U.S. v. Flinn, 92-2045

• Decision Date: 04 March 1993
• Docket Number: No. 92-2045,92-2045
• Citation: 987 F.2d 1497
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Scott FLINN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1497

987 F.2d 1497

UNITED STATES of America, Plaintiff-Appellee, v. Edward Scott FLINN, Defendant-Appellant.

No. 92-2045.

United States Court of Appeals Tenth Circuit.

March 4, 1993.

Stephen R. Kotz (Don J. Svet, U.S. Atty., with him on the brief), Asst. U.S. Atty., Albuquerque, NM, for plaintiff-appellee.

Roger A. Finzel, Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellant.

Before MOORE, and BRORBY, Circuit Judges, and THEIS, ^* District Judge.

BRORBY, Circuit Judge.

Pursuant to 18 U.S.C. § 3742(a), Defendant-Appellant Edward Scott Flinn appeals a thirty-three month sentence received after entering into a plea agreement to an indictment charging him with fraudulent use of an unauthorized access device in violation of 18 U.S.C. § 1029(a)(2) and 18 U.S.C. § 1029(c)(1). Appellant contends the district court erred by upwardly departing from the United States Sentencing Commission Guidelines Manual (November 1, 1992) (Guidelines) in imposing his sentence.

I. BACKGROUND

On February 24, 1991, Mr. Flinn, using an unauthorized Sprint long distance access code, called the Ramada Classic Hotel in Albuquerque from Honolulu, and convinced the hotel operator to provide him with an outside line by posing as a telephone repairman. From the outside line he dialed 911 and reported a hostage situation developing at the hotel. In a female voice, he identified himself as the hotel operator and described the crisis he witnessed over a television security monitor. He reported that nine men with large guns entered the hotel, killed one employee, and took all of the hotel guests hostage. The police dispatcher determined the call originated from the Ramada, yet was unable to contact the hotel operator to verify the crisis. The Albuquerque SWAT team was dispatched to the scene only to discover the report was a hoax.

On that same day, Mr. Flinn, posing as a police dispatcher, called the restaurant across the street from the hotel, and advised that all customers in the restaurant should lie down on the floor as a hostage situation was developing at the Ramada. He subsequently notified the local media that the police responded to a hostage situation at the hotel. These calls also were made using the unauthorized telephone access code.

The presentence report indicates that Mr. Flinn has a long and bizarre history of telephone abuse. In regard to the present situation, the report calculated a criminal history level of III and an adjusted offense level of 8, yielding a Guidelines range of six to twelve months. The report recommended an upward departure from the Guidelines, and the district court indeed found that a departure was warranted under the circumstances. The district court reasoned that an upward criminal history departure was necessary because the Defendant received lenient sentences for his other prior felony convictions and appears likely to commit other crimes. In further justifying the inadequacy of the initial criminal history category of III, the district court found that the "defendant has been involved in at least five (5) prior situations in which he misused a telephone to harass, intimidate and cause confusion."

The Guidelines policy statements of § 5K2.5 (Property Damage or Loss) and § 5K2.7 (Disruption of Governmental Function) provided the rationale for an upward departure in offense levels. The district court classified the $2,500 loss incurred by the Ramada as property damage or loss, and considered the unnecessary dispatch of the Albuquerque SWAT team a disruption of governmental function. The district court concluded that a criminal history of IV and an offense level of 14 more accurately reflected the magnitude of the Defendant's criminal activities. The higher categories resulted in a change from the initial six to twelve month range to an adjusted twenty-seven to thirty-three month range. Applying the adjusted Guidelines range, the district court sentenced Mr. Flinn to thirty-three months.

II. DISCUSSION

Defendant appeals the district court's upward departure from the Sentencing Guidelines under 18 U.S.C. § 3742(a)(3). Section 3742(a)(3) provides a right of appeal when the sentence imposed is greater than the sentence specified in the applicable Guidelines range. The sentencing court can depart from the Guidelines range only if it "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." 18 U.S.C. § 3553(b). The decision and disposition of the appeal is governed by 18 U.S.C. § 3742(f). ¹ The Supreme Court recently interpreted § 3742(f), and adopted a two-step departure analysis in Williams v. United States, --- U.S. ----, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). The first step is to determine if there was an incorrect application of the Guidelines under § 3742(f)(1). Id. at ----, 112 S.Ct. at 1120. If the departure is not the result of an error in interpreting the Guidelines, the second step is to determine if "the resulting sentence [is] an unreasonably high or low departure from the relevant guideline range." Id.; U.S.S.G. § 3742(f)(2). This analytical framework guides our review of the validity of upward departures.

The Tenth Circuit approach established prior to Williams in United States v. White, 893 F.2d 276 (10th Cir.1990), is consistent with the Williams framework. White requires the appellate court to engage in a three-step review of upward departures: 1) de novo review of whether the circumstances cited by the district court warrant departure; 2) clearly erroneous review of the factual determinations underlying the decision to depart; and 3) reasonableness review of the degree of departure. Id. at 277-78. The White decision is analytically consistent with Williams, since it encapsulates both the steps articulated in Williams and mandated by § 3742(f). Therefore, we continue to engage in the three-step review articulated in White.

A. Criminal History

The district court determined the Defendant's criminal conduct was significantly underrepresented by his criminal history score, and upwardly departed from criminal history level III to IV. The court departed from the Guidelines range because it determined 1) the Defendant committed prior criminal conduct as an adult which did not result in a conviction, 2) two prior and distinct felonies were consolidated for sentencing, and 3) the sentence Defendant received for prior felonies was lenient.

According to the first prong of the White test, we review de novo whether these justifications legally support an upward departure. If the district 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,' " then it may depart from the Guidelines. United States v. Thornton, 922 F.2d 1490, 1493 (10th Cir.1991) (quoting 18 U.S.C. § 3553(b)). A record of prior similar conduct may provide a valid basis for an upward departure to a higher criminal history category. U.S.S.G. § 4A1.3(e); United States v. Russell, 905 F.2d 1450, 1454 (10th Cir.), cert. denied, 498 U.S. 904, 111 S.Ct. 267, 112 L.Ed.2d 224 (1990). Upward departure may also be appropriate when prior lenient sentences result in the misrepresentation of a defendant's actual criminal history. U.S.S.G. § 4A1.3, comment.; United States v. Stumpf, 938 F.2d 172, 174 (10th Cir.1991); United States v. Fortenbury, 917 F.2d 477, 478 (10th Cir.1990). Finally, upward departure may be warranted when prior convictions were grouped for sentencing and the criminal history underrepresents the seriousness of the prior conduct. See U.S.S.G. § 4A1.2, comment. (n. 3). ² Indeed, the Tenth Circuit has justified an upward departure in the criminal history category when serious offenses committed on independent occasions were consolidated for sentencing. See White, 893 F.2d at 279. Thus, the reasoning provided by the district court is legally sufficient to justify an upward departure in criminal history, and the district court did not incorrectly apply the Guidelines under U.S.C. § 3742(f)(1).

We review the factual basis for the criminal history departure for clear error. The district court's finding that "the defendant has been involved in at least five prior situations in which he misused a telephone to harass, intimidate and cause confusion" is factually supported by the findings in the presentence report. Likewise, the record reveals that two prior convictions were consolidated for sentencing.

The leniency of prior sentences is factually unclear from the record. The initial criminal history calculation ³ determined the Defendant received prior lenient sentences based on the assumption that the Defendant was incarcerated only forty-three days for his two prior felonies and his subsequent probation violation. ⁴ The presentence report, however, additionally states: "On December 2, 1988, the defendant was sentenced to four and one-half years incarceration, with three and one-half years suspended. He received a sentence of 364 days incarceration with three and one-half years probation." As an appellate court, it is difficult to review the application of the Guidelines when the findings of fact are unclear. Because there is evidence supporting the finding that the Defendant's incarceration period was only forty-three days, such a finding is not clearly erroneous.

Finally, we address the third prong of the White test, whether the degree of departure by the district court was reasonable. We consider the following factors: "[T]he district court's proffered justifications, as well as such factors as: the seriousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the...