U.S. v. Bridges

• Citation: 336 U.S. App. D.C. 51,175 F.3d 1062
• Decision Date: 18 May 1999
• Docket Number: No. 97-3144,97-3144
• Parties: UNITED STATES of America, Appellee, v. Furman BRIDGES, Appellant, District of Columbia Circuit
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1062

175 F.3d 1062

UNITED STATES of America, Appellee, v. Furman BRIDGES, Appellant,

No. 97-3144.

United States Court of Appeals,District of Columbia Circuit.

Argued Sept. 3, 1998.

Decided May 18, 1999.

Appeal from the United States District Court for the District of Columbia (No. 97cr00184-01).

Carmen D. Hernandez, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Tony W. Miles, Assistant Federal Public Defender, entered an appearance.

Thomas P. Swanton, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher, Mary-Patrice Brown and S. Elisa Poteat, Assistant U.S. Attorneys.

Before: SENTELLE, HENDERSON and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Defendant Furman Bridges pled guilty to one count of mail fraud in violation of 18 U.S.C. § 1341. The district court departed upward from the sentence Bridges would otherwise have received under the United States Sentencing Guidelines ("U.S.S.G.") by increasing his criminal history category from II to V. Bridges appeals his sentence on two grounds. First, he contends that in explaining why it chose Category V, the court erred by not first pausing and explaining why Categories III and IV were inadequate. Second, he contends that the departure was unlawful because it was based on a consideration of prior convictions that were not similar to mail fraud. In particular, defendant argues that in determining the similarity of offenses, a sentencing court is limited to comparing their facial elements and may not consider the conduct underlying any of the offenses--even the offense for which the defendant is currently being sentenced. For the reasons set forth below, we reject defendant's contentions and affirm the judgment of the district court.

I

Bridges was charged in a five-count information with using the mail to execute a scheme to defraud "numerous businesses and credit card companies" between 1994 and 1996. Appendix ("App.") at 4. Pursuant to a plea agreement, Bridges pled guilty to one of the mail fraud counts charged in the information. The mail element of the crime was satisfied when Bridges mailed a check to "Frederick's of Hollywood" for the purchase of certain unspecified merchandise. The fraud element was satisfied because the check belonged to Louis A. Robinson, Sr., rather than to Bridges, and because Bridges forged Mr. Robinson's signature on the check. Unfortunately for Robinson, he had the same street address as Bridges--except that Robinson's address was in the Northeast quadrant of Washington, D.C., while Bridges' was in the Southeast. The Postal Service apparently misdelivered a box of Robinson's checks to Bridges--who forged Robinson's signature and sent a check off to California.

Although Bridges pled guilty to mailing a single forged check, he accepted responsibility for a broader scheme, which was exposed during the investigation and which constituted part of the "relevant conduct" of his offense for purposes of the Sentencing Guidelines. See U.S.S.G. § 1B1.3 (relevant conduct). In addition to the check he forged and sent to Frederick's of Hollywood, Bridges forged numerous other checks belonging not only to Mr. Robinson, but also to his wife, whose checks had been misdelivered to Bridges' address as well. Nor were the Robinsons the only victims of the overall scheme. Bridges obtained (by an unspecified method) checks that had been stolen from several other individuals, and used them to purchase merchandise through the mail. He also obtained a credit card stolen from a tourist, and submitted a fraudulent application for another credit card in the name of yet another innocent victim. Bridges used the checks and credit cards to purchase a total of $26,597.42 worth of merchandise for himself and his girlfriend. Presentence Investigation Report ("PSR") pp 4-14.

Under the Sentencing Guidelines, an offender's sentencing range is generally determined by the intersection of his offense level, which depends upon the characteristics of the offense for which he was convicted, and his criminal history category, which depends upon his prior criminal conduct. Bridges' PSR, prepared for the district court by the U.S. Probation Office, calculated his offense level as 10 (on a scale of 1-43) and his criminal history category as II (on a scale of I-VI). Id. pp 28, 35. The latter was based on Bridges' 1987 sentence for unauthorized use of an access device (a credit card). In addition to that conviction, Bridges had five more sentences on his record for offenses spanning the period 1966-75, including unauthorized use of a motor vehicle, forgery, petty larceny, unlawful possession of stolen property, and false pretenses. Those sentences were not counted in the calculation of Bridges' criminal history category because the Sentencing Guidelines limit the calculation to sentences imposed within ten or fifteen years of the instant offense. U.S.S.G. § 4A1.2(e).

Based on an offense level of 10 and a criminal history category of II, the PSR calculated a guideline sentencing range of 8 to 14 months imprisonment. PSR p 57. Under U.S.S.G. § 4A1.3, p.s., however, a court may impose a sentence departing from the otherwise applicable guideline range if the defendant's "criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." In this case, the PSR concluded that due to the large number of uncounted prior convictions, "an upward departure may be warranted" for just that reason. PSR p 70. The Report noted that had Bridges' older convictions been counted, his criminal history category would have been V rather than II, and the resulting sentencing range would have been 21 to 27 months. Id.

At the sentencing hearing, the district court accepted the PSR's findings and recommendations, concluding that Criminal History Category II "significantly under represents the seriousness of [the defendant's] criminal history or the likelihood that he will commit further crimes." Sentencing Tr. at 16. Quoting from the PSR, the court reviewed some of the defendant's five prior convictions in support of that conclusion. Id. at 16-19. The court then departed upward by placing the defendant in Category V and sentencing him to 24 months imprisonment, the mid-point of the enhanced range. Id. at 19. The court's written Judgment stated that it adopted the factual findings of the PSR, listed all of defendant's prior convictions, and indicated that those convictions justified a departure to Category V under U.S.S.G. § 4A1.3. App. at 18-24.

II

We review a district court's decision to depart from the Guidelines under the unitary abuse of discretion standard set forth in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Under that standard, "substantial deference" is required "in most cases." Id. at 98. We must uphold a district court's findings of fact unless clearly erroneous, and must give due deference to its application of the Guidelines to the facts. See Koon, 518 U.S. at 97 (citing 18 U.S.C. § 3742(e)); United States v. Dozier, 162 F.3d 120, 123 (D.C.Cir.1998). "A district court by definition abuses its discretion when it makes an error of law," however, and the "court of appeals need not defer to the district court's resolution" of such legal issues. Koon, 518 U.S. at 100. Hence, our review of questions of law is de novo. See United States v. Becraft, 117 F.3d 1450, 1451 (D.C.Cir.1997).

Bridges does not dispute the appropriateness of some upward departure in his case, but contends that the sentencing court erred by departing from Category II to Category V without expressly explaining why each intervening category was inadequate--a process defendant styles as a "step-by-step methodology." Def. Br. at 13. Although the extent of a departure is reviewable only for its reasonableness, see Williams v. United States, 503 U.S. 193, 202-03, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992); 18 U.S.C. § 3742(e)(3), Bridges contends that the step-by-step requirement is compelled by the text of U.S.S.G. § 4A1.3. Because Bridges' contention is that the step-by-step methodology is required as a matter of law, we review the issue de novo.

A

Guidelines § 4A1.3, which governs departures based on the inadequacy of a defendant's criminal history category, states in pertinent part:

In considering a departure under this provision, the Commission intends that the court use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable. For example, if the court concludes that the defendant's criminal history category of III significantly under-represents the seriousness of the defendant's criminal history, and that the seriousness of the defendant's criminal history most closely resembles that of most defendants with Criminal History Category IV, the court should look to the guideline range specified for a defendant with Criminal History Category IV to guide its departure.

U.S.S.G. § 4A1.3, p.s. We do not read this text to mandate a process of step-by-step consideration or explanation. The first sentence requires the court to use as a reference the guideline range for a defendant with a higher (or lower) criminal history category; it does not say the court must use the range of a defendant with the next higher category. It is true that the example the Guideline provides is one in which a court, finding Category III to be inadequate, is directed to look to Category IV for guidance. But the text directs the court to Category IV not because it is the next higher category, but because, in the example, the seriousness of the defendant's criminal history "most closely resembles" that of most defendants in...