U.S. v. Hawk Wing, 05-2263.

• Decision Date: 06 January 2006
• Docket Number: No. 05-2263.,05-2263.
• Citation: 433 F.3d 622
• Parties: UNITED STATES of America, Appellee, v. Marlin HAWK WING, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

433 F.3d 622

UNITED STATES of America, Appellee, v. Marlin HAWK WING, Appellant.

No. 05-2263.

United States Court of Appeals, Eighth Circuit.

Submitted: September 15, 2005.

Filed: January 6, 2006.

COPYRIGHT MATERIAL OMITTED

Gary George Colbath, Assistant Federal Public Defender, Rapid City, South Dakota (Jeffrey L. Viken and Monica Thomas, on the brief), for appellant.

Mark Edward Salter, Assistant U.S. Attorney, Sioux Falls, South Dakota(Michelle G. Tapken and Mark A. Vargo, on the brief), for appellee.

Before LOKEN, Chief Judge, BYE and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Marlin Hawk Wing pleaded guilty to larceny in violation of 18 U.S.C. §§ 661 and 1153. The district court¹ sentenced Hawk Wing to 18 months in prison, 2 years of supervised release, $1,747.36 in restitution, and a $100 assessment to the Victims' Assistance Fund. For the reasons discussed below, we affirm.

I. Background

Hawk Wing pleaded guilty to stealing construction equipment from the Oglala Sioux Tribal Authority. After his plea, a presentence report ("PSR") was prepared that assigned Hawk Wing six criminal history points based upon five prior offenses.² Although the PSR recommended no "Chapter Four Enhancements," the "Aggravating and/or Mitigating Circumstances," section stated that "[t]he defendant has an extensive criminal history for which no criminal history points were assigned." Hawk Wing accepted responsibility resulting in an adjusted offense level of four. Hawk Wing's Guidelines range calculation was zero to six months. Pending sentencing, Hawk Wing was incarcerated at the Pennington and Meade County jails. Hawk Wing committed two rule infractions during his time at those facilities.

At sentencing, the government, consistent with the plea agreement, recommended that the district court reduce Hawk Wing's offense level by two levels and that the district court sentence him at the low end of the appropriate Guidelines range. The district court, however, denied Hawk Wing the two-level downward adjustment for acceptance of responsibility based on his two rule infractions at the Pennington and Meade County jails. The district court then proceeded to consider the adequacy of Hawk Wing's criminal history and the 18 U.S.C. § 3553(a) factors.

The district court determined that Hawk Wing's criminal history score did not adequately reflect his record because the PSR did not assign any criminal history points for Hawk Wing's juvenile adjudications, seven additional adult criminal convictions, and "other criminal conduct." "Other criminal conduct" included Hawk Wing's arrest for having an open container for which he pleaded guilty; his arrest for consuming alcohol in a public place for which he pleaded guilty; his four active warrants for failing to appear stemming from three arrests; his arrest for tampering with a motor vehicle for which court information is unknown; and his arrest for third-degree burglary for which the charge against him was later dismissed. Based on Hawk Wing's conduct for which the PSR assigned no criminal history points, the district court increased his criminal history points from six to seven, which placed him in a Category IV and correlated to a sentence of six to twelve months of incarceration.

The district court then addressed whether an upward departure would be reasonable. The district court stated, "[w]hile the Court recognizes that the guidelines are not mandatory, the Court addresses the issue of a departure upward which would be evaluated from the standpoint of reasonableness." The district court recognized that United States v. Haack, 403 F.3d 997 (8th Cir.2005), outlines the procedure district courts should follow in determining a proper sentence. Applying the procedure in Haack, the district court considered the § 3553(a) factors, stating its basis for its upward departure as follows:

The Court, in determining the particular sentence to be imposed shall consider, one, the nature and circumstances of the offense and the history and characteristics of the defendant. In that connection, the Court notes that the charge, which in this case was larceny, involved essentially the theft of various tools and personal property, not high in value but approximately $1,700 in value. The Court has set forth specifically the history and characteristics of this defendant and that history and characteristic[s] speak for itself.

In considering the need for the sentence imposed under [§] 3553(a)(2), the Court considers the seriousness of the offense to promote respect for the law and to provide just punishment for the offense, to afford adequate deterrence to criminal conduct. The Court is of the abiding feeling that the defendant, by reason of his past history, cannot be deterred from further criminal conduct. By the defendant's own admission he is an alcoholic and incarceration is reflected by the Court's sentence and will assist with providing him with needed education or vocational training, medical care, or other corrections treatment in the most effective manner.

The district court then sentenced Hawk Wing to a "non-guideline" sentence of 18 months' imprisonment. Hawk Wing filed a timely notice of appeal.

II. Analysis

Hawk Wing raises five arguments on appeal: (1) that the district court failed to provide him with reasonable notice of the upward departure; (2) that the district court erroneously relied on Hawk Wing's prior arrests in determining whether to depart upwards; (3) that the district court utilized incarceration to provide rehabilitative services; (4) that the district court's finding that Hawk Wing's criminal history required placement in a criminal history Category IV rather than a Category III precluded any further upward departure based upon the inadequacy of his criminal history; and (5) that the district court failed to impose a reasonable sentence.

A. Notice of Departure

Hawk Wing first argues that the district court failed to give the parties reasonable advance notice of its intention to depart from the Sentencing Guidelines pursuant to Federal Rules of Criminal Procedure 32(h).³ Hawk Wing supports his contention based on the PSR's failure to explicitly recommend a departure or identify any Guidelines provision for a departure and specifically concluded there were no "Chapter Four Enhancements." In response, the government asserts that the district court gave Hawk Wing reasonable notice of departure because the PSR stated, under the heading "Aggravating or Mitigating Circumstances," that "the defendant has an extensive criminal history for which no criminal history points were assigned." Because Hawk Wing failed to raise his lack of notice argument during the sentencing hearing, we must review the adequacy of notice issue for plain error. United States v. Sample, 213 F.3d 1029, 1031 (8th Cir.2000).

A district court must give notice to the parties of its intent to make a sua sponte departure from the Sentencing Guidelines. Burns v. United States, 501 U.S. 129, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). In Burns, the PSR specifically stated that there were "no factors that would warrant a departure from the guideline sentence." Id. at 131, 111 S.Ct. 2182. Nevertheless, the district court announced at the end of sentencing that it was departing from the Sentencing Guidelines range without previously giving the parties advance notice of its intent to depart. Id. In reversing the court of appeal's affirmance of the district court's departure, the Court held that Rule 32 required that the district court "give the parties reasonable notice that it is contemplating [a departure]" before it can "depart upward on a ground not identified as a ground for upward departure either in the presentence report or in a prehearing submission by the Government." Id. at 138-39, 111 S.Ct. 2182 (emphasis added).

In cases following Burns, we have addressed when the district court must provide formal notice to the parties of its intent to depart upward. In United States v. Andrews, 948 F.2d 448 (8th Cir.1991), the PSR "identified two factors that might warrant an upward departure." Id. at 449. Recognizing that the PSR "expressly noted the presence of factors which might warrant departure," this court held that the district court did not have to give formal notice of its intent to depart. Id. In addition to Andrews, this court has found that grounds for a departure existed where the PSR included a section entitled "Factors That May Warrant Departure," which listed specific factors that could justify an upward departure. United States v. Beatty, 9 F.3d 686, 688 (8th Cir.1993). Similarly, when a PSR indicates that the defendant's convictions could support an upward departure, this court has held that "[n]o other form of notice is required if the grounds for an upward departure are identified in the PSR." United States v. Drapeau, 110 F.3d 618 (8th Cir.1997); see also Sample, 213 F.3d at 1029 (involving a PSR that indicated an upward departure may be warranted).

Thus, when notice of departure is "sufficiently provided" in the PSR, the district court is not required to give the parties notice of upward departure. United States v. Hill, 951 F.2d 867, 867 (8th Cir.1991). Even if the PSR does not affirmatively recommend an upward departure, if it includes "specific grounds that may form the basis for an upward departure," then Rule 32's notice requirement is satisfied. Sample, 213 F.3d at 1031-32 (holding that because the "district court's departure decision directly correlate[d] with the PSR's plain language," the defendant received adequate notice). Only when the "ground for upward departure is not identified in `the presentence report or in a prehearing submission by the government'" must the district court itself provide advance notice. Id. (quoting Burns, 501 U.S. at 138, 111 S.Ct. 2182). When the district court is required to give notice, it must give such notice before the sentencing hearing....