U.S. v. Williams

• Decision Date: 04 May 1990
• Docket Number: No. 88-2528,88-2528
• Citation: 901 F.2d 1394
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter James WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1394

901 F.2d 1394

UNITED STATES of America, Plaintiff-Appellee, v. Peter James WILLIAMS, Defendant-Appellant.

No. 88-2528.

United States Court of Appeals Seventh Circuit.

Argued Sept. 22, 1989.

Decided May 4, 1990.

Steven Shobat, David J. Stetler, Asst. U.S. Attys., Office of the U.S. Attys., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Lauren J. Weil, Federal Public Defender, Office of the Federal Public Defender, Chicago, Ill., for defendant-appellant.

Before CUMMINGS, COFFEY, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

A two-count indictment charged Peter James Williams with robbing the First Illinois Bank of Evanston, in violation of 18 U.S.C. Sec. 2113(a), and with possessing a firearm during the bank robbery, in violation of 18 U.S.C. Sec. 924(c). Williams pleaded guilty to the bank robbery. In exchange, the government dismissed the firearm possession count. Williams was sentenced pursuant to the United States Sentencing Commission Guidelines (the "Guidelines"). At the sentencing hearing, the district judge determined that Williams' total offense level was 20 and that his Criminal History Category was III. Under those calculations, the applicable Guidelines sentencing range was 41 to 51 months. The judge concluded, however, that an upward departure from the Guidelines was warranted and sentenced Williams to 63 months in prison. The judge reasoned that a consolidated sentence Williams received in state court for two previous bank robberies caused Williams' Criminal History Category to underrepresent his criminal history and the likelihood he would commit further crimes. The judge also reasoned that there were two additional aggravating circumstances the Guidelines did not seem to account for--(1) the repeat nature of Williams' bank robberies and (2) the danger created by the fact that Williams was under the influence of drugs at the time he possessed or threatened the use of a firearm during his bank robberies.

On appeal, Williams objects to the district court's decision to depart upward from the Guidelines sentencing range. Williams contends that the district judge relied on improper grounds to justify the upward departure. In addition, Williams contends that even if the grounds were proper, his sentence must be reversed because he did not receive proper notice regarding two of those grounds. For the reasons discussed below, we affirm Williams' sentence.

Propriety of the Upward Departure

We review a district court's departure from the Guidelines sentencing range to determine whether it was reasonable in light of the district court's explanations for its departure at the time of sentencing. 18 U.S.C. Secs. 3553(c), 3742(e)(3); United States v. Jordan, 890 F.2d 968, 972 (7th Cir.1989); United States v. Miller, 874 F.2d 466, 471 (7th Cir.1989). Review of a departure is essentially a three-step process.

First, we must determine whether a district court's stated grounds for departure are of a kind that may appropriately be relied upon to justify a departure. This is a question of law and thus, we apply essentially a de novo standard of review. See United States v. Schmude, 901 F.2d 555, 558-559 (7th Cir.1990); United States v. Missick, 875 F.2d 1294, 1301-02 (7th Cir.1989); Miller, 874 F.2d at 468; United States v. Burns, 893 F.2d 1343, 1345 (D.C.Cir.1990); United States v. White, 893 F.2d 276, 279 (10th Cir.1990); United States v. Rodriguez, 882 F.2d 1059, 1067 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990); United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Ryan, 866 F.2d 604, 610 (3rd Cir.1989).

Second, we review whether the facts that underlie the grounds for departure actually exist in a given case. In reviewing this as well as other factual questions, we shall accept the district court's findings unless they are clearly erroneous. 18 U.S.C. Sec. 3742(e); Jordan, 890 F.2d at 972; Missick, 875 F.2d at 1301.

Finally, we must determine whether the degree of departure was reasonable. While we always apply a deferential standard in reviewing degree of departure, our method of review will vary depending on the type of departure we are reviewing. For instance, if an inadequate Criminal History Category is the ground warranting a departure, Guideline Sec. 4A1.3 requires a sentencing judge to reference the Guideline sentencing range that would apply to the defendant if he was in the Criminal History Category that most accurately reflects his true criminal history. Guidelines Sec. 4A1.3; Miller, 874 F.2d at 470-71. When reviewing degree of departure for inadequate Criminal History Category, we will give considerable leeway to a sentencing court's determination of what Criminal History Category most accurately reflects the defendant's actual criminal history. On the other hand, if an inadequate Criminal History Category is a factor warranting departure but the defendant is already in the highest Criminal History Category (VI), or if the factors warranting departure are something other than inadequate Criminal History Category, the procedure in Sec. 4A1.3 is not applicable. In this situation, the question of proper degree of departure is solely one of reasonableness. Schmude, at 560. Here, we will afford a district judge considerable leeway in determining whether the degree of departure corresponds to the number and the nature of the grounds which warrant departure. Id.; Jordan, 890 F.2d at 977.

In light of these standards, we believe the district judge relied on proper grounds to justify a departure and that the degree of departure was reasonable.

At Williams' sentencing hearing, the district judge identified three grounds he believed warranted an upward departure. First, he found that Williams' Criminal History Category underrepresented Williams' criminal history and the likelihood that Williams would commit further crimes. Williams committed two bank robberies prior to the one at issue in this case, one in November, 1981, and one in December, 1981. Williams was charged in a single indictment for two counts of robbery. He pleaded guilty to both counts in the Circuit Court of Cook County. These two offenses were consolidated for sentencing, resulting in a sentence of 90 days imprisonment and four years probation. Under Guideline Sec. 4A1.1(b), Williams was assessed two criminal history points for this previous sentence of 60 days or more. In addition, he received two criminal history points for committing the present bank robbery while on probation. These four criminal history points put Williams in Criminal History Category III.

The district judge found that the two points Williams received for his two previous bank robberies caused Williams' Criminal History Category to seriously underrepresent his actual criminal history. The judge reasoned that Williams received merely two points only because the indictment and sentence for the two bank robberies were consolidated. The judge noted that if Williams had received two convictions and had been sentenced separately for his previous bank robberies, Williams could be sentenced as a career offender under Guideline Sec. 4B1.1. Had that Guideline applied, Williams would have been exposed to a sentencing range of 151-188 months instead of 41-51 months.

We agree with the reasoning of the district judge. Guideline Sec. 4A1.3 states that a court may depart upward from an otherwise applicable Guideline range if reliable information indicates that a defendant's Criminal History Category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood the defendant will commit further crimes. Several courts have held that the Guidelines specifically contemplate departure on the ground that a previous consolidated sentence can cause a defendant's Criminal History Category to underrepresent his actual criminal history. United States v. White, 893 F.2d 276, 279-80 (10th Cir.1990); United States v. Geiger, 891 F.2d 512, 514 (5th Cir.1989); United States v. Dorsey, 888 F.2d 79, 81 (11th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 756, 107 L.Ed.2d 772 (1990); United States v. Anderson, 886 F.2d 215, 216 (8th Cir.1989); United States v. Jackson, 883 F.2d 1007, 1009 (11th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 747, 107 L.Ed.2d 764 (1990); United States v. Roberson, 872 F.2d 597, 607 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989). In calculating a defendant's Criminal History Category, prior sentences in "related cases" are to be treated as one sentence. Guidelines Sec. 4A1.2(a)(2). The Application Notes accompanying the Guidelines state that cases are related if, among other things, they were "consolidated for trial or sentencing." Guidelines Sec. 4A1.2 Application Note 3. However, the Application Notes also recognize that strict application of the "related case" criteria may not properly reflect a defendant's criminal history. The Sentencing Commission noted that its definition of "related cases" may result in "instances in which this definition is overly broad and will result in a criminal history score that underrepresents the seriousness of the defendant's criminal history and the danger that he presents to the public." Guidelines Sec. 4A1.2 Application Note 3. As an example of such an instance, the Commission stated that "if the defendant commits a number of offenses on independent occasions separated by arrests, and the resulting criminal cases are consolidated and result in a combined sentence of eight years, counting merely three points for this factor will not adequately reflect either the seriousness of the defendant's criminal history or the frequency with which he commits crimes. In such circumstances, the court should consider whether departure is warranted." Id. ¹

This case presents...