U.S. v. Cox, Docket No. 01-1459.

• Decision Date: 15 August 2002
• Docket Number: Docket No. 01-1459.
• Parties: UNITED STATES of America, Appellee, v. George COX, also known as "Albert L. Rand," Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 143

299 F.3d 143

UNITED STATES of America, Appellee, v. George COX, also known as "Albert L. Rand," Defendant-Appellant.

Docket No. 01-1459.

United States Court of Appeals, Second Circuit.

Argued: February 5, 2002.

Decided: August 15, 2002.

Martin G. Goldberg, Franklin Square, NY, for Defendant-Appellant.

Kelly T. Currie, Assistant United States Attorney (Alan Vinegrad, United States Attorney for the Eastern District of New York, Peter A. Norling, Assistant United States Attorney, on the brief) Brooklyn, NY, for Appellee.

Before POOLER and SOTOMAYOR, Circuit Judges, and KAPLAN, District Judge.^*

POOLER, Circuit Judge.

Defendant George Cox appeals from the August 14, 2001, amended judgment of the United States District Court for the Eastern District of New York (John Gleeson, Judge) resentencing him after a remand to 46 months imprisonment following his guilty plea to one count of theft of government property, in violation of 18 U.S.C. § 641. Defendant is in the unenviable position of winning his first direct appeal and then receiving a sentence on remand that is 13 months longer than his original sentence. Cox assigns several errors to the district court's decision and questions its motives. After a careful examination of the entire record, we find no error in the district court's rulings on remand, and we affirm.

BACKGROUND

The facts of this matter also are in our prior opinion, United States v. Cox, 245 F.3d 126 (2d Cir.2001), familiarity with which is assumed. Cox over a 12-year period embezzled $588,872 from the federal Department of Veterans' Affairs. Cox used his job within the department to send disability payments to a fictitious disabled veteran he created named "Albert L. Rand." After his arrest on federal charges, Cox unsuccessfully moved to suppress evidence including false identification for Rand. Defendant then pleaded guilty. The district court sentenced Cox on June 25, 1999, to 33 months imprisonment, and Cox appealed his sentence. We remanded the matter to the district court for resentencing because — after the time of Cox's original sentencing — the New Jersey state courts dismissed one of two convictions bearing upon Cox's criminal history category calculation and the reason for the dismissal was relevant to the criminal history calculation. Cox, 245 F.3d at 131-32.

The dismissed conviction was possession of a controlled dangerous substance, to which Cox pleaded guilty in New Jersey state court on March 1, 1999, before he entered his guilty plea to the instant federal charge. Both the state and federal charges stemmed from Cox's arrest on April 10, 1998, when Fort Lee local police responded to a report of a woman screaming in a hotel room. The woman called the hotel's front desk asking for help and also placed a call to local police. A hotel security guard heard a woman screaming for help, saw her leave Cox's room and tried to question her to no avail. Police responding to the call found Cox inside the room, and they found crack cocaine and drug paraphernalia in plain view in the room. While arresting Cox on state drug charges, police discovered identification for Rand bearing Cox's photograph, and they alerted federal authorities to a possible fraud.

The remaining conviction in Cox's criminal history stemmed from his arrest on March 13, 1995, in Fort Lee. Again, local police responded to a hotel room after receiving reports of a woman screaming. When police entered the hotel room, they found Cox and a woman and drug paraphernalia. Cox became aggressive and violent toward the officers, and they charged him with aggravated assault and resisting arrest as well as two drug-related crimes. The woman in the room declined to file charges against Cox. Cox pleaded guilty to simple assault.

After the remand from our court, Cox moved to withdraw his guilty plea to the federal charge, which the district court denied on June 8, 2001. Cox does not appeal this ruling. On remand, the district court determined that the New Jersey state court had dismissed Cox's 1998 conviction for cocaine possession for "prudential reasons, and not because of constitutional invalidity, innocence, or errors of law." The district court did not include the dismissed conviction in its calculation of Cox's criminal history category, but it did consider the matter in deciding to upwardly depart from Cox's criminal history category I to category II. In addition, the district court at the time of resentencing declined to give Cox credit for acceptance of responsibility, even though Cox had received the credit at his original sentencing. On July 13, 2001, the district court resentenced Cox to 46 months imprisonment, three years supervised release, $588,872 restitution and $100 special assessment. The district court detailed its rulings on both the motion to withdraw the plea and the sentencing in a Memorandum and Order dated August 3, 2001. Cox again appeals his sentence.

DISCUSSION

I. Criminal history category

Cox first contends that the district court erred when it upwardly departed from criminal history category I to category II pursuant to U.S.S.G. § 4A1.3. Specifically, Cox argues that his 1998 arrest for drug possession is an improper basis for the departure because it is criminal conduct not similar to the instant crime of conviction. Defendant also contends that the departure rested on speculation to the extent that the district court considered possible violence surrounding the 1998 incident. Finally, Cox argues that impermissible double-counting occurred if the district court considered possible violence surrounding his 1995 arrest and conviction, which presented circumstances similar to the 1998 arrest, because the 1995 conviction already was included in his criminal history calculation. None of defendant's contentions has merit.

The Sentencing Guidelines permits a departure "[i]f reliable information indicates that the 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." U.S.S.G. § 4A1.3. We review the district court's finding regarding the adequacy of the calculated criminal history for clear error and review the scope of the sentencing court's departure for reasonableness. United States v. Kassar, 47 F.3d 562, 566 (2d Cir.1995), abrogated on other grounds, Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).

The guideline lists five types of reliable information that the district court may consider in reaching its conclusion. Importantly, in listing these factors, the guideline states that "[reliable] information may include, but is not limited to, information concerning [the factors]." U.S.S.G. § 4A1.3 (emphasis added). See United States v. Cervantes, 878 F.2d 50, 55 (2d Cir.1989) (noting that the five factors listed in the guideline are "not all inclusive"). Although the district court did not state so specifically, it properly relied on this expansive language. In our remand decision, we invited the district court to investigate a Section 4A1.3 departure because U.S.S.G. § 4A1.2(j) permits this consideration of "expunged" convictions. Cox, 245 F.3d at 132. However, the district court specifically found that Cox's 1998 conviction was not expunged because the New Jersey courts dismissed it only for prudential reasons. Thus, this basis for the departure was unavailable. Next, the district court determined that no "sentence" ever would result from the 1998 conviction. This was the district court's rationale for failing to include the conviction in the criminal history calculation. It also takes the conduct outside of the Section 4A1.3 factors involving prior or imminent sentences.

Cox presumes that the district court relied on Section 4A1.3(e), which concerns "prior similar adult criminal conduct not resulting in a criminal conviction," but the district court did not invoke this factor. U.S.S.G. § 4A1.3(e). We agree with Cox that the factor requires the prior criminal conduct — as opposed to a conviction — to be similar to the instant crime of conviction. United States v. Chunza-Plazas, 45 F.3d 51, 56-57 (2d Cir.1995); United States v. Mayo, 14 F.3d 128, 131-32 (2d Cir.1994). There is no question that Cox's prior criminal conduct of drug possession is not similar to the instant conviction for theft of government property.

But that does not end the inquiry. As noted above, the five factors in the guideline are not exhaustive. We recognized this plain reading of the guidelines in Cervantes, where we acknowledged that a sentencing court may consider bail jumping as a ground for a Section 4A1.3 upward departure even though the prior adult criminal conduct was dissimilar to the crime of conviction of importing cocaine and did not itself result in a criminal conviction. Cervantes, 878 F.2d at 55. This plain reading of the guidelines was not discussed in Chunza-Plazas, where we limited our consideration of a Section 4A1.3 upward departure to the five specific factors in the guideline and rejected the government's attempt to expand the reach of factor (e) to "authorize use of nonsimilar conduct that did not result in a conviction." Chunza-Plazas, 45 F.3d at 57. Chunza-Plazas did not discuss Cervantes or the expansive language of the guideline itself, creating an apparent tension within our precedent. See United States v. Cusack, 66 F.Supp.2d 493, 506-07 (S.D.N.Y.1999), aff'd, 229 F.3d 344 (2d Cir.2000).

Two considerations allow us to resolve this tension. First, the broad language of Chunza-Plazas did not purport to consider non-express factors under Section 4A1.3 because the court appears to have been concerned about the reliability of the information establishing the prior criminal conduct and the fact that this conduct took place in a foreign country. Chunza-Plazas concerned a defendant with no prior convictions but who allegedly had a long history of uncharged...