U.S. v. Dawson, 92-1934

• Decision Date: 02 July 1993
• Docket Number: No. 92-1934,92-1934
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony W. DAWSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 457

1 F.3d 457

UNITED STATES of America, Plaintiff-Appellee, v. Anthony W. DAWSON, Defendant-Appellant.

No. 92-1934.

United States Court of Appeals Seventh Circuit.

Argued Nov. 10, 1992.

Decided July 2, 1993.

James M. Warden, Asst. U.S. Atty., Kathleen M. Sweeney (argued), Office of the U.S. Atty., Indianapolis, IN, for plaintiff-appellee.

Jack F. Crawford (argued), Indianapolis, IN, for defendant-appellant.

Before POSNER and RIPPLE, Circuit Judges, and CRABB, Chief District Judge. ^*

RIPPLE, Circuit Judge.

Anthony Dawson pleaded guilty to six counts of bank robbery in violation of 18 U.S.C. Sec. 2113(a) and (d) and one count of possession and use of a firearm in the commission of a crime of violence in violation of 18 U.S.C. Sec. 924(c). Mr. Dawson had also committed numerous other uncharged robberies and had an extensive record of past criminal conduct. The district court departed upward from the otherwise applicable sentencing range. Mr. Dawson was sentenced to 360 months of imprisonment for the six bank robberies to which he pleaded guilty, an additional mandatory consecutive sentence of sixty months on the firearm count, five years of supervised release, and restitution in the amount of $17,319.00. Mr. Dawson appeals the district court's upward departure. After reviewing the sentencing record, we believe that the district court erred in its methodology and imposed a sentence on Mr. Dawson that contravenes the Sentencing Guidelines. Accordingly, we remand this case for resentencing.

I BACKGROUND

A. Facts

Mr. Dawson has a long and varied criminal history during which he has consistently committed theft offenses in order to finance his drug use. From April 25, 1991, to June 17, 1991, Mr. Dawson committed a series of bank robberies that encompassed three different states. He committed eight bank robberies in Indianapolis, Indiana, and he robbed three other banks in Ohio and Kentucky. ¹ Mr. Dawson managed to elude police despite the fact that he did not wear a disguise when he robbed the banks, that he left identifiable fingerprints on the counter of one bank, and that at least once he signed a deposit slip with his own name and left it at one of the banks that he robbed.

Believing that Mr. Dawson was going to be killed eventually, his aunt convinced him to surrender to authorities. Early in the morning of June 25, 1991, Mr. Dawson gave himself up to the FBI. He confessed committing seventeen robberies: eleven bank robberies (which were federal crimes) and six other robberies (which were state crimes) that had occurred either in business establishments or on the streets of Indianapolis.

On July 11, 1991, Mr. Dawson was indicted on six counts of bank robbery in violation of 18 U.S.C. Sec. 2113(a) and (d) and six counts of using or carrying a firearm during the commission of a crime of violence in violation of

18 U.S.C. Sec. 924(c). These counts were all based on bank robberies that had occurred in Indianapolis. Mr. Dawson initially gave notice to the government that he would use an insanity defense at trial. However, on January 31, 1992, Mr. Dawson pleaded guilty to all six counts of bank robbery and to one count of the firearm offense.

B. District Court Proceedings

On April 10, 1992, the district court conducted a sentencing hearing. The Probation Office drafted a presentence report (PSR) on Mr. Dawson and determined that he had an adjusted offense level of 28, while his extensive past criminal conduct placed him in the highest criminal history category, Category VI. Thus, the applicable sentencing range was 140-175 months' imprisonment. The Probation Office, however, recommended an upward departure because Mr. Dawson's criminal history inadequately reflected the seriousness of his past criminal conduct and the likelihood of recidivism. Specifically, the recommendation noted that Mr. Dawson had been charged with only six of the numerous bank robberies to which he had confessed. Moreover, the PSR stated that the sixth charged robbery was not taken into consideration under Sec. 3D1.4 of the United States Sentencing Guidelines' multiple-count grouping provisions. ² Mr. Dawson had also confessed to six state robberies upon which he had yet to be charged; he had been convicted previously of three state felonies that had been consolidated for sentencing and thus did not receive full consideration under the Guidelines; and he also had three prior convictions that were too old for inclusion under the Guidelines. Additionally, at the sentencing hearing, the government argued for an enhancement based on the alleged extreme psychological injury to several bank tellers who were victims of Mr. Dawson's trail of robberies.

At the sentencing hearing, Mr. Dawson restated his written objections to all of the recommendations for upward departure contained in the PSR, as well as the government's attempt to show that the bank tellers suffered from extreme psychological injury. Mr. Dawson contended that his prior criminal history was adequately taken into account by the provisions of the Sentencing Guidelines. He argued that a criminal history category of VI is such a serious designation that it did adequately reflect his past criminal conduct. Moreover, Mr. Dawson argued that neither the charged nor the uncharged robberies could serve to enhance his sentence because the multiple-count grouping provisions of the Sentencing Guidelines already contemplate the commission of multiple offenses and, therefore, no upward departure was justified.

The district court, however, agreed with the recommendation in the PSR that an upward departure was appropriate. The district court prefaced Mr. Dawson's sentencing hearing by stating that his criminal history category, as calculated under the Sentencing Guidelines, was inadequate. Tr. at 78. The court found that the calculated sentencing range did not fully reflect Mr. Dawson's past criminal conduct or his likelihood of recidivism. In its departure calculations, the court did not rely upon the six state robbery confessions, the three old convictions, or the alleged extreme psychological injury of the bank tellers. Instead, the court departed upward on the basis of the three prior state convictions that had been consolidated for sentencing, on the five uncharged federal bank robberies, and on the sixth charged bank robbery that allegedly was not addressed under Sec. 3D1.4. In making the upward departure, the court specifically stated that

there have been prior sentences that were not used in computing the criminal history Tr. at 78-79. Because Mr. Dawson already qualified for the highest criminal history category, Category VI, any upward departure based upon the inadequacy of the criminal history computation had to be calculated outside the sentencing table. See U.S.S.G. Sec. 4A1.3 (stating that in certain egregious cases, "a decision above the guideline range for a defendant with a Category VI criminal history may be warranted").

category with reference to the consolidated state counts, and there is prior similar adult criminal conduct not resulting in a criminal conviction that also warrant an upward departure.

With regard to the three prior offenses consolidated for sentencing, the district court noted that, had they not been consolidated, six extra criminal history points would have been assessed against Mr. Dawson. The court departed upward by applying the six points to Mr. Dawson's criminal history. However, because he was already in the highest criminal history category, the court increased his sentencing range fifteen percent for each category that it departed upward beyond Category VI. See United States v. Schmude, 901 F.2d 555 (7th Cir.1990). ³ The court found that this method resulted "in a two-level increase above the six." Tr. at 79.

The court further departed upward based on both the limitations of the multiple-count grouping provision in the Guidelines and the five uncharged bank robberies that Mr. Dawson had admitted committing. Although Mr. Dawson had pleaded guilty to six bank robberies, Sec. 3D1.4, which increases the offense level for grouped offenses, only provides for an increase of five levels. Thus, the court determined that the sixth bank robbery had not been taken into account under the grouping provision. The court departed upward based on the sixth bank robbery count. Additionally, the court decided to depart upward again based on the five uncharged federal bank robberies. Tr. at 80. The court then apparently miscounted the robberies it was basing departure upon, ⁴ and instead of adding six units to the five already provided for under the grouping provision, it added the six additional units to the gross number (six) of charged robberies. ⁵ The court increased Mr. Dawson's offense level by twelve. This miscalculation resulted in a Finally, the court reached a sentencing range of 360 months to life by calculating an offense level of 35 and by dropping down two additional levels in Criminal History Category VI by virtue of the fifteen percent extrapolation method proposed in Schmude. ⁶ The court sentenced Mr. Dawson to 360 months' incarceration on the charged bank robberies, a mandatory consecutive term of sixty months' incarceration for the firearm offense, restitution in the amount of $17,319 to be paid to the two victimized banks, and five years of supervised release. ⁷

combined adjusted offense level of 37. Mr. Dawson was, however, granted a two-level reduction for acceptance of responsibility. All of these calculations produced an offense level of 35.

On appeal, Mr. Dawson contends that the district court erred in two ways. First, he argues that the district court erred when it departed upward by adding offense levels based on the five uncharged bank robberies to which he confessed. Second, he contends that an upward departure that raises the applicable sentencing range from 140-175 months to 360 months to life is unreasonable and is...