U.S. v. Thomas, s. 93-5514

• Decision Date: 23 May 1994
• Docket Number: Nos. 93-5514,93-5515,s. 93-5514
• Citation: 24 F.3d 829
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Everett THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 829

24 F.3d 829

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Everett THOMAS, Defendant-Appellant.

Nos. 93-5514, 93-5515.

United States Court of Appeals Sixth Circuit.

Argued Dec. 2, 1993.

Decided May 23, 1994.

David P. Grise, Asst. U.S. Atty. (argued and briefed) and Karen K. Caldwell, U.S. Atty., Office of the U.S. Atty., Lexington, KY, for plaintiff-appellee.

Derek G. Gordon (argued and briefed), Anggelis, Philpot, Gordon, & Simpson, Lexington, KY, for defendant-appellant.

Before: MERRITT, Chief Judge, and NELSON and BOGGS, Circuit Judges.

MERRITT, Chief Judge.

Defendant Joseph Everett Thomas appeals from 60-month concurrent sentences imposed on him after he pled guilty to three counts of bank fraud. Although under the federal sentencing guidelines the defendant's range was 24 to 30 months, the district court determined that a sentence in this range would not adequately reflect the defendant's extensive prior criminal record. The court departed upward and imposed 60-month sentences. The sole issue on appeal is the propriety of the district court's decision to depart.

The defendant's primary argument is that the district court failed to provide an adequate statement of reasons for its upward departure and failed to employ a proper methodology to determine the extent of the departure. He also argues that grounds did not exist for the departure, that the departure was unreasonable, and that the court did not give him proper notice of the possibility of departure. We hold that the upward departure was in all respects proper, and therefore affirm the defendant's sentences.

I.

Thomas pled guilty to three counts of bank fraud relating to schemes to defraud financial institutions in Lexington and Louisville, Kentucky. The defendant opened bank accounts under false names, deposited fraudulent checks, and then withdrew the money before the financial institutions discovered that the checks were invalid. The total loss to the institutions was approximately $30,000.

The Probation Office prepared a Presentence Investigation Report (PSI) which documented 36 "adult criminal convictions," most for larceny, writing bad checks, and forgery. It indicated that the defendant had spent a majority of his adult life incarcerated, with his criminal activity stretching back as far as 1974. Neither the government nor the defendant objected to the PSI's calculation of a base offense level of 10 and Criminal History Category (CHC) VI, which corresponded to a guideline range of 24 to 30 months. The PSI indicated that the defendant's extensive criminal history, which resulted in 43 criminal history points, might warrant an upward departure:

Thomas has been involved with this type of criminal behavior since the beginning of his adult life. His guideline range does not accurately reflect his past record, due to the applicable criminal history category VI. Had there been an applicable level for 43 criminal history points, the guideline range would have possibly been significantly higher....

PSI p 94-95 (citing U.S.S.G. Sec. 4A1.3 (which provides for departures based on extensive past criminal conduct)).

At sentencing, the District Court heard and ruled upon four objections by the defendant to the PSI, none of which included an objection to the possibility of an upward departure. When imposing the sentence above the guideline range, the court relied upon the PSI and provided the following reasoning:

Indeed, he has been in trouble for nearly 20 years of his 34 years. I refer in that regard to the defendant's criminal history, which is contained in paragraphs 25 through 65, pages 6-22 of the presentence report. Many times I recount for the sake of the record each and every conviction or charge. I will not do that here. But I do incorporate as part of these proceedings those paragraphs 25 through 65, pages 6-22 of the presentence report as if fully set out herein. One of the most extensive past criminal histories that I have ever looked at. Not much violence, if any, contained in this vast array of previous--yes, there is an assault case.... But generally it has been larceny, bad checks and forgery. And which is serious enough. And lots of times whenever you have the first bad check [the Judge] is inclined to give him probation and go on. And, of course, he has been before judges that have done that. And, of course, he just kept coming back.

I cannot believe that he has now seen the light. He says that he's taken some wrong turns--a wrong turn. He has taken wrong turns just about throughout his adult life.

* * * * * *

His criminal history greatly exceeds level six. And when I consider that fact and the fact of the nature of these offenses and the amounts involved which he would have no way of paying back, I am not inclined to sentence within the guidelines. I rarely sentence above the guidelines, but this is one case where I feel that I am compelled to sentence above the guidelines for these reasons.

The court then imposed the 60-month sentence. At the close of the sentence hearing, the Assistant United States Attorney interjected:

May I put a statement on the record here? The 60-month sentence you imposed would be the equivalent of a criminal history six and offense level 17. I just wanted to make clear for the record that you felt that increasing the level to 17 adequately reflected an appropriate increase on the basis of his criminal history.

The court responded "That is indeed correct."

II.

The Court reviews de novo the question of whether a sentence was imposed as a result of an incorrect application of the guidelines, as Thomas alleges. 18 U.S.C. Sec. 3742(e). However, absent plain error, this Court will not address claims of alleged misapplication of the guidelines unless the defendant first raised the claim before the district court. United States v. Fountain, 2 F.3d 656, 669-70 (6th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 608, 126 L.Ed.2d 573 (1993). Thomas did not object to the PSI's statement that an upward departure might be warranted, nor did he object at sentencing when the district court announced its decision to depart. We therefore review only for plain error.

The Sentencing Guidelines require that a sentence be imposed within the applicable guideline range unless "the court finds that there exists 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...." 18 U.S.C. Sec. 3553(b). The Court employs a three-prong test to determine whether a departure was warranted. First, we review de novo the circumstances surrounding the departure to determine whether they are sufficiently unusual to warrant divergence from the guidelines. Second, we evaluate whether the circumstances upon which the district court based the departure actually exist in the case. In reviewing the trial court's factfinding, we reverse only for clear error. Third, once we have assured ourselves that the circumstances are proper for departure and that those circumstances enjoy support in the record, we assess the degree or range of departure for reasonableness. United States v. Joan, 883 F.2d 491, 494 (6th Cir.1989); United States v. Gray, 982 F.2d 1020, 1022 (6th Cir.1993)(citations omitted).

A.

The district court based its decision to depart primarily upon the defendant's extensive criminal history, specifically the inordinately high criminal history score of 43. That score is more than triple the 13-point threshold for Category VI, the highest criminal history category available under the guidelines. A score greatly exceeding the 13-point threshold is sufficiently unusual to warrant an upward departure. United States v. Belanger, 892 F.2d 473 (6th Cir.1989)(ruling that 29 points was a valid basis for an upward departure), cited in United States v. Osborne, 948 F.2d 210, 214 (6th Cir.1991)(ruling that 24 criminal history points constituted grounds for upward departure). Section 4A1.3 of the Guidelines also clearly permits a court to premise an upward departure on an extremely high criminal history score. ¹ Thomas's score of 43, one of the highest we could find in reported cases, is clearly sufficiently unusual to warrant departure from the guidelines.

The district court also recognized Thomas's recidivism rate as problematic, noting that he had received lenient treatment in the past, and "he just kept coming back." An unusually high likelihood of recidivism is also a valid factor upon which to base an upward departure. U.S.S.G. Sec. 4A1.3, comment. (backg'd). Both the criminal history score and the high likelihood of recidivism are valid, legal reasons for an upward departure from the guidelines and satisfy the first prong of our test.

As to the second prong, there appears to be no dispute at this point in the proceedings that either the criminal history score or the basis for the court's finding regarding recidivism is factually erroneous. Our own review of the record finds adequate support for both of these findings. Consequently, the first two prongs of our three-part test are satisfied.

B.

The third step, an evaluation of the direction and degree of departure, is measured by the standard of reasonableness. Reasonableness is determined with due regard for "the factors to be considered in imposing a sentence," and "the reasons for the imposition of the particular sentence, as stated by the district court." 18 U.S.C. Sec. 3742(e)(3). The sentencing court's assessment of the case must be given deference, and unless there is little or no basis for the court's actions, the sentence should be upheld. Joan, 883 F.2d at 494. Reasonableness is a flexible standard which "involves what is quintessentially a judgment call.... [A]ppellate review must occur with full awareness of, and respect for, the trier's superior 'feel' for the case. We will not lightly disturb decisions to depart, or not, or related...