U.S. v. Cade

• Decision Date: 25 February 2002
• Docket Number: No. 01-20435.,01-20435.
• Citation: 279 F.3d 265
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sadar D. CADE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

279 F.3d 265

UNITED STATES of America, Plaintiff-Appellee, v. Sadar D. CADE, Defendant-Appellant.

No. 01-20435.

United States Court of Appeals, Fifth Circuit.

January 9, 2002.

Rehearing Denied February 25, 2002.

Tony Ray Roberts (argued), Paula Camille Offenhauser, Asst. U.S. Atty., James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Fed. Pub. Def., Laura Fletcher Leavitt (argued), Asst. Fed. Pub. Def., Raquel Kathy Wilson, Asst. Fed. Pub. Def., Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before BALDOCK,^* SMITH and EMILIO M. GARZA, Circuit Judges.

BOBBY R. BALDOCK, Circuit Judge:

Defendant Sadar D. Cade was the ringleader of an extensive fraudulent check cashing scheme that spanned several years. Cade and his co-conspirators printed counterfeit checks and recruited people to deposit the checks in bank accounts or to pass the checks at retail stores. Cade plead guilty to a single-count indictment charging him with possession of a counterfeit security with intent to deceive in violation of 18 U.S.C. § 513(a). At sentencing, the district court made a criminal history category departure under U.S.S.G. § 4A1.3 based on the court's determination that Cade's criminal history category underrepresented his past criminal conduct. The district court departed upward from a guideline range of twenty-seven to thirty-three months, and sentenced Cade to forty-one months' imprisonment. Cade appeals the upward departure, claiming the district court erred by considering prior sentences used as relevant conduct in calculating his base offense level, see U.S.S.G. § 1B1.3, to make a criminal history category departure under § 4A1.3. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We vacate and remand for re-sentencing.

I.

Cade's extensive contact with law enforcement began during a traffic stop in March 1997. Houston police officers arrested Cade after they discovered a counterfeit driver's license in his possession. In connection with this arrest, Cade plead guilty to forgery in Texas state court in July 1997. The court sentenced Cade to four days in jail.

In December 1997, a Sugarland, Texas police officer observed Cade sitting in a car parked in the handicapped zone at a mall. The officer approached Cade. Cade produced a false driver's license. The officer subsequently discovered Cade was in possession of numerous blank checks, driver's licenses, and a list of bank account holders. Cade told the officer he had been paid $50 to take a girl named "Kelly" to the mall where she would pass counterfeit checks to retail stores. "Kelly" was then supposed to return the merchandise purchased with the counterfeit checks to another store for cash. The State of Texas charged Cade with possession of a counterfeit instrument, and he posted bond. The state court convicted Cade of this offense in March 1999. The court sentenced Cade to one year probation.

In June 1999, while Cade was on probation for the March 1999 conviction, United States Secret Service agents received information from a confidential informant that Cade was continuing to pass counterfeit checks. The Secret Service placed Cade under surveillance, and then detained him for questioning. Cade consented to a search of his person, which yielded four counterfeit Texas driver's licenses, all of which bore Cade's photograph, and numerous counterfeit checks from various banks. State authorities again arrested Cade, this time charging him with tampering with a government record and forgery. Cade again posted bond. In February 2000, the Texas state court convicted Cade of the June 1999 offenses. The court sentenced Cade to four years incarceration for tampering with a government record, and two years incarceration for forgery, the sentences to run concurrently.

Prior to that conviction and sentence, a security video tape showed Cade cashing two counterfeit checks at Casino Money Centers in Louisiana in November 1999. Cade was on bond for the June 1999 charges when he passed these two counterfeit checks. Authorities arrested Cade yet again in December 1999. Cade had in his possession counterfeit driver's licenses and six blank counterfeit checks.

While Cade was serving his state sentence, a federal grand jury charged Cade with possession of a counterfeit security in violation of 18 U.S.C. § 513(a). The indictment arose out of a May 1998 incident, in which Cade supplied a counterfeit check in the amount of $10,000 to his girlfriend, who in turn deposited the check at a bank, and later withdrew the funds. Cade committed this offense while on bond and awaiting trial for the December 1997 possession of a counterfeit instrument charge. As a result of the federal indictment, the State of Texas dismissed four other state charges arising out of Cade's December 1999 arrest.¹

II.

Cade pled guilty to the federal indictment, and the United States Probation Office prepared a pre-sentence report (PSR) based on the 1998 Sentencing Guidelines. The PSR set Cade's base offense level at six pursuant to U.S.S.G. § 2F1.1. The PSR considered the March 1999 and February 2000 state sentences as relevant conduct to the instant federal offense under U.S.S.G. § 1B1.3. The PSR thus used the state convictions' underlying facts to adjust the offense level for Cade's instant offense. Based on these facts, the PSR increased Cade's offense level by the following: (1) nine levels under U.S.S.G. § 2F1.1(b)(1)(J) because the total loss from Cade's counterfeit check scheme exceeded $400,000; (2) two levels under § 2F1.1(b)(2) because the offense involved more than minimal planning and more than one victim; and (3) four levels under § 3B1.1(a) because Cade was an organizer or leader of a criminal activity involving five or more participants. The PSR reduced the base offense level by two for acceptance of responsibility under § 3E1.1(a), resulting in a total offense level of nineteen.

The PSR calculated only one criminal history point for Cade's July 1997 sentence of four days imprisonment for forgery. The PSR did not include in Cade's criminal history any of his other state sentences because pursuant to U.S.S.G. § 4A1.2, sentences used as relevant conduct to adjust the offense level for the offense of conviction cannot also be used to determine the criminal history category. Cade's uncounted sentences included his March 1999 sentence for possession of a counterfeit instrument, and his February 2000 sentences for tampering with a government record and forgery. Because the PSR did not include these sentences in Cade's criminal history calculation, the PSR placed Cade in criminal history category I.

An offense level of nineteen and a criminal history category of I established a sentencing range of thirty to thirty-seven months. The PSR suggested that an upward departure under U.S.S.G. § 4A1.3 may be warranted because a criminal history category of I did not adequately reflect the seriousness of Cade's past criminal conduct or the likelihood that he would commit future crimes. Specifically, the PSR noted that Cade had continued to print and pass counterfeit checks while he was (1) on bond after his arrest in December 1997 for possession of a counterfeit instrument; (2) serving his March 1999 sentence of probation for possession of a counterfeit instrument; and (3) on bond after his arrest in June 1999 for tampering with a government record and forgery.

The Government filed a motion for an upward departure under § 4A1.3, arguing that —

Cade's prior sentences that are not used in calculating the criminal history category..., his continued criminal activity while on both pre-trial release and probation, the dismissal of other charges as a result of his Federal conviction and the commission of the instant offense while on bond for another offense are all considerations that warrant an upward departure.

Cade filed objections to the PSR, claiming he deserved a three-level adjustment for acceptance of responsibility. Cade also argued that his other state sentences should not be used as the basis of an upward departure because the court considered them in setting his offense level, and thus the sentencing range as calculated adequately addressed the seriousness of his offense. An addendum to the PSR responded that including this conduct in the offense level alone did not consider the fact that Cade committed several criminal acts while he was on bond and probation.

At sentencing, the district court granted Cade's motion for a three-level adjustment for acceptance of responsibility, resulting in an offense level of eighteen, a criminal history category of I, and a guideline range of twenty-seven to thirty-three months. The court then granted the Government's motion for an upward departure, and departed upward under U.S.S.G. § 4A1.3, finding that "the defendant's criminal history category significantly under-represents the defendant's criminal history and the likelihood that he will commit future crimes." The district court measured the extent of its departure by the criminal history category that would have applied had Cade's prior criminal convictions been counted:

[T]he Court concludes that the defendant's two prior criminal convictions, if they had [not] been considered as relevant conduct, would have resulted in three additional criminal history points, and that an additional two criminal history points would have been assessed for being under supervision while continuing to commit the current offense. This would give the defendant six total criminal history points which would put him in criminal history category three. If he's in criminal history category three, his range would be 33 to 41 months in prison. So I'm going to consider him as if it were a total offense level of 18, a criminal history category of 3, and a range of 33 to 41 months.

The court sentenced Cade...