U.S. v. Lambert, 91-1856

• Citation: 984 F.2d 658
• Decision Date: 16 February 1993
• Docket Number: No. 91-1856,91-1856
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David LAMBERT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 658

984 F.2d 658

UNITED STATES of America, Plaintiff-Appellee, v. David LAMBERT, Defendant-Appellant.

No. 91-1856.

United States Court of Appeals Fifth Circuit.

Feb. 16, 1993.

Susan M. Guerieri, Guerieri & McReynolds, Southaven, MS (Court-appointed), for David Lambert.

Calvin Buchanan, Asst. U.S. Atty., Robert Q. Whitwell, U.S. Atty., Oxford, MS, for U.S.

Appeal from the United States District Court for the Northern District of Mississippi.

Before POLITZ, Chief Judge, WISDOM, REYNALDO G. GARZA, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This case concerns § 4A1.3 of the Sentencing Guidelines, which enunciates the procedure a district court must follow when departing upward from the guidelines sentence because a defendant's criminal history score inadequately reflects his culpability. A divided panel of this court affirmed Lambert's conviction but noted the intracircuit conflict in our approach to § 4A1.3. Proceeding en banc, we resolve the conflict by reaffirming the methodology for a § 4A1.3 criminal history departure first expressed in United States v. Lopez, 871 F.2d 513 (5th Cir.1989). Inconsistent decisions in United States v. Harvey, 897 F.2d 1300, 1306 (5th Cir.), cert. denied, 498 U.S. 1003, 111 S.Ct. 568, 112 L.Ed.2d 574 (1990), and United States v. Geiger, 891 F.2d 512 (5th Cir.1989), cert. denied, 494 U.S. 1087, 110 S.Ct. 1825, 108 L.Ed.2d 954 (1990), are overruled. Under the Lopez approach, as explained herein, the district court's sentence passes muster.

I. BACKGROUND

Appellant Lambert pled guilty in April, 1991 to escaping from a federal halfway house. 18 U.S.C. § 751(a). The district court sentenced him to 36 months' imprisonment, twice the possible maximum term computed in accord with the guidelines.

The presentence report had suggested that Lambert's sentence might deserve an upward departure from the guidelines range because his criminal history category (V) tended to understate the seriousness of his criminal history or his potential for recidivism. Persuaded by the Presentence Investigation Report, the district court briefly summarized Lambert's criminal history at the sentencing hearing. In 1976, Lambert committed an armed robbery, for which he received two years imprisonment. Shortly after being released, Lambert used a pistol to rob a woman and the following day committed burglary in a store owned by the woman's family. Lambert was sentenced to ten years on the robbery count, six years on the burglary count, and served the terms concurrently. Seven years after the commencement of Lambert's incarceration at the Mississippi State Penitentiary, he was found in possession of forged U.S. Postal Service money orders. After Lambert was discharged from the Mississippi facility, he began to serve a six-year term in federal prison and thereafter committed the instant offense.

At the sentencing hearing for the instant offense, the court stated:

What really concerns me, first of all, are two offenses where weapons were used, first a knife and then a gun. But to show total disrespect for the law while you were incarcerated first in the Mississippi State Penitentiary [and] in there you committed a federal crime. While incarcerated in the federal penitentiary you committed another federal crime ...

The armed robbery and burglary convictions in 1978 were consolidated for sentencing, and they resulted only in three criminal history points. You haven't committed just one offense while in custody; you have committed two while lawfully incarcerated on other charges.

If ever there was an instance where the guidelines did not adequately consider the seriousness of the offense that you have committed, considering your criminal history as a whole, this is that case.

I'm of the opinion that your criminal history, particularly the two offenses committed while in lawful custody on other offenses, are significantly more serious than that of most defendants who are in this same criminal history category. And you're in a criminal history category of V, even after giving you the two points for the acceptance of responsibility. VI is the highest.

But I do not believe that the guidelines in this case adequately reflect the seriousness of the offense nor do they adequately provide punishment commensurate to the gravity of the offense in this case considering your criminal history category as a whole.

[Emphasis added].

Accordingly, the court departed upward in sentencing Lambert. On appeal, Lambert's sentence was initially affirmed.

II. DISCUSSION

Sentencing under the guidelines is based primarily on the evaluation of two variables: the offense level and the defendant's criminal history score. Each of these variables is assigned a point score according to the instructions given in the guidelines. The defendant's criminal history score, with which we are here concerned, is calculated by assigning points to prior convictions depending upon such factors as the length of the sentence and whether the instant offense was committed within two years of release from prison or while under any criminal sentence. The defendant is assigned to a criminal history category (from I to VI) based upon the criminal history point score. The sentencing range is then determined by cross-referencing the offense level with the defendant's criminal history category on the guidelines' sentencing table. The table sets sentencing ranges that allow the district court some latitude to fine tune the sentence to the character of the particular defendant and the circumstances of the offense.

A district court is not, however, utterly a slave to the guideline grids; it may depart upward or downward from the sentence range specified by the guidelines when it finds "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). When sentencing a defendant, the court "shall state in open court the reasons for its imposition of the particular sentence." 18 U.S.C. § 3553(c). If the court departs, i.e., imposes a sentence outside the range prescribed by the guidelines, the court must also state "the specific reason for the imposition of a sentence different from that described." Id.

Section 4A1.3 of the guidelines articulates that an upward departure sanctioned by § 3553(b) "is warranted when the criminal history category significantly under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit further crimes." At the time of sentencing, the Sentencing Commission's § 4A1.3 offered the following guidance:

In considering a departure under this provision, the Commission intends that the court use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable. 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. The Commission contemplates that there may, on occasion, be a case of an egregious, serious criminal record in which even the guideline range for a Category VI criminal history is not adequate to reflect the seriousness of the defendant's criminal history. In such a case, a decision above the guideline range for a defendant with a Category VI criminal history may be warranted. ¹

This court's first significant interpretation of § 4A1.3 occurred four years ago in United States v. Lopez, 871 F.2d 513 (5th Cir.1989). The district court in Lopez had found that the defendant's criminal history score was zero, placing him in Category I, the lowest possible category. But rather than impose the guidelines-determined sentence, the district court departed from the guidelines and imposed a sentence equal to the maximum sentence for that offense for a defendant with a Category V criminal history. Noting that the district court had not considered any intermediate sentence ranges, this court vacated the district court's sentence, explaining:

The Guidelines require sentencing courts first to consider upward adjustments of the criminal history category, where a defendant's score appears inadequately to reflect his or her history, before a departure sentence may be justified on this basis. Where this is not done, resentencing is appropriate.

In so holding, we emphasize that in some cases involving defendants with low criminal history scores, it may be justified to impose a sentence reflecting a much higher criminal history category or to go beyond the range corresponding to the highest Category VI. However, in such cases the sentencing judge should state definitively that he or she has considered lesser adjustments of the criminal history category and must provide the reasons why such adjustments are inadequate.

871 F.2d at 515.

Lopez, applying § 4A1.3 literally, explicitly instructed district courts considering an upward departure to evaluate the sentence ranges for each criminal history category above the defendant's assigned category and explain why it chose a particular sentencing range rather than some lesser range associated with a lower criminal history score.

After Lopez, some panels of this court have adopted its ruling, without regard to the defendant's criminal history category; ² a few have attempted to limit Lopez to its facts by denying the benefit of a § 4A1.3 articulation to defendants in high criminal history categories; ³...