U.S. v. McIntyre

• Decision Date: 27 June 2008
• Docket Number: No. 07-3684.,07-3684.
• Citation: 531 F.3d 481
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark A. McINTYRE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

531 F.3d 481

UNITED STATES of America, Plaintiff-Appellee, v. Mark A. McINTYRE, Defendant-Appellant.

No. 07-3684.

United States Court of Appeals, Seventh Circuit.

Argued June 11, 2008.

Decided June 27, 2008.

Deirdre A. Durborow (argued), Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.

Gordon E. Freese (argued), Clayton, MO, for Defendant-Appellant.

Before MANION, ROVNER, and TINDER, Circuit Judges.

PER CURIAM.

After robbing six banks in four states over a one month period with his girlfriend, Mark A. McIntyre pleaded guilty to one count of bank robbery. See 18 U.S.C. § 2113(a). The district court, consulting the presentence investigation report and both parties' objections and motions, calculated a guidelines imprisonment range of 37 to 46 months. The government then argued for an above-guidelines sentence, and the court sentenced McIntyre to 144 months' imprisonment—nearly 100 months above the guidelines range. McIntyre appeals his sentence. Because the sentence is reasonable, we AFFIRM.

McIntyre, along with his girlfriend Brook Beaulieu, was indicted on July 20, 2006, with one count of bank robbery. 18 U.S.C. § 2113(a). Beaulieu pleaded guilty on May 21, 2007, was sentenced to 41 months' imprisonment, and cooperated with the government's prosecution of McIntyre.

Before pleading guilty, McIntyre asked for the probation office to prepare his presentence investigation report, which listed his total offense level at 22 and his criminal history category at II, resulting in a recommended guidelines imprisonment range of 46 to 57 months. The probation officer awarded three criminal history points for a 1989 conviction in which McIntyre broke into a rectory, tied up a priest, and stole between $50 and $90 from his wallet. However, McIntyre received no criminal history points for numerous crimes committed prior to 1989, including an armed burglary with the intent to rob a person over 65 years of age. And the officer explained that, after pleading guilty, Beaulieu admitted to authorities that she and McIntyre were involved in six other bank robberies throughout the country in the month prior to the June 20 robbery.¹ The officer also noted that McIntyre had threatened the life of Beaulieu's public defender because she refused to advise him on his case.

McIntyre objected to the presentence investigation report, stating that he deserved a reduction of three points for acceptance of responsibility, despite not yet having pleaded guilty. Two weeks later, McIntyre pleaded guilty without a plea agreement. The government then filed its own objection to the report, arguing that the probation officer should have recommended increasing McIntyre's offense level for obstructing justice based on his threat toward Beaulieu's public defender and a letter he sent Beaulieu, which threatened, "Just don't cop out to anything and stop telling on me!" And, the government continued, McIntyre did not deserve acceptance points if he is found to have obstructed justice. The government also moved for an "upward departure," claiming that the presentence report under-represented the seriousness of McIntyre's criminal history. In particular, the government noted that McIntyre would have qualified as a career offender if he had not received a "forthwith" sentence on his 1989 conviction, which discharged him from a previous conviction.² Further, the government argued that the report failed to recognize the likelihood of recidivism.

At sentencing the government offered testimony from Ron Lott as evidence of McIntyre's threat against Beaulieu's public defender. Lott testified that, after calling and angrily confronting Beaulieu's attorney, McIntyre told him that he was going to "have some of his guys come down here and take care of her. Meaning kill her." Shortly thereafter, the district court denied the government's request for a two-level increase for obstructing justice because the letter and verbal threat were somehow "ambiguous." And it granted McIntyre a two-level reduction in his base offense level for acceptance of responsibility. Based on a total offense level of 20 and a criminal history category of II, the district court then calculated a guidelines imprisonment range of 37 to 46 months.

The district court next addressed the government's motion for an above-guidelines sentence. The government argued that McIntyre's criminal history category of II "clearly underrepresented" his criminal history because it did not include nearly a dozen crimes he committed prior to 1991. Further, the government asserted that McIntyre was "really a career offender" based upon his lengthy criminal history and the fact that, but for a quirk in Massachusetts law, he would in fact have qualified as a career offender. McIntyre, in response, argued for a within-guidelines sentence because of the 41-month sentence that Beaulieu received. He also claimed that he spent the twelve years between 1994 and 2006 as a "productive citizen" with several jobs and no criminal history.

After hearing from both sides, the district court sentenced McIntyre to an above-guidelines sentence of 144 months' imprisonment and three years' supervised...