderstood the basis of the departure. The court relied on section 4A1.3, adequacy of criminal history category, and not section 4A1.1. Fields v. U.S., 963 F.2d 105 (6th Cir. 1992).
6th Circuit affirms upward departure based on defendant’s long-time association with drug trafficking. (510) Defendant was convicted of conspiring to possess and distribute marijuana. The court departed upward from criminal history category V to category VI, finding that defendant’s criminal history score did not reflect the seriousness of his conduct or the likelihood of recidivism. The 6th Circuit affirmed. Defendant had an extensive criminal history involving trafficking in various kinds of drugs. Defendant had obviously profited financially from his drug trafficking, and the court believed that because of this and his extensive drug trafficking history, he was likely to continue in that trade when released from prison. Defendant’s long-time association with the drug trade was more serious than a random accumulation of criminal history points for various unrelated offenses. Judge Martin, dissenting in part, would not have upheld the departure, since all of defendant’s prior criminal activity was taken into account by the guidelines. U.S. v. Feinman, 930 F.2d 495 (6th Cir. 1991).
6th Circuit affirms upward departure where consolidation of prior offenses prevented defendant from being a career offender. (510) Defendant had an offense level of 28 and a criminal history level of III, resulting in a guideline range of 97 to 121 months. The district court departed upward and sentenced defendant to 236 months, finding that defendant’s prior criminal record had not been adequately reflected by the guidelines. Not only had two prior serious drug felonies been consolidated, but their consolidation prevented defendant from qualifying as a career offender. The 6th Circuit affirmed the upward departure. The district court correctly determined that the guidelines understated defendant’s true criminal history. The direction and degree of departure was also reasonable. If sentenced as a career offender, defendant would have an applicable guideline range of 210 to 262 months. U.S. v. Gonzales, 929 F.2d 213 (6th Cir. 1991).
6th Circuit upholds criminal history departure where three prior robberies were prosecuted as one. (510) In sentencing a convicted bank robber, the district court departed upward from criminal history category III to category VI. Although the defendant had only one prior felony conviction on his record, that conviction was related to three separate bank robberies committed on three separate occasions over a period of about eight months. Had these crimes been considered separately, the defendant might have been classified as a career offender, and automatically assigned a category VI criminal history. The 6th Circuit found that the judge was justified in finding that neither criminal history categories IV nor V adequately represented the defendant’s actual criminal history. Category VI was therefore appropriate. U.S. v. Medved, 905 F.2d 935 (6th Cir. 1990).
6th Circuit upholds upward departure even though only one of three reasons was valid. (510) The district court departed upward from 41 months to 60 months because the crime involved (1) the combined presence of more than minimal planning, and (2) a scheme to defraud more than one victim, and (3) the defendant had a very lengthy criminal record which was likely to continue. At oral argument, the government conceded that the first two factors were improper because the offense level had already been inflated to 13 because of defendant’s criminal livelihood. The government relied upon defendant’s underrepresented criminal history alone, and the 6th Circuit agreed. The court noted that the defendant’s criminal history score was 17 points, four more than the maximum criminal history category, and that much of his past criminal conduct did not enhance his criminal history score. Thus the court found that the departure was warranted, and that the degree of departure was reasonable, even though only one of the three reasons given for departure was valid. U.S. v. Christoph, 904 F.2d 1036 (6th Cir. 1990), superseded by guideline on other grounds as stated in U.S. v. Williams, 940 F.2d 176 (6th Cir. 1991).
6th Circuit affirms upward departure based on amount of drugs and defendant’s criminal history. (510) Defendant pled guilty to a “telephone count” in a conspiracy to distribute drugs. Defendant had been arrested while on bond pending sentencing for a felony conviction, had a long history of criminal drug offenses and was involved in a conspiracy to distribute 981 grams of cocaine. The 6th Circuit held that these factors were sufficient grounds for the district court to depart upwards. U.S. v. Anders, 899 F.2d 570 (6th Cir. 1990).
6th Circuit finds that prior drug transactions justified departure for unrepresented criminal history. (510) Defendant was convicted of conspiracy to traffic in drugs during a 3-month period. At sentencing a co-defendant who pled guilty after a plea agreement testified that defendant had trafficked in an additional 9 to 12 kilos before the offense. An informant corroborated that testimony. The District Court departed upward based on that information and the amount of drugs involved, on the ground that the guidelines did not adequately reflect defendant’s criminal history. The 6th Circuit held that these factors were “sufficiently unusual” to justify a departure. U.S. v. Anders, 899 F.2d 570 (6th Cir. 1990).
6th Circuit holds extensive criminal history justified upward departure from level VI criminal history. (510) The District Court departed from the guidelines finding that defendant’s criminal history was underrepresented even though it was set at Level VI, the highest allowable. The 6th Circuit affirmed, holding that 29 criminal history points, twice the highest level required for classification in level VI, constituted “an egregious, serious criminal record in which even the guideline range for a Category VI criminal history is not adequate to reflect the seriousness of the defendant’s criminal history.” (Quoting section 4A1.3 policy statement). Thus, the departure was legally permissible. It was supported by an adequate factual predicate and was reasonable under the circumstances. U.S. v. Belanger, 892 F.2d 473 (6th Cir. 1989).
6th Circuit holds upward departure proper because defendant’s criminal history did not reflect his violent past. (510) A drug trafficker received a 50-month upward departure from the applicable guideline range and he appealed. Adopting a three part test, the 6th Circuit reviewed the departure looking at (1) the unusual circumstances of the case; (2) whether those circumstances were actually present and (3) the reasonableness and appropriateness of the departure. Under this analysis, with its various degrees of deference to the district court, it was appropriate for the district court to increase the defendant’s offense level by six points after it found that the highest criminal history category (VI) did not accurately reflect the defendant’s violent past. U.S. v. Joan, 883 F.2d 491 (6th Cir. 1989).
7th Circuit says post-Booker court was not required to follow § 4A1.3 for criminal history departure. (510) Although the guidelines recommended a sentence of 240 months, the district court sentenced defendant to 327 months, relying in part on his “remarkably extensive” criminal record. Defendant did not dispute that he had 27 criminal history points, but insisted that, in determining the degree to which his sentence departed from the guidelines, the court should have used the “incremental analysis” outlined in § 4A1.3(a)(4)(B). The Seventh Circuit found no error. Defendant failed to acknowledge that, as a consequence of Booker, the court was not required to follow § 4A1.3; it only needed to articulate his sentence with reference to the § 3553(a) factors, which it did. U.S. v. Padilla, 618 F.3d 643 (7th Cir. 2010).
7th Circuit approves above-guideline sentence for defendant with twice the convictions needed for career offender status. (510) Defendant pled guilty to two counts of crack distribution. Although the Guidelines recommended a range of 188-235 months, the district court sentenced him to 293 months. The court noted that defendant had accumulated twice the number of convictions needed for career criminal status all before the age of 24. The court commented that every single factor mentioned in § 3553(a) called for a lengthy sentence to protect the public. The panel further found that the factors raised by defendant in mitigation, includeing his claim of a learning disability, did not excuse defendant’s behavior. The Seventh Circuit held that the sentence was reasonable and the court’s explanation adequate. The court correctly calculated the advisory Guidelines range, gave serious consideration to sentences both within and outside that range, and explained why it thought an unusually harsh sentence was needed for someone with as deplorable a record as defendant. U.S. v. McKinney, 543 F.3d 911 (7th Cir. 2008).
7th Circuit holds that above-guideline sentence for 58-year old diabetic was not unreasonable. (510) Defendant pled guilty to being a felon in possession of a firearm. The guideline range for his offense was 188-235 months, but the district court imposed a sentence of 264 months, citing his frightening criminal history, which included multiple rapes, kidnappings, and armed robberies. Defendant argued that the sentence was unreasonably long, noting that his age (58) and his diabetic condition meant the sentence amounted to a life sentence. The Seventh Circuit held that the sentence was not unreasonable. While age may be a reason to depart downward where the defendant is elderly and infirm, § 2H1.1, defendant was not yet elderly or infirm, or for any other reason harmless. Moreover, the panel challenged defendant’s claimed life expectancy of 64, finding that even with his diabetes it was 76.5. Finally, even if the tendency to commit crimes diminishes with age, given defendant’s unusually violent criminal history, the judge could certainly worry about what defendant might do in his seventies. U.S. v. Bullion, 466 F.3d 574 (7th Cir. 2006).
7th Circuit upholds departure based on analogy to career offender guideline. (510) Defendant argued that the district court incorrectly characterized him as a career offender. The Seventh Circuit found no error. The district court never stated that defendant met the requirements for sentencing under the career criminal guidelines, nor did it impose defendant’s sentence using that guideline. Instead, the court took note of defendant’s lengthy criminal history, his propensity to commit crimes while on probation and supervised release, and the criminal activity that was not reflected in his criminal history. It then stated, “under all of these circumstances, in my opinion, I believe this man is a career offender. I believe the law gives me the discretion to consider him as [a] career offender, that his – that the totality of these circumstances fall completely outside the heartland for the bank robbery guidelines that we have talked about ….” If defendant were sentenced as a career offender, his guideline sentence would be 151 months, but the court reduced that sentence to 139 months. Thus, the district court did not make a mistake of fact as to the nature of defendant’s prior convictions, not did it determine as a matter of law that defendant was a career offender. U.S. v. Valle, 458 F.3d 652 (7th Cir. 2006).
7th Circuit finds above-guideline sentence reasonable for “committed” recidivist. (510) Defendant was sentenced to 163 months’ imprisonment for bank robbery and violation of his supervised release. The sentence exceeded the guideline range of 63-78 months. The Seventh Circuit held that the sentence was reasonable, when measured against the 18 U.S.C. § 33553(a) factors. The district court found that the robbery and revocation were only the most recent in a long line of serious crimes that defendant had undertaken during his adult life. The court believed that defendant was “committed to violating the law with impunity, including the commission of the present bank robbery while on supervised release for the earlier conviction in California for bank robbery.” Additionally, based on defendant’s history and recidivism, he would “almost certainly continue to commit bank robberies once released from custody in this case.” Thus, a lengthy sentence was necessary to protect the public from this criminal activity. U.S. v. Valle, 458 F.3d 652 (7th Cir. 2006).
7th Circuit holds that 160-month sentence for bank robbery was reasonable. (510) Defendant was convicted of bank robbery, in violation of 18 U.S.C. § 2113. The district court departed upward from criminal history IV to VI based on its finding that defendant had committed four other bank robberies. The court also increased his guideline range by one because it found 20 criminal history points, which exceeded the bounds of criminal history category VI. In all, defendant’s guideline range was increased from 84-105 to a new range of 140-175 months, and the court imposed a 160-month sentence. The Seventh Circuit ordered a limited remand under U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005) to determine whether the district court would have imposed the same sentence under the advisory guidelines. The district court indicated that it would have imposed the same sentence, and the Seventh Circuit affirmed. The district court acted properly by considering evidence of defendant’s prior crimes. The evidence considered by the court at sentencing (bank surveillance photos, identification by teller, defendant’s own statement, and clothing found at defendant’s residence) was not the type of evidence excluded by the Supreme Court in Shepard v. U.S., 125 S.Ct. 1254 (2005). The 160-month sentence was reasonable. Any sentence that is properly calculated under the guidelines is entitled to a rebuttable presumption of reasonableness. The sentencing range applied by the court provided for a sentence of 140-175 months, and the court imposed a sentence near the center of that range. The sentence was justified by the “egregious nature” of defendant’s criminal record, the court’s finding that he would likely commit future crimes, the need to hold defendant accountable, and the need to protect the community. U.S. v. Welch, 429 F.3d 702 (7th Cir. 2005).
7th Circuit approves two-level criminal history departure for child pornographer. (510) Defendant operated an Internet web site where he posted photographs of child pornography. Defendant did not charge a fee for access to the photos, but he did expect others to post similar photos on the web site. Defendant’s past criminal conduct placed him criminal history category IV. The district court departed upward to category VI, citing the aggravated nature of the photos, the fact that defendant sought to obtain additional photos for his web site, defendant’s two prior convictions for sexually abusing children, and his three failed attempts to complete a treatment program for sexual offenders. The Seventh Circuit found no plain error. The factors cited by the judge were not adequately considered in the adjustments to his offense level. While the aggravated nature of the photos was arguably taken into account by a § 2G2.2(b)(3) sadistic conduct enhancement, the judge noted that the photos were worse than any he had been exposed to in his 35-year legal career. The court also considered defendant’s pattern of sexually abusing minors in applying a § 23G2.2(b)(4) increase, but a court may also depart on that basis so long as the adjustment did not adequately reflect the seriousness of the abuse involved. The court was convinced that defendant would commit future crimes. Moreover, after his third failure in a sexual offender treatment program, defendant candidly admitted that the therapy was not helping him with his “arousal patterns.” Finally, while the § 2G2.2(b)(2)(B) distribution enhancement took into account the fact that defendant received a “thing of value” for his pornography, it did not account for the fact that by seeking additional pictures of child pornography, defendant created an incentive for others to abuse children. U.S. v. Griffith, 344 F.3d 714 (7th Cir. 2003).
7th Circuit approves upward departure based on prior similar conduct not resulting in conviction. (510) Defendant was convicted of assaulting a federal officer and threatening to kill a federal officer. The district court departed upward under § 4A1.3 based on “prior similar adult criminal conduct not resulting in a criminal conviction.” In addition to finding it “extraordinary” that defendant tried to deny the convictions which were in the record from the Bureau of Prisons, the judge was concerned with other threats defendant had made. On one occasion, defendant said, “I would like to kill all U.S. Marshals that come down to the islands.” He also said “All U.S. Marshals need to be killed.” He sprayed bleach on a fellow inmate, threw feces on other inmates, flooded his cell, refused orders to jailers, and wrote an outrageous letter to the probation officer. Moreover, during sentencing, defendant interrupted the prosecutor with a obscenity-laced outburst. The Seventh Circuit found no error in the upward departure. U.S. v. Xavier, 310 F.3d 1025 (7th Cir. 2002).
7th Circuit affirms criminal history departure where defendant continued fraud after conviction. (510) Defendant was convicted of defrauding Medicare and Medicaid through her home health care supply company, Home Care Connection (HCC). At sentencing, a former employee of Opportunity Medical (OM), a health care supply company started by defendant after she stopped operating HCC, testified that after trial and before sentencing defendant had used OM to commit Medicare and Medicaid fraud in much the same way she had used HCC. The district court added three points to defendant’s criminal history score because she had engaged in further fraud during the period between her conviction and sentencing. The Seventh Circuit affirmed, holding that the departure was in accordance with U.S. v. Tai, 41 F.3d 1170 (7th Cir. 1994). Tai held that a district court properly added two points to a defendant’s criminal history score when a defendant convicted of extortion continued to extort victims from prison prior to sentencing. “[W]hen a defendant commits similar offenses after conviction, it reflects the defendant’s disregard for the law and the likelihood that she will commit further offenses in the future.” The district court linked the extent of the departure to the guidelines, by treating defendant’s post-conviction/pre-sentence fraud as if it had been a prior sentence and increased her criminal history category accordingly. U.S. v. Duncan, 230 F.3d 980 (7th Cir. 2000).
7th Circuit affirms criminal history departure based on evidence that arsonist also murdered his wife. (510) While in prison, defendant began corresponding with a couple who owned a farm. The husband died, and defendant married the woman while on parole. Defendant helped the woman liquidated much of her assets, and then the woman died under suspicious circumstances. The wife’s adult daughter and defendant were beneficiaries of her will. Shortly after the wife’s death, a complex of barns on the farm burned down, and defendant was convicted of arson. The district court determined that defendant murdered his wife and departed upward three criminal history points. The Seventh Circuit affirmed the departure. Defendant had both the motive and opportunity to commit the crime. Evidence at trial showed that the woman died from a blow to the head, not from other accidental forces, yet the house was staged to make the death look like an accident. Other evidence showed that the murder was committed by someone who, like defendant, possessed a key to the house. Finally, defendant had independent knowledge of the location outside where his wife’s glasses were found. Against this factual backdrop, and in light of the deferential standard of review, the district court did not err in departing upward based on its conclusion that defendant’s criminal history category did not adequately reflect his past crimes. U.S. v. Gallagher, 223 F.3d 511 (7th Cir. 2000).
7th Circuit approves upward departure for prior adjudication of “not guilty by reason of mental defect.” (510) The district court departed from Criminal History Category II to III based on an uncounted prior adjudication of “not guilty by reason of metal defect or disease.” Defendant insisted that the court should have considered his extensive treatment and rehabilitation and the fact that he had not recently exhibited any dangerousness. The Seventh Circuit found no error in the court’s departure based on the “not guilty by reason of mental defect” finding. Section 4A1.3 says that a departure is warranted “when the criminal history category significantly underrepresents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit further crimes.” Thus, the court had to find only one of the two disjunctive elements of § 4A1.3: either (a) that defendant’s criminal history inadequately reflected his true criminal past (a finding defendant did not challenge); or (b) that defendant’s criminal history inadequately reflected the probability of recidivism. The court found the first prong, and defendant did not present evidence, or seek a finding, on the second prong. U.S. v. Turchen, 187 F.3d 735 (7th Cir. 1999).
7th Circuit upholds criminal history departure based on uncounted criminal conduct. (510) The district court made a two-level departure in offense level because defendant’s criminal history score did not reflect the seriousness of his past criminal conduct. The PSR listed several facts that were not reflected in his criminal history score: (1) defendant made several threatening phone calls to his estranged family, which resulted in Wisconsin bringing criminal charges for unlawful use of a telephone and moving to revoke his probation on an earlier charge; (2) defendant had an unscored 1993 conviction for passing a bad check; (3) Idaho had issued a criminal complaint based on defendant’s failure to appear and violation of a protection order; and (4) Florida had issued three misdemeanor warrants against defendant for passing bad checks. The Seventh Circuit affirmed the departure. Defendant never objected to the PSR’s description of his criminal history, never objected after the court stated its findings and departed by two levels, and did not contest any of these facts on appeal. U.S. v. De Angelo, 167 F.3d 1167 (7th Cir. 1999).
7th Circuit upholds departure for defendant with 18 criminal history points. (510) While serving a prison sentence, defendant attacked a corrections officer. At the time of the assault, defendant had an extensive criminal record, resulting in a criminal history score of 18, which placed him in criminal history category VI. The Seventh Circuit affirmed a one-level departure based on defendant’s excessive number of criminal history points. The court rejected defendant’s novel suggestion that 20 points was the minimum required for departure. The departure was also proper based on the judge’s clear finding that there was a likelihood of defendant committing more criminal offenses in the future. Defendant, an illegal alien and a gang member, had no verifiable employment history, and told an investigator that he supported himself by selling drugs. He also told an INS agent that he made his living in the U.S. “robbing people and using a big gun.” Defendant’s extensive criminal history was accumulated in less than eight years, and he committed the current crime while in prison. U.S. v. Melgar-Galvez, 161 F.3d 1122 (7th Cir. 1998).
7th Circuit rules juvenile convictions should have been excluded from criminal history. (510) Defendant claimed that the district court erred in giving him criminal history points for three juvenile convictions. The Seventh Circuit agreed that the juvenile convictions should not have been included in defendant’s criminal history because he was not tried as an adult and they were not committed within five years of the present offense. Under §4A1.2(d), only an offense committed before the age of 18 that resulted in a conviction as an adult or that was committed within five years of the current offense may be included in a defendant’s criminal history. The juvenile offenses used here did not fit into either category. However, these juvenile offenses could be used to show a pattern of recidivism, thus giving a sentencing judge adequate justification for an upward departure. U.S. v. Spears, 159 F.3d 1081 (7th Cir. 1998).
7th Circuit allows upward departure for five robberies while on supervised release. (510) During an 18-month period, defendant committed five bank robberies. The district court departed upward because defendant committed all five bank robberies while on supervised release. Although defendant received two criminal history points under § 4A1.1(d) for committing the current offense while under a criminal justice sentence, the district court did not think that this adequately reflected the seriousness of his behavior. The court thought it was rare for a defendant to commit more than one crime on supervised release. The Seventh Circuit agreed that five robberies justified an upward departure. A defendant qualifies for two points under § 4A1.1(d) by committing a single offense while under a criminal justice sentence. Although the four-level increase defendant received under § 3D1.4 accounted for the five bank robberies, the points did not account for the fact that all five of the robberies took place while he was on supervised release. U.S. v. King, 150 F.3d 644 (7th Cir. 1998).
7th Circuit approves departure for excessive criminal history points, uncounted priors and repeated crimes. (510) The district court departed upward based on three factors: (1) the extensive number of criminal history points; (2) prior sentences not used in computing the criminal history category; and (3) the fact that defendant repeatedly committed the same crimes. The Seventh Circuit found no error. Defendant had a total of 25 criminal history points, while criminal history category VI begins with 13 points. The court added one offense level for every 3 points that exceeded 15. This methodology was reasonable and sufficiently linked to the structure of the guidelines. It was also proper to consider prior sentences not used in computing the criminal history category. The outdated convictions included armed robbery as well as a theft conviction with facts similar to the present conviction. Finally, the court correctly relied on the fact that defendant repeatedly engaged in the same course of criminal conduct. He was a career criminal whose primary means of support was stolen credit cards and checks. Additional incarceration was necessary to decrease the possibility of recidivism. U.S. v. Ewing, 129 F.3d 430 (7th Cir. 1997).
7th Circuit affirms upward criminal history departure where defendant used son and friends for crimes. (510) Defendant was involved in a conspiracy that stole, transported and sold computer equipment. The district court departed upward under § 4A1.3 from criminal history category III to IV based on 3 prior convictions that were excluded from defendant’s history because of their age. The Seventh Circuit affirmed. The district court properly found that defendant’s criminal history did not reflect the fact that he operated a “theft academy for young men” and trained his son in illegal conduct from kindergarten to adulthood. The court also properly found that category III underrepresented the likelihood that defendant would commit future crimes. The uncounted prior convictions all involved theft, and so were sufficiently similar to the offense of conviction to be grounds for departure under note 8 to § 4A1.2. U.S. v. Trigg, 119 F.3d 493 (7th Cir. 1997).
7th Circuit approves upward departure for prior violent but uncharged assaults. (510) Defendant was convicted of threatening a former prostitute who used to work for him. The district court departed upward under § 4A1.3 because his violent past was not reflected in his criminal history score. The Seventh Circuit held that the departure was properly based on defendant’s prior violent but uncharged assaults. The court heard evidence of numerous instances of defendant’s violence towards his prostitutes and others, including one episode of attempted murder. Defendant merely contended that the prostitutes were biased against him and that he was violent because he could not control his impulses. He did not present any evidence that the described incident did not occur. U.S. v. Carter, 111 F.3d 509 (7th Cir. 1997).
7th Circuit affirms departure despite improper consideration of arrest record. (510) Defendant was 44 years old at sentencing. Between the ages of 17 and 38 he had been convicted 13 times, resulting in 24 criminal history points. In addition, he had been arrested on 23 other occasions, and twice was charged with murder but not convicted. Only 13 criminal history points are required for category VI, the highest category. The Seventh Circuit affirmed a two point criminal history departure even though the district court improperly considered defendant’s arrest record. The judge could have based the departure solely on the excess of criminal history points over the number required for category VI. Defendant’s recent criminal activity was non-violent, hence unlikely to be dampened by the onset of middle age. Also, the fact that the criminal justice system had previously treated defendant leniently was a proper ground for departure. Finally, note 8 to § 4A1.2 permits a court to consider outdated convictions for serious crimes, even if they are dissimilar to the instant offense. Thus, even if the judge improperly considered defendant’s arrest record, it was unlikely that it affected the sentence. U.S. v. Walker, 98 F.3d 944 (7th Cir. 1996).
7th Circuit approves departure from category VI based on risk of recidivism. (510) Defendant impersonated an FBI agent in an effort to defraud an elderly woman out of the money in her bank account. The district court departed upward from criminal history category VI, finding that defendant was a habitual criminal not effectively deterred by incarceration who had committed almost the identical crime twice before. The Seventh Circuit agreed that an upward departure from category VI was proper based on the risk of recidivism. Defendant was a habitual criminal who had perpetrated the identical crime twice before. Between 1984 and 1990, defendant was convicted ten times for crimes involving theft or fraud. From 1978 to 1983, she was convicted over 30 times for other, unrelated offenses. The extent of the departure, from a range of 46‑57 months, to a range of 58‑71 months, was reasonable. U.S. v. Paredes, 87 F.3d 921 (7th Cir. 1996).
7th Circuit holds departure above category VI was reasonable and linked to guidelines structure. (510) Defendant had 40 criminal history points, 27 more than required to place him in category VI. The district court departed upward under § 4A1.3 by adding one offense level for every three of defendant’s criminal history points that exceeded 15. This resulted in an eight‑level departure and raised defendant’s offense level from 14 to 22. The court explained that the departure was “further supported” by the fact that defendant had involved juvenile females in his offense. The Seventh Circuit held that the court’s methodology was reasonable and sufficiently linked to the structure of the guidelines. Previous cases have approved upward departures where the number of criminal history points far exceeded the highest category. The fact that defendant had served the maximum sentence on most of his former convictions showed that he was unlikely to be deterred absent a lengthier sentence. There was no need to consider defendant’s use of juvenile girls, since it was clear that this factor did not increase the extent of the departure. U.S. v. McKinley, 84 F.3d 904 (7th Cir. 1996).
7th Circuit says law of the case did not bar considering prior convictions for departure. (510) On defendant’s first and second appeals, the Seventh Circuit held that the district court incorrectly determined the quantity of drugs attributable to defendant. At resentencing, the district court held defendant accountable for a much smaller quantity of drugs, but then made a criminal history departure based on prior drug convictions in 1973, 1975 and 1978 that were similar to the offense of conviction, but too remote in time to be included in his criminal history score. Defendant argued that the court’s earlier sentencing decision barred it from relying on his prior uncounted convictions as a basis for departure. The Seventh Circuit held the law of the case doctrine did not bar the departure, because the district court never found that the prior conviction did not justify a departure. The departure was proper. Note 8 to § 4A1.2 states that sentences outside the time period for consideration may be a basis for departure under § 4A1.3 if the remote sentences are evidence of similar, or serious dissimilar, criminal conduct. Defendant’s three prior drug convictions were such similar conduct. If considered, the convictions would have placed defendant in category III. Thus, the departure to category II was reasonable. U.S. v. Young, 66 F.3d 830 (7th Cir. 1995).
7th Circuit approves departure for continued criminal activity and additional loss. (510) While a prison inmate, defendant was involved in a scheme that filed 353 fraudulent tax returns claiming over $1 million in refunds. The district court departed under § 5K2.0 because defendant continued his criminal activity while awaiting trial and because that continued criminal activity resulted in an increased loss. The Seventh Circuit affirmed. In U.S. v. Jordan, 890 F.2d 968 (7th Cir. 1989), the court approved a criminal history departure under § 4A1.3 based on a defendant’s continuing criminal conduct. The potential financial loss from this activity was also a valid ground for departure. The three-point offense level departure was reasonably linked to the structure of the guidelines. If defendant had been convicted of this additional activity, he would have received three more criminal history points which would have increased his category by one. This would have the same affect as increasing his offense level by about two levels. Moreover, if the potential loss of $122,000 had been included in the instant indictment, defendant’s offense level would have increased by one level. U.S. v. Archambault, 62 F.3d 995 (7th Cir. 1995).
7th Circuit approves upward departures based on 13 excluded prior convictions. (510) Defendant, 65 years old, had an extensive criminal history dating back to his time as a juvenile. However, due to their age, 13 of defendant’s 16 convictions were excluded from his criminal history. The Seventh Circuit approved an upward departure based on the outdated convictions. The court did not rely on defendant’s age, but merely referred to it when discussing defendant’s long criminal history. The court properly relied on its finding that defendant’s criminal history category of III inadequately reflected the seriousness of defendant’s past conduct and the chance that he would commit crimes in the future. The court noted the large number of convictions over a long period of time and stated that if defendant’s criminal tendencies were going to abate, they would have done so by now. U.S. v. Johnson, 53 F.3d 831 (7th Cir. 1995).
7th Circuit approves upward departure for continuing extortionate activities in jail. (510) Defendant was convicted of two counts of extortion. Defendant continued his extortionate activities during his stay at a correctional center before, during and after trial. Through the help of his wife, defendant used three-way calls to threaten others who owed him money. The 7th Circuit approved a criminal history departure from category I to III based on defendant’s continuation of his extortionate activities. Category I is reserved for a first-time offender with a low risk of recidivism. Given defendant’s conduct while incarcerated, the court could reasonably conclude that category I failed to reflect his risk of recidivism. The extent of the departure, determined by adding three points to defendant’s criminal history score, was reasonable. The district court determined that convictions for the sort of activity defendant practiced in jail ordinarily carry sentences in excess of a year and a month of incarceration. A prior sentence of this duration results in the assignment of three criminal history points. U.S. v. Tai, 41 F.3d 1170 (7th Cir. 1994).
7th Circuit does not require investigation of dismissed charges where record supported finding that defendant committed the crimes. (510) The district court departed from criminal history category III to IV based on several bad check and forgery charges that had been dismissed, and thus were not included in defendant’s criminal history. Defendant argued that the judge erred in relying on the dismissed charges because there was no independent investigation to determine whether defendant had actually committed those crimes. The 7th Circuit found that no additional investigation was required since the record contained considerable reliable evidence that defendant committed the crimes. Both bad check charges were dismissed only after defendant paid restitution in full. This demonstrated by a preponderance of the evidence that defendant had in all probability committed these crimes. The other offense—forging automobile title documents—was dismissed after defendant agreed not to commit any further forgeries. The dismissal showed that defendant acknowledged his guilt. U.S. v. Klund, 37 F.3d 1249 (7th Cir. 1994).
7th Circuit upholds three-point upward departure for pending charges. (510) Defendant argued that the district court abused its discretion in using his prior arrest record to justify a three point upward criminal history departure. The 7th Circuit upheld the departure. It was not based on defendant’s arrest record, but on his presentence report. The report showed that defendant planned to plead guilty to charges in McHenry County after being sentenced in federal court. The district court imposed the additional points because if sentencing in McHenry County had occurred before sentencing in the instant case, three additional criminal history points would have been assessed. Therefore, it was not necessary to consider whether the district court properly considered other pending charges against defendant. The McHenry County charges alone were sufficient to justify the departure. U.S. v. Fuller, 15 F.3d 646 (7th Cir. 1994).
7th Circuit approves criminal history departure for defendant who filed false criminal charges against former employee. (510) The 7th Circuit affirmed a departure from criminal history I to II based on evidence that defendant had filed false criminal charges against a former employee to scare him into not filing suit against defendant’s financially strapped company. Such “mean-spirited conduct” justified a departure. The district court’s finding that defendant had filed false charges was adequately supported by the uncontested testimony of the former employee. U.S. v. Macey, 8 F.3d 462 (7th Cir. 1993).
7th Circuit says court adequately stated reasons for upward criminal history departure. (510) The 7th Circuit affirmed that the district court adequately stated its reasons for a departure from criminal history category V to VI. In finding that category V was inadequate, the district court cited defendant’s prior Canadian conviction for robbery, his pending state charge of attempted murder, and his pending state charge of escape, none of which had been counted in defendant’s criminal history score. Defendant’s extensive criminal history was detailed in the PSR, and court’s statements showed that it considered and relied upon the report, even if the court did not recite all of the facts in the report in detail. These facts clearly justified a departure. The departure from level V to VI was reasonable. U.S. v. Brown, 999 F.2d 1150 (7th Cir. 1993).
7th Circuit upholds court’s refusal to grant full extent of departure recommended by government. (510) Defendant argued that the district court should have granted a 10-level downward departure (as recommended by the government) rather than an eight-level departure under section 5K1.1. He further contended that the error was not one of discretion but the result of an incorrect application of the law. He believed the court incorrectly interpreted U.S. v. Thomas, 930 F.2d 526 (7th Cir.), cert. denied, 112 S.Ct. 171 (1991). The 7th Circuit upheld the departure. Thomas lists various factors for a court to consider in granting a substantial assistance departure, but expressly permits a court to assign a greater or lesser weight to these factors. Although the government’s recommendation is entitled to great deference, the judge disagreed with its assessment of defendant’s truthfulness and the risk of danger presented by his cooperation. There was nothing in the judge’s findings to cause the appellate court to question the judge’s application of the law. U.S. v. Johnson, 997 F.2d 248 (7th Cir. 1993).
7th Circuit upholds criminal history departure based on similarity of uncounted conviction to instant offense. (510) Defendant was convicted on numerous counts, including two counts of interstate transportation of stolen property. Excluded from his criminal history score because of the age of the conviction was a 1971 conviction with the same criminal objective — to sell stolen antiques and art. The 7th Circuit affirmed a criminal history departure based on the similarity of this uncounted conviction. Moreover, the court noted that the number of other offenses that went uncounted because of their relatedness to other convictions also made defendant’s criminal history more serious than those of most defendants with his criminal history score. Also the defendant had spent over half of the past 15 years in prison, suggesting the need for extra deterrence. U.S. v. Connor, 992 F.2d 1459 (7th Cir. 1993).
7th Circuit finds no appealable issue where court denies substantial assistance departure because of criminal history. (510) At defendant’s sentencing, the government moved for a downward departure based on defendant’s substantial assistance. The district court refused to depart, stating that the failure of defendant’s criminal history score to reflect crimes for which he had been convicted but not yet sentenced would normally require an upward departure. The 7th Circuit found it lacked jurisdiction over the appeal because of the trial court’s decision to sentence within the guidelines range. It noted, however, that the guidelines do permit a judge to take account of convictions on which sentence has not yet been imposed. U.S. v. Eibler, 991 F.2d 1350 (7th Cir. 1993).
7th Circuit approves departure based on numerous Canadian convictions. (510) Although defendant fell within criminal history category II, he had numerous Canadian convictions for various types of offenses which would have placed him in criminal history category VI. The 7th Circuit upheld a departure from criminal history category II to VI based upon the Canadian convictions. The district court did not violate section 4A1.2(h) by using the foreign convictions to compute defendant’s criminal history. Instead the court merely followed section 4A1.3(a), which provides that information about foreign offenses may be used as a basis for an upward departure. Based upon information provided by the probation office’s liaison in Montreal, the court determined the convictions were valid, that defendant was represented by counsel, and that the Canadian justice system was sufficiently close to the U.S.’s system so as to make the convictions reliable for departure purposes. U.S. v. Korno, 986 F.2d 166 (7th Cir. 1993).
7th Circuit affirms upward departure despite attempt to impeach witness’s credibility. (510) Defendant received an upward criminal history departure based on a co-conspirator’s testimony that he had engaged in several drug transactions with defendant in 1987, several years before the instant drug conspiracy. The 7th Circuit affirmed that this information was sufficient to support the departure, despite the witness’s alleged memory loss and prior inconsistent statement to law enforcement officials. A witness is not unreliable simply because he is impeachable. There was no clear error simply because the district court believed the witness in spite of defense attorneys’ attempts to impeach him. The court also rejected defendant’s claim that trial counsel was ineffective for failing to object to the factual basis for the departure. The district court was aware of the facts that undermined the witness’s credibility, so defendant was not prejudiced by his attorney’s failure to bring those facts to the court’s attention. U.S. v. Villasenor, 977 F.2d 331 (7th Cir. 1992).
7th Circuit finds that defendant committed five prior criminal acts, and affirms departure. (510) Defendant received an upward criminal history departure based on five prior criminal acts for which he was never convicted. The 7th Circuit affirmed that the government proved by a preponderance that defendant committed the acts. The information relayed to the court was more in depth than mere arrest records. One police officer who personally investigated three of the crimes described defendant’s involvement in them. The mother of defendant’s child testified as to defendant’s involvement in a shooting which she witnessed. Finally, the police officer who arrested defendant on a pending concealed weapons charge described that incident. The testimony of each of the witnesses was based on personal observation. Moreover, defendant never denied his involvement in any of these incidents, arguing instead that they should not be considered at all because the charges were either pending, dismissed, or had been resolved in his favor. U.S. v. Torres, 977 F.2d 321 (7th Cir. 1992).
7th Circuit affirms upward departure based on reversed conviction. (510) The district court departed upward from criminal history category I to II based on a reversed conviction for possession of a wire communication intercepting device. The conviction was reversed because an appellate court ruled that the device did not fit within the statutory requirements. The 7th Circuit affirmed that the departure was properly based on the reversed conviction because it provided reliable evidence of past criminal activity. Under note 6 to section 4A1.2, any conviction not counted in the criminal history score may be considered as grounds for departure is it provides reliable evidence of past criminal activity. Here, the decision reversing the prior conviction made it clear that defendant was using the device for the surreptitious interception of wire communications at the time of his arrest. Thus, the district court could consider that defendant had engaged in criminal activity involving the intentional interception of wire communications. Past criminal conduct need not be similar to the offense of conviction to be considered as a reason for departure. U.S. v. Schweihs, 971 F.2d 1302 (7th Cir. 1992).
7th Circuit affirms upward departure based on inadequacy of criminal history score. (510) Defendant had a lengthy criminal record and avoided classification as a career offender only because two separate assaults on separate occasions had previously been consolidated for sentencing, and hence treated as a single conviction. The 7th Circuit affirmed the district court’s sentence of 210 months. The district court found that defendant’s criminal history score did not adequately reflect the seriousness of his past criminal conduct or the likelihood that he would commit other crimes, and the court found that defendant was a threat to the public welfare and safety. Thus, there was no error in raising defendant’s offense level to 30, part way between the guidelines level (26) and the applicable level for a career offender (34). U.S. v. Spears, 965 F.2d 262 (7th Cir. 1992).
7th Circuit upholds departure from criminal history category I to III for admitted con man. (510) The 7th Circuit affirmed an upward departure from criminal history category I to III for a defendant who confessed that he had been a con man most of his life, even though the district court failed to expressly consider whether a departure to category II would be sufficient. Defendant’s only prior sentence was a Canadian fraud conviction which was not counted in his criminal history because it was foreign. In addition, defendant had committed numerous other frauds for which he had never been convicted. Thus, defendant’s criminal history was not only misleading concerning the gravity of his criminal history and the likelihood of recidivism, but in combination with his confession of his many other frauds, it was “perverse.” It showed that defendant was not only a con man, but a successful con man who was rarely caught and therefore would have a strong incentive to resume his life of crime when he was released from prison. Although the court jumped from category I to III without discussing the possibility that category II might be sufficient, a remand was not necessary. It was sufficiently plain from the judge’s opinion why he skipped a category. The Canadian conviction would have put defendant in category II, while consideration of only one or two of the uncharged frauds easily moved defendant into category III. U.S. v. Newman, 965 F.2d 206 (7th Cir. 1992).
7th Circuit affirms upward criminal history departure for uncounted adult and juvenile convictions. (510) The district court departed upward by one criminal history category based on a theft conviction, a large number of juvenile offenses, and numerous arrests which were not counted in defendant’s criminal history. The 7th Circuit affirmed, finding that the uncounted theft conviction and the uncounted juvenile convictions adequately supported the departure. The theft conviction was consolidated for sentencing with an unrelated reckless homicide conviction, and thus was considered “related” for purposes of calculating defendant’s criminal history. The eight juvenile convictions, which were excluded from defendant’s criminal history because of their age, were also a proper ground for departure. Defendant was confined during the five years preceding the instant offense, and to limit his criminal history to those five years would under represent the seriousness of his criminal history. The court did not decide whether the use of defendant’s juvenile arrest record was proper, since the first two grounds adequately supported the departure. U.S. v. Gammon, 961 F.2d 103 (7th Cir. 1992).
7th Circuit upholds criminal history departure based on 19 prior convictions. (510) Defendant had 19 prior convictions, which gave him 39 criminal history points and placed him in criminal history category VI, the highest category. Since category VI requires only 13 points, the district judge departed upward. The judge determined that after level II, a defendant falls into a higher criminal history level for every 3 point increase, which would place defendant in level XIV. Using a 3-month increase in sentence for every increase in criminal history, the district court determined that category XIV would have a sentencing range of 48 to 54 months. Defendant received a 48-month sentence. The 7th Circuit affirmed both the grounds and the reasonableness of the departure. The fact that defendant had 19 prior convictions, that he committed the instant offense less than two years after his release from federal prison, and that he was on state probation at the time he committed the offense supported the departure. The district court’s use of the guidelines’ structure to determine the extent of the departure was reasonable. U.S. v. Glas, 957 F.2d 497 (7th Cir. 1992).
7th Circuit upholds offense level departure where criminal history category was under-representative. (510) The 7th Circuit upheld the district court’s addition of two points to defendant’s offense level because defendant’s criminal history category did not properly reflect the seriousness of defendant’s criminal record. Defendant had 22 criminal history points, which was nine more than the minimum needed to place him in criminal history category VI, the highest category. Guideline section 4A1.3 authorizes a departure where a defendant’s criminal history is significantly more serious than that of most defendants in the same criminal history category. Moreover, defendant had two prior sentences that substantially exceeded one year. Guideline section 4A1.3(b) permits an upward departure if there are prior sentences of substantially more than one year as a result of independent crimes committed on different occasions. U.S. v. Lewis, 954 F.2d 1386 (7th Cir. 1992).
7th Circuit holds that old conviction with slight similarity to instant offense may be ground for upward departure. (510) The district court departed upward in part because one of defendant’s prior felony convictions was excluded from his criminal history calculation. The 7th Circuit found that because there was a slight similarity between the prior offense and the instant offense, this could be a proper ground for departure. The old conviction was for an assault and battery on a deputy after defendant was arrested breaking into a private residence to steal antiques. The instant offense was for receiving and selling stolen goods. However, the district court did not focus upon this similarity in making its departure decision. Since the case was to be remanded on different grounds, the district court was free to consider the similarity between the offenses, the fact that defendant had been in jail for over half of the previous 15 years, the seriousness of his criminal history, and any other exceptional factors in determining whether to depart. U.S. v. Connor, 950 F.2d 1267 (7th Cir. 1991).
7th Circuit upholds criminal history departure where defendant could have been classified as a career offender. (510) Defendant fell within criminal history category VI, resulting in a guideline range of 51 to 63 months. The district court departed upward to 15 years because (1) an additional 14 points could have been added to defendant’s criminal history score if certain offenses which were not included in defendant’s history due to their age were included, and (2) another 12 points could have been added for six bank robberies which were not considered as separate crimes because they had been consolidated for sentencing. The 7th Circuit affirmed, finding that the district court could have designated defendant as a career offender under section 4B1.1 based on the six bank robberies. The court rejected the conclusion in application note 3 to section 4A1.2 that two convictions, even if completely unrelated factually, may be characterized as one conviction for career offender and criminal history purposes if they are consolidated for sentencing. Since the applicable sentence for a career offender was 151 to 188 months, the extent of the departure was reasonable. U.S. v. Elmendorf, 945 F.2d 989 (7th Cir. 1991).
7th Circuit affirms involvement in prior drug conspiracies as grounds for upward criminal history departure. (510) Defendant was convicted of two drug charges. Although defendant fell with criminal history category I, the district court determined that defendant had been involved in five separate conspiracies, and departed upward to criminal history category III. The 7th Circuit rejected defendant’s claim this departure violated the ex post facto clause, even though the evidence presented at his sentencing hearing predated the effective date of the guidelines. Defendant was not being punished for his past conspiracies, but rather for the two counts for which he was convicted. Although defendant received a stiffer penalty for his current crimes, his 450-month sentence was within the statutory maximum for both of the offenses. U.S. v. Mettler, 938 F.2d 764 (7th Cir. 1991).
7th Circuit finds prior dismissed burglary charges proper grounds for upward criminal history departure. (510) The district court departed upward in part because of two prior residential burglary charges which had been brought against defendant at the time he was arrested for burglarizing a bank. The residential burglary charges were dropped after defendant pled guilty to the bank burglary. The 7th Circuit upheld the prior charges as grounds for the upward departure. Although an arrest record by itself is not reliable, police records appended to the presentence report indicated that all three burglaries were committed the same day. At the time defendant was arrested with his brother for the bank burglary, police recovered items stolen from the residences in the brother’s car. Moreover, defendant did not deny the underlying facts concerning his arrest, arguing instead that it was per se improper to consider an arrest which did not result in a conviction. U.S. v. Terry, 930 F.2d 542 (7th Cir. 1991).
7th Circuit upholds upward departure on the basis of similarity of motive between current crime and prior convictions. (510) Defendant pled guilty to committing two robberies and admitted his involvement in three other robberies. The district court departed upward from criminal history category II to criminal history category IV. Defendant had several previous convictions for various fraudulent financial transactions, which were not included in the calculation of defendant’s criminal history score. Defendant admitted at the sentencing hearing that he had committed the robberies because he needed the money to pay back a man who defendant had conned in an investment scheme. The 7th Circuit found that the similarity between the motive for the bank robberies and the motive for defendant’s other crimes justified the upward departure. A greater sanction was necessary to deter similarly-motivated crimes in the future. The 7th Circuit also found that defendant’s use of a gun and plastic explosives justified an upward departure. The version of guidelines § 2B3.1 applicable to the case did not provide for an increase in offense level based upon the possession of a dangerous weapon. Section 2B3.1’s subsequent amendment to require a three level increase in offense level for use of a dangerous weapon in the robbery showed the inadequacy of the prior version. U.S. v. Dzielinski, 914 F.2d 98 (7th Cir. 1990).
7th Circuit upholds upward departure based on outstanding warrants and pending charges. (510) The presentence report stated that there was reliable evidence that defendant engaged in bank fraud. The 7th Circuit found that since defendant failed to object to the presentence report, the district court’s upward departure based on defendant’s bank fraud was not clearly erroneous. Defendant also argued that it was unfair to use pending charges as a basis for sentencing, stating that when he was convicted for those other crimes, the future court would consider his current sentence which was based on those other crimes, creating a self-aggravating sentencing procedure. The 7th Circuit rejected this argument since the guidelines specifically permit a court to consider prior similar adult criminal conduct not resulting in a conviction as the basis for departure, and defendant was unable to provide any legal basis for invalidating this practice. U.S. v. Gaddy, 909 F.2d 196 (7th Cir. 1990).
7th Circuit upholds departure based on defendant’s dealing drugs while awaiting sentencing and his flight at time of arrest. (510) At the time of his arrest, defendant fled and struggled with armed agents, causing injury to one of them. After conviction, while awaiting sentencing, he continued to sell and use cocaine. The district court departed upwards from the guidelines, finding that defendant’s category VI criminal history did not adequately reflect the seriousness of his past criminal conduct or the likelihood that he would commit other crimes. The 7th Circuit affirmed, holding that the departure was warranted and the amount of the departure was not unreasonable. U.S. v. Jordan, 890 F.2d 968 (7th Cir. 1989), abrogated on other grounds by U.S. v. Thompson, 944 F.2d 1331 (7th Cir. 1991).
8th Circuit allows large variance for under-represented criminal history. (510) Defendant and his twin brother engaged in a scheme in which they would steal checks, forge checks, and purchase merchandise, then return the merchandise for cash. Defendant’s 85-month sentence was an upward variance from his guideline range of 15-21 months, based primarily on defendant’s significant history of fraud. He had 28 criminal history points, but the guidelines stop counting criminal history points at 13. Thus, a significant portion of the defendant’s criminal history was not taken into account. The Eighth Circuit found no basis for concluding that defendant’s sentence was unreasonable. U.S. v. Sayles, __ F.3d __ (8th Cir. June 6, 2014) No. 13-1834.
8th Circuit approves consideration of arrest record in criminal history departure. (510) Defendant made false statements to FBI agents about the disappearance of Lufkins in an attempt to divert FBI attention from another person. At sentencing, the district court found that criminal history category IV was inadequate, and departed to category VI. The court noted multiple prior adult convictions for which defendant received no criminal history points. The court also mentioned three prior arrests. The PSR described the underlying factual basis for each arrest. Defendant did not object to any of the factual information regarding his criminal history in the PSR, and did not present any evidence at sentencing. The Eighth Circuit ruled that the prior arrests were described with sufficient factual detail in the PSR to allow the court to consider them. In addition, the arrest record was not the sole basis for the upward departure. The district court also considered prior sentences that were not used to compute defendant’s criminal history category, prior similar adult criminal conduct, and his lengthy history of criminal behavior. This repeated pattern of criminal behavior demonstrated a propensity to recidivate. U.S. v. Never Misses a Shot, 715 F.3d 1048 (8th Cir. 2013).
8th Circuit approves criminal history departure above category VI. (510) Defendant pled guilty to being a felon in possession of a firearm. The government moved for an upward criminal history departure under § 4A1.3(a), contending that category VI did not adequately represent the extent of defendant’s criminal history. The court granted the motion, noting defendant’s “incredible history of violence,” and 23 criminal history points. The court increased defendant’s offense level by two, resulting in a sentencing range of 235-293 months. The court sentenced him to 293 months, and the Eighth Circuit affirmed. The district court properly considered defendant’s long history of committing assaults. Of his 20 criminal offenses, 13 related to an assault. He assaulted a police officer on two occasions and his current or former girlfriend on three occasions. He also assaulted a 13-year-old girl on a separate occasion. These crimes showed a pattern of violent conduct and recidivism, and suggested defendant would commit additional violent crimes. The fact that these violent crimes were dissimilar from his instant firearms offense did not matter. The court could also consider defendant’s three prior offenses that were assigned no criminal history points. In light of his criminal history, the fact defendant was not on either probation or parole was of no consequence. U.S. v. Outlaw, 720 F.3d 990 (7th Cir. 2013).
8th Circuit approves upward variance for involvement in uncharged shooting. (510) Defendant pled guilty to firearms charges, resulting in a guideline range of 87-108 months. However, based on evidence that defendant had shot Bell, the district court departed under § 4A1.3(a) to criminal history category V or VI based on defendant’s underrepresented criminal history. In the alternative, the district court varied upward to 132 months imprisonment. The Eighth Circuit held that the district court did not abuse its discretion in varying upward based on defendant’s involvement in the shooting. Defendant told three people similar stories about how he had shot Bell. The statements from the three men were consistent with each other and with other evidence. The police reports showed that defendant knew Bell’s name, the location of his injury, and the model and color of the car in which Bell was riding. The model of the car was never released to the media. Defendant was also the same gender and race as one witness to the shooting identified. This corroboration suggested that the hearsay testimony about defendant’s involvement in the shooting was reliable. Because the court did not abuse its discretion in varying upward, any error in alternatively imposing an criminal history departure was harmless. U.S. v. Grandon, 714 F.3d 1093 (8th Cir. 2013.
8th Circuit approves upward departure based on status in community and dismissed conduct. (510) Defendant pled guilty to arson. The government recommended a sentence at the low end of his 37-46 month advisory guideline range, and defendant requested a downward departure or variance. Instead, the district court departed upward under § 5K2.21 for dismissed or uncharged conduct, and sentenced defendant to 60 months, the statutory maximum. The court stated that, alternatively, it would have varied up to the 60-month sentence under 18 U.S.C. § 3553(a). The Eighth Circuit held that the sentence was substantively reasonable. The court did not rely on defendant’s status as an adult. It simply noted that he was several years older than the juveniles involved in the offense, was a tribal leader, and should have been a better role model. Defendant’s age in comparison to that of the others involved and his status in the community were the sort of factors the court could consider under § 3553(a)(1) (nature and circumstances of the offense and the history and characteristics of the defendant). The court did not abuse its discretion in considering the dismissed charges of burglary and possession of a stolen firearm. U.S. v. Mesteth, 687 F.3d 1034 (8th Cir. 2012).
8th Circuit approves upward departure for “incorrigible recidivist.” (510) Defendant pled guilty to being a felon in possession of a firearm. His guideline range was 77-96 months, but the district court found an upward departure was appropriate based on recidivism and an understated criminal history. Because defendant was already in the highest criminal history category, the district court could not depart to a higher criminal history category, and instead added two offense levels to defendant’s base calculation. This resulted in an adjusted advisory guidelines range of 92-115 months, and the court imposed a sentence of 108 months. The Eighth Circuit affirmed the sentence. The district court concluded that defendant was “an incorrigible recidivist” based upon the existence and timing of his prior convictions. The resulting decision to depart relied upon grounds that are valid bases for such departures under § 4A1.3(a)(2)(A): the existence of several prior convictions not used for calculating criminal history points, a repeated pattern of criminal behavior evincing a likelihood of future criminal conduct, and the failure of prior shorter sentences to deter additional offenses. See. U.S. v. Mendez, 685 F.3d 769 (8th Cir. July 19, 2012).
8th Circuit approves upward departure based on uncounted tribal convictions. (510) Defendant pled guilty to assault with a dangerous weapon, and received departures under four separate guidelines. The Eighth Circuit held that the district court did not abuse its discretion in departing under § 4A1.3. A district court may depart based on prior sentences that were not used in calculating the criminal history category, including sentences for tribal offenses. Here, the PSR listed defendant’s extensive criminal history in the tribal courts. While defendant did not dispute the PSR’s details, he objected to the district court’s sua sponte application of the departure. District courts, however, may use their discretion to impose an enhancement sua sponte. The district court did not abuse its discretion in departing from the guidelines under § 4A1.3. U.S. v. White Twin, 682 F.3d 773 (8th Cir. 2012).
8th Circuit holds that any error in departing upward was harmless because of court’s alternate reliance on upward variance. (510) Defendant pled guilty to being a felon in possession of a firearm. Based on an offense level of 12 and a level VI criminal history, his guidelines range was 30-37 months. The court found that an upward criminal history departure under § 4A1.3 (a)(1) was warranted, and adjusted defendant’s offense level from 12 to 20, citing § 4A1.3(a) (4)(B). This gave defendant a guideline range of 72-87 months, and the court sentenced him to 80 months. The court also stated that it “would impose the same sentence under § 3553(a) even if it had not granted the Government’s motion for an upward departure under guidelines § 4A1.3.” Defendant contended that the district court erred procedurally by not performing an incremental analysis in departing upward under § 4A1.3. The Eighth Circuit ruled that any error was harmless, since the court made it clear that the sentence was also on an upward variance under the § 3553(a) factors. It was evident from the sentencing record that the district court specifically relied on factors (1) and (2) of § 3553(a) by noting defendant’s frequent firearm convictions and his high likelihood of recidivism. U.S. v. Timberlake, 679 F.3d 1008 (8th Cir. 2012).
8th Circuit approves above-guideline sentence for firearm offense. (510) Defendant pled guilty to being a felon in possession of a firearm. His guideline range was 30-37 months, but the district court made an upward criminal history departure, and sentenced defendant to 80 months. The court also cited the § 3553(a) factors as an alternate justification for the above-guideline sentence. The Eighth Circuit rejected defendant’s argument that his 80-month sentence was substantively unreasonable. Although the court did not specifically refer to the mitigating factors raised by defendant, defendant raised these issues in his sentencing memo and at the sentencing hearing. Therefore, the panel presumed that the district court considered these mitigating factors and rejected them. At sentencing, the government discussed defendant’s multiple convictions and the failure of more lenient, incremental punishment to prevent recidivism. In pronouncing its sentence, the court emphasized that the instant offense was defendant’s fifth conviction for the illegal possession of a firearm. The court’s emphasis on the defendant’s criminal history and the nature of the offense fell within a sentencing court’s “substantial latitude to determine how much weight to give the various factors under § 3553(a).” U.S. v. Timberlake, 679 F.3d 1008 (8th Cir. 2012).
8th Circuit holds that any error in relying on government exhibits was harmless. (510) Defendant was convicted of making a threatening phone call to destroy a building by fire or explosives. The district court departed upward under § 4A1.3 and § 5K2.21 to the statutory maximum sentence of 120 months. Defendant argued that the district court procedurally erred by considering various government exhibits as reliable proof of his previous arson activity. The Eighth Circuit agreed that the contested exhibits were not reliable proof of defendant’s criminal history—they merely described fires that were tangentially related to defendant, if related at all. All but one of the contested exhibits deemed the reported fires accidental. However, the district court received the exhibits “for whatever relevance they have.” Therefore, the panel presumed that the court only considered the exhibits that corroborated the criminal conduct described in the PSR, and did not consider the exhibits that were irrelevant to defendant’s uncharged criminal conduct. Based on the totality of the evidence, the court concluded that the advisory guideline range did not reflect defendant’s criminal history, his likelihood to recidivate, or his escalating violent behavior. U.S. v. Gant, 663 F.3d 1023 (8th Cir. 2011).
8th Circuit approves upward departure for conviction too old to be included in criminal history. (510) The district court found that defendant’s criminal history category underrepresented his criminal history because a 1985 robbery conviction was excluded from his criminal history because it fell outside the 15-year window for prior convictions. See § 4A1.2(e). Defendant challenged the district court’s criminal history departure, arguing that if § 4A1.2(e) bars the use of a remote sentence in criminal history, then it should not be able to use that sentence to conclude that a defendant’s criminal history category underrepresents his criminal history. The Eighth Circuit disagreed. The guidelines specifically provide that if a defendant’s prior sentence is too remote to merit criminal history points, the court may consider it “in determining whether an upward departure is warranted under § 4A1.3” if the sentence is “evidence of similar, or serious dissimilar, criminal conduct.” Note 8 to § 4A1.2 (e). Because defendant’s 1985 robbery convictions were similar to the robbery defendant committed here, the district court could properly conclude that defendant’s criminal history was underrepresented. U.S. v. Johnson, 648 F.3d 940 (8th Cir. 2011).
8th Circuit finds any procedural error in making criminal history departure was harmless. (510) Defendant argued that the district court erred in departing upward from criminal history category II to VI, and then adding a further offense level for criminal history, without justifying the category increase at each level by comparing defendant’s conduct to those in that criminal history category. The Eighth Circuit held that any procedural error was harmless as a matter of law, because the district court stated that even without the departure, it would have imposed the same sentence. U.S. v. Ortiz, 636 F.3d 389 (8th Cir. 2011).
8th Circuit approves upward criminal history departure. (510) Defendant was convicted by a jury of assault with a dangerous weapon and assault resulting in serious bodily injury in Indian country. The district court departed upward from criminal history category I to category III, finding that his criminal history category underrepresented the likelihood that he would commit further crimes of violence and substantially underrepresented his past actual criminal history. The Eighth Circuit affirmed, ruling that the court adequately explained its reasons for the departure. Defendant’s extensive criminal record included multiple convictions for violent behavior, including two offenses directed at the same victim and consistent with the offense conduct in this case. The court further explained that six of defendant’s seven convictions between 1981 and 1993 were not counted in his criminal history score because they occurred prior to the applicable time period, §4A1.2(e)(3), and that defendant’s numerous tribal convictions also were not counted. See § 4A1.2(i). Based on this record, the district court did not abuse its discretion in departing upward. U.S. v. Shillingstad, 632 F.3d 1031 (8th Cir. 2011).
8th Circuit approves one-level upward criminal history departure for career offender. (510) Defendant’s criminal history category was VI and his offense level was 34. The court found that he was a career offender because of his prior convictions for attempted burglary and kidnapping. This raised defendant’s offense level to 37, but his criminal history level remained at VI. The district court found that defendant’s criminal history was underrepresented, and made a one-level upward departure in offense level. To avoid any double counting issues, the court did not base its departure on the attempted burglary and kidnapping, (which had triggered defendant’s classification as a career offender). Instead, it relied on defendant’s various prior assault convictions, which it found showed a “longstanding pattern of violence” warranting an upward departure. The Eighth Circuit affirmed. A career offender is not immune from an upward departure under § 4A1.3. Relying on convictions unrelated to defendant’s designation as a career offender, but which demonstrated his longstanding propensity towards violence, the court did not abuse its discretion by departing upward. U.S. v. King, 627 F.3d 321 (8th Cir. 2010).
8th Circuit approves upward criminal history departure for multiple uncounted tribal convictions. (510) Defendant pled guilty to engaging and attempting to engage in sexual contact with intent to abuse a minor. His advisory guideline range was 21-27 months, but the district court departed upward to the statutory maximum for his crime–36 months’ imprisonment. Because of a large number of tribal convictions that were not used in computing defendant’s criminal history, the court found that criminal history category III substantially under-represented his actual criminal history. The Eighth Circuit found no abuse of discretion. Standing alone, defendant’s tribal convictions, including seven which were alcohol related, supported the departure. The fact that the priors were only misdemeanors did not require reversal. The court also relied on a dismissed abuse charge. Although defendant argued he had a substantial defense to the abuse charge, there was no evidence the district court misallocated the burden of proof. U.S. v. Cook, 615 F.3d 891 (8th Cir. 2010).
8th Circuit upholds variance for unscored criminal history and violent nature of firearm possession. (510) Defendant pled guilty to firearm possession charges after he and two accomplices committed a nighttime armed robbery of a residence. His advisory guideline range was 120-150 months. The district court found that a guideline sentence was not sufficient, and imposed a 30-month upward variance, sentencing defendant to 180 months. The Eighth Circuit affirmed the upward variance. The court did, as defendant suggested, rely on his past unscored criminal history. However, the court also relied on the fact that the robbery was premeditated, that defendant spent a great deal of time altering the firearm and otherwise preparing, and that his offense conduct was violent: he awakened his victims in the middle of the night and threatened them with a sawed-off shotgun. The fact that his sentence was five years longer than a co-conspirator did not result in an unwarranted sentencing disparity. § 3553(a)(6). The court relied on legitimate distinctions between the conduct of defendant and his co-conspirator. Defendant carried the shotgun, pointed it at the victims, and used it to assault one of the victims. U.S. v. Jones, 612 F.3d 1040 (8th Cir. 2010).
8th Circuit finds no plain error in upward departure based on uncounted prior convictions. (510) Defendant argued for the first time on appeal that the district court committed procedural error in increasing his criminal history category from III to IV based on an under-represented criminal history. He argued that the court improperly relied on contested facts underlying his prior convictions and made findings based on “generic characterizations” of the prior convictions rather than an individualized assessment. Given the nature and number of defendant’s uncounted prior convictions, the Eighth Circuit found no error, plain or otherwise, in the court’s upward departure. Defendant had eight unscored prior convictions, and during his allocution, defendant admitted to the court that “everything you heard is true. I was a bad person. I did hurt my wife. I did drive drunk. And those are terrible crimes.” U.S. v. MacInnis, 607 F.3d 539 (8th Cir. 2010).
8th Circuit approves upward departure based on violent history. (510) Defendant pled guilty to two counts of assault, and was sentenced to 180 months. The district court found that defendant had an underrepresented criminal history and departed upward under § 4A1.3. The court assigned 13 hypothetical criminal-history points to six specific instances of defendant’s conduct. The Eighth Circuit affirmed. First, the victim’s brother testified that, in 2003, he witnessed defendant attempt to attack the victim with a knife. Second, several different hearsay reports described how in 1995, defendant cut the face of her then-husband with broken glass or a knife. The redundant nature of the reports lent reliability as did corroborating statements by officials who observed the cuts on the husband’s face. Third, the PSR noted that defendant was arrested in 1994 after breaking some windows and resisting arrest, all while drunk and belligerent. Defendant did not object to the PSR. Fourth, defendant had a 1981 conviction for beating a pregnant woman. Fifth, defendant was convicted of driving under the influence in South Dakota. Sixth, the court properly found that a dismissed murder charge merited the assignment of three criminal history points. U.S. v. Azure, 596 F.3d 449 (8th Cir. 2010).
8th Circuit approves above-guideline sentence for murder. (510) Defendant pled guilty to two counts of assault with a dangerous weapon. The district court departed upward, finding that defendant committed an execution-style murder, as alleged in a dismissed count. The Eighth Circuit affirmed the sentence, upholding the court’s murder finding. Defendant’s children discovered the victim dead on a bed with two knife cuts on his head and a deep, fatal stab wound to his heart. Defendant was on the floor with several knife wounds on her arm and back. Although defendant claimed the victim attacked her and she acted in self-defense, the government argued that defendant had stabbed herself in order to fabricate a self-defense claim. Defendant did not have any defensive wounds and there was no evidence of a struggle. A crime-scene expert explained that the blood patterns showed defendant received his fatal stab wounds when he was lying down or when standing defenseless at the foot of the bed, immediately before being forced down onto the bed by the stabbing. The blood patterns on the bedcover were consistent with defendant stabbing the victim’s body while straddling his prone body. U.S. v. Azure, 596 F.3d 449 (8th Cir. 2010).
8th Circuit approves two-level departure for underrepresented criminal history. (510) Defendant had an offense level of 33 and a category VI criminal history, with a guideline range of 235-293 months. The court departed upward by two levels under § 4A1.3(a)(1) for substantial underrepresentation of defendant’s dangerousness and recidivism, and the Eighth Circuit affirmed. Defendant’s criminal history was extensive. He amassed all 19 of his criminal history points in just 10 years, and those offenses were not petty. They evidenced defendant’s aggressive and violent tendencies, such as when he found his mother’s home locked, and kicked the door and threatened to “bust” his mother’s “face in” if she did not open the door. Defendant’s conviction for this assaultive conduct did not count among defendant’s four convictions for “violent felonies” within the meaning of the Armed Career Criminal Act. The 240-month sentence imposed by the court (after granting defendant’s motion for a variance) was well below the statutory maximum for the offense of conviction, and was not unreasonable. U.S. v. Jones, 596 F.3d 881 (8th Cir. 2010).
9th Circuit says 120-month above-Guidelines sentence is reasonable for access device fraud. (510) Defendant executed a scheme to obtain money and goods by using stolen retail gift cards. When officers tried to arrest defendant, he led them on a high-speed chase before crashing into another car and injuring its occupant. When arrested, defendant had nearly 4,000 stolen or duplicated gift cards, as well as documents containing account numbers for another 4,000 gift cards. At sentencing, the district court calculated defendant’s sentencing range as 70 to 87 months. Because of defendant’s history of repeated access-device offenses and his effort to escape the police, the district court imposed the statutory maximum of 120 months. The Ninth Circuit held that 120 months was a reasonable sentence. U.S. v. Truong, 587 F.3d 1049 (9th Cir. 2009).
8th Circuit upholds criminal history departure from category VI and variance based on history of violence. (510) Defendant pled guilty to a drug offense and illegal reentry after deportation. The district court found that criminal history category VI underrepresented defendant’s criminal history and departed upward by two offense levels. The court also found that the advisory guideline range did not take into account defendant’s history of violence against women. It made an upward variance of 48 months from the high end of defendant’s sentencing range, and imposed a 210-month sentence. The Eighth Circuit affirmed. The district court did not abuse its discretion in making the upward criminal history departure. The 17 criminal history points were four more than the 13 required for category VI, and they did not reflect defendant’s prior illegal reentries that were not prosecuted. The variance was based on defendant’s history of violence against women, the extent and frequency of his prior violent conduct, his “total disregard for the law,” and the need to protect society. The variance did not result in an unreasonable sentence. U.S. v. Ruvalcava-Perez, 561 F.3d 883 (8th Cir. 2009).
8th Circuit approves upward departure for defendant with history of assaults. (510) Defendant stabbed a bar owner who ejected him from his bar, and plead guilty to one count of assault with a dangerous weapon. His guideline range was 51-63 months, but the district court made an upward criminal history departure and sentenced him to 96 months. The Eighth Circuit affirmed, finding the district court considered the appropriate factors and gave a persuasive explanation for the upward departure. Six of defendant’s seven criminal history points resulted from assault convictions. The district court also discussed defendant’s various tribal court convictions for which no criminal history points were assessed. These convictions included simple assault, multiple assault and batteries, communicating threats, and assaulting an officer. The court addressed how defendant violated the terms of his probation or supervised release, and related how defendant had been disciplined in prison for possession of drug paraphernalia, use of drugs, possessing intoxicants, and assault. U.S. v. Walking Eagle, 553 F.3d 654 (8th Cir. 2009).
8th Circuit approves upward variance based on criminal history already included in criminal history category. (510) Defendant pled guilty to possession of a firearm after being convicted of a misdemeanor crime of domestic violence. Although his guideline range was 85-105 months, the district court varied upward to 120 months. The court based the variance on defendant’s past history of assaults against multiple victims, his admitted drug use of a variety of street drugs, and his likelihood of committing yet another violent offense. The Eighth Circuit held that the sentence was not unreasonable. A court may consider a defendant’s criminal history even if that history is included in defendant’s criminal history category. U.S. v. Barrett, 552 F.3d 724 (8th Cir. 2009).
8th Circuit approves departure where firearm enhancement led to decreased criminal history score. (510) Defendant was convicted of being a felon in possession of a firearm. In 2003, he had been convicted of fleeing a police officer, theft of a motor vehicle, and being a felon in possession of a firearm. Section 2K2.1(b)(6) provides for a four-level enhancement for possessing any firearm in connection with another felony offense. Under U.S. v. Davis, 360 F.3d 901 (8th Cir. 2004), the §2K2.1(b)(6) enhancement was appropriate based on defendant’s possession of the firearm in connection with the 2003 felonies. However, the result of applying this enhancement was to lower defendant’s sentencing range, since the 2003 convictions were now relevant conduct that could not be scored for criminal history purposes. To account for this, the district court departed upward to a sentence that fell within the range that would have been applicable absent the enhancement. The Eighth Circuit upheld the sentence as reasonable. Departures or variances based on disagreements with a guideline provision are not necessarily forbidden. U.S. v. Mosby, 543 F.3d 438 (8th Cir. 2008).
8th Circuit approves departure based on foreign convictions not included in criminal history. (510) Defendant pled guilty to fraud charges. His PSR noted two prior felony fraud convictions in the United Kingdom. The Sentencing Guidelines do not count foreign convictions in the determination of a defendant’s criminal history category, § 4A1.2(h). However, the Guidelines do permit the consideration of foreign convictions as a basis for finding an understated criminal history and departing upwards. The Eighth Circuit upheld defendant’s 44-month sentence. The district court did not improperly base its criminal history calculation on the foreign convictions as prohibited by § 4A1.2(h). Instead, the court used the uncontested fact of the foreign convictions as part of the qualitative analysis of whether the actual criminal history computation accurately represented defendant’s risk of recidivism. Defendant’s foreign convictions demonstrated a clear risk of recidivism given the close relationship between his present offense and his prior offenses and given defendant’s failure to cease participation in fraudulent enterprises even after his incarcerations for similar offenses. U.S. v. Port, 532 F.3d 753 (8th Cir. 2008).
8th Circuit rejects downward variance based on defendant’s age, lack of guns in prior offenses, and completion of probation. (510) Defendant was convicted of drug charges, and, based on his status as a career offender, his resulting guideline range was 360 months to life. The district court sentenced him to 120 months, citing defendant’s status as a juvenile at the time of some of his prior convictions, his age at the time of the current offense, the fact that defendant did not carry a weapon when he committed his past crimes, and the fact that he had successfully completed two terms of probation. After the Eighth Circuit rejected this variance, the Supreme Court remanded for reconsideration in light of Gall. The Eighth Circuit again reversed and remanded. Contrary to its previous ruling, the panel found that the district court did not abuse its discretion in giving significant weight to defendant’s status as a juvenile at the time of some of his prior adult convictions. However, the court did abuse its discretion in substantially basing the variance on defendant’s age (26) at the time of the offense. His age did not distinguish him in any meaningful way from other defendants. The fact that defendant did not carry a weapon when he committed his past crimes was already taken into account in his guideline sentencing range. Finally, the fact that defendant had successfully completed two terms of probation was irrelevant. U.S. v. Feemster, 531 F.3d 615 (8th Cir. 2008).
8th Circuit approves departure for defendant with large number of offenses not included in criminal history. (510) Defendant pled guilty to possession of a firearm by a felon. Although his advisory guideline range was 92-115 months, the district court departed upward to a sentence of 120 months, finding that his criminal history category of VI underrepresented his actual criminal history and his likelihood to recidivate. Defendant had not received criminal history points for a number of juvenile and adult convictions, and defendant had “made it part of his regular routine to steal cars or other items in vehicles.” The Eighth Circuit held that the district court did not abuse its discretion in departing upward. The 18 criminal history points calculated in the PSR were 5 more than the 13 required for category VI, and they only reflected a portion of defendant’s past criminal conduct. He had been a recidivist criminal since age 14, and had several juvenile adjudications for which he had not received any criminal history points, but which could be a basis for departure under§ 4A1.3(a) (2)(A). He also received relatively lenient sentences despite having been convicted of several serious criminal offenses. U.S. v. Miller, 484 F.3d 968 (8th Cir. 2007).
8th Circuit approves large upward departure for defendant with ongoing pattern of predatory activity toward young girls. (510) Defendant attempted to entice a minor he chatted with over the Internet (in reality an undercover officer posing as a 13 year old girl) to engage in sexual activity. Based on information found on defendant’s computer, the government sought an upward departure under § 5K2.21 based on similar, uncharged conduct. The Eighth Circuit affirmed a departure from the advisory range of 78-97 months to a sentence of 180 months. The additional chat room discussion and activities revealed an ongoing pattern of predatory activity by defendant directed toward young girls. The activity was almost identical to the current offense: similar victims, similar attempted contact and enticement, attempted persuasion of parents that their children would be visiting safe friends, graphic discussions of sex, and the use of web cameras to perform sexual acts for the children to view. In addition, defendant graphically described an actual encounter with a 12-year old girl. The 83-month departure, while extraordinary (almost 100% above the top of the advisory guideline range), was not unreasonable. The amount of material involved was substantial and included numerous pornographic images involving minors as well as sexual chat room discussion with, and exhibitionist performances for minors. Defendant used sophisticated means beyond the use of computers, sending presents, creating an alter ego, and posing as a parent of his online persona to assuage parents’ concerns. U.S. v. D’Andrea, 473 F.3d 859 (8th Cir. 2007).
8th Circuit approves upward departure where numerous sexual assaults were not included in criminal history. (510) Defendant was convicted of child pornography and sexual exploitation charges. The district court departed upward from criminal history category V to VI because defendant’s record was “severe and does not bode well at all for the possibility of rehabilitation.” Defendant had three prior convictions for criminal sexual conduct. He had been civilly committed as a sexually dangerous person, and the court there found that he had committed sexual assaults against at least 13 minor females beginning in 1994. However, his criminal history score did not account for many of those assaults because they did not result in criminal charges. A counselor at the sex offender treatment facility where defendant lived testified that defendant continually circumvented facility rules to communicate with minor females by telephone and mail, and that he never meaningfully participated in sex offender treatment. The uncharged sexual assaults were similar to the current offense and indicated a consistent behavior pattern not adequately reflected in defendant’s criminal history. The Eighth Circuit held that the district court did not abuse its discretion in concluding that defendant’s criminal history score underrepresented defendant’s prior criminal conduct and the likelihood that he would recidivate. U.S. v. Mentzos, 462 F.3d 830 (8th Cir. 2006).
8th Circuit approves upward departure despite erroneous consideration of prior arrest record. (510) As grounds for departing upward from criminal history VI , the court noted that defendant “was a career criminal, that his occupation throughout his adult lifetime has been stealing money.” The court pointed to defendant’s numerous convictions for which he received no criminal history points, including convictions for petty theft, injury to property, larceny by check, larceny over $250, and embezzlement. In addition, the court considered several uncontested pending charges against defendant. During sentencing, the court also briefly discussed 12 arrest warrants under defendant’s name. The Eighth Circuit held that that the court improperly considered six of those warrants, but nonetheless affirmed the departure. The records lacked sufficient information concerning the factual nature underlying those six warrants. However, the PSR provided sufficient factual details underlying defendant’s remaining arrest warrants to allow the district court to consider them. Moreover, defendant’s previous convictions, pending charges, and other similar, adult criminal conduct provided adequate grounds to warrant the court’s decision to depart upward. U.S. v. Hacker, 450 F.3d 808 (8th Cir. 2006).
8th Circuit approves 56 percent upward departure for “one man crime wave.” (510) Defendant committed bank fraud in South Dakota while on supervised release for several Massachusetts federal convictions. The district court departed upward under § 4A1.3 from a guideline range of 92-115 months to a sentence of 180 months. The Eighth Circuit ruled that the extent of the departure was reasonable. Although the 56 percent departure was “significant,” the district court did not exceed the bounds of its discretion. As the court noted defendant’s “behavior suggest[ed] an addiction to deceiving people.” Describing defendant as a “one man crime wave,” and pointing to defendant’s “heinous” conduct of stealing his deceased brother’s life insurance proceeds from his mother and bring his mother into legal jeopardy by forging her name on checks and withdrawals, the court stated it had not seen “a more dedicated history of criminal activity” by someone only 38 years old. U.S. v. Hacker, 450 F.3d 808 (8th Cir. 2006).
8th Circuit approves substantial upward variance where defendant refused to disclose childrens’ location. (510) Defendant was charged in state court with parental kidnapping and terrorizing after he failed to return his children to their mother after a weekend visit. The children were never found. After an investigation uncovered six firearms, defendant was charged in federal court with being a felon in possession of a firearm. The district court made a criminal history departure under § 4A1.3 because of a number of uncounted prior convictions and the pending state kidnapping offenses. After considering the § 3553(a) sentencing factors, the court found that a guideline range of 57-71 months’ (after the upward departure) was insufficient, and imposed a non-guideline sentence of 120 months, the statutory maximum. The Eighth Circuit affirmed. The district court properly considered an uncounted conviction for carrying a concealed weapon (even if the weapon was not a firearm) as evidence of prior similar or serious criminal conduct. Although the pending state charges did not involve “prior” criminal conduct, it still was properly considered under § 4A1.3(a)(2)(E), since it suggested a substantial likelihood that defendant would commit future crimes and showed his capacity for violence. It was apparent that defendant intended to persist in depriving his children of their mother and to prevent her from reuniting with them. Because the court carefully considered the § 3553(a) factors, the ten-year non-guideline sentence was not unreasonable, and assuming the children were still alive, would ensure they did not suffer future harm at the hands of their father. U.S. v. Porter, 439 F.3d 845 (8th Cir. 2006).
8th Circuit approves upward criminal history departure for defendant likely to engage in sexual abuse in future. (510) The district court departed upward from criminal history category IV to category VI, stating that it was concerned about defendant’s likelihood to recidivate. The court considered defendant’s prior convictions resulting from and related to the sexual abuse of a child and his refusal to register as a sex offender. The Eighth Circuit agreed that defendant’s repeated violations of the terms of his supervision, not all of which affected his criminal history score, and his pattern of engaging in sexual misconduct, justified a conclusion that he would engage in sexual abuse in the future. The district court did not abuse its discretion in departing upward, and the extent of the upward departure was reasonable. U.S. v. Crume, 422 F.3d 728 (8th Cir. 2005).
8th Circuit says upward departure for repeat sex offender was not improper. (510) Defendant pled guilty to transporting a minor with intent to engage in criminal sexual activity, and stipulated to the application of § 4B1.5(a) as a repeat and dangerous sex offender against minors. The district court also made an upward criminal history departure under § 4A1.3, which defendant argued constituted double counting. The Eight Circuit held that the application of § 4B1.5(a) and § 4A1.3 did not constitute double counting. Section 4B1.5(a) requires that the defendant have at least one prior sex-offense conviction. In contrast, § 4A1.3 takes into account evidence of prior sex-offense conduct that did not result in a sex-offense conviction. Here, in the seven years after defendant was convicted of raping a 15-year old girl, he engaged in number instances of sex-offense conduct that did not result in a conviction, including violating his parole and probation by continuing to have contact with minor females and failing to comply with his sex-offender treatment program. When he was arrested, he possessed sexually explicit photographs of the victim, along with magazines showing sexually explicit photos of teenage girls. He conceded that doctors considered him to be at a high risk to recidivate. U.S. v. Cramer, 414 F.3d 983 (8th Cir. 2005).
8th Circuit upholds departure based on vulnerability of victim, uncharged conduct and extreme conduct in father’s abuse of four-year old son. (510) Defendant pled guilty to assault resulting in serious bodily injury in connection with a broken leg and other injuries suffered by his four-year old son. The Eighth Circuit held that the district court properly departed under § 5K2.0 based on the vulnerability of the victim. The young child was in defendant’s care and custody, and was much more vulnerable to him due to defendant’s access to him, the ease in hiding the conduct, and the difficulty the victim would have in reporting the defendant’s conduct. Punishment in excess of the two-level adjustment under § 3A1.1 may be proper in certain cases involving vulnerable victims who have multiple vulnerabilities. The vulnerability of defendant’s young son was a circumstances existing “to a degree” not considered by the Sentencing Commission when it promulgated § 3A1.1(a) (1). The district court also properly found that defendant caused numerous burns on the boy, which supported a departure under § 5K2.21 (uncharged conduct). The district court did not abuse its discretion in considering defendant’s history of relatively minor offenses that were not counted in his criminal history score. Between 1996 and 2002, defendant had one violation of law after another, including three convictions for exhibition driving, four convictions for driving with a suspended license, four convictions for speeding, one conviction for disorderly conduct, and four convictions for passing checks with insufficient funds. Finally, the court properly departed under § 5K2.7 for extreme conduct. The district court found defendant’s conduct was “heinous, cruel, and brutal beyond the characteristics associated with the crime of assault resulting in serious bodily injury,” and involved ‘the gratuitous inflictions of injury.” U.S. v. Schwalk, 412 F.3d 929 (8th Cir. 2005).
8th Circuit approves upward departure based on old convictions for dissimilar but serious offenses. (510) The guidelines expressly permit a district court to depart upward on the basis of convictions that are too old to receive criminal history points if the offenses are dissimilar but serious offenses. Defendant’s convictions for burglary, armed robbery, stealing from a person, and escape from custody, were serious offenses. In addition, the convictions were evidence of the likelihood of recidivism, since they showed defendant’s incorrigibility. The district court permissibly considered the career offender range as an indicator of a reasonable sentence for someone with such an extensive criminal history. Because defendant had been in prison much of the time between 1974 and the start of the current conspiracy, only incarceration kept defendant’s criminal history as low as category III. The Eighth Circuit held that the district court’s upward departure to a 327-month sentence was not unreasonable. U.S. v. Adams, 401 F.3d 886 (8th Cir. 2005).
8th Circuit approves upward criminal history departure based on severity of prior conviction. (510) The district court, sua sponte, departed upward two criminal history categories. The court based a one-category departure on defendant’s prior second-degree murder conviction, despite the crime’s prior consideration in computing his criminal history. The Eighth Circuit found this reasonable. Neither the guidelines nor the commentary prohibit considering convictions also used to award criminal-history points. Some categories of crimes, such as murder, would be underrepresented by an inflexible three-point addition for any sentence over one year and one month. Defendant was previously sentenced to 50 years for murder, and paroled after serving only about seven years. The violent nature of the murder conviction, the length of the sentence, and the time actually served supported a finding that defendant’s criminal history category substantially underrepresented the seriousness of his criminal history. The second departure in criminal history category was based on defendant’s four parole violations, including three failed urinalysis tests. Defendant also admitted numerous other incidents of criminal conduct, all drug-related but not charged, for which he received no criminal history points. The district court reasonably considered defendant’s continued drug-related uncharged conduct as proof that his criminal history category substantially underrepresented the seriousness of his criminal history and potential for recidivism. U.S. v. Yahnke, 395 F.3d 823 (8th Cir. 2005).
8th Circuit upholds departure by one offense level for every three criminal history points above category VI. (510) Defendant had 31 criminal history points, 18 points more than the 13-point minimum required for criminal history category VI. The district court found that category VI did not adequately reflect defendant’s criminal history and likelihood of recidivism. The district court departed upwards one offense level for every three such criminal history points. This resulted in a five-level offense level departure, because the district court reasoned that category VI would include points 13-15, the next category would includes points 16-18, and so on. The Eighth Circuit affirmed the departure, finding the departure was warranted and the method of computing the departure reasonable. Defendant’s criminal history was extensive, and he had more than 30 prior adult convictions or record, many of which were not included in his criminal history score. His criminal history was “replete with drug crimes, illegal entries and deportations, and a more recent turn towards violence and other crimes that presented an obvious and growing danger towards society.” The district court’s method of determining the extent of the departure was reasonable. The guidelines do not provide a lot of guideline in structuring a departure above category VI. A district court should be free to use whatever method they choose in determining the extent of such a departure, provided the method chosen is not inconsistent with the guidelines. U.S. v. Gonzales-Ortega, 346 F.3d 800 (8th Cir. 2003).
8th Circuit approves departure based on understated criminal history and disruption of government function. (510) Defendant burned two vans belonging to the Rock Creek District Community Center. Defendant’s criminal history category was I, and his guideline range was four to ten months. The district court departed upward to a sentence of 23 months based on two factors: (1) defendant’s criminal history category significantly understated his past criminal conduct, § 4A1.3; and (2) defendant’s crimes significantly disrupted a governmental function, § 5K2.7. The Eighth Circuit affirmed. Defendant’s criminal history category underrepresented the seriousness of his past criminal conduct because during a presentence interview, defendant admitted to selling marijuana, abusing inhalants, alcohol, amphetamines and marijuana, and stealing about $1000 per week. Defendant’s arson significantly interrupted a governmental function. The Rock Creek District used the vans that defendant destroyed to deliver meals on wheels, to transport youths to special events, and take other district members to community events. The District Chairman testified the loss caused many of the members of the community to lose their source of transportation for three months. The Rock Creek District is a “very impoverished area where the vast majority of people are people of low income, without their own source of transportation.” The Rock Creek District, a Native American Tribal District, qualified as a “governmental entity” for purposes of § 5K2.7. U.S. v. Archambault, 344 F.3d 732 (8th Cir. 2003).
8th Circuit upholds departure from category III to V based on uncounted state and tribal convictions. (510) The Eighth Circuit upheld a departure from criminal history category III to V based on a long list of state and tribal charges for which defendant received no criminal history points. Defendant received no points for several state convictions because they were too old under § 4A1.2(e). Convictions that do not receive points due to the age may by used to support an upward departure either if they are similar to the instant offense or they are dissimilar but serious. Defendant’s trio of DWI convictions and his conviction for drug possession was similar to his “alcohol-fueled sexual abuse” here. Defendant’s prior burglary conviction was properly taken into account as dissimilar but serious conduct. Defendant also did not receive any points for several tribal convictions, including one for public intoxication and two for DWI. These convictions were properly used for departure purposes because they “buttressed the conclusion that [defendant] had been drinking to excess and breaking the law for a long time without concern for the consequences.” Finally, the district court found that defendant’s 1996 conviction for abusive sexual contact, for which he received a two-year sentence, understated the seriousness of his actual conduct, which involved the forcible rape of a 15-year old girl. Viewing defendant’s long series of crimes from 1975 through 2002 as a whole, the district court reasonably inferred that no previous sanction had been adequate to punish him and deter him from committing additional crimes. U.S. v. Long Turkey, 342 F.3d 856 (8th Cir. 2003).
8th Circuit approves upward departure for defendant who would have been career offender but for age. (510) At the age of 17, defendant shot one of his drug suppliers, and eventually pled guilty in federal court to drug charges. A state charge of attempted murder was dropped when defendant agreed to plead guilty to a reduced charge of terrorism after his federal sentencing. The district court found that defendant’s criminal history category IV did not adequately reflect the seriousness of his past criminal conduct and likelihood of recidivism, noting that although defendant was only 18 at sentencing, his criminal history was “one of the more extensive and violent … that [it had] seen in nearly 700 criminal defendants sentenced.” Further, if defendant had been 18 at the time of the drug offense and had pled guilty to the state charge before the federal sentencing, he would have been deemed a career criminal under the guidelines. The Eighth Circuit found no error, given defendant’s extensive history of wrongdoing and his inability to reform despite the previously leniency afforded him. The departure of 115 months beyond the 120-month mandatory minimum sentence was not unreasonable. Defendant’s criminal history was a record of frequent and often violent criminal behavior that culminated in the sudden shooting of a drug dealer. His repeated encounters with the criminal justice system have prove incapable of deterring him from further illegal activity. The sentence imposed was 27 months less than the minimum sentence that would have applied to defendant as a career offender, and was not an abuse of discretion. U.S. v. Flores, 336 F.3d 760 (8th Cir. 2003).
8th Circuit approves upward departure based on older convictions excluded from criminal history score. (510) Although defendant was convicted in 1975 for grand stealing, in 1975 for uttering a no-account check, in 1977 for selling methamphetamine, in 1980 for property destruction, in 1980 for selling meth, and in 1981 for stealing, he was not assessed any criminal history points for these convictions due to their age. See § 4A1.2(e). Had he received points for these older convictions, his criminal history category would have been VI rather than III. The guidelines expressly permit a court to depart upward on the basis of older, excluded convictions either if the offenses are similar to the instant criminal conduct or if they are dissimilar but serious offenses. See Note 8 to § 4A1.2. The Eighth Circuit affirmed an upward departure from Criminal History Category III to V. Defendant’s prior convictions for selling meth were properly taken into account because they were serious and related to his relevant conduct in the current offense. The district court also properly took into account defendant’s remaining convictions because even offenses which are minor and dissimilar to the current crime may serve as evidence of the likelihood of recidivism if they evince the defendant’s incorrigibility. In viewing defendant’s string of crimes from 1974 through 2001 as a whole, the district court could reasonably infer that no previous sanction had been effective in stopping him from committing crimes. U.S. v. Agee, 333 F.3d 864 (8th Cir. 2003).
8th Circuit approves upward criminal history departure for defendant with 45-year record. (510) Because the convictions were too old to be counted in his criminal history, defendant received no criminal history points for four prior burglary convictions, two prior convictions involving firearms, seven prior convictions for theft, four prior conviction for offenses involving motor vehicles, two prior convictions for assault, and one prior conviction for fraud. The district court departed under § 4A1.3 and § 5K2.21 from category II to V. The Eighth Circuit affirmed. Defendant was a recidivist criminal. During the last 45 years, he had been convicted of about 20 crimes. Defendant failed to cite even a single case in support of his claim that an upward departure was unwarranted in these circumstances. Moreover, the district court properly ruled that defendant’s possession of six firearms amounted to six different felonies. The government charged defendant with only one count of being a felon in possession of a firearm, but each firearm could have been charged as a separate federal crime. U.S. v. Chesborough, 333 F.3d 872 (8th Cir. 2003).
8th Circuit says upward departure was proper under abuse of discretion and PROTECT Act’s standard of review. (510) The district court departed upward under § 4A1.3, finding that defendant’s criminal history category of V underrepresented his actual criminal history. Prior to the enactment of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act, the Eighth Circuit would have reviewed the upward departure for an abuse of discretion. Section 401(d) of the Act required it to review de novo whether the court complied with the Act’s requirement that the reasons for departure be stated with specificity in the written order of judgment and whether the district court’s departure was based on an impermissible ground. The Eighth Circuit found it unnecessary to decide whether the Act’s standard was applicable, because it would have affirmed the upward departure under either standard. The district court listed a number of factors in support of the departure: (1) two convictions which took place 15 years before the instant offense were not included in defendant’s criminal history; (2) the violent nature of the offenses which had been included in calculating his criminal history score; (3) defendant had spent two-thirds of his adult life in prison, and but for this, would certainly have had a criminal history category of VI; (4) defendant had displayed violent and antisocial conduct even while incarcerated. Moreover, defendant made threats to the district court, the probation office and the AUSA during the proceedings. The district court relied on permissible bases of departure, and its findings of fact were more than sufficient to justify the upward departure. U.S. v. Tarantola, 332 F.3d 498 (8th Cir. 2003).
8th Circuit affirms upward criminal history departure for “unrepentant, incorrigible recidivist.” (510) Defendant had 16 criminal history points, three more than the threshold necessary for Category VI, the highest criminal history category. In addition, he had several offenses that were not included in this calculation, including three additional theft and burglary convictions which he committed before he was 18, a pending reckless driving charge on which he failed to appear, and had illegally reentered the country at least once before the current offense. The district court found that criminal history category VI did not adequately reflect the seriousness of defendant’s past criminal conduct and departed upward by one offense level. The Eighth Circuit affirmed. Where a defendant’s repeated criminal behavior reflects “obvious incorrigibility,” an upward departure is appropriate. Here, none of defendant’s prior convictions, sentences or deportation altered his behavior, which demonstrated that he was an “unrepentant, incorrigible, recidivist, who posed a significant threat to the safety of the community.” U.S. v. Aguilar-Lopez, 329 F.3d 960 (8th Cir. 2003).
8th Circuit affirms two-category criminal history departure. (510) The court found that criminal history category III did not adequately reflect the seriousness of defendant’s past criminal conduct or the likelihood that he would commit future crimes. Describing defendant as “a classic con man, and a crook of long standing throughout his lifetime,” the court departed upward under U.S.S.G. § 4A1.3 to criminal history category V. Defendant had previously been convicted of 17 counts of mail fraud, had failed to appear in the courts of at least two different states after being charged with grand theft and embezzlement, had been associated with a multitude of business, some owing millions of dollars to unsecured creditors, had operated a foundation that was shut down by authorities for using fraud and deceptive practices, claimed to have posttraumatic stress disorder from service in Vietnam even though he had never served in the military, and had used at least six false social security numbers. The Eighth Circuit affirmed the departure. Although defendant argued that some of the fraud was not proven, a sentencing court need only base a departure on reliable information. The court was not required to “specifically mention that it had considered each intermediate criminal history category.” The court adequately explained the extent of the departure. The court noted defendant’s failure to reform after his prior mail fraud conviction, possession of several fake passports and false social security numbers, use of multiple aliases, association with over 50 different business names, and possible preparation to commit further fraud. U.S. v. Thornberg, 326 F.3d 1023 (8th Cir. 2003).
8th Circuit approves departure based on prior civil adjudications used by another court for departure. (510) Defendant was convicted in an Arkansas district court of charges relating to his involvement in a scheme to prepare and file false tax returns with the IRS. After he was convicted, he plead guilty in the District of Montana to charges arising from the operation of his tax scheme in that state. Defendant challenged the district court’s upward departure under § 4A1.3 based on prior civil adjudications, because these same prior civil adjudications were the basis for an upward departure in the Montana case. The Eighth Circuit found no abuse of discretion. Section 4A1.3(c) provides that a court may consider prior similar civilly-adjudicated misconduct. Defendant cited no authority to suggest that the guidelines impose any prohibition on the use of civil cases previously considered by another court. U.S. v. Fletcher, 322 F.3d 508 (8th Cir. 2003).
8th Circuit affirms upward departure from Criminal History Category VI. (510) Defendant’s prior convictions resulted in 15 criminal history points, placing him in Category VI, the highest criminal history category. He repeatedly committed mail theft within months of his release from prison, and his latest offense involved mail theft from at least 16 victims. Although his repeated offenses over a relatively short period of time placed him in the highest criminal history category, his guideline range without an upward departure (12 to 18 months) would have resulted in no greater punishment that he received for his prior mail theft offenses. In these circumstances, the Eighth Circuit ruled that the district court did not abuse its discretion by departing upward to a sentence of 30 months on the ground that the guideline range did not “adequately address the likelihood of recidivism.” U.S. v. Vagenas, 318 F.3d 819 (8th Cir. 2003).
8th Circuit approves upward departure based on four instances of uncharged criminal conduct. (510) After an argument with her boyfriend, defendant ran over him with her van and killed him. During an evidentiary hearing, the district court heard evidence of numerous instances of uncharged criminal conduct from defendant’s past. The district court departed upward based on the following four instances: (1) defendant’s vehicular assault on a previous boyfriend (before his death); (2) defendant’s vehicular assault on a woman; (3) defendant’s stabbing of one witness; and (4) defendant’s stabbing of a third party. The Eighth Circuit affirmed. On the basis of the sentencing, it was reasonable of the district court to reject defendant’s interpretations of the evidence. The court also did not err in determining the extent of the departure. The court determined that three instances of uncharged conduct each merited three criminal history points, thereby treating each instance as if it had resulted in a conviction and sentence of imprisonment. See USSG § 4A1.1(a). The district court was not limited to assigning two or fewer points to defendant’s instances of uncharged conduct. The four instances the court relied on were serious and the tip of an iceberg. In considering the gravity of these incidents, the court placed them in their proper context – defendant’s habitual and alarming use of violence towards others. U.S. v. Leaf, 306 F.3d 529 (8th Cir. 2002).
8th Circuit upholds departures based on foreign convictions. (510) Defendant fell under Criminal History category I because his 14 prior Australian convictions were not included in the criminal history calculation. The district court departed upward, finding that a criminal history category of I did not adequately reflect either the seriousness of his past criminal conduct or his likelihood of recidivism. If his three most recent Australian convictions had been counted, defendant would have fallen into Category VI with a range of 30-37 months. The court imposed a 37-month sentence. The Eighth Circuit held that the district court did not err in relying on the foreign convictions to sentence defendant as if he fell within Category IV. The court explained why Category I did not adequately represent his criminal history or his likelihood of recidivism, and the court was not required to compare defendant explicitly to other offenders in that category before departing upward. The court could properly consider defendant’s entire foreign criminal record. Even offenses that are minor and dissimilar to the offense of conviction may be considered as evidence of a risk of recidivism if they evince “obvious incorrigibility.” Defendant had an extensive criminal history spanning three decades. Several of his convictions were for frauds similar to the crimes at issue here. These “repeated violations show [defendant’s] disrespect for the law and that leniency has not been effective.” U.S. v. Levi, 229 F.3d 677 (8th Cir. 2000).
8th Circuit remands where court may have overlooked predicate career offender felony. (520) To qualify as a “prior felony” for career offender purposes, the felony must receive criminal history points under subsection (a), (b) or (c) or § 4A1.1. USSG § 4B1.2(c). Defendant’s burglary conviction was consolidated for sentencing purposes with a conviction for receiving and concealing stolen property. Thus, the two convictions were deemed related cases and were “to be treated as one sentence for purposes of § 4A1.1(a), (b) and (c).” USSG § 4A1.2 and Note 3. Defendant argued that the probation offices and district courts should be required to list the offenses within a group of related cases in the order that they were charged for the purpose of assigning criminal history points. If that were done here, defendant’s stolen property charge would be listed first and would receive three criminal history points under § 4A1.1(a), and the court could then assign the burglary charges each one point under § 4A1.1(f). Under this approach, defendant would not qualify as a career offender because receiving stolen property is not a crime of violence, and the burglaries did not receive criminal history points under § 4A1.1(a), (b), or (c). When the district court addressed the career offender status, it made no finding on the burglary charges. Therefore, it may have overlooked these offenses in declining to sentence defendant as a career offender. “In a situation such as this, the district court should be given the first opportunity to use its discretion in applying the sentencing guidelines to the facts of the case.” Thus, the Eighth Circuit remanded. U.S. v. Peters, 215 F.3d 861 (8th Cir. 2000).
8th Circuit makes criminal history departure based on uncounted tribal convictions. (510) While driving drunk, defendant collided with another car, killing its driver. He then drove home and assaulted his girlfriend. At sentencing, the district court specifically found that defendant’s criminal history category was inadequate, and departed from category IV to VI. Tribal court convictions are not assigned points in the computation of a criminal history category. See USSG § 4A1.2(i). Often, tribal convictions are based on uncounseled guilty pleas, entered for the purpose of leaving the jail, and should not be counted. However, where, as here, the incidence of alcohol-inspired assaultive behavior is frequent, the Eighth Circuit ruled that the district court may properly consider these convictions in its decision to depart upward. U.S. v. Waugh, 207 F.3d 1098 (8th Cir. 2000).
8th Circuit departs upward for young defendant who had received repeated leniency. (510) Defendant was 22 years old and fell within criminal history category I. His numerous juvenile convictions were excluded from his criminal history because they occurred more than five years before the charged offenses. In addition, numerous adult convictions, many for traffic violations, were excluded because they did not result in a term of probation of at least one year or imprisonment for at least 30 days. The district court departed to criminal history category II, stating that it had never seen a criminal history category of I for a defendant who had such an extensive record at such a young age. The Eighth Circuit affirmed the departure. In deciding the likelihood that a defendant may commit other crimes, a court may “take into account any ‘evidence of obvious incorrigibility’” and “conclude that … leniency has not been effective.” Such evidence especially may be relevant with younger defendants “who are more likely to have received repeated lenient treatment, yet who may actually pose a greater risk of serious recidivism than older defendants.” Background commentary to § 4A1.3. Defendant’s repeated violations showed his disrespect for the law and that leniency had not been effective. U.S. v. Herr, 202 F.3d 1014 (8th Cir. 2000).
8th Circuit departs based on similarity of prior offenses excluded from criminal history calculation. (510) Defendant lost control of his car in Indian country, killing one passenger and injuring himself and two others. At the time, his blood alcohol level was well above the legal limit and he was racing another vehicle on a narrow road. The district court departed from criminal history category III to IV because of the likelihood that defendant would commit other crimes in light of the similarity of past offenses to the current offense. Defendant had seven prior offenses that resulted in less than 60 days’ imprisonment, giving him only four criminal history points. See USSG § 4A1.1(c) (imposing a four-point “cap” for all past offenses resulting in less than 60 days’ imprisonment). Six of the seven prior offenses involved drugs or alcohol, indicating a serious longstanding abuse problem. Because of the similarity between defendant’s past offenses and the current offense and the chronic nature of his substance abuse, the Eighth Circuit affirmed the criminal history departure. U.S. v. Goings, 200 F.3d 539 (8th Cir. 2000).
8th Circuit departs upward because tribal convictions were excluded from criminal history. (510) Defendant had been convicted in tribal court four times for assault and battery and once for violence to a police officer. The Eighth Circuit affirmed an upward departure from criminal history category II to III based on these tribal convictions, which had been excluded from defendant’s criminal history. Section 4A1.3(a) expressly allows an upward departure to reflect tribal offenses. Moreover, any error in calculating the criminal history would be harmless since the court could have sentenced defendant to the same sentence even without the departure. U.S. v. Drapeau, 121 F.3d 344 (8th Cir. 1997).
8th Circuit affirms departure for “unrepentant, incorrigible recidivist” with 19 points. (510) The district court departed upward from criminal history category VI, noting that defendant’s criminal history score of 19 was well above the 13-point threshold for category VI, that defendant’s crimes had increased in seriousness, and that defendant had used drugs while in custody awaiting trial. The court concluded that defendant would never “straighten out.” The Eighth Circuit affirmed the upward departure. The district court did not err in determining that defendant was “an unrepentant, incorrigible recidivist, who pose[d] a significant threat to the safety of the community.” U.S. v. Lank, 108 F.3d 860 (8th Cir. 1997).
8th Circuit approves upward departure based on uncharged crimes. (510) Defendant pled guilty to one count of interstate transportation of stolen property. At sentencing, the district court considered defendant’s state convictions for similar crimes as relevant conduct under § 1B1.3, rather than using them to calculate his criminal history score. He thus received zero criminal history points. The district court departed upward under § 4A1.3 because defendant’s criminal history category did not adequately represent the seriousness of his past criminal conduct. Defendant argued that the upward departure essentially double counted his state convictions. The Eighth Circuit found no double counting problem in the upward departure, since it was based on 16 burglaries for which neither federal nor state charges were ever brought. Uncharged conduct can properly be considered when departing under § 4A1.3. U.S. v. Collins, 104 F.3d 143 (8th Cir. 1997).
8th Circuit approves upward departure for criminal history and anguish to elderly victim. (510) Defendant and his drug addict accomplices opened bank accounts in different names, deposited bogus checks and withdrew cash before the checks bounced. The Eighth Circuit approved an upward departure based on defendant’s criminal history and the anguish he caused an elderly victim of the fraud. Defendant’s extensive criminal history put him outside the heartland of offenders in category IV. Defendant was 52 years old. He began committing serious crimes at age 16. Many of these offenses were excluded from his criminal history due to their age. He had been incarcerated one-half of his adult life and resumed criminal activity promptly upon release from prison. The four level departure under § 5K2.0 was based on the fictitious account defendant opened in the name of an elderly waitress. This fraud only resulted in a small loss to the bank, but caused a warrant to be issued in the woman’s name, and police questioned her at home before concluding she was innocent. Note 11 to § 2F1.1 states that departure may be warranted where the actual loss does not adequately reflect the seriousness of the conduct. U.S. v. Washington, 109 F.3d 459 (8th Cir. 1997).
8th Circuit approves departure for continued criminal behavior. (510) Defendant mailed two threatening letters to a local prosecutor and prison officials. The district court departed upward under § 4A1.3 on the ground that defendant’s criminal history was under-represented, and sentenced him to the statutory maximum penalty of five years on each count. The Eighth Circuit affirmed the departure based on defendant’s continued criminal behavior. Defendant’s criminal history category did not include his more recent threatening letters to the probation office, the Missouri Supreme Court, and the Governor of Missouri. Also, defendant did not deny telling his probation officer that he planned to send more threatening letters to the victims in this case. U.S. v. Poe, 96 F.3d 333 (8th Cir. 1996).
8th Circuit approves upward departure for incorrigible recidivist. (510) The district court departed upward based on defendant’s extensive criminal history and its conclusion that defendant was incorrigible and needed to be deterred from future criminal activity. The 8th Circuit approved both the grounds and the extent of the departure. Defendant had 26 criminal history points (twice the number needed for the highest criminal history category), two uncounted juvenile convictions, two uncounted adult convictions, and six pending armed robbery charges. Defendant committed the instant offense less than three months after being paroled in connection with a similar offense. The extent of the departure (from a mandatory minimum of 180 months to a sentence of 300 months) was reasonable, given the extent of defendant’s criminal history and the failure of prior incarcerations to deter him from criminal activity. U.S. v. Saffeels, 39 F.3d 833 (8th Cir. 1994).
8th Circuit approves upward departure to give extra prison time over state sentence. (510) At the time of sentencing, defendant was serving a 74-month sentence for a Michigan offense. The guideline range for the instant offense was 51-63 months. Under § 5G1.3, the district court determined that if defendant had been sentenced for both the Michigan offense and the instant offense at the same time, he would have a guideline range of 33-41 months. In order for defendant to receive extra prison time for the instant offense, the district court departed upward to a 98-month concurrent sentence. The 8th Circuit affirmed. The evidence supported the court’s finding that defendant’s criminal history did not reflect his likelihood of recidivism, and the guidelines did not adequately consider the crime’s impact on the victim. U.S. v. Duranseau, 26 F.3d 804 (8th Cir. 1994).
8th Circuit upholds departure from category VI for extensive criminal history. (510) The 8th Circuit upheld an upward departure from criminal history category VI based on defendant’s extensive and violent criminal history. Defendant had 21 criminal history points, well above the 13-point threshold for category VI. He committed additional crimes outside the guidelines’ 15-year period. The district court also noted the violent nature of many of his prior offenses. The district court’s reference to the fact that defendant narrowly missed a career offender enhancement was not grounds for reversal. This statement was merely a short-hand way of referring to the fact that defendant had multiple, uncounted violent felonies that should be factored into the upward departure equation and was not the court’s entire analysis of his criminal history. U.S. v. Nomeland, 7 F.3d 744 (8th Cir. 1993).
8th Circuit upholds departure based on conduct underlying invalid convictions. (510) The district court found that two of defendant’s prior convictions were invalid because the court had accepted guilty pleas without prior competency hearings. Although the convictions were excluded from defendant’s criminal history, the district court departed upward based on these offenses. The 8th Circuit affirmed. Application note 6 to §4A1.2 provides that the criminal conduct underlying any conviction that is not counted in the criminal history score may be considered grounds for departure under §4A1.3. The district court stated that it was considering the conduct underlying the two invalid convictions, not the convictions themselves. Defendant did not deny that he committed the acts in question. U.S. v. Day, 998 F.3d 622 (8th Cir. 1993).
8th Circuit approves criminal history departure determined by increasing offense level. (510) In departing upward, the district judge noted he was departing from a base offense level of 14 in criminal history category V, to level 18, which resulted in a range of 51 to 63 months. Defendant received a 60-month sentence. In concluding that the district court adequately explained why criminal history categories V and VI were inadequate, the 8th Circuit implicitly approved the district court’s method for calculating the extent of the departure. The method was substantially the same as adopted under the November 1992 amendment to §4A1.3, which provides that a court should structure an upward departure from criminal history category VI by moving incrementally down the sentencing table to the next higher offense level in criminal history category VI until it finds a guideline range appropriate to the case. U.S. v. Day, 998 F.3d 622 (8th Cir. 1993).
8th Circuit approves upward departure based on deferred prosecutions and continuing threats. (510) Defendant was convicted of making a false bomb threat concerning a commercial passenger plane. The 8th Circuit affirmed an upward departure, concluding that her criminal history did not adequately reflect the seriousness of her past conduct or the likelihood that she would commit future crimes. Defendant had been arrested for a number of past offenses that did not result in criminal convictions. Also she received the benefit of two deferred prosecutions, both involving threats against the life of the President of the United States. Moreover, defendant continued to make phone calls and write letters to a deputy U.S. Marshal, threatening to kill him and his family. While incarcerated on the instant offense, she also obtained a pin out of a weight machine, and stated that she was going to sharpen the pin and use it to attack either court personnel or the judge. U.S. v. Sweet, 985 F.2d 443 (8th Cir. 1993).
8th Circuit upholds departure for uncounted convictions, pending charges, and deterrence. (510) The 8th Circuit affirmed an upward criminal history departure based on prior convictions not counted in defendant’s criminal history score, pending charges, and the failure of previous sentences to deter defendant. First, the district court found that if defendant received a point for each of the four prior convictions not counted in his criminal history score, he would be placed in category V rather than category III. Second, defendant had two pending fraud charges in state court. Finally, the court found that previous lenient sentences had not deterred defendant from committing other crimes. The majority agreed with Judge Arnold’s dissent that the unproven charges, by themselves, did not provide a solid basis for departure, but found that under the circumstances, they were more than ample to warrant the modest departure taken. Judge Arnold dissented. U.S. v. Morse, 983 F.2d 851 (8th Cir. 1993).
8th Circuit says departure based on threat to ex-wife and boyfriend would have been proper. (510) Defendant was convicted under 18 U.S.C. sections 842(i) and 844, which prohibits any person who has previously been committed to a mental institution from shipping or receiving any explosive material in interstate commerce. The district court departed upward because defendant was a threat to society, in particular his ex-wife and her boyfriend. The pipe bomb defendant possessed was capable of seriously injuring and killing other persons, and defendant wrote several threatening letters and harassed his ex-wife and her boyfriend. Although the 8th Circuit had to remand for other reasons, it found that the district court relied on appropriate factors to support the upward departure, and that the 41-month sentence was “patently reasonable and justified.” U.S. v. Van Horn, 976 F.2d 1180 (8th Cir. 1992).
8th Circuit upholds upward departure for “incorrigible recidivist.” (510) Defendant pled guilty to illegally re-entering the United States after deportation. He had been in the United States almost continually since 1980, had been arrested 15 times and deported eight times. He fell within criminal history category V and had a guideline range of 21-27 months. The district court first departed to criminal history category VI based on the seriousness of his past criminal conduct and high risk of recidivism. Finding that the additional three months incarceration provided by such a departure was inadequate, the court then departed under 5K2.0, and imposed a 48-month sentence. The reasons were (1) defendant’s proclivity for recidivism, (2) defendant’ need to be deterred from future criminal conduct, (3) the inadequacy of defendant’s criminal history, and (4) the serious danger defendant represented to the community. The 8th Circuit upheld the departure. U.S. v. Lara-Banda, 972 F.2d 958 (8th Cir. 1992).
8th Circuit upholds departure for outdated juvenile convictions despite other improper reasons. (510) The district court departed upward in part because defendant’s juvenile offenses were not counted in his criminal history score. Defendant contended that the departure was improper because his juvenile offenses were not evidence of misconduct similar to the instant offense. The 8th Circuit held that, whether or nor the offenses were evidence of similar misconduct, the district court has discretion to consider outdated juvenile offenses as a ground for departure under section 5K2.0. The extent of the departure, from a range of 15 to 21 months, to a sentence of 42 months, was reasonable, even though three of the other reasons stated by the district court as grounds for the departure were improper. Judge Beam dissented, believing that the single permissible ground for departure, the outdated juvenile offenses, did not justify a departure of such magnitude. U.S. v. Griess, 971 F.2d 1368 (8th Cir. 1992).
8th Circuit affirms upward departure for lenient prior sentences, number of uncounted convictions, and fact that defendant dealt drugs to minors. (510) Defendant fell within criminal history category III based upon two prior marijuana convictions for which he received 10-year suspended sentences. The 8th Circuit affirmed an upward departure from a guideline range of 188 to 235 to a sentence of 264 months based upon the fact that (a) defendant had received extremely lenient punishment for his prior convictions, (b) there were a number of convictions which were not included in his criminal history because they were too old, (c) a cocaine conviction was not included in his criminal history because it was on appeal, and (d) defendant had dealt drugs with two persons under the age of 21. The district court reasonably concluded that defendant’s long history in the drug trade and his failure to stop dealing even after his prior conviction indicated a long sentence was required to deter him from continuing his marijuana distribution. The extent of the departure was also reasonable, since his sentence fell well within criminal history category V. U.S. v. Davila, 964 F.2d 778 (8th Cir. 1992).
8th Circuit affirms upward departure based upon defendant’s propensity to use a firearm. (510) Defendant was convicted of being a felon in possession of a firearm. The 8th Circuit affirmed a departure from a guideline range of 21 to 27 months to a sentence of 60 months. The departure was based upon the failure of criminal history category V to adequately represent the seriousness of defendant’s criminal history, defendant’s willingness to use firearms in the commission of crimes in the past, and defendant’s failure to be deterred in the use of possession of firearms. The sentencing guidelines expressly recognize that a criminal history category may not adequately reflect the seriousness of a defendant’s past criminal conduct or the likelihood that defendant will commit other crimes. Additionally neither defendant’s offense level or criminal history fully took into consideration his propensity to use a firearm — defendant had previously fired a gun at two individuals, and was apprehended because he entered a convenience store with a loaded weapon. The 60 month sentence was reasonable. U.S. v. Lloyd, 958 F.2d 804 (8th Cir. 1992).
8th Circuit approves upward departure for repeated frauds, past lenient treatment, and harm caused. (510) Defendant was convicted of six counts of social security number misuse after using various names and social security numbers to obtain jobs and credit in different cities. The 8th Circuit affirmed an upward departure based upon defendant’s repeated use of the same fraudulent scheme, two prior offenses which were not counted because of their age, two additional pending fraud charges, an outstanding warrant for a probation violation, the lenient treatment defendant received in the past, and the fact that the dollar loss did not fully take into account the harm caused by defendant’s fraud. Based upon all these factors, the decision to depart upward from a range of 18 to 24 months to a sentence of 36 months was reasonable. U.S. v. Saunders, 957 F.2d 1488 (8th Cir. 1992).
8th Circuit upholds upward departure based upon “old” convictions. (510) The district court departed upward from a guideline range of 37 to 46 months and sentenced defendant to 90 months. The 8th Circuit affirmed, finding no abuse of discretion in the conclusion that defendant’s criminal history score significantly underrepresented the seriousness of his past criminal conduct. The presentence report listed three prior convictions, for armed robbery, possession of stolen mail, and possession of marijuana, that were excluded from his criminal history because each occurred more than 15 years before the instant offense. These offense would have added six points to defendant’s criminal history score, placing him in category III. This would have resulted in a guideline range of 78 to 97 months, and defendant’s 90-month sentence fell within that range. U.S. v. Andrews, 948 F.2d 448 (8th Cir. 1991).
8th Circuit affirms upward departure based upon defendant’s violent history with guns. (510) Defendant was convicted of being a felon in possession of a firearm. The district court departed upward from a guideline range of 30 to 37 months and sentenced defendant to 60 months. The departure was based upon guideline section 4A1.3, which permits a departure where a defendant’s prior criminal conduct is similar to the offense of conviction. Here, defendant’s criminal history “demonstrated a willingness to use firearms in the commission of crimes . . .” The 8th Circuit affirmed the upward departure. Defendant was not just in possession of a gun. He had a shotgun sawed off both at the barrel and the stock. He had taped the remaining stock so that it would not take fingerprints. Given the circumstances and defendant’s violent history, the 60-month sentence was reasonable. U.S. v. Gassler, 943 F.2d 909 (8th Cir. 1991).
8th Circuit affirms downward departure for career offender where criminal history was overstated. (510) After initially sentencing defendant to 292 months as a career offender, the court reconvened the sentencing hearing and departed downward to the statutory minimum 10 years on the ground that defendant’s criminal history was overrepresented. The 8th Circuit affirmed. The three prior robberies had been treated by the state “as more or less one criminal episode,” with concurrent sentences. The drug offenses were consolidated and sentenced concurrently, and defendant was paroled after about 18 months. It was proper for the district court to consider the historical facts of defendant’s career, including his age when he committed the offenses. Because the district court based its sentence on the guideline range that would have applied absent the overstatement, the sentence was reasonable. U.S. v. Senior, 935 F.2d 149 (8th Cir. 1991).
8th Circuit affirms upward departure for defendant who committed drug offense while awaiting trial on state drug charges. (510) Defendant committed a federal drug offense while awaiting trial in state court on a four-count drug charge. The district court found that defendant’s criminal history significantly underrepresented the seriousness of his criminal conduct, and departed upward. The 8th Circuit found no an abuse of discretion. U.S. v. Matha, 915 F.2d 1220 (8th Cir. 1990).
8th Circuit upholds downward departure based on defendant’s limited criminal career. (510) Defendant was classified as a career offender based on two prior convictions for second-degree burglary and conspiracy committed during a two-month period when defendant was 19 years old. The loss in the burglary was less than $1000, and the amount of drugs involved in defendant’s conspiracy was $80. The 8th Circuit held that the details of defendant’s criminal career — the relatively minor nature of defendant’s crimes, the briefness of his career, and his age at the time of the crimes – – justified the district court’s downward departure. U.S. v. Smith, 909 F.2d 1164 (8th Cir. 1990).
8th Circuit finds seven-fold upward departure was not unreasonable when defendant could have been sentenced as a career offender. (510) Defendant received a departure sentence that was seven times greater than that called for by the guidelines. The district court departed because the defendant had twice failed to appear for sentencing on prior convictions and therefore his offenses were not considered in calculating his criminal history category. The district court noted that if they had been considered, the defendant would have been classified as a career offender. The 8th Circuit found the extent of the departure reasonable because the defendant could have been properly sentenced as a career offender had Congress properly addressed the situation where a defendant had not been sentenced because his own conduct prevented the sentencing. U.S. v. Jones, 908 F.2d 365 (8th Cir. 1990).
8th Circuit upholds upward departure based on defendant’s extensive criminal history. (510) Defendant was found guilty of possessing a firearm as a convicted felon. Due to his prior violent felony convictions the defendant was subject to the 15-year mandatory minimum sentence provisions of 18 U.S.C. § 924(e)(1). The district court departed upward and sentenced defendant to 19 years because of the seriousness of the defendant’s prior offenses and defendant’s incorrigibility. Defendant had three felony convictions which were not included in his criminal history because they were more than 15 years old, eight misdemeanor convictions, three not counted in his criminal history, and prior convictions for the present offense. Based on these facts, the 8th Circuit held that the departure was not clearly erroneous. Excluding the felonies and misdemeanors still put defendant at 8 points more than needed for the highest criminal history category. U.S. v. Carey, 898 F.2d 642 (8th Cir. 1990).
9th Circuit upholds variance on ground that criminal history score was understated. (510) Defendant pleaded guilty to robbing seven banks. The parties agreed that his guideline range was 97-121 months, and the presentence report recommended a sentence of 97 months. The district court imposed a 151-month sentence in part because defendant’s criminal history category of II failed to account for his juvenile armed robbery or the “brutality” of defendant’s conviction for forcible rape. The Ninth Circuit noted that departures because a defendant’s Criminal History Category understates the seriousness of his prior criminal conduct are treated as variances. The court held that the district court had properly increased defendant’s Criminal History Category from II to III. U.S. v. Ellis, 641 F.3d 411 (9th Cir. 2011).
9th Circuit says 120-month above-Guidelines sentence is reasonable for access device fraud. (510) Defendant executed a scheme to obtain money and goods by using stolen retail gift cards. When officers tried to arrest defendant, he led them on a high-speed chase before crashing into another car and injuring its occupant. When arrested, defendant had nearly 4,000 stolen or duplicated gift cards, as well as documents containing account numbers for another 4,000 gift cards. At sentencing, the district court calculated defendant’s sentencing range as 70 to 87 months. Because of defendant’s history of repeated access-device offenses and his effort to escape the police, the district court imposed the statutory maximum of 120 months. The Ninth Circuit held that 120 months was a reasonable sentence. U.S. v. Truong, 587 F.3d 1049 (9th Cir. 2009).
9th Circuit upholds finding that criminal history under-valued prior immigration crimes. (510) Defendant, convicted of illegal reentry after deportation, had entered the United States illegally six times without being prosecuted. He also had been convicted of illegal entry, and had a prior conviction for illegal reentry. Defendant had been apprehended reentering the U.S. one month after being released from the sentence imposed on his prior illegal reentry conviction. At sentencing, the district court increased defendant’s criminal history category from IV to VI because the court found that his criminal history score underrepresented his criminal history. Based on that determination, the district court imposed a 30-month sentence. The Ninth Circuit held that the sentence was substantively reasonable. U.S. v. Higuera-Llamos, 574 F.3d 1206 (9th Cir. 2009).
9th Circuit approves sentence for firearms possession twice as long as PSR recommendation. (510) Defendant, who had prior convictions for robbery and first-degree murder, obtained a handgun stolen from a law enforcement officer and purchased ammunition and a holster for it. He was arrested sitting in a casino with the firearm. At sentencing, the district court imposed a 78-month sentence, which was almost double the sentence recommended in the presentence report. The court relied on the circumstances of defendant’s possession of the firearm and the fact that several of his prior convictions did not count in his criminal history score because they were too old. The Ninth Circuit held that the sentence was reasonable. U.S. v. Ellsworth, 456 F.3d 1146 (9th Cir. 2006).
9th Circuit upholds upward departure based on extensive record of conviction and arrests. (510) Defendant, convicted of drug conspiracy and drug trafficking, had five convictions and 18 prior arrests, and he was awaiting trial on felony burglary charges. At sentencing, the district court departed upward because defendant’s record of numerous prior convictions and arrests showed that his criminal history category underrepresented his criminal conduct. The Ninth Circuit, applying a de novo standard of review, held that the district court had properly concluded that defendant’s record showed that he would probably commit additional crimes and justified the upward departure. U.S. v. Daychild, 357 F.3d 1082 (9th Cir. 2004).
9th Circuit upholds upward departure based on inadequate criminal history score. (510) Defendant, who was convicted of mail and wire fraud, had five adult convictions that were not included his criminal history score (of nine) because they were too old or because they had been set aside. The district court held that his criminal history category of IV did not adequately reflect this prior criminal conduct and departed upward by finding that category V would more accurately reflect that conduct. The Ninth Circuit held that because defendant’s uncounted prior convictions reflected conduct that was both serious and similar to the offenses of conviction, the district court did not abuse its discretion in departing upward. U.S. v. Martin, 278 F.3d 988 (9th Cir. 2002).
9th Circuit allows criminal history departure for unconvicted assault, but not shoplifting or drug use. (510) The district court departed upward by four criminal history points based on defendant’s (1) threatening a school counselor at knifepoint, (2) shoplifting cigarettes, and (3) testing positive for marijuana use five times while on pretrial release, and being observed on school grounds using marijuana. The Ninth Circuit rejected defendant’s argument that an upward departure for juvenile criminal conduct is justified only when it is similar to the conduct charged and results in a conviction. The court noted that departure on this basis is “encouraged.” However, only the assault was sufficiently serious to justify departure. The marijuana use and shoplifting charges did not sufficiently demonstrate a likelihood that defendant would commit other crimes. Therefore, only a two-point departure was justified. U.S. v. G.L., 143 F.3d 1249 (9th Cir. 1998).
9th Circuit affirms upward criminal history departure for prior unconvicted conduct. (510) Defendant was convicted of one count of impersonating a U.S. Air Force officer to obtain money, in violation of 18 U.S.C. § 912, and one count of mail fraud. He had been convicted in 1983 of similar conduct and a criminal complaint was filed against him in 1990 for similar conduct but the charges were dropped. In the present case, the district court departed upward from criminal history category II to category III, based on defendant’s similar adult criminal conduct that led to the 1990 complaint. This departure added three months to his sentence. On appeal the Ninth Circuit found no abuse of discretion and held that the extent of the departure was reasonable. U.S. v. Goshea, 94 F.3d 1361 (9th Cir. 1996).
9th Circuit upholds extent of criminal history departure for immigration violations. (510) Defendant had an offense level of 10 and a criminal history category of VI [24-30 months]. The district court departed upward to 41 months based on defendant’s seventeen prior convictions which added up to 26 criminal history points. He had several convictions for immigration violations, including one previous conviction for reentry after deportation, the same crime for which he was being sentenced. The Ninth Circuit affirmed the departure, concluding that defendant’s “numerous and repetitive immigration violations warranted an upward departure from category VI.” The court found the extent of the departure reasonable, because it was based on the method suggested by defense counsel, i.e. that if category VI were extended, defendant’s criminal history points would put him in a category with a sentencing range of 41 months. Judge Reinhardt dissented. U.S. v. Segura del Real, 83 F.3d 275 (9th Cir. 1996).
9th Circuit upholds criminal history departure for prior drug activity not resulting in conviction. (510) Three defendants had no prior convictions, but the district court departed upward to criminal history category III because the evidence indicated they had engaged in marijuana trafficking prior to the instant cocaine offenses. As to one defendant, the Ninth Circuit affirmed, noting that the guidelines specifically provide that an upward departure may be based on past criminal activity that did not result in a conviction. U.S.S.G. § 4A1.3(e). However, as to two of the defendants, the court found that the evidence of their prior marijuana activities was unreliable. It was based only on the uncorroborated hearsay statements of a codefendant, and “due process requires that such statements be corroborated by extrinsic evidence.” The error was harmless as to one defendant, but the other defendant’s case was remanded for resentencing. U.S. v. Ponce, 51 F.3d 820 (9th Cir. 1995).
9th Circuit permits departure for repeatedly committing the same offense. (510) Defendant was convicted of unauthorized flight to avoid prosecution under 18 U.S.C. § 1073. The district court departed upward from 24 to 36 months. On appeal, the Ninth Circuit affirmed. The defendant repeatedly committed the same offense. He repeatedly absconded from the jurisdiction of Hawaii and California courts to avoid prosecution and extradition. This was an aggravating factor not adequately taken into account by the Sentencing Commission. It showed a greater likelihood of recidivism and was “egregious conduct.” The extent of the departure was reasonable, to “reflect the importance of punishing someone who has made a mockery of the system of justice.” U.S. v. Merino, 44 F.3d 749 (9th Cir. 1994).
9th Circuit upholds departure for “convergence of factors” but remands as to extent. (510) The district court found that defendant’s “extremely dangerous” mental state was not adequately considered by the guidelines, and that his criminal history category did not reflect his dangerousness and the “significant likelihood that he will commit additional serious crimes.” The 9th Circuit found that defendant’s criminal history and hospitalizations supported the court’s findings. The threats and descriptions contained in defendant’s letters and diary portrayed a man who was “obviously mentally disturbed.” Accordingly, it was proper for the court to depart under both §4A1.3 and §5K2.0. However, since the district court did not explain why it chose to depart three levels, the case was remanded to permit the court to explain its reasons for the extent of the departure. U.S. v. Hines, 26 F.3d 1469 (9th Cir. 1994).
9th Circuit upholds criminal history departure for career offender. (510) Defendant argued that the court had no discretion to depart based on criminal history because he was already in the highest category, VI, for being a career offender. In a twelve year period he had been convicted of first degree murder, five different armed robberies, two burglaries, a kidnapping, and numerous auto thefts. The 9th Circuit agreed with the district court that criminal history category VI “grossly underrepresented the defendant’s prior criminal conduct and recidivist tendencies.” An upward departure to the equivalent of category IX was affirmed. U.S. v. Streit, 17 F.3d 306 (9th Cir. 1994).
9th Circuit sustains departure based on probation violation as opposed to probation status. (510) The district court departed upward from a guideline range of 100-125 months to a sentence of 210 months based in part on defendant’s four probation violations. The Ninth Circuit found that while a defendant’s probation status may already be considered in the criminal history points under §4A1.1(d), an actual probation violation can justify an upward departure. Here, there was sufficient evidence to show defendant had violated prior probation terms and the departure was proper. U.S. v. Durham, 995 F.2d 936 (9th Cir. 1993).
9th Circuit upholds departure based on police records detailing underlying conduct of prior convictions. (510) Defendant was convicted of possession with intent to distribute methamphetamine and possessing a firearm in relation to a drug trafficking offense. The district court departed upward from a guideline range of 100-125 months to a sentence of 210 months based in part on six prior convictions involving assaultive or combative conduct. Defendant challenged the district court’s reliance on the six prior convictions on the basis that the district court relied on arrest records for three of the offenses. The Ninth Circuit found that the information regarding these prior convictions was based on a review of police records as well as earlier presentence reports and not arrest records. The police records detailed defendant’s underlying conduct during each offense and they all involved violence directed at police officers. The conduct was substantially different from the offenses charged and the district court was proper to conclude that it was not adequately considered by the Sentencing Commission. U.S. v. Durham, 995 F.2d 936 (9th Cir. 1993).
9th Circuit says juvenile offenses similar to present crime may justify upward departure. (510) Defendant was convicted of being a felon in possession of a firearm. The district court departed upward from 37 months to 50 months based on juvenile sentences that were excluded in calculating defendant’s criminal history. The 9th Circuit held that since the juvenile offenses were similar to the instant offense, it was proper to depart upward under U.S.S.G. section 4A1.2 comment. (n.8), which allows an upward departure based on uncounted sentences when the sentences are “evidence of similar . . . misconduct.” Accord, U.S. v. Thomas, 961 F.2d 1110, 1116 (3rd Cir. 1992) and U.S. v. Samuels, 938 F.2d 210, 215 (D.C. Cir. 1991). However the case was remanded for the court to give “a reasoned explanation of the extent of the departure founded on the structure, standards and policies of the act and guidelines.” U.S. v. Beck, 992 F.2d 1008 (9th Cir. 1993).
9th Circuit finds criminal history departure proper but extent of departure not adequately explained. (510) The defendant was convicted of alien smuggling and the district court departed upward by 12 months, based in part on the finding that the defendant’s criminal history category was inadequately represented. All of the factors considered by the district court — three unresolved state court bench warrants, two convictions not factored into the criminal history calculation and the past use of ten aliases, nine dates of birth and four social security numbers — were permissible grounds for upward departure under §4A1.3. However, the district court did not provide adequate reasons for the degree of the departure and the case was remanded. Any departure based on underrepresentation of the defendant’s criminal history should be analogized to the guideline range for defendants with higher criminal histories. U.S. v. Cruz-Ventura, 979 F.2d 146 (9th Cir. 1992).
9th Circuit upholds extent of criminal history departure. (510) Defendant argued that the district court should not have departed upward by two criminal history categories (II to IV), because his pending state embezzlement charge could justify no more than one level. The 9th Circuit rejected the argument because defendant failed to consider two remote convictions which were also the basis for the departure, and which justified the additional criminal history level. U.S. v. Starr, 971 F.2d 357 (9th Cir. 1992).
9th Circuit says departure must be computed before mandatory minimum is applied. (510) The 9th Circuit reversed an upward departure from the 10 year statutory minimum, because the judge did not base the departure on the underlying guideline sentence, but instead departed upward from the mandatory minimum sentence. “[T]he existence of a mandatory minimum sentence does not alter the manner in which a district court determines the appropriate extent of a departure: a court must determine a defendant’s offense level and appropriate criminal history category, including departures from the record and a criminal history category, just as it would in an ordinary case.” If the resulting sentencing range is under the statutory minimum, the court must impose the mandatory minimum sentence. It may not depart further. The court acknowledged that its decision was contrary to the 5th Circuit’s opinions in U.S. v. Carpenter, 963 F.2d 736 (5th Cir. 1992), and U.S. v. Doucette, 979 F.2d 1042 (5th Cir. 1992). U.S. v. Rodriguez-Martinez, 25 F.3d 797 (9th Cir. 1994).
9th Circuit finds no plain error where defendant’s use of aliases when arrested resulted in underrepresented criminal history. (510) The 9th Circuit said that in the case of previous similar arrests in which aliases were used, the extent of upward departure could be measured by the change that would have occurred in the criminal history category because of convictions that would likely have occurred in the absence of the use of aliases. Here the defendant admitted that she had used aliases when arrested to avoid criminal prosecution. The record was unclear whether the district court induced these alien smuggling arrests to improperly increase the criminal history category, or to properly depart upward. However, either way, the sentence would have been the same. Accordingly, the 9th Circuit found no plain error. U.S. v. Martinez-Gonzalez, 962 F.2d 874 (9th Cir. 1992).
9th Circuit permits downward departure based on “youthful lack of guidance.” (510) The district court departed downward from 30 years to 17 years based on what the appellate court characterized as “youthful lack of guidance.” The district court believed that the defendant’s youthful lack of guidance had a significant effect both on his past criminality and on his commission of the present rock cocaine offense. Thus the court thought that his criminal history category significantly overrepresented the actual seriousness of his past criminality, and his base offense level overrepresented the actual seriousness of his criminality in the present offense. The government appealed, and the 9th Circuit affirmed the sentence, rejecting the government’s argument that lack of youthful guidance as a mitigating circumstance was precluded by the guidelines. The court also found that the extent of the departure was not unreasonable. U.S. v. Floyd, 945 F.2d 1096 (9th Cir. 1991), amended, 956 F.2d 203 (9th Cir. 1992).
9th Circuit says upward departure was justified by drug trafficking activity for which defendant had not been convicted. (510) The district court had reliable information, in the form of case reports and testimony by a business associate, that the defendant had engaged in a wide range of drug trafficking activity for which he had not been convicted. Relying on U.S. v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir. 1991) (en banc), the 9th Circuit held that this authorized the district court to depart upward because defendant’s criminal history assessment did not adequately reflect his past criminal conduct. However the court reversed the extent of the departure. U.S. v. Schubert, 957 F.2d. 694 (9th Cir. 1992).
9th Circuit upholds past violent conduct, misdemeanors and likelihood of recidivism as bases for upward departure. (510) Since § 4B1.1 refers only to previous felony convictions, the district court could properly consider defendant’s prior violent misdemeanor offenses as evidence that his criminal history score did not adequately represent the seriousness of his past conduct. Likewise since only four criminal history points can be accumulated for prior misdemeanors under guidelines § 4A1.1(c), it was proper for the court to consider the additional misdemeanor convictions. Finally, the district court properly concluded that defendant’s record was significantly more serious than other defendant’s in the same criminal history category in concluding that there was a greater likelihood of recidivism. U.S. v. Durham (Richard), 941 F.2d 858 (9th Cir. 1991).
9th Circuit finds district court’s reasons for criminal history departure “barely adequate.” (510) The district court departed upward from criminal history category VI, noting that defendant had a pattern of consistent criminal conduct that had started with criminal mischief and escalated into serious felonies. The court also adopted most of the presentence report. The 9th Circuit found that while the court’s determination was “adequate,” it was “just barely so.” The court noted that if it were not for the density of the defendant’s string of offenses, and their escalating nature, it would have vacated the sentence to the extent that it was based upon the inadequacy of the criminal history category. Since the case had to be remanded for resentencing on other grounds, the court strongly suggested that the district court clarify the exact basis of its determination. U.S. v. Singleton, 917 F.2d 411 (9th Cir. 1990).
9th Circuit permits downward departure from career offender guideline. (510) The district court departed downward from the career offender guideline from 12 years to 30 months for this 52-year old defendant on the ground that the likelihood of recidivism was low, and the defendant was not violent or antisocial. Judges Norris, Wright and Schroeder affirmed the departure, rejecting the government’s argument that departures were not permitted for career offenders. The court found no reason to distinguish the career offender guideline, 4B1.1, from any other guideline for departure purposes. U.S. v. Lawrence, 916 F.2d 553 (9th Cir. 1990).
9th Circuit files amended opinion requiring criminal history departures to be guided by analogy. (510) The district judge departed from defendant’s guidelines 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 guidelines 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 upholds departure in illegal alien case based on inadequacy of criminal history category. (510) Defendant was convicted of illegal entry into the United States in violation of 8 U.S.C. § 1325(a). The district court departed upward from the guidelines because the defendant 1) had provided authorities with fictitious names and had had disciplinary trouble while incarcerated, 2) on the day of his previous arrest for illegal entry the defendant appeared to be repeatedly acting as a guide for other illegal aliens on the San Diego trolley 3) he had been arrested for battery on a person and fare evasion and had failed to appear, and 4) he had assaulted a border patrol officer while resisting arrest. The 9th Circuit affirmed the departure noting that the defendant’s assault on the officer with a two-by-four would support a specific departure based on use of a dangerous instrumentality pursuant to guideline § 5K2.6. U.S. v. Montenegro-Rojo, 908 F.2d 425 (9th Cir. 1990).
9th Circuit upholds “reasonableness” of departure based on criminal history. (510) After a full hearing, and citing defendant’s extensive criminal history which was not adequately accounted for in the guideline range of 46 to 57 months, the district court departed upward to 100 months. That departure was significantly less than the 210 months recommended in the presentence report. The Ninth Circuit held that given the seriousness of defendant’s past offenses, the extent of his criminal history and the apparent likelihood of future criminal activity, “the sentence of 100 months was reasonable.” U.S. v. Acosta, 895 F.2d 597 (9th Cir. 1990).
10th Circuit approves upward departure based on unconvicted conduct. (510) Defendant was convicted of being a felon in possession of a firearm. Departing upward from the recommended guideline range of 18-24 months, the district court sentenced defendant to 41 months. The departure was based on past criminal conduct described in the PSR which did not result in a conviction. The Tenth Circuit agreed that defendant’s unconvicted conduct provided appropriate grounds for departure under §4A1.3(1) (2)(E). First, while some circuits regard the Guidelines’ departure provisions as superfluous post-Booker, the Tenth Circuit still upholds their vitality and has instructed district court to continue to apply them in “appropriate cases.” Section 4A1.3(a)(1) allows for upward departures where reliable information indicates a defendant’s criminal history category substantially under-represents either the seriousness of the defendant’s criminal history or the likelihood that he will commit additional crimes. The court was well within its discretion in finding that defendant’s unconvicted conduct involving firearms, some of it quite violent, gave him greater culpability for being a felon in possession of a firearm than a defendant in a run-of-the-mill case. U.S. v. Robertson, 568 F.3d 1203 (10th Cir. 2009).
10th Circuit holds sentence 300% above advisory range was reasonable. (510) Defendant provided false information to a bank to obtain a line of credit. The following year, she filed for bankruptcy, and failed to disclose the existence of the bank account. She pled guilty to making a false statement to a financial institution and bankruptcy fraud. She challenged the reasonableness of her 48-month sentence, which was 300% and 36 months higher than the top of her advisory guideline range of 6-12 months. The Tenth Circuit held that the sentence was reasonable. Defendant had an extensive history of financial crimes, and had defrauded additional victims while out on bond. In the 11 years prior to the charge in the current case, she had five prior convictions for passing worthless check, three prior arrests for passing worthless checks that were never prosecuted, a conviction for selling a car without the consent of the secured party, and a conviction for forgery. Her criminal history was comprised almost entirely of crimes of fraud and deceit – crimes similar to current offenses and similar to the fraud she engaged in while out on bond. Defendant was “a habitual prevaricator who has not been deterred by her run-ins with state and municipal law or by her appearance in federal court in this case.” U.S. v. Mumma, 509 F.3d 1239 (10th Cir. 2007).
10th Circuit holds that extreme upward deviation was reasonable. (510) Defendant pled guilty to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His advisory guideline range was 15-21 months, but the district court, after considering the sentencing factors in 18 U.S.C. § 3553(a), found this insufficient, and imposed a sentence of 120 months’ imprisonment. The Tenth Circuit held that the extreme upward deviation was reasonable. The district court’s reference to defendant’s prior arrest record was not improper – the court did not rely on the arrest record itself, but it extrapolated from the uncontested facts in the PSR (including the number, frequency, and seriousness of defendant’s various arrest and convictions) to draw conclusions about characteristics relevant to sentencing factors. The court also did not err by comparing defendant’s history to that of an armed career criminal, 18 U.S.C. § 924(e). The court properly sought guidance from the provision as to the appropriate length of sentence given defendant’s criminal history. The magnitude of the variance, although large, was reasonable, given defendant’s exceptional history and the fact that the advisory guideline sentence did not fully reflect the serous nature of his criminal record. Defendant had had significant contact with the criminal justice system over a short period of time, and indicated “a commitment to a criminal lifestyle.” U.S. v. Mateo, 471 F.3d 1162 (10th Cir. 2006).
10th Circuit approves one point criminal history departure based on seriousness of prior conviction. (510) Defendant was convicted of involuntary manslaughter and assault based on a drunk driving accident that resulted in the death of a woman and injury to her husband and two kids. The district court departed upward in part because defendant’s criminal history category was substantially underrepresented by his criminal history score. One of defendant’s prior convictions was for second-degree murder and he had several convictions in tribal court that were not taken into account at all.. The Tenth Circuit affirmed the departure. The judge had “uniquely reliable information” that defendant’s criminal history substantially underrepresented the seriousness of his prior crimes – he was the one who sentenced defendant in 1997 for second-degree murder. Although the second-degree murder was included in defendant’s criminal history score, he received the same three points for the second degree murder as any other defendant with a prior conviction resulting in a sentence of imprisonment. The score did not further distinguish between the seriousness of offenses. Some crimes, like murder, are underrepresented by the inflexible three-point addition. This was a permissible basis for departure. U.S. v. Pettigrew, 468 F.3d 626 (10th Cir. 2006).
10th Circuit approves equating eight-step criminal history departure to eight offense levels. (510) Defendant had 39 criminal history points, substantially more than the “13 or more” that would place him in the maximum criminal history category of VI. In determining the degree of an upward departure, the court hypothesized that defendant’s criminal history score would place him in a hypothetical criminal history category of XIV, and then equated an eight-step increase in criminal history category to eight offense levels. Citing U.S. v. Sims, 309 F.3d 739 (10th Cir. 2002), defendant argued that this was an incorrect application of the guidelines. The Tenth Circuit disagreed, finding that the court’s methodology resulted in a “reasoned, measured and appropriate application of the guidelines.” Within Zone D, which covers the most serious offenses, a one-step increase in criminal history category is equivalent to a one-step increase in offense level. U.S. v. Hurlich, 348 F.3d 1219 (10th Cir. 2003).
10th Circuit says detailed explanation not necessary where court made smallest possible departure. (510) The district court justified an upward departure from Criminal History Category IV to V based on five grounds, including his declaration of bankruptcy for debts incurred without any ability to repay them. This ground was probably improper – the district court believed that defendant’s bankruptcy for debts that he never had the ability to pay qualified as prior similar misconduct, even though there was no evidence of fraud. However, at least four of the five departure factors were valid. Because the district court would have imposed the same sentence without considering defendant’s bankruptcy proceedings, the Tenth Circuit affirmed the departure. The district court’s reasoning for the departure was insufficient because it simply restated the reasons justifying the decision to upwardly depart in the first instance. However, a reasoned explanation was not necessary in this particular case. The court’s departure from Category IV to Category V represented the smallest possible departure the district court could have made. Having held that the district court properly used its discretion to depart, no justification was required from the court when it elects the smallest possible departure. U.S. v. Proffit, 304 F.3d 1001 (10th Cir. 2002).
10th Circuit affirms departure based on six uncounted foreign convictions. (510) The district court departed upward from criminal history category IV to V on the basis of defendant’s seven instances of criminal conduct that occurred in Great Britain from 1970 to 1977. Six of these instances resulted in convictions and periods of imprisonment, while one, a charge of attempted murder, resulted in defendant’s hospital commitment. The Tenth Circuit affirmed the departure. A court may depart based on a prior sentence that is too old to be included in a criminal history calculation if the court finds that the sentence is evidence of similar, or serious dissimilar, criminal conduct. The district court properly determined that defendant’s foreign convictions from the 1970s were serious dissimilar conduct. All of defendant’s assaults resulted in actual bodily harm and most of his sentences of imprisonment exceeded one year and involved additional concurrent sentences. Defendant received sufficient notice that the court would rely on the foreign convictions as a ground for an upward departure. The Tenth Circuit had previously remanded for resentencing on the grounds that the outdated foreign convictions could not be used as predicate convictions under the ACCA, but stated that an upward departure was possible on the basis of inadequate criminal history. U.S. v. Concha, 294 F.3d 1248 (10th Cir. 2002).
10th Circuit approves upward departure for defendant with 28 criminal history points. (510) Based on an offense level of 17 and a criminal history category of VI, defendant had a sentencing range of 51-63 months’ imprisonment. Because defendant had 15 more criminal history points than necessary to be in category VI and had three additional criminal history points that “narrowly missed” being counted, the district court departed upward to an offense level of 22. This resulted in a sentencing range of 84-105 months; the court imposed a 105-month sentence. The Tenth Circuit affirmed both the reasons and the extent of the upward departure. Although defendant claimed his prior offenses were “non-violent and relatively small-scale,” the district court properly found defendant’s criminal history was exceptional. Defendant had 28 criminal history points, all of which were for conduct similar to the offense of conviction (bank fraud) or for very serious non-similar conduct, such as two escapes. The PSR and the testimony of the probation officer at sentencing linking defendant to the convictions provided an ample factual basis for the district court’s conclusions. U.S. v. Akers, 215 F.3d 1089 (10th Cir. 2000).
10th Circuit approves upward departure based on similar uncharged conduct. (510) Defendant was convicted of violating the Archaeological Resources Protection Act after making several unauthorized excavations from archaeological sites on government land. The presentence report documented defendant’s extensive past illegal conduct in looting archaeological sites. The 10th Circuit approved an upward criminal history departure from category III to IV based on the past uncharged criminal conduct. Section 4A1.3(e) lists prior similar adult conduct not resulting in a criminal conviction as grounds for an upward departure. The district court relied on defendant’s own admissions of his repeated illegal looting, and the probability that he would commit similar future crimes based on his way of life and his apparent belief that he had every right to engage in such conduct. The extent of the departure was reasonable. The district court added three points to defendant’s criminal history by analogizing defendant’s history to a defendant with one additional felony conviction. U.S. v. Shumway, 112 F.3d 1413 (10th Cir. 1997).
10th Circuit approves upward criminal history departure from category VI for career offender. (510) Defendant pled guilty to armed robbery. He fell within criminal history category VI and qualified as an career offender. The district court made an upward criminal history departure and the Tenth Circuit affirmed. The district court based its decision on three factors recognized by the guidelines that are independent of defendant’s status as a career offender. First, the court added three points for offenses not included in defendant’s criminal history because they were outside the time period in § 4A1.2(e). Second, the court added four points under section 4A1.3(b) for prior violent offenses that were not counted because they were consolidated for sentencing. Third, the court considered the similarity between the instant robbery offenses and defendant’s record of past robberies and burglaries. Upward departures from category VI are not reserved solely for defendants with criminal history scores well above 13. U.S. v. Lowe, 106 F.3d 1498 (10th Cir. 1997) .
10th Circuit allows upward departure for tribal convictions, unprosecuted conduct, and crime while on release. (510) Defendant was convicted of abusive sexual contact with a child under the age of 12. The district court departed upward based on three prior convictions for driving under the influence and two tribal and two non-tribal arrests for sexual assault which were not counted in his criminal history. In addition, defendant had been indicted in state court for sexual offenses committed while on bond for the instant offense. The 10th Circuit found that the tribal court sentences, the prior similar adult criminal conduct, and the conduct involving a similar offense while on release, were all proper bases for an upward departure. Defendant’s prior DUI offenses were not, however, since they were included in his criminal history. U.S. v. Yates, 22 F.3d 981 (10th Cir. 1994).
10th Circuit upholds departure based upon analogy to armed career criminal guideline. (510) Defendant was classified as an armed career criminal subject to a mandatory minimum 15-year sentence under 18 U.S.C. section 924(e). At the time he committed his offense, the guidelines did not yet contain section 4B1.4, the armed career criminal provision. Thus, absent the mandatory minimum, defendant would have had a guideline range of 18 to 24 months. The 10th Circuit approved an upward departure from the mandatory minimum based upon an analogy to the armed career criminal guideline. The guidelines’ “omission” of an armed career criminal category was a proper grounds for departure. The degree of departure, determined with reference to what defendant’s guideline range would be under section 4B1.4, was reasonable. There was no ex post facto violation. It was clear that the district court did not apply section 4B1.4, but merely used it as a benchmark to test the reasonableness of its degree of departure. U.S. v. Tisdale, 7 F.3d 957 (10th Cir. 1993).
10th Circuit affirms consolidated crimes and prior lenient sentence as grounds for departure but remands as to extent. (510) The district court departed from criminal history III to IV because it determined that (a) defendant committed prior criminal conduct as an adult which did not result in conviction, (b) two prior offenses were consolidated for sentencing, and (c) defendant received a lenient sentence for his prior felonies. The 10th Circuit affirmed that these were proper grounds for departure, but remanded because the district court did not explain why it selected category IV for defendant, and therefore the reasonableness of the departure could not be evaluated. Contrary to the government’s assertion, this was not the minimum departure. Defendants with four to six criminal history points fall into category III. Defendant had four points. Thus, the court could have assigned defendant additional points without raising her criminal history category. U.S. v. Flinn, 987 F.2d 1497 (10th Cir. 1993).
10th Circuit affirms downward departure for career offender. (510) The district court departed downward from the career offender guidelines because defendant’s two previous convictions were committed within two months of each other when he was only 20 years old, and were punished by concurrent sentences. The 10th Circuit affirmed, finding that the reasons for the departure, taken together, were adequate. Although the guidelines advise that age is not ordinarily relevant, it was proper to consider age “in the context of the other circumstances of a defendant’s criminal history.” Similarly, it was proper for the district court to look at the short period of time between defendant’s two previous crimes “in the context of defendant’s age and the state court’s treatment of the two convictions.” The court concluded that the guidelines did not sufficiently consider “this unique combination of factors in defendant’s criminal history.” Judge Baldock dissented from this portion of the opinion. U.S. v. Bowser, 941 F.2d 1019 (10th Cir. 1991).
10th Circuit upholds criminal history departure because defendant committed instant offense while awaiting trial on similar state charges. (510) While awaiting trial in state court on charges of murdering his five-week old son, defendant committed the instant federal offense, the murder of his five-month old daughter. The district court departed upward because this offense was committed while he awaiting trial for the separate state crime. The 10th Circuit affirmed, agreeing with the district court that the guidelines do not specifically account for this aggravating circumstance. Guideline § 4A1.3(d) lists as an example of an aggravating circumstance whether defendant was pending trial, sentencing, or appeal on another offense. It was proper for the district court to depart upward by two points by analogy to § 4A1.1(d), which provides for a two-point increase if the defendant committed the instant offense while under a criminal justice sentence. U.S. v. Little, 938 F.2d 1164 (10th Cir. 1991).
10th Circuit affirms prior lenient sentences and threat to public safety as grounds for upward departure. (510) The district court departed upward from a guideline range of 15 to 21 months and sentenced defendant to 38 months imprisonment. The departure was based on many factors, including the fact that defendant had received lenient treatment for two prior felonies and his threat to public safety. The 10th Circuit affirmed these two reasons as grounds for the departure. Guideline § 5K2.14 states that a defendant’s criminal history may be underrepresented when the defendant had previously received an extremely lenient sentence for a serious offense. Defendant, age 23, was already on probation for two previous felony convictions. He was a threat to public safety because he collected and sold “anti-personnel” weapons and was building highly volatile bombs in a residential area. Defendant believed he was selling weapons to an illegal paramilitary organization. However, the court was unable to determine whether the degree of departure was reasonable since the district court failed to follow the procedure previously outlined in U.S. v. Jackson, 921 F.2d 985 (10th Cir. 1990). U.S. v. Stumpf, 938 F.2d 172 (10th Cir. 1991).
10th Circuit upholds criminal history departure but remands for district court to explain reasons for extent of departure. (510) 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 .ÿ.ÿ. [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 upholds criminal history departure where unrelated cases had been consolidated for sentencing. (510) Defendant committed three prior felonies on separate days over a 30-day period. However, because the felonies were consolidated for sentencing, they were considered related cases for criminal history purposes. Consequently, defendant had only three criminal history points and fell within criminal history category II. The 10th Circuit upheld the district court’s departure to criminal history category IV. The circumstances “fell squarely within the caveat of § 4A1.3,” which provides that the definition of related cases may be “overly broad” in certain circumstances. Judge Ebel dissented, arguing that the three felonies were related because they occurred within a three-week period, shared a common set of facts, and involved a common third party. U.S. v. Bishop, 921 F.2d 1068 (10th Cir. 1990).
10th Circuit affirms criminal history departure based on prior lenient treatment. (510) Defendant pled guilty to possession of a firearm by a felon and was placed in criminal history category I. The district court departed upward to criminal history category III, finding that defendant had been treated leniently in receiving probation sentences for drug trafficking and that such treatment had failed to deter subsequent criminal conduct. Defendant had four felony convictions outside the 10-year period utilized in calculating his criminal history score, and received probation or suspension of sentence for each. The 10th Circuit upheld the departure, even though it found the district court could have been more explicit in explaining its reasons for the degree of departure. U.S. v. Fortenbury, 917 F.2d 477 (10th Cir. 1990).
10th Circuit upholds upward departure based upon 17 prior convictions for similar conduct. (510) The district court departed upward based upon defendant’s criminal history, and his lack of contrition for the crimes he committed. Defendant had 17 prior convictions for conduct similar to his current crimes, which put him well above the requirement for criminal history category VI, the highest criminal history category. The 10th Circuit found that defendant’s extensive criminal history was a proper ground for departure. Although defendant’s lack of remorse for defrauding large companies would not normally justify an upward departure, the 10th Circuit found that “the court’s comment seemed more directed toward [defendant’s] propensity to commit future crimes, a valid concern when considering departure.” Therefore the grounds for departure were proper. The 10th Circuit also found that the departure to 72 months from a guidelines range of 41 to 51 months was reasonable. U.S. v. Whitehead, 912 F.2d 448 (10th Cir. 1990).
10th Circuit upholds reliance on old convictions to depart upward for underrepresented criminal history. (510) Under the guidelines, a district court has the power to depart upward when the defendant’s criminal history, during the 15-year period prior to the commencement of the current criminal proceeding against him, does not accurately reflect the defendant’s criminal behavior. Defendant only had one conviction during the 15 year period prior to the current proceeding against him. The district court enhanced defendant’s criminal history score by adding three points for each of three felonies committed by defendant during the eight years prior to such 15-year period. Defendant had been in jail on a manslaughter conviction for 11 of the 15 years. The 10th Circuit upheld the departures and held that under these circumstances, the district court was justified in looking beyond the 15-year period to determine the seriousness of defendant’s past criminal conduct. U.S. v. Russell, 905 F.2d 1439 (10th Cir. 1990).
10th Circuit finds criminal history departure beyond category VI was warranted. (510) In sentencing a defendant for various offenses arising from a fraudulent scheme, the district court departed upward from the appropriate guideline range by 14 months on the ground that criminal history category of VI did not adequately represent the defendant’s criminal history. The 10th Circuit upheld the departure, finding that (1) because 16 separate convictions were consolidated for sentencing, only three criminal history category points were assessed (§ 4A1.2 comment 3); (2) the defendant committed the instant offense while other charges were still pending (§ 4A1.3(d)); and (3) seven charges of passing worthless check were dismissed after the defendant made restitution to the victims (§ 4A1.3(e)). These reasons provided ample justification for the upward departure according to the guidelines themselves. U.S. v. Russell, 905 F.2d 1450 (10th Cir. 1990).
10th Circuit holds that 25 criminal history points plus several uncounted prior convictions justified upward departure. (510) In sentencing a defendant who had deposited a forged check into a bank account, the district court departed upward on the ground that his 25 criminal history points were 12 more than the maximum for criminal history category VI. In addition, several of his prior convictions were not even counted. This lifelong pattern of conduct fully justified a departure from the 18-24 guideline range to the statutory maximum sentence of 5 years imprisonment. The court found that a factual basis existed for the departure and that the extent of the departure was reasonable. U.S. v. Bernhardt, 905 F.2d 343 (10th Cir. 1990).
10th Circuit upholds criminal history departure from category VI based upon old convictions. (510) Defendant pled guilty to bank robbery by force and the district court departed upward to 210 months in prison. This was nearly double the guideline sentence. On appeal, the 10th Circuit affirmed, stating that the district court properly found that the four prior convictions which could be counted did not adequately represent the defendant’s actual criminal history. The defendant had several additional convictions that were not counted because they were more than 15 years old (see § 4A1.2(e)). These two prior convictions for similar criminal conduct outside of the 15 year limit warranted departure. The court found that there was a clear factual basis for the departure and that the extent of the departure was reasonable. U.S. v. Gardner, 905 F.2d 1432 (10th Cir. 1990).
10th Circuit upholds criminal history departure where defendant “closely resembled” a career offender. (510) The 10th Circuit noted that defendant’s criminal history suggested that robbery was his chosen profession, but two of his convictions were too old qualify him for career offender status. Nevertheless, his criminal history “closely resembled” that of a career offender. Accordingly, the 10th Circuit found that the district court’s decision to depart upward and sentence him by reference to the career offender provisions was reasonable, “particularly where, as here, the district court chose to sentence him to the lower range for a career offender.” U.S. v. Gardner, 905 F.2d 1432 (10th Cir. 1990).
10th Circuit affirms upward departure based on defendant’s prison disciplinary record. (510) The court departed upward in sentencing a defendant convicted of possession of a knife in prison, because the guidelines did not adequately reflect the seriousness of defendant’s past criminal conduct, particularly his prison disciplinary record. The 10th Circuit affirmed the departure, analyzing it under the three-step test set forth in U.S. v. White, 893 F.2d 276 (10th Cir. 1990). The first step was satisfied because guideline § 2P1.2, which covers possession of a knife in prison, did not implicitly consider the possibility that defendant might have a prison disciplinary record. Moreover, information unrelated to the actual offense of conviction can be used in determining a sentence. The second step was met because there was no dispute as to the accuracy of defendant’s disciplinary record. The court held the third step, requiring a departure to be reasonable, was satisfied because defendant was sentenced within the range of the next highest criminal history category. U.S. v. Keys, 899 F.2d 988 (10th Cir. 1990).
10th Circuit affirms upward departure where guidelines did not adequately reflect defendant’s criminal history. (510) The sentencing judge departed upward in sentencing defendant who pled guilty to bank robbery based on a belief that the guidelines underrepresented defendant’s criminal history. Defendant had been sentenced at the same time for aggravated robbery and forgery which counted as one sentence. Additionally, defendant committed the instant offense while on bail for the forgery. The sentencing judge’s reasons for departure were not adequately considered by the guidelines and were properly used to depart. The extent of departure was reasonable because the court found the appropriate criminal history category and sentenced within that range. U.S. v. White, 893 F.2d 276 (10th Cir. 1990).
11th Circuit approves large upward variance for unscored criminal history and use of fake bombs to rob banks. (510) Defendant pled guilty to robbing two banks using what turned out to be fake bombs. His guideline range was 78-97 months, but the district court sentenced him to 210 months. The court found that guidelines did not adequately account for defendant’s criminal history because some of his older convictions were not scored. His criminal history score also did not reflect the sustained nature of his criminal conduct. The court found that defendant’s use of fake bombs was “extremely serious,” creating terror in the tellers, customers, inducing the use of bomb squads, and causing commerce to shut down. The Eleventh Circuit held that the sentence was substantively reasonable. Although the upward variance was substantial, the sentence was still well below the statutory maximum of 900 months. For the past 36 years, defendant has been unable to conform his conduct to the requirements of law. His criminal history was so extensive that he had been incarcerated virtually all of his adult life. When he was out of prison, he committed more crimes, many of them very violent. The district court also gave great weight to defendant’s three bank robberies within a week, and to his substantial criminal history. U.S. v. Early, 686 F.3d 1219 (11th Cir. 2012).
11th Circuit upholds use of criminal history to depart upward and further increase sentence. (510) Defendant was convicted of a Hobbs Act conspiracy based on his participation in a series of burglaries from marijuana grow houses. The district court found that he fell into criminal history category V, resulting in a sentencing range of 130-162 months. Defendant had begun committing crimes shortly after his arrival in the United States in 1991, and he had several convictions that did not count in his criminal history score. The district court found that defendant’s criminal history score underrepresented his past criminal conduct and ruled that defendant should be considered as being in criminal history category VI, with a resulting sentencing range of 140-175 months. The district court found that this guideline range did not adequately reflect defendant’s criminal history and imposed a sentence of 200 months. The Eleventh Circuit held that the district court did not procedurally or substantively err in relying on defendant’s prior criminal history to increase defendant’s criminal history score to VI and impose a sentence above the resulting guideline range. The court also found that defendant’s 200-month sentence was reasonable. U.S. v. Sanchez, 586 F.3d 918 (11th Cir. 2009).
11th Circuit approves upward criminal history departure based on additional similar criminal conduct. (510) Defendant was convicted on eight counts of mail fraud for selling tickets to thousands of school children and their parents who expected to attend a Christmas show. Although defendant fell within criminal history category I, the government submitted evidence of similar additional frauds defendant committed in Washington D.C., New Mexico and Utah. The Eleventh Circuit found no error in the district court’s upward criminal history departure from category I to III under § 4A1.3(a)(2)(C). Bases for departure include information concerning prior similar misconduct established by a civil adjudication or by a failure to comply with an administrative order, and prior similar adult criminal conduct not resulting in a criminal conviction. It was clear that the district court understood and expressly acknowledged the advisory nature of the Guidelines. There was no procedural error in the court’s evaluation of the § 3553(a) factors. The court found defendant’s conduct “reprehensible, to take money from young, impressionable and vulnerable children,” that he had “a long track record of fraudulent behavior,” and that defendant would resume his fraudulent behavior in the future “if given a mere slap on the wrist.” U.S. v. Ellisor, 522 F.3d 1255 (11th Cir. 2008).
11th Circuit approves two-category criminal history departure based on numerous uncounted crimes. (510) In addition to the convictions used in establishing defendant’s criminal history as Category II, defendant had numerous other convictions that were not included in his criminal history. Although these juvenile convictions were not similar to the convictions in this case and were too remote to use in calculating defendant’s criminal history category, they represented serious criminal conduct. Based on these uncounted conviction, the Eleventh Circuit found the two-category upward departure to Category IV was proper. Contrary to defendant’s claims, the court did not find Category III appropriate. The court actually found that defendant’s criminal history corresponded to Category IV, but initially stated its intent to exercise leniency by departing to III. After this finding, defendant engaged in a lengthy diatribe in which he referred to the sentencing judge as “an evil man,” a “Master Mason,” and “the worst.” Thereafter, the court departed to Category IV. Defendant’s outburst during the hearing did not taint the sentencing court’s decision to impose Category IV. If defendant’s conduct affected the court’s decision, “it likely only confirmed defendant’s high likelihood of recidivism by manifesting his enduring disrespect for the judicial system and insistence upon violating the law.” U.S. v. Jones, 289 F.3d 1260 (11th Cir. 2002).
11th Circuit considers labor law fraud as grounds for criminal history departure. (510) Defendant pled guilty to bankruptcy fraud. The district court based a criminal history departure on three dismissed counts involving deposit account fraud and a fraud defendant committed in violation of the Fair Labor Standards Act. Defendant failed to pay his employees in accordance with minimum wage and overtime guidelines, and did not comply with a settlement agreement with the government regarding that violation. Defendant argued that this conduct was not a proper ground for departure because it did not involve criminal misconduct. The Eleventh Circuit held that because the labor law violation was similar to the bankruptcy fraud, the court could consider it in departing upward. The nature of defendant’s conduct in both offenses was fraud. Civil misconduct is a proper ground for a criminal history departure. However, the court erred in relying on the three dismissed counts of deposit account fraud listed in the PSR. A district court may not consider a prior arrest record when departing upward. The PSR did not provide a factual background for these counts and defendant denied that he engaged in the alleged fraud. U.S. v. Hernandez, 160 F.3d 661 (11th Cir. 1998).
11th Circuit approves departure above category VI for 40 criminal history points. (510) Defendant was convicted of being a felon in possession of a firearm after threatening his wife and daughter with a revolver. The Eleventh Circuit approved a three-level upward departure from criminal history category VI based on defendant’s 40 criminal history points. Defendant’s challenge to the departure was foreclosed by U.S. v. Santos, 93 F.3d 761 (11th Cir. 1996), where the court upheld a two-level departure because the defendant’s 21 criminal history points far exceeded the 13 points needed for criminal history category VI. There was no basis to distinguish Santos from this case. U.S. v. Mellerson, 145 F.3d 1255 (11th Cir. 1998).
11th Circuit approves upward criminal history departure for armed career criminal. (510) Defendant was convicted of being a felon in possession of a firearm. His offense level was increased from 28 to 34 because he was an armed career criminal under 18 U.S.C. § 924(e). In addition, he had a criminal history score of 21, which resulted in a criminal history category of VI. The district court departed upward under § 4A1.3, increasing his offense level to 36. Defendant argued that the increase in offense level under the armed career criminal act precluded an upward departure under § 4A1.3. The Eleventh Circuit held that the court properly made a criminal history departure even though defendant was already classified as an armed career criminal. Defendant’s 21 criminal history points far exceeded the 13 needed for a criminal history category of VI. In addition, the score did not reflect several other prior convictions. These other crimes were not needed to sentence defendant as an armed career criminal. U.S. v. Santos, 93 F.3d 761 (11th Cir. 1996).
11th Circuit approves criminal history departure for defendant deported three times. (510) Defendant was convicted of being a deported alien found in the U.S. He had 14 criminal history points and fell within category VI, with an offense level of 6. The district court departed upward 6 levels due to the inadequacy of his criminal history category and the likelihood that defendant would engage in future criminal activity. The Eleventh Circuit affirmed, based on his multiple prior illegal entries and three prior deportations, and his propensity to commit other crimes while in the U.S. The guidelines recognize that a departure above category VI may be warranted in certain situations, and that the nature of the prior offenses rather than simply their number should be of greater import in the court’s evaluation. Here, defendant’s prior criminal conduct was, at least in part, identical to the offense to which he pled guilty. U.S. v. Castrillon‑Gonzalez, 77 F.3d 403 (11th Cir. 1996).
11th Circuit rejects need for step-by-step findings for departures above category VI. (510) Defendant had 28 criminal history points, which placed him well above the minimum needed to fall within criminal history category VI. The district court departed upward by three offense levels under § 4A1.3. Defendant complained that the court failed to explicitly consider whether the ranges corresponding to offense levels one and two higher would have been appropriate. The Eleventh Circuit held a court need not make step-by-step findings in departing above category VI. Instead, departures will be reviewed for reasonableness, based on findings as to why an upward departure is warranted and why the particular sentencing range chosen is appropriate. The district court here stated that it had moved incrementally to higher offense levels in category VI of the Sentencing Table until it found a guideline range appropriate to defendant’s case. Before making this determination, the court referenced defendant’s extensive criminal history in his PSR. Defendant did not dispute the reasonableness of the departure. U.S. v. Dixon, 71 F.3d 380 (11th Cir. 1995).
11th Circuit holds that court properly moved across and then down sentencing table to structure departure. (510) Defendant argued that the district court improperly structured a criminal history departure by moving horizontally across the table to increase his criminal history category rather than vertically to increase his offense level. The Eleventh Circuit held that the court properly used the method suggested in the policy statement to § 4A1.3 to structure the departure. The departure was calculated by beginning at offense level 13, criminal history category II, then moving horizontally across four columns to category VI, then moving vertically down two offense levels to level 15. Only departures beyond category VI are calculated by moving vertically down from category VI by increasing offense levels. The district court was not required to explain why it did not consider intervening criminal history categories. Where a sentencing court selects a higher criminal history category under § 4A1.3 by adding points for remote convictions, an explanation of this calculation serves as an adequate explanation for the inappropriateness of the intervening criminal history categories. U.S. v. Maurice, 69 F.3d 1553 (11th Cir. 1995).
11th Circuit approves use of preponderance standard to find defendant committed additional offense. (510) Defendant was convicted of being a felon in possession of a firearm. The district court granted an upward criminal history departure based on evidence that defendant threw acid on his former girlfriend and her three children. Defendant argued that the district court erroneously used the preponderance of the evidence standard to find that he had been the attacker. The Eleventh Circuit affirmed, finding that the court had given defendant the benefit of the higher beyond a reasonable doubt standard, even though it was not required by law. It is well settled that at sentencing a federal defendant’s due process rights are satisfied by the preponderance of the evidence standard. Nonetheless, the district court found that the government proved beyond a reasonable doubt that defendant committed the attack. U.S. v. Jackson, 57 F.3d 1012 (11th Cir. 1995).
11th Circuit approves departure for outdated convictions that were dissimilar but serious. (510) Defendant pled guilty to escape. The district court departed from criminal history category IV to VI based on three prior convictions that were not included in his criminal history because of their age. Defendant challenged the departure because the outdated convictions were not similar to the instant escape offense. The Eleventh Circuit held that a departure may be based on outdated convictions that are dissimilar, but “serious.” The district court found the prior fraud convictions serious. The court adequately explained the reasons why it found category VI, rather than V, to be appropriate. The district court knew that the three remote convictions would have added eight or nine criminal history points, which put defendant well above the level required for category VI. U.S. v. Brown, 51 F.3d 233 (11th Cir. 1995).
11th Circuit approves departure for criminal history and threat to public. (510) The district court departed upward under section 4A1.3 for underrepresentation of defendant’s criminal history and under section 5K2.14 for threat to public safety. First, defendant did not receive criminal history points for a 1987 probation revocation that ran concurrently with another sentence. Second, he received lenient treatment for several of his past convictions. The 11th Circuit agreed that the district court had ample grounds for an upward departure under section 4A1.3 and section 5K2.14. Defendant’s extensive criminal background was a proper consideration in deciding to depart under section 5K2.14. The court could reasonably conclude that illegal possession of a handgun by a career criminal such as defendant posed a threat to public safety substantially in excess of that ordinarily involved in the offense. The extent of the departure was reasonable. When a court departs above criminal history category VI, the sentence is reviewed only for reasonableness. U.S. v. Brown, 9 F.3d 907 (11th Cir. 1993).
11th Circuit upholds remote juvenile convictions and overall criminal record as grounds for departure. (510) The 11th Circuit affirmed that in departing upward, the court properly considered several juvenile convictions which were too remote to be included in defendant’s criminal history. After defendant was sentenced, application note 8 to section 4A1.2 was amended to provide that remote crimes that are evidence of similar, or serious dissimilar, criminal conduct, may be considered as a grounds for departure. Here, four of the five remote sentences were for burglary, grand theft and grand larceny. The fifth, for loitering and prowling, arose from the same conduct. Contrary to defendant’s assertions, the district court did not improperly consider defendant’s prior arrest record. However, the case was remanded because the district court failed to follow the step-by-step procedure mandated for criminal history departures in U.S. v. Johnson, 934 F.2d 1237 (11th Cir. 1991). U.S. v. Williams, 989 F.2d 1137 (11th Cir. 1993).
11th Circuit finds no double counting in considering defendant’s prior smuggling activity. (510)) The 11th Circuit rejected defendant’s claim that the district court erred in relying on the same previous smuggling activity to depart upward from both the base offense level and the criminal history category. Double counting is permitted if the Sentencing Commission intended the result and each section concerns conceptually separate notions relating to sentencing. Defendant’s base offense level was increased under section 2L1.1 for the large number of aliens he admitted smuggling into the United States. The upward departure in base offense level reflected the seriousness of defendant’s crime, given his admitted smuggling of aliens on at least 10 occasions. The criminal history adjustment indicated an attempt by the sentencing judge to deter defendant from future smuggling activity. U.S. v. Huang, 977 F.2d 540 (11th Cir. 1992).
11th Circuit upholds upward criminal history departure based on likelihood of recidivism. (510) Defendant, a computer hacker, received a one level upward criminal history departure based upon the district court’s determination that his criminal history category did not reflect his recidivism. The 11th Circuit affirmed, in light of evidence that (a) defendant created, during the time he was on probation for an earlier hacking offense, a tutorial explaining how to break into certain telephone computer systems, (b) his continued hacking, and (c) the similarity of the crimes for which he had been convicted. Similarity of offenses has been closely linked to recidivism. U.S. v. Riggs, 967 F.2d 561 (11th Cir. 1992).
11th Circuit affirms upward departure from category VI for crimes that were not included in criminal history. (510) Defendant’s three prior bank robbery convictions were counted as one because they were consolidated for sentencing. The district court used the two uncounted conviction as a basis for departing upward from criminal history category VI, concluding that with six additional criminal history points for the two convictions, defendant would fall within hypothetical criminal history category IX. The court then extrapolated what his guideline range would be, and sentenced him within that range. The 11th Circuit affirmed the upward departure. Under guideline section 4A1.3(a), a prior sentence that was not used to calculate a defendant’s criminal history can justify a departure from the guideline range. The sentencing court’s statement that it was departing after reviewing the presentence report satisfied the requirements in 18 U.S.C. section 3553(c)(2) that a sentencing court articulate its specific reasons for departing. The methodology used by the district court in determining the extent of the departure was also proper. It was not necessary for the court to explain why categories VII and VIII were inappropriate. U.S. v. Nilsen, 967 F.2d 539 (11th Cir. 1992).
11th Circuit affirms upward departure based upon defendant’s extensive criminal history and danger to public safety. (510) Defendant was convicted under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(1), which mandated a minimum sentence of 15 years because he had three prior violent felonies. Because his applicable guideline range was below the statutory minimum, the statutory minimum became defendant’s guideline sentence. Nonetheless, the district court departed upward and sentenced defendant to 360 months, based on defendant’s extensive criminal history and his danger to public safety. Defendant had 23 criminal history points, 10 more than necessary to classify him in the highest criminal history category. Defendant’s prior convictions showed violent and dangerous conduct, all of which occurred with frequency and soon after his release from prison or placement on probation. The 11th Circuit affirmed. “Recognizing that the presumptive Guideline sentence of 15 years failed to reflect the egregious nature of [defendant’s] criminal record, the district court reasonably enhanced his sentence in keeping with the goals of the Sentencing Guidelines.” U.S. v. Briggman, 931 F.2d 705 (11th Cir. 1991).
11th Circuit affirms upward criminal history departure based upon outstanding warrants and consolidation of offenses. (510) The 11th Circuit upheld a departure from criminal history category IV to category VI. Defendant had seven prior convictions, one of which was consolidated for sentencing, and had 13 other prior arrests which were dismissed along with guilty pleas on other charges. At the time of his arrest in this case, defendant faced three outstanding warrants in other states. In light of this, the district court’s departure was not clear error. U.S. v. Villali, 926 F.2d 999 (11th Cir. 1991).
11th Circuit affirms upward departure for defendant whose sentence was enhanced under Armed Career Criminal Act. (510) Defendant was convicted of possession of a firearm by a felon. His guideline range was 18 to 24 months. However, since he had at least three prior violent felonies, the Armed Career Criminal Act prescribed a mandatory minimum sentence of 15 years. The district court departed upward and imposed a 50-year sentence, based on his obstruction of justice and numerous convictions in excess of the three necessary to qualify as an armed career criminal. The 11th Circuit upheld the upward departure. Neither the statute nor the guidelines provide any means to factor an enhancement for obstruction of justice into the offense level or to adjust defendant’s criminal history category based on conduct not used in calculating his statutory sentence. It was not impermissible double counting to consider his prior convictions. In reaching the 15-year sentence, the court only considered the predicate offense and the three prior qualifying offenses. The extent of the departure, although harsh, was also reasonable. U.S. v. Simmons, 924 F.2d 187 (11th Cir. 1991).
11th Circuit upholds upward departure for drug dealer who involved his own children in the offense. (510) Defendant was convicted of several drug offenses. The district court departed upward and sentenced him to life imprisonment without parole. The 11th Circuit upheld the departure as reasonable and consistent with the aims of the guidelines. Among the factors which warranted an upward departure were defendant’s extensive criminal history which was not adequately reflected by his criminal history category, and his willingness to corrupt members of his family, including his own children, by involving them in criminal activities. U.S. v. Christopher, 923 F.2d 1545 (11th Cir. 1991).
11th Circuit affirms downward departure based on over-representation of criminal history and effect on parole eligibility. (510) Defendant escaped from a minimum security prison camp. The district court departed downward in part because the crime subjected defendant to a double penalty: first, it lengthened defendant’s prison term by delaying his eligibility for parole, and second, it subjected him to a second prison term to be served consecutively to the first. The 11th Circuit found this was proper grounds for a downward departure. The district court also departed because it found that the guideline sentence was more severe than it needed to be to have a deterrent effect. The 11th Circuit found that this was simply a different way of saying that defendant’s criminal history score over-represented the likelihood that he would recidivate, and thus was proper grounds for departure. The court also found the extent of the departure was reasonable. U.S. v. Weaver, 920 F.2d 1570 (11th Cir. 1991).
11th Circuit affirms downward departure based on over-representation of criminal history and effect on parole eligibility. (510) Defendant escaped from a minimum security prison camp. The district court departed downward in part because the crime subjected defendant to a double penalty: first, it lengthened defendant’s prison term by delaying his eligibility for parole, and second, it subjected him to a second prison term to be served consecutively to the first. The 11th Circuit found this was proper grounds for a downward departure. The district court also departed because it found that the guideline sentence was more severe than it needed to be to have a deterrent effect. The 11th Circuit found that this was simply a different way of saying that defendant’s criminal history score over-represented the likelihood that he would recidivate, and thus was proper grounds for departure. The court also found the extent of the departure was reasonable. U.S. v. Weaver, 920 F.2d 1570 (11th Cir. 1991).
11th Circuit approves downward departure based on unlikelihood of future crimes by defendant. (510) Defendant pled guilty to a drug offense which resulted in an applicable guideline range of 168 to 210 months. The district court departed downward and imposed a 66-month sentence, because it found that the defendant was unlikely to commit crimes in the future. Because the quantity of drugs involved required a 10-year mandatory minimum sentence, the 11th Circuit remanded for the court to impose at least a 10-year sentence. Moreover, the 11th Circuit further found that a downward departure made on the ground that the defendant is unlikely to commit future crimes must be made as a criminal history departure under guideline § 4A1.3. On remand, the district court was instructed to select an appropriate criminal history category for defendant, and sentence defendant accordingly. U.S. v. Collins, 915 F.2d 618 (11th Cir. 1990).
11th Circuit upholds criminal history departure where ten bank robberies were consolidated for sentencing. (510) Defendant’s ten convictions for bank robbery were consolidated pursuant to Fed. R. Crim. P. 20 and combined for purposes of calculating a base offense level pursuant to the “multiple count” guideline § 3D1.1. Defendant’s criminal history category was set at III, but if each bank robbery had been a separate conviction, his offense level would have been VI, making him eligible for career offender status. Accordingly, the 11th Circuit upheld an upward departure on the ground that the defendant’s criminal history category did not adequately reflect the seriousness of his criminal history. U.S. v. Armstrong, 901 F.2d 988 (11th Cir. 1990).
11th Circuit rules habitual criminal’s criminal history category did not adequately reflect the seriousness of his prior conduct. (510) Defendant had prior convictions for eight separate crimes in the previous eleven years, but did not qualify as a career offender under the guidelines. The district court found that he was a habitual criminal with a likelihood of recidivism and departed upward from 87 to 144 months. The 11th Circuit affirmed, noting that the number and nature of the defendant’s criminal convictions were not significantly less serious than the convictions which qualified his co-defendant as a career offender. The amount of the departure was not unreasonable. U.S. v. Campbell, 888 F.2d 76 (11th Cir. 1989).
11th Circuit holds upward departure to treat defendant as a career offender was proper. (510) Defendant qualified for the career offender guidelines, § 4B1.1, in every way except that his numerous prior and present bank robberies and an escape had been combined in two proceedings under Rule 20(a), Fed.R.Crim.P. Guideline § 4A1.2(a)(2) provides that prior sentences in related cases shall be treated as one sentence and that cases are “related” if they were consolidated for trial or sentencing. Thus under the guidelines, defendant had only one prior conviction and one present conviction. However, since the eleven bank robberies and an escape had occurred at different times in two different states, the 11th Circuit upheld an upward departure to treat defendant as a career offender: “We do not believe that the Commission intended that someone with a history such as [defendant’s] should be treated as having only one prior conviction, solely because he is permitted to take advantage of Rule 20(a)’s procedural device.” U.S. v. Dorsey, 888 F.2d 79 (11th Cir. 1989).
11th Circuit holds upward departure from Criminal History III to IV was warranted given consolidation of two prior offenses. (510) The district court departed from Criminal History III to IV on the ground that level III underrepresented the seriousness of the defendant’s criminal history and the likelihood that he would commit future crimes. The 11th Circuit affirmed. The defendant had committed two prior armed robberies within one week of each other. Because these charges were consolidated for trial, the sentences were only considered once in computing the criminal history score because they were “related” (§ 4A1.2(a)(2)). Had they been considered separately, the defendant would have received six criminal history points rather than three, moving him into category IV, after other adjustments were made. This was a proper ground for departure and was reasonable. U.S. v. Jackson, 883 F.2d 736 (11th Cir. 1989).
11th Circuit rules defendant’s prior record justified enhancement of criminal history category from Level I to Level IV. (510) Defendant had been convicted in 1969 for lewd and lascivious assault on a child. The district court found that he had continued to molest children, that his acts had a devastating effect on them, and that there was a need to deter the defendant from future molestation. Section 4A1.3 permits departure if “reliable information indicates that the criminal history category does not reflect . . . past criminal conduct or the likelihood that the defendant will commit other crimes.” The 1969 conviction was a “prior sentence not used in computing the criminal history category” and the subsequent molestations were “prior similar adult conduct not resulting in a criminal conviction.” The district court could reasonably conclude that Level IV more adequately reflected the seriousness of the defendant’s criminal history and likelihood of recidivism. U.S. v. Spraggins, 868 F.2d 1541 (11th Cir. 1989).
D.C. Circuit says court cannot consider arrest record in deciding whether to depart downward. (510) Guideline § 4A1.3 authorizes courts to consider whether a defendant has engaged in “prior similar adult criminal conduct not resulting in a criminal conviction.” However, “a prior arrest record itself shall not be considered under § 4A1.3.” In denying defendant’s request for a downward departure under § 4A1.3, the district court noted that defendant’s 11 arrests that did not lead to conviction was an “extraordinary” number, and that the record showed “a great chance of recidivism.” The D.C. Circuit held that because § 4A1.3 governs both upward and downward departure, the prohibition against considering a defendant’s arrest record applies to downward departure motions. Even if the court had not relied on defendant’s arrest, it might have properly concluded that he failed to carry his burden of proof to justify a downward departure. On remand, the court may reach that conclusion. U.S. v. Joaquin, 326 F.3d 1287 (D.C. Cir. 2003).
D.C. Circuit rejects need for step-by-step methodology for criminal history departures. (510) The district court departed upward from criminal history category II to V without expressly explaining why each intervening category was inadequate. The D.C. Circuit held that such a step-by-step methodology is not required as a matter of law. Section 4A1.3 requires a court to look to the category that “most closely resembles” the seriousness of the defendant’s criminal history rather than to perform any particular mental gymnastics in the process of concluding which category that might be. The statute further mandates that the court state “the reasons for its imposition of the particular sentence,” as well as “the specific reason for the imposition of a sentence different from that” prescribed by the guidelines. 18 U.S.C. § 3553(c). If the sentencing court has done those things, there is no abuse of discretion simply because the appellate court might have preferred a different procedural approach. The guidelines do expressly require a step-by-step procedure when departing above the highest criminal history category. This plainly shows that the Sentencing Commission knew how to require step-by-step consideration when it wanted. U.S. v. Bridges, 175 F.3d 1062 (D.C. Cir. 1999).
D.C. Circuit holds that outdated offenses similar to current mail fraud for departure purposes. (510) Defendant pled guilty to mailing a single forged check. The district court departed from criminal history category II to V based on prior convictions that were not included in his criminal history because of their age. Under § 4A1.2(e), prior sentences imposed more than 15 years before the current offense are not counted in a defendant’s criminal history. However, if the outdated sentences are “evidence of similar, or serious dissimilar criminal conduct,” the court may depart upward under § 4A1.3. The five convictions were for: (1) unauthorized use of a motor vehicle; (2) forgery; (3) petty larceny; (4) unlawful possession of stolen property; and (5) false pretenses. The D.C. Circuit held that the prior offenses were sufficiently similar to the current crime of mail fraud to warrant the departure. This conclusion was easy with regard to the false pretenses and forgery offenses. The other three presented a more difficult question. However, the District of Columbia, where all of defendant’s crimes were committed, now treats the three offenses at issue as similar to the crime of false pretenses. A court may lawfully examine the relevant conduct underlying the current offense in order to determine whether it is similar to his prior offenses. U.S. v. Bridges, 175 F.3d 1062 (D.C. Cir. 1999).
D.C. Circuit says state drug offense was committed during present conspiracy because defendant never withdrew. (510) Defendant participated in a massive drug conspiracy. In 1988 he had been stopped in Missouri driving a van containing 500 kilograms of cocaine. He was convicted in Missouri state court of drug charges, but had not yet been sentenced at the time of his sentencing for the instant conspiracy. Defendant challenged an upward criminal history departure, arguing that the Missouri offense took place after his participation in the conspiracy, and therefore was not pending at the time of the instant offense. The D.C. Circuit disagreed, because defendant did not claim that he affirmatively withdrew from the conspiracy. Thus, defendant’s instant offense under § 4A1.3(d) lasted until the conspiracy ended in April 1989. At that point, defendant was awaiting trial for his drug offense in Missouri, and therefore the district court could properly consider that offense under § 4A1.3(d). U.S. v. Childress, 58 F.3d 693 (D.C. Cir. 1995).
D.C. Circuit says downward departure may be appropriate despite likelihood of recidivism. (510) In departing downward under section 4A1.3, the district court found that career offender status overrepresented defendant’s criminal history, but also stated that defendant was a career criminal and could be expected to continue that career if given the opportunity. The D.C. Circuit found these conflicting statements confusing, but refused to hold that a downward departure under section 4A1.3 is only appropriate when any type or degree of recidivism is unlikely. Section 4A1.3 is written in the disjunctive and allows a departure if the court determines that the criminal history category overrepresents either defendant’s criminal history or the likelihood of recidivism. However, on remand on other grounds, if the district court decides to discuss recidivism, it should consider whether its findings are irreconcilable with a finding that the career offender status overrepresents the seriousness of defendant’s criminal history. U.S. v. Clark, 8 F.3d 839 (D.C. Cir. 1993).
D.C. Circuit permits criminal history departure for unrelated prior embezzlement. (510) Defendant pled guilty to two counts of fraud arising out of his theft and misuse of a credit card. The district court departed upward, adding three points to defendant’s criminal history for his admitted embezzlement of $56,000 from an art gallery where he had been employed. The embezzlement did not result in a criminal conviction. The D.C. Circuit rejected defendant’s claim that the embezzlement was “related” to the instant offense and therefore was not a proper basis for a criminal history departure. The art gallery incident occurred over a year before the fraud. Defendant perpetrated the instant fraud by relying on information from an individual he did not meet until after he had left the art gallery. U.S. v. Jones, 948 F.2d 732 (D.C. Cir. 1991).
D.C. Circuit upholds criminal history departure despite reliance on improper grounds. (510) The district court initially departed upward to criminal history category IV based upon two prior offenses for which defendant either was not convicted or received probation. The court then departed to category V because defendant committed the instant offense while on release in three different pending cases, had a flagrant disregard for the law as demonstrated by the crime spree which led to the instant offense, and had engaged in numerous acts of deception in connection with the instant offense. The D.C. Circuit agreed that it was error to depart based on deception related to the instant offense, but nonetheless upheld the departure. First, the district court cited sufficient factors to permit a departure to category V prior to mentioning the inappropriate factor. Second, the departure was based upon defendant’s long history of prior criminal activity. Finally, the record left the court with the “firm and definite conviction” that elimination of the improper ground would not have changed the district judge’s view of the appropriate sentence. U.S. v. Jones, 948 F.2d 732 (D.C. Cir. 1991).
D.C. Circuit upholds departure for prior offense even though sentence was greater than if prior offense had been part of instant prosecution. (510) The district made an upward criminal history departure based on a prior embezzlement for which defendant was never convicted. The D.C. Circuit upheld the extent of the departure, even though defendant contended that his total sentence exceeded the sentence he would have received had he stipulated to or been convicted of the embezzlement. The embezzlement was not related to the instant offense, and thus defendant could not have been charged with, convicted of, or stipulated to the embezzlement as part of the instant prosecution. Circuit precedent, at most, held that in departing based on prior conduct for which the defendant was not convicted, it would be unreasonable to increase the sentence beyond what the defendant would have received if he had been convicted at a prior time. Here defendant received the same number of criminal history points he would have received if he had previously been convicted. U.S. v. Jones, 948 F.2d 732 (D.C. Cir. 1991).
D.C. Circuit affirms upward departure where defendant had two prior offenses for carrying illegal weapon. (510) Defendant contended that the district court decided to depart upward one criminal history level by improperly considering his conduct in the instant case. The D.C. Circuit found no merit to this claim. Defendant had prior convictions which were excluded from the calculation of his criminal history score. Defendant also had two prior convictions for illegal possession of a firearm, the same crime as the offense of conviction. “The nature of present conduct is relevant both in order to give context to the past behavior in question and in order to assess a tendency toward recidivism.” U.S. v. Taylor, 937 F.2d 676 (D.C. Cir. 1991).
New York District Court holds career offender guidelines did not consider gun use enhancements under 924(c). (510) Defendant was subject to a statutory minimum sentence of 15 years for possession of a firearm by a felon, plus 25 years for two counts of using a firearm during a violent crime. He was also classified as a career offender, with a guideline range of 47 to 52 years. Without the career offender enhancement, his guideline range would have been 92 to 115 months. The District Court for the Southern District of New York found that the guidelines did not adequately take into account the mandatory minimum sentences in 18 U.S.C. § 924(c) for using a firearm during a violent crime. The court found “no indication” that the Sentencing Commission “contemplated enhancing a sentence under both the career offender guideline and § 924(c).” Accordingly, the court departed downward and sentenced defendant to 40 years, the sentence which would have applied in the absence of the career criminal provisions. U.S. v. Bernier, 758 F.Supp. 195 (S.D.N.Y. 1991).
New York District Court departs upward because defendant did not technically qualify as a career offender. (510) The district court stated that if it had been permitted to consider the underlying circumstances, it would have found that defendant’s possession of the firearm was a crime of violence. It found this a sufficient basis to depart upward from criminal history category IV to criminal history category VI. The court also found that defendant possessed the weapon while engaged in drug trafficking, and rejected defendant’s suggestion that the extent of the departure should be determined by analogy to the guidelines’ two points for possession of a weapon during a drug transaction. To a 30-month sentence the district court added the five-year sentence that Congress made applicable to a defendant who used a weapon in the course of committing a drug offense, and sentenced defendant to 90 months. U.S. v. Hernandez, 753 F.Supp. 1191 (S.D.N.Y. 1990).
Illinois district court holds that possession of a firearm is not a crime of violence for career offender purposes and departs downward. (510) As of March 1989, the guidelines incorporated the definition of crime of violence contained in 18 U.S.C. § 16. Under that statute, possession of a firearm by a felon is not a crime of violence. Accordingly, District Judge Hart, of the Northern District of Illinois, calculated the defendant’s career offender sentence under guideline 4B1 based on the “offense statutory maximum” for the other offense of which he was convicted, possession of cocaine. See application note 2 to § 4B1.1 effective Nov. 1, 1989. The court then departed downward to the mandatory minimum because treating the defendant as a career offender overrepresented the seriousness of the defendant’s criminal history. U.S. v. Nichols, 740 F.Supp. 1332 (N.D. Ill. 1990).
Commission rejects “youthful lack of guidance” as a basis for departure. (510) In an amendment effective November 1, 1992, the Commission added a new section 5H1.12 stating that “lack of guidance as a youth and similar circumstances indicating a disadvantaged upbringing are not relevant grounds for imposing a sentence outside the applicable guideline range.” This amendment appears to disapprove the 9th Circuit’s contrary decision in U.S. v. Floyd, 945 F.2d 1096 (9th Cir. 1991), amended, 956 F.2d 203 (9th Cir. 1992).