U.S. v. Thomas, 91-5719

• Decision Date: 21 April 1992
• Docket Number: No. 91-5719,91-5719
• Citation: 961 F.2d 1110
• Parties: UNITED STATES of America v. Robert Harry THOMAS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1110

961 F.2d 1110

5 Fed.Sent.R. 287

UNITED STATES of America v. Robert Harry THOMAS, Appellant.

No. 91-5719.

United States Court of Appeals, Third Circuit.

Argued Feb. 10, 1992.

Decided April 21, 1992.

James V. Wade, Federal Public Defender, D. Toni Byrd (argued), Harrisburg, Pa., for appellant.

James J. West, U.S. Atty., Theodore B. Smith, III (argued), Asst. U.S. Atty., Harrisburg, Pa., for appellee.

Before: GREENBERG and COWEN, Circuit Judges, and GREEN, District Judge ^*.

OPINION OF THE COURT

COWEN, Circuit Judge.

This appeal involves the validity of an upward departure under the Sentencing Guidelines. Because we find that the factors relied on by the district court in departing upward were adequately considered by the Sentencing Commission in formulating the Guidelines, we will vacate the sentence and remand for resentencing.

I.

Between June 1988 and March 1990, Robert Thomas purchased two shotguns, two rifles, and a revolver from a gun shop in Cumberland County, Pennsylvania. In purchasing these five firearms, Thomas was required to complete four Bureau of Alcohol, Tobacco and Firearm (ATF) forms. ¹ ATF Form 4473 requires a gun purchaser to certify that he has never been convicted previously of an offense punishable by a term of imprisonment in excess of one year. Thomas, who had a lengthy criminal record, falsely stated on the ATF forms that he had never been convicted of such an offense.

In April 1991, Thomas was charged with four counts of making false statements in connection with the acquisition of firearms in violation of 18 U.S.C. § 922(a)(6) (1988). As part of a negotiated plea agreement, Thomas pleaded guilty to these four counts in exchange for the government's agreement that it would not charge him with the more serious crime of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (1988). A conviction for firearm possession would have subjected Thomas to a mandatory sentence of at least fifteen years imprisonment as an armed career criminal under 18 U.S.C. § 924(e)(1) (1988).

In calculating the appropriate sentence under the Sentencing Guidelines, the presentence report prepared by the probation office determined that Thomas had fifteen criminal history points, thus placing him in category VI, which is the highest criminal history category. The points were for the following offenses:

Three points for a 1977 forgery conviction (two counts) in Cumberland County, PA in 1977. Served fifteen months and paroled. Parole revoked and Thomas served nine more months.

Three points for a 1978 burglary conviction in Cumberland County, PA. Served one year concurrently with previous forgery sentence. Parole revoked and Thomas served nine more months concurrently with previous conviction.

Three points for a 1985 conviction for forcibly breaking into a U.S. post office (four counts). Served twenty-five months.

Three points for a 1985 burglary conviction (four counts of burglary, four counts of theft by unlawful taking, four counts of receiving stolen property, four counts of conspiracy) in Cumberland County, PA. Served concurrently with previous conviction for breaking into post office.

Three points for a 1985 burglary conviction (one count of burglary, one count of theft by unlawful taking, one count of receiving stolen property, one count of criminal conspiracy) in Adams County, PA. Served concurrently with previous conviction for breaking into post office.

Presentence Rpt. at 4-7. The probation office did not add any points for the following offenses:

Burglary in Cumberland County, PA, in August 1974 at the age of fifteen. Committed to Loysville Youth Development Center for eight months.

Burglary (two counts) in Cumberland County, PA, in August 1975 at the age of sixteen. Committed to youth center for nine months.

Petty theft in Alachua County, FL, in January 1980, for which Thomas served thirty-two days.

Id. at 4, 7. The two burglary convictions were not counted because Thomas was a juvenile when he committed those crimes. The petty theft conviction in 1980 was not counted, apparently because Thomas was not represented by an attorney at the time of that conviction and the probation office had only limited details about the conviction when it prepared the presentence report.

Based on a total offense level of ten within criminal history category VI, the sentencing table of the Guidelines dictated a sentence of twenty-four to thirty months imprisonment. ² United States Sentencing Commission, Guidelines Manual, Ch. 5, Pt. A (Nov. 1991). At sentencing, the government sought a departure upward to sixty months imprisonment, arguing that it had foregone prosecuting Thomas for the more serious crime of firearm possession by a convicted felon. The district court departed upward and sentenced Thomas to forty-eight months imprisonment:

An upward departure appears warranted based on the apparent inadequacy of the defendant's criminal history category. The defendant's criminal history appears to be under-represented because it does not account for two burglaries the defendant committed as a juvenile which resulted in his commitment to an institution. The Criminal History Score does not adequately take into account the likelihood that the defendant will commit additional crimes in the future and that while under supervision for local crimes, the defendant had his parole revoked on at least two occasions. These appear to be factors that were not adequately taken into account by the Sentencing Commission in formulating the sentencing guidelines. ³

App. at 78.

At issue in this case is whether an upward departure could be based on Thomas' juvenile convictions, likelihood of recidivism, and parole revocations. Assuming arguendo that a departure on these grounds was not proper, the government contends that the district court could properly depart upward because Thomas could have been charged with firearm possession by a convicted felon, a crime which would have carried a mandatory fifteen year sentence. Assuming arguendo that a departure was proper, Thomas challenges the general reasonableness of a sixty percent departure from the thirty month maximum sentence under the Guidelines to the forty-eight month sentence which was imposed. We have jurisdiction to hear this appeal under 18 U.S.C. § 3742(a) & (e) (1988).

II.

In general, a district court is allowed to depart from the prescribed sentencing range when "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. § 3553(b) (1988). See also U.S.S.G. § 5K2.0, p.s. When it is clear that the Sentencing Commission has given adequate consideration to a factor relating to some aspect of a defendant's criminal past or current offense, a departure is not permitted. ⁴ See United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir.1990). As the Supreme Court recently stated:

Construing the plain language of the Guidelines Manual and the governing statute, we conclude that it is an incorrect application of the Guidelines for a district court to depart from the applicable sentencing range based on a factor that the Commission has already fully considered in establishing the guideline range or ... on a factor that the Commission has expressly rejected as an appropriate ground for departure.

Williams v. United States, --- U.S. ----, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992); see also United States v. Aguilar-Pena, 887 F.2d 347, 353 (1st Cir.1989) ("Where the guidelines have taken matters into account, the district court is not then at liberty to depart, notwithstanding that the judge's independent weighing of the relevant factors might differ substantially from the Commission's.") (citation omitted). We have plenary review of the district court's justifications for its departure. Kikumura, 918 F.2d at 1098; see also 18 U.S.C. § 3742(f) (1988).

At the outset, we must consider under what circumstances an upward departure is permitted once a defendant such as Thomas has reached the highest criminal history category (category VI). The Guidelines explain:

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.

U.S.S.G. § 4A1.3, p.s. (emphasis added). The Court of Appeals for the Second Circuit has interpreted this section of the Guidelines as allowing a departure beyond category VI only in "extraordinary circumstances." United States v. Coe, 891 F.2d 405, 413 (2d Cir.1989). " '[O]nly the most compelling circumstances--for example, prior misconduct accompanied by wanton cruelty' would justify a [section] 4A departure above Category VI." Id. (quoting United States v. Cervantes, 878 F.2d 50, 55 (2d Cir.1989)).

In the case before this court, we question whether Thomas' criminal record was so "egregious," "serious" or "extraordinary" as to warrant departing beyond category VI. Thomas had fifteen criminal history points, just two over the thirteen point minimum for category VI. It is noteworthy that categories I to V are all comprised of two or three criminal history points. ⁵ Although we are reluctant to engage in the kind of extrapolation favored by other courts in extending the sentencing table, see, e.g., United States v. Schmude, 901 F.2d 555, 560 (7th Cir.1990); United States v. Ferra, 900 F.2d 1057, 1062 (7th Cir.1990), Thomas' fifteen points would fall within the two or three point range of category VI were such a range to exist. Given the nature of Thomas' criminal record, we cannot say that his criminal history is "significantly more serious than that of most defendants in the...