U.S. v. Fahm

• Decision Date: 01 November 1993
• Docket Number: 93-1012,Nos. 92-2215,s. 92-2215
• Citation: 13 F.3d 447
• Parties: UNITED STATES of America, Appellee, v. Hakeem FAHM, Defendant, Appellant. UNITED STATES of America, Appellee, v. Hakeem FAHM, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 447

13 F.3d 447

UNITED STATES of America, Appellee, v. Hakeem FAHM, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Hakeem FAHM, Defendant, Appellant.

Nos. 92-2215, 93-1012.

United States Court of Appeals, First Circuit.

Heard Nov. 1, 1993.

Decided Jan. 5, 1994.

Randy Olen, with whom David N. Cicilline, Providence, RI, was on brief, for defendant-appellant.

Edwin J. Gale, U.S. Atty., Providence, RI, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

After failing to appear for sentencing on credit-fraud charges in January 1991 before the United States District Court for the District of Rhode Island, appellant Hakeem Fahm was sentenced to a twenty-month prison term in September 1992. Three months later, the district court reconsidered the original sentence sua sponte and imposed a twenty-one month prison term. We deny Fahm's appeal from the original sentence and conclude that the district court was without jurisdiction to "correct" it under Fed.R.Crim.P. 35(c).

I BACKGROUND

Fahm pled guilty in Rhode Island federal district court on November 29, 1990, to credit card fraud and conspiracy. See 18 U.S.C. Sec. 1029(a)(2) (fraudulent use of unauthorized access devices) and (b)(2) (conspiracy to violate Sec. 1029(a)(2)). Fahm was twenty-one years of age at the time. Less than one month later, while released pending sentencing, he was arrested for obstructing a Rhode Island police officer in connection with a motor vehicle violation, whereupon he fled, failed to report to his pretrial services officer, and violated bail by absenting himself from the federal sentencing hearing scheduled for January 1991. Shortly thereafter Fahm committed the crime of attempted credit card fraud, for which he was convicted and sentenced in the United States District Court for the District of Delaware. After serving a five-month sentence on the latter charge, Fahm was returned to the District of Rhode Island for sentencing on the offenses of conviction.

II DISCUSSION

A. The Appeal from the Original Sentence.

1. Reduction for Acceptance of Responsibility Sec. 3E1.1(a) (Nov.1990).

Notwithstanding his abscondence and subsequent federal conviction while awaiting sentencing on the offenses of conviction, Fahm frivolously asserts that the district court committed clear error, see United States v. Royer, 895 F.2d 28, 29 (1st Cir.1990), by denying him a two-level reduction for "acceptance of responsibility" pursuant to U.S.S.G. Sec. 3E1.1(a) (Nov.1990). We find it quite unremarkable that Fahm's belated protestations of remorse fell on deaf ears in the district court ("I frankly don't believe ... that [the defendant is] sorry....). See United States v. O'Neil, 936 F.2d 599, 600 (1st Cir.1991) (district court may look to later conduct to determine sincerity of defendant's claimed acceptance of responsibility).

2. Upward Departure for Underrepresented Criminal History Sec. 4A1.3 (Nov.1991).

Next, Fahm challenges the upward departure imposed pursuant to U.S.S.G. Sec. 4A1.3, ¹ which provides in relevant part:

If 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, the court may consider imposing a sentence departing from the otherwise applicable guideline range....

(Emphasis added.) Ignoring the overburden, Fahm argues that no unusual circumstances distinguish his case from the "mine-run for th[e] offense[s]" of conviction. United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir.1989).

a. The Decision to Depart.

The original presentence report (PSR) recommended a six-to-twelve month guideline sentencing range (GSR), based on an adjusted base offense level (ABOL) of ten and a level I criminal history category (CHC). The PSR addendum prepared prior to the sentencing hearing held on September 30, 1992 ("first hearing"), proposed a level II CHC based on Fahm's intervening Delaware sentence. See U.S.S.G. Sec. 4A1.2 cmt. 1. At the first hearing, the district court advised Fahm that it intended to depart to CHC IV, because (i) Fahm committed the Delaware offense while on bail, see id. at Sec. 4A1.3; United States v. Calderon, 935 F.2d 9, 12 (1st Cir.1991) (commission of offense while on release represents breach of commitment to court), (ii) CHC II underrepresented his actual criminal conduct, and (iii) the CHC would be higher were any of several pending state and federal charges later to result in conviction, see U.S.S.G. Sec. 4A1.3(e); United States v. Figaro, 935 F.2d 4, 7 (1st Cir.1991). ²

The decision to depart is subject to bifurcated review. First, all "quintessentially legal" rulings underlying the decision to depart, such as whether the guideline language permits or forbids departure for the kinds of reasons relied on by the sentencing court, are subject to plenary review. United States v. Rivera, 994 F.2d 942, 951 (1st Cir.1993). Second, in reviewing its "judgment call" as to whether the particular circumstances warrant departure, id. at 951-52, "appropriate respect" is due the sentencing court's "superior 'feel' for the ... case." United States v. Ramirez, 11 F.3d 10, 13 (1st Cir.1993).

(i) Legal Rationale for Departure.

The guidelines explicitly countenance upward departures pursuant to U.S.S.G. Sec. 4A1.3, based on the rationale adopted by the district court in this case: "[T]he criminal history score is unlikely to take into account all the variations in the seriousness of criminal history that may occur.... particularly ... in the case of younger defendants (e.g., defendants in their early twenties or younger) who are more likely to have received repeated lenient treatment, yet who may actually pose a greater risk of serious recidivism than older defendants." U.S.S.G. Sec. 4A1.3, backg'd. (emphasis added). Given Fahm's youth, the similarity and contemporaneity of his criminal conduct, and the fact that he had but one countable "prior sentence," see U.S.S.G. Sec. 4A1.2 cmt. 1, the district court correctly determined that departure was permissible pursuant to Sec. 4A1.3(d), (e), provided reliable information demonstrated that CHC II significantly underrepresented the seriousness of Fahm's actual criminal history and the risk of recidivism. Id.

(ii) Factual Grounds for Departure.

Were we called upon to do so, we would review the sentencing court's findings of fact for clear error, Rivera, 994 F.2d at 950, but Fahm challenges neither the reliability of the criminal history evidence nor the factual findings on which the departure decision was based. ³

Nor can we fault the district court's "judgment call," see United States v. Diaz- Villafane, 874 F.2d 43, 49-50 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989), that Fahm's criminal history warranted an upward departure pursuant to U.S.S.G. Sec. 4A1.3(d), (e), a ruling we review with the considerable deference due the sentencing court's "special competence" and superior "feel" in the circumstances of the particular case, Ramirez, 11 F.3d at 13; Rivera, 994 F.2d at 951-52. In far less egregious circumstances we have sustained an upward departure where the offenses of conviction were committed while the defendant was awaiting final disposition of similar state charge. See Calderon, 935 F.2d at 12. Fahm committed these offenses while awaiting disposition of similar Massachusetts charges (larceny of an automobile and obtaining property under false pretenses) which had yet to result in conviction. See U.S.S.G. Sec. 4A1.3(e). Furthermore, while awaiting sentencing on the instant offenses, he committed a similar credit-fraud felony in Delaware. See United States v. Moore, 931 F.2d 3, 4 (1st Cir.1991) (offenses involving "the same sort of dishonesty and misappropriation of other people's property" are "similar" ). Thus, the district court reasonably concluded that CHC II under-represented Fahm's actual criminal history, a finding well supported, inter alia, by the similar credit-fraud related charges committed within two years of the instant offenses, evidencing a serious pattern of recidivism not reflected in the conventional CHC calculation under U.S.S.G. Secs. 4A1.1 and 4A1.2. See Figaro, 935 F.2d at 7 ("the recency of a prior offense may be considered an indicator of increased likelihood of recidivism, exacerbating the seriousness of a defendant's criminal history."); United States v. Aymelek, 926 F.2d 64, 70 (1st Cir.1991).

b. The Degree of Departure.

The reasonableness of the degree of departure is reviewed with "appropriate respect" for the sentencing court's "special competence," Rivera, 994 F.2d at 952, and substantial deference to its weighting of departure factors properly considered under the guidelines. See Williams v. United States, --- U.S. ----, ----, 112 S.Ct. 1112, 1121, 117 L.Ed.2d 341 (1992).

The criminal conduct alleged in the four cases pending against Fahm in Massachusetts and Rhode Island, as well as the federal charge pending in the District of Rhode Island, see 18 U.S.C. Sec. 3146(a)(1) (failure to appear for sentencing), which were not reflected in the CHC calculation, constituted grounds which, by analogy, see Aymelek, 926 F.2d at 70 (using analogies for Sec. 4A1.3(e) departures), plainly indicated that neither CHC II nor III adequately reflected the seriousness of Fahm's criminal conduct. See U.S.S.G. Sec. 4A1.3(e) ("prior," "similar" criminal conduct not yet resulting in conviction appropriate for consideration in departure decision); Diaz-Villafane, 874 F.2d at 50 (pending charges not used in CHC calculation may be considered in departure decision); United States v. Brown, 899 F.2d 94, 98 (1st Cir.1990) (nature of conduct involved in pending charges, based on record documentation, supports Sec. 4A1.3 departure). But cf. U.S.S.G. Sec. 4A1.3, p.s. (prior arrest record alone...