U.S. v. Jones
| Decision Date | 25 October 1991 |
| Docket Number | No. 90-3266,90-3266 |
| Citation | 948 F.2d 732 |
| Parties | UNITED STATES of America v. Steven D. JONES, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia.
Allan P. Mackinnon, Washington, D.C. (appointed by the Court), for appellant.
David L. Smith, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Elizabeth Trosman, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.
Before WALD and EDWARDS, Circuit Judges, and FAIRCHILD, * Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.
Opinion for the Court filed by Circuit Judge WALD.
Appellant Steven D. Jones pled guilty to a two-count information charging fraud in connection with an access device (i.e., a credit card) in violation of 18 U.S.C. § 1029(a)(2) (1988), and wire fraud, in violation of 18 U.S.C. § 1343 (1988). At sentencing, the district court departed upwards from the prescribed sentencing guideline pursuant to U.S.S.G. § 4A1.3 (1989), 1 finding that appellant's criminal history category seriously underrepresented appellant's actual criminal history. Appellant challenges both the underlying basis and reasonableness of this departure. We uphold the district court's sentence.
Appellant pled guilty to two counts of fraud arising out of an incident involving a mailbag that he stole or received on January 13, 1989. Count I of the information charged that appellant took from the mailbag a Prudential Bache brokerage account statement addressed to "Julie Ann Walthers." Claiming that he was "Julian Walther" and that his Prudential Bache debit card had been issued under an incorrect name, appellant procured from Prudential Bache a debit card in the name of Julian Walther. Jones used this card to obtain approximately $26,000 in airline tickets, hotel accommodations, cash advances, jewelry and personal effects.
Count II of the information charged that appellant used information from a Government Investor's Trust account statement, also taken from the mailbag, to transfer $20,000 from the money market account of one Stanley Bendet to a bank account under appellant's control.
Appellant appeared before the district court for sentencing on December 20, 1989. According to the Presentence Investigation Report ("PSI"), appellant had a criminal history category of II 2 and an offense level of 11, 3 yielding a sentencing range of 10-16 months. See United States Sentencing Commission, Guidelines Manual, Sentencing Table (November, 1989). Finding that category II underrepresented the seriousness of his actual criminal history, the district court departed from the Guidelines and imposed concurrent sentences of thirty months for each count. Transcript of Sentencing Hearing (Dec. 20, 1989) at 7-8.
On appeal, this court remanded for resentencing in light of United States v. Allen, 898 F.2d 203 (D.C.Cir.1990), which held that before departing from the applicable Guidelines range, a sentencing court should first ascertain whether an adjustment within the Guidelines is appropriate. Id. at 204. The Allen court quoted from the Sentencing Guidelines:
For example, if the court concludes that the defendant's criminal history category of III 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 most defendants with a category IV criminal history, the court should look to the guideline range specified for a defendant with a category IV criminal history to guide its departure.
Id. (quoting U.S.S.G. § 4A1.3 (1989) (Policy Statement)).
On remand, the district court again found that level II was not an accurate reflection of the appellant's true criminal history due to the many offenses and criminal activities not included in the calculation of his criminal history score. Consideration of these other offenses, the court held, demonstrated that "criminal history category V is the level which best represents ... [appellant's] ... criminal activities." United States v. Jones, Criminal No. 89-368, Memorandum Opinion ("Mem. op.") at 2 (D.D.C. Dec. 21, 1990).
Citing U.S.S.G. §§ 4A1.3 & 4A1.1(a) (1989), the district court added three points to appellant's criminal history score on account of appellant's admitted embezzlement of over $56,000 from an art gallery where he had been employed from April, 1987 to December, 1987. Appellant signed an affidavit admitting his embezzlement of the funds, and in August, 1988, executed a Confessed Judgment note in which he promised to repay the funds to the art gallery. After making several payments on the note, appellant defaulted and a civil judgment was entered against him in April, 1989.
Using U.S.S.G. § 4A1.1(e) (1989) as a reference, the court found that an additional two points should be added to appellant's criminal history score because the instant offense occurred less than two years after the embezzlement. The court added one more point for a 1986 arrest for breaking and entering for which the appellant received probation before judgment. Cf. U.S.S.G. § 4A1.1(c) (1989). 4
Inclusion of these six additional criminal history points would have given the appellant a criminal history score of 9, the upper end of criminal history category IV. See supra, Sentencing Table. The court found however, that even category IV underrepresented the defendant's true criminal history. Noting that Jones had "committed the instant offense while on release in three different pending cases in different jurisdictions," 5 the court found that
defendant's flagrant disregard for the law, demonstrated by the fact that he continued on the crime spree which led to the instant offense ..., requires that the Court depart upwards from a criminal history category IV. See Guideline 4A1.3(d). 6
Finally, the court noted that appellant had
engaged in numerous acts of deception and fraud which were not factored into the Guideline calculations. Defendant obtained at least 10 fraudulent credit cards, stole mail containing government checks, impersonated a reporter to defraud people of money, transmitted insider information about accounts while employed at a brokerage firm, and stole personal checks while at the brokerage firm.
Id. at 4. The court found that these 7 Id. The court therefore found that "Category V is the appropriate reference to be used when sentencing defendant." Id. at 4-5. An offense level of 11 and a criminal history category of V yields a Guidelines range of 24-30 months. See supra, Sentencing Table. The court sentenced appellant to concurrent sentences of 30 months for each count of conviction.
Appellant raises two issues on appeal. First, he argues that the art gallery embezzlement and the "numerous acts of deception" were intimately related to the offenses to which he pled and therefore improper grounds upon which to base a criminal history departure. Had the district court viewed the art gallery embezzlement and the "numerous acts of deception" as part of "the same course of conduct or common scheme or plan as the offense[s] of conviction," U.S.S.G. § 1B1.3(a)(2) (1989), the overall sentence could not have exceeded 24 months. 8 Second, appellant argues that even if the embezzlement and the "numerous acts of deception" were proper grounds for a criminal history departure, fairness dictates that Jones' overall sentence be no greater than that which would have been imposed had he been convicted of (either by guilty plea or after trial), or stipulated to, these offenses as part of this criminal prosecution (i.e., 24 months). 9 Any sentence based on a departure that exceeds that level he claims is per se unreasonable.
In reviewing departures from the Sentencing Guidelines, this circuit follows the three-part test articulated in United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). See United States v. Ogbeide, 911 F.2d 793, 795 (D.C.Cir.1990); United States v. Adonis, 891 F.2d 300, 303 (D.C.Cir.1989). First, we must determine whether the district court's reasons for the departure are, as a matter of law, "of a kind or degree that may appropriately be relied upon to justify departure." Diaz-Villafane, 874 F.2d at 49. Second, we must determine whether the facts supporting the district court's reasoning are clearly erroneous. Id. Assuming that the departure is warranted in both law and fact, we review the extent of the departure under a standard of reasonableness. Id. Of course, where a defendant has failed to object at the sentencing hearing below, we are reluctant to overturn the district court's sentence in the absence of "plain error." See United States v. Ortez, 902 F.2d 61, 64 (D.C.Cir.1990). 10
The district court relied on U.S.S.G. § 4A1.3 (1989) in departing from the Guidelines on account of the art gallery embezzlement. U.S.S.G. § 4A1.3 (1989) provides that the sentencing court may depart from the applicable Guidelines range "[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 (1989). "[R]eliable information" includes, but is not limited to, information concerning "prior similar adult criminal conduct not resulting in a criminal conviction." U.S.S.G. §§ 4A1.3(e) (1989).
We think that the plain language of U.S.S.G. § 4A1.3 (1989) demonstrates that the trial court did not err in basing a criminal...
To continue reading
Request your trial
-
U.S. v. Simpson
...If the alternative rationale is sufficient to support that judgment, the judgment must be upheld. See, e.g., United States v. Jones, 948 F.2d 732, 740-41 (D.C.Cir.1991) (affirming a Guidelines departure that rested on both permissible and impermissible grounds); United States v. Bowie, 232 ......
-
U.S. v. Ramsey
...court went beyond an analysis of temporal proximity, noting that the transactions involved the same parties, see United States v. Jones, 948 F.2d 732, 737 (D.C.Cir.1991), were of a similar character and nature and involved between one and ten one-kilogram bricks of cocaine, see Pinnick, 47 ......
-
U.S. v. Magluta
...as a matter of law, it was an impermissible ground upon which to base a criminal history departure.") (quoting United States v. Jones, 948 F.2d 732, 737 n. 11 (D.C.Cir.1991)). The government does not directly dispute Magluta's contentions, but rather argues that the district court did not a......
-
U.S. v. Lam Kwong-Wah, KWONG-WA
...may reverse the factfinder's conclusion only if we are "left with a definite and firm conviction" that it is mistaken. United States v. Jones, 948 F.2d 732 (D.C.Cir.1991) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). In apply......