U.S. v. Cash, 91-5869

• Citation: 983 F.2d 558
• Decision Date: 14 December 1992
• Docket Number: No. 91-5869,91-5869
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willis Ray CASH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 558

983 F.2d 558

61 USLW 2407

UNITED STATES of America, Plaintiff-Appellee, v. Willis Ray CASH, Defendant-Appellant.

No. 91-5869.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 2, 1992.

Decided Dec. 14, 1992.

Michael W. Patrick, Haywood, Denny, Miller, Johnson, Sessoms & Patrick, Chapel Hill, NC, argued for defendant-appellant.

John Warren Stone, Jr., Asst. U.S. Atty., Greensboro, NC, argued (Robert H. Edmunds, Jr., U.S. Atty., on brief), for plaintiff-appellee.

Before HALL and WILKINS, Circuit Judges, and SPROUSE, Senior Circuit Judge.

OPINION

WILKINS, Circuit Judge:

Willis Ray Cash was convicted of bank robbery. 18 U.S.C.A. §§ 2113(a), 2(a) (West Supp.1992 and West 1969). He principally challenges his sentence, arguing that the district court used a constitutionally invalid prior conviction to sentence him as a career offender. See 28 U.S.C.A. § 994(h) (West Supp.1992); United States Sentencing Commission, Guidelines Manual, § 4B1.1 (Nov. 1990). He also contends that the sentence the district court imposed in the alternative, based on the inadequacy of his Criminal History Category, see U.S.S.G. § 4A1.3, p.s., was unreasonable. We affirm.

I.

Cash had an extensive criminal record. Over a 17-year period he had been convicted of over 40 separate offenses as an adult. The probation officer attributed 39 criminal history points to Cash, placing him in the highest Criminal History Category, Category VI. ¹ Cash's past offenses included one conviction for housebreaking and larceny and four assault convictions, all of which qualified as crimes of violence. ² Because Cash had committed at least two prior crimes of violence in addition to his current conviction for bank robbery, the probation officer recommended that Cash be sentenced as a career offender. The probation officer relied on the housebreaking and larceny offense and one of the assaults as the two predicate offenses necessary to establish career offender status. ³

At the sentencing hearing, Cash objected to the use of the assault conviction as one of the predicate offenses for career offender status. While he did not deny actually committing any of his prior offenses, including the four assault offenses, he did allege that the assault conviction relied upon was constitutionally infirm because he had pled guilty to it without being advised of or expressly waiving his rights against self-incrimination and to confront witnesses. The sentencing court agreed and, following United States v. Jones, 907 F.2d 456 (4th Cir.1990), cert. denied, 498 U.S. 1029, 111 S.Ct. 683, 112 L.Ed.2d 675 (1991) (Jones I ), held that this conviction could not serve as one of the predicate offenses. ⁴ However, over Cash's protestations on the same grounds, the district court determined that he failed to establish the constitutional invalidity of one of the other assault convictions. Consequently, the district court concluded that Cash was a career offender and sentenced him to 210 months imprisonment. ⁵

In the alternative, the district court determined that even if Jones I barred counting one of the prior convictions of assault for purposes of 28 U.S.C.A. § 994(h), a sentence based on an upward departure was warranted. The court reasoned that if Cash's prior assault conviction could not be "counted" to classify him as a statutory career offender because it was constitutionally infirm, it could nevertheless be used in determining whether and how far to depart. The district court imposed the same sentence of 210 months imprisonment, the minimum sentence for career offenders similar to Cash.

II.

A.

"A district court must impose a sentence within a defendant's guideline range 'unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.' " United States v. Hall, 977 F.2d 861, 863 (4th Cir.1992) (quoting 18 U.S.C.A. § 3553(b) (West Supp.1992)). Thus, in determining whether to depart, a sentencing court must first identify a circumstance that was not adequately considered by the Commission in devising the sentencing guidelines. Id. After finding that a factual basis for departure exists, the court must next decide if such a circumstance "is of sufficient importance and magnitude" that a departure from the guideline range should result. United States v. Goff, 907 F.2d 1441, 1445 (4th Cir.1990). If the sentencing court determines that a sentence outside the guideline range should result, the extent of the departure must be reasonable. See id.

The district court found that Criminal History Category VI did not adequately represent the seriousness of Cash's past criminal conduct. The Sentencing Commission has expressly identified some circumstances that it did not adequately consider when promulgating the guidelines. United States v. Summers, 893 F.2d 63, 67 (4th Cir.1990). One such circumstance is the inadequacy of a defendant's Criminal History Category. U.S.S.G. § 4A1.3, p.s. (A departure may be warranted when reliable information indicates that a defendant's Criminal History Category "significantly under-represents the seriousness of the defendant's criminal history."). The district court, therefore, properly relied upon a Commission-identified circumstance in departing based on the inadequacy of Cash's Criminal History Category.

B.

In determining whether a departure based upon the inadequacy of a defendant's Criminal History Category is warranted, the sentencing court should consider not only the number of prior offenses committed by a defendant but also their seriousness. See United States Sentencing Commission, Guidelines Manual, § 4A1.3, p.s. (Nov. 1992). In assessing the adequacy of a defendant's Criminal History Category, "criminal conduct underlying any conviction that is not counted in the criminal history score may be considered pursuant to § 4A1.3." U.S.S.G. § 4A1.2, comment. (n. 6); see Jones I, 907 F.2d at 463. The district court determined that Cash's Criminal History Category of VI significantly under-represented the seriousness of his criminal history because Cash had three times the minimum number of points necessary to qualify for Category VI. The district court also based its determination on the fact that Cash would have qualified for treatment as a career offender but for the possibility that one of his prior convictions that otherwise could have served as a predicate offense was constitutionally invalid and, therefore, could not be counted under the ruling in Jones I. We cannot say that the district court erred in finding that Cash's Criminal History Category significantly under-represented the seriousness of his criminal conduct. See United States v. Rusher, 966 F.2d 868, 884 (4th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 351, 121 L.Ed.2d 266 (1992).

C.

Although we previously have discussed the proper analysis for a district court to conduct in determining the appropriate extent of a departure once it has concluded that the defendant's Criminal History Category is inadequate, our prior published decisions have been limited to departures within the existing Criminal History Categories. See, e.g., Rusher, 966 F.2d at 884-85. We have not addressed specifically how a court should proceed when it deems inadequate the highest Criminal History Category, Category VI, or finds that the defendant's prior criminal conduct would dictate that he be sentenced as a career offender but for the fact that the defendant has successfully challenged, pursuant to Jones I, one or both of the predicate offenses relied upon by the government. We take this opportunity to address these issues by discussing three approaches available to a sentencing court.

First, the court may exercise its discretion not to depart. See U.S.S.G. § 5K2.0, p.s. A discretionary decision by a district court not to depart is not appealable. See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.), cert. denied, 498 U.S. 819, 111 S.Ct. 65, 112 L.Ed.2d 39 (1990).

Second, the court may determine the extent of a departure by extrapolating from the existing sentencing table. See, e.g., United States v. Streit, 962 F.2d 894, 905-06 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 431, 121 L.Ed.2d 352 (1992). Additional Criminal History Categories above Category VI may be formulated in order to craft a departure that corresponds to the existing structure of the guidelines. See id. ⁶ In determining the extent of a departure based on inadequacy of criminal history above Criminal History Category VI, the court should move to successively higher categories only upon finding that the prior category does not provide a sentence that adequately reflects the seriousness of the defendant's criminal conduct. See Rusher, 966 F.2d at 884. ⁷

A third alternative may exist in certain circumstances. Jones I recognized that when a sentencing court is faced with a defendant whose prior criminal record is inadequately reflected by his Criminal History Category:

a departure under [U.S.S.G. § 4A1.3, p.s.] will often result in the same sentence that would have been imposed had the invalid conviction been counted. If the court is satisfied that the criminal history score "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 defendants in the higher category that would have resulted from counting the invalid conviction, then that higher category should guide the court's discretion in setting the sentence.

Jones I, 907 F.2d at 466 (quoting U.S.S.G. § 4A1.3, p.s.). And, as this court earlier stated, career offender status "is a type of, not an alternative to, criminal history." United States v. Adkins, 937 F.2d 947, 952 (4th Cir.1991). Once the district court determines...