U.S. v. Terry, 90-2644
| Decision Date | 15 April 1991 |
| Docket Number | No. 90-2644,90-2644 |
| Citation | 930 F.2d 542 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lee TERRY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard N. Cox, Asst. U.S. Atty., Office of the U.S. Atty., Danville, Ill., for plaintiff-appellee.
Michael R. Cornyn, Thomas, Mamer & Haughey, Champaign, Ill., for defendant-appellant.
Before CUMMINGS, COFFEY and MANION, Circuit Judges.
Defendant Lee Terry pled guilty to armed robbery of the Central Illinois Credit Union in Champaign, Illinois, in violation of 18 U.S.C. Sec. 2113(a) and (d). This Court vacated Terry's first sentence of 130 months in custody and five years of supervised release after finding that the district court had not articulated sufficient reasons for departing upwards from the range dictated by the Sentencing Guidelines. United States v. Terry, 900 F.2d 1039 (1990). On remand, the district court again departed upward from the applicable range and sentenced Terry to 105 months in prison to be followed by a five-year term of supervised release. For the reasons that follow, we must vacate this second sentence and remand for further proceedings.
At the resentencing hearing held on July 25, 1990, the parties agreed that the applicable Offense Level is 22. The parties also agreed that the proper Criminal History Category for Terry is IV, based on an award of 8 criminal history points. Judge Baker assigned Terry 3 points for a 5-12 year sentence imposed after he was convicted of armed robbery of a Zayre store in 1971. The court awarded another 3 points for a 5-15 year sentence Terry received for burglarizing the Champaign Loan and Building Company in 1976. The last 2 points were awarded for a 188-day sentence imposed in 1984 for aggravated battery. The Guidelines range for a defendant with an Offense Level of 22 and 8 criminal history points is 63-78 months.
The district court decided to depart upward from the Guidelines range, however, after considering events in Terry's criminal history which were described in the presentence report but had not been taken into Without a departure, there is no disagreement that 8 [points] would fix the Criminal History Category at IV. However, there is a possibility of an additional 7 points from the residential burglaries and the court martial that I spoke about. Even scaling back the offenses, you could still have 5 additional points, 2 for each burglary and 1 for the court martial, which would raise the Criminal History points to 13 and escalate Terry to a Criminal History Category of VI for which the Guideline Sentence is 84 to 105 months.
account in computing Terry's Criminal History Category. In 1969, while serving in the U.S. Army, Terry had been fined in a summary court martial proceeding for possession of a straight razor and knife. In January 1976, he had been charged with two residential burglaries in Champaign, Illinois, at the same time police arrested him for burglarizing the Champaign Loan and Building Company. The charges for the residential burglaries were dropped after Terry pled guilty to the Loan and Building burglary. These episodes from Terry's past 1 led the court to conclude that Criminal History Category IV did not adequately characterize the seriousness of the defendant's past criminal conduct. Therefore the court added 5 criminal history points, putting Terry in Criminal History Category VI. The court stated:
United States v. Terry, No. CR88-20036 (C.D.Ill. July 26, 1990) (Order on Resentencing). Believing that Terry more closely resembled a Category VI offender than a Category IV offender, the court sentenced Terry to a maximum 105 months in prison and a five-year term of supervised release.
In this appeal, Terry questions the adequacy of the reasons for the departure as well as the magnitude of the departure.
A departure from the Guidelines is reviewed "to determine whether it was reasonable in light of the district court's explanations for its departure at the time of sentencing." United States v. Gaddy, 909 F.2d 196, 198-199 (7th Cir.1990). The three-step review proceeds as follows:
First, we determine whether the court has adequately stated grounds that justify departure. This is a question of law and we apply a de novo review. Second, we determine whether the facts that underlie the grounds for departure actually exist. We accept the district court's factual findings unless they are clearly erroneous. Finally, we review the degree of departure. The degree of departure must be linked to the structure of the Guidelines. We give deference to the district court's findings on what degree departure is appropriate so long as it adequately reflects the structure of the Guidelines.
Gaddy, 909 F.2d at 199 (citations omitted). With these standards in mind, we review the grounds for departure considered by the district court in turn.
The 1969 summary court martial is not a proper ground for a one-point departure for two reasons. First, it happened too long ago. Congress has limited departures from the Guidelines to circumstances "not adequately taken into consideration" by the Commission. 18 U.S.C. Sec. 3553(b). United States Sentencing Guidelines Sec. 4A1.2(e)(2) provides that sentences of 13 months or less can be counted in the criminal history calculation only if they were imposed within 10 years of the instant offense, which occurred here in 1988. The next subsection explicitly disallows the counting of sentences that are more remote in time. U.S.S.G. Sec. 4A1.2(e)(3). In this The Guidelines also explicitly prohibit the counting of military sentences imposed by a summary court martial. U.S.S.G. Sec. 4A1.2(g). Again, the Commission has considered a factor and determined that its use in calculating the Criminal History Category is inappropriate. The district court may not re-introduce a factor considered and rejected by the Commission for the initial criminal history computation as part of a subsequent departure analysis.
case the district court reached back 19 years from the time of the armed robbery of the Central Illinois Credit Union to consider a court martial that resulted only in the imposition of a fine. The Commission gave adequate consideration to circumstances like those contained in Terry's record, concluding that "offenses long ago, ending in small sentences * * * should not be counted." United States v. Fonner, 920 F.2d 1330, 1334 (7th Cir.1990). The use of Terry's stale conviction was improper
The district court believed that Terry resembled a Category VI offender rather than a Category IV offender in part because of two prior charged burglaries in 1976. The court reasoned that each burglary, "if carried to conviction and sentence" in state court, would have resulted in sentences over 13 months. For the purpose of calculating the Criminal History category, the Guidelines allow an assignment of 3 points for each prior sentence of imprisonment exceeding one year and one month. 2 U.S.S.G. Sec. 4A1.1(a). In calculating a reasonable upward departure, the court settled on a four-point increase, 2 points for each burglary charge. The judge's scaling back of the possible award of 6 points was apparently a concession to the fact that the charges ultimately were dismissed.
Defendant argues that the district court erred because it improperly inferred that Terry committed the burglaries from records of his arrest. The defendant points out that the court had no information explaining why the charges were dismissed. He suggests that the police did not pursue prosecution efforts because of a lack of evidence. The presentence report does not show that Terry obtained dismissals pursuant to a plea agreement.
"Prior similar adult criminal conduct not resulting in a criminal conviction" can be grounds for an upward departure. U.S.S.G. Sec. 4A1.3(e). Sentencing judges can consider whatever information they possess of prior criminal conduct, as long as that information is "reliable." U.S.S.G. Sec. 4A1.3. Examples of reliable information of criminal conduct not resulting in a conviction include admissions by the defendant that he committed criminal acts for which he was never charged, United States v. Spraggins, 868 F.2d 1541, 1544 (11th Cir.1989), and charges that were dropped after a witness failed to appear, United States v. Gayou, 901 F.2d 746, 748 (9th Cir.1990). At sentencing, prior criminal conduct need only be proven by a preponderance of the evidence to support a departure. Fonner, 920 F.2d at 1333.
As Terry points out, an arrest record by itself cannot be "reliable information" that defendant engaged in prior criminal conduct. U.S.S.G....
To continue reading
Request your trial
-
United States v. Mansfield
...conduct" and the defendant has "failed to object to [those] underlying facts." Id. (citations omitted) (quoting United States v. Terry , 930 F.2d 542, 546 (7th Cir. 1991) ). In United States v. Drain , we considered whether the district court violated the Fifth Amendment's Due Process Claus......
-
U.S. v. Connor
...third, applying a deferential standard of review, we determine whether the degree of departure is appropriate. United States v. Terry, 930 F.2d 542, 544 (7th Cir.1991). The second step is not relevant to this case. Connor has not objected to any facts presented in the presentence report, an......
-
United States v. Drain
...reliable information of wrongdoing.” Id. at 1059. After all, an arrest alone does not necessarily mean guilt. United States v. Terry, 930 F.2d 542, 546 (7th Cir.1991). Citing § 4A1.3(a)(3), we said in Guajardo–Martinez that “[a] sentencing court may not rely on the prior arrest record itsel......
- Tomczyk v. Blue Cross & Blue Shield United of Wisconsin