U.S. v. Riggs, s. 90-9108
| Decision Date | 04 August 1992 |
| Docket Number | Nos. 90-9108,90-9129,s. 90-9108 |
| Citation | 967 F.2d 561 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. ROBERT J. RIGGS, a/k/a the Prophet, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. ROBERT J. RIGGS, a/k/a Robert Johnson, a/k/a Prophet, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Paul S. Kish, Federal Defender Program, Inc., Atlanta, Ga. for defendant-appellant.
Eric M. Lieberman, Nicholas E. Poser, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City, Harvey A. Silverglate, Sharon L. Beckman, Boston, Mass., for amicus curiae Electronic Frontier Foundation.
Kent B. Alexander, Asst. U.S. Atty., Randy S. Chartash, Atlanta, Ga., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of Georgia.
Before EDMONDSON and COX, Circuit Judges, and MERHIGE *, Senior District Judge.
Defendant appeals the district court's upward departure from the sentence prescribed by the Sentencing Guidelines and prohibition on defendant's ownership or unguided use of any personal computer during defendant's period of supervised release. For the reasons that follow, we AFFIRM.
Defendant Robert Riggs was convicted in North Carolina in 1986 for his unauthorized use of a computer to gain access to BellSouth's Data Network. 1 He was sentenced to 15 days community service and then placed on eighteen months probation, which was completed in 1988.
In February 1990, Riggs was indicted in the Northern District of Georgia for four counts of wire fraud, three counts of access code fraud, and one count of conspiracy--charges that arose from Riggs' involvement with a group of computer "hackers." 2 The group's specialty was breaking into various BellSouth systems, stealing information (such as access codes), disseminating that information to other hackers, and in the process, regularly using unauthorized long distance/data network services.
In April 1990, Riggs was charged with similar crimes in the Northern District of Illinois. Pursuant to Federal Rule of Criminal Procedure 20, the Illinois indictment was transferred to Georgia, where Riggs pled guilty to the Georgia conspiracy charge and to the Illinois wire fraud charges. 3
At the sentencing hearing, the district court initially calculated Riggs' offense level at 15 and his criminal history level at II, for a guideline range of 21-27 months. The range was reduced to 12-18 months due to Riggs' cooperation with the government. But the district court decided Riggs' recidivism was inadequately represented by Riggs' criminal history category and departed upward to the next criminal history category pursuant to U.S.S.G. § 4A1.3. The departure increased Riggs' guideline range to 15-21 months, and Riggs was sentenced to 21 months imprisonment, followed by two years of supervised release.
As a condition of the supervised release, the court decided that Riggs cannot
own personally or directly have control over a computer of any type for [his] own personal use ... [Riggs] may operate computers under [his] community service situation and in an employment situation where [he is] employed by a third person and [is] being supervised by a third person.... [D]uring the period of [his] supervised release, [Riggs] may not personally use or own a PC or any other kind of computer.
Riggs appeals both the upward departure and the supervised release condition.
We review sentencing departures in three steps. United States v. Weaver, 920 F.2d 1570, 1573 (11th Cir.1991). First, we determine whether the guidelines adequately consider a particular factor so as to preclude a district court from relying upon it as a basis for departure. This legal question is reviewed de novo. Second, we determine if sufficient factual support for the departure exists, a factual finding subject to review for clear error. And finally, we determine if the direction and degree of departure were reasonable. Id.
The upward departure in this case was prompted by the district court's concern that Riggs' criminal history category did not reflect Riggs' recidivism. 4 Recidivism is "an integral factor in a court's determination of whether an offender's criminal history category ... is appropriate." Weaver, 920 F.2d at 1576. The guidelines themselves provide that
[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, the court may consider imposing a sentence departing from the otherwise applicable guideline range.
U.S.S.G. § 4A1.3 (emphasis added). So, the district court was not precluded from considering Riggs' increased likelihood of recidivism as grounds for departure, and the first Weaver factor is met here.
Riggs, however, argues there is insufficient factual support for a recidivism-based departure. The district court relied on two facts: (1) Riggs' creation, during his North Carolina probation, of a tutorial explaining how to break into certain telephone computer systems and (2) Riggs' continued hacking.
Riggs says the tutorial he wrote is not the kind of "reliable information" that shows recidivist propensity under section 4A1.3. We disagree. The tutorial is no mere diary, but a tool designed to facilitate criminal activity--whether that activity be Riggs' or someone else's. That writing the tutorial was not itself criminal is irrelevant. Nothing in section 4A1.3 limits the reliable information a court may consider to unlawful conduct. Even lawful conduct can be pertinent to recidivism, and we see no clear error in the district court's inference--drawing in this case. That Riggs would author a tutorial facilitating criminal behavior while still under supervision for his own criminal behavior is, we think, indicative of an increased likelihood that Riggs will commit other crimes.
Even more persuasive evidence of Riggs' recidivist tendencies is the similarity of the crimes for which he has been convicted. He "attacked" the same victim in the same way in 1986 and 1989-90; his first conviction did no more than temporarily interrupt these activities. Similarity of offenses has been closely linked to recidivism. See, e.g. United States v. Chavez-Botello, 905 F.2d 279, 281 (9th Cir.1990) (); United States v. DeLuna-Trujillo, 868 F.2d 122, 125 (5th Cir.1989) (). "The recidivist's relapse into the same criminal behavior demonstrates his lack of recognition of the gravity of his original wrong, entails greater culpability for the offense with which he is currently charged, and suggests an increased likelihood that the offense will be repeated yet again." DeLuna-Trujillo, 868 F.2d at 125. We see no error in the district court's decision that the similarity of Riggs' offenses also provided factual support for an upward departure based on recidivism.
Riggs raises no challenge to the third Weaver factor, reasonableness of direction and degree of departure; the increase was only one criminal history level, or from a 12-18 month range to a 15-21 month range. Because the departure was legally and factually justified and was reasonable, we affirm the district court's decision to depart upward on Riggs' sentence.
Riggs also appeals the district court's prohibition of his ownership or unsupervised use of a personal computer during his period of supervised release. But the right to object to this condition was waived for lack of a proper objection. See United States v. Jefferies, 908 F.2d 1520, 1524 (11th Cir.1990) (...
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