USA. v. Bartsma

• Decision Date: 09 November 1999
• Docket Number: No. 98-3305,98-3305
• Citation: 198 F.3d 1191
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD BEN BARTSMA, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1191

198 F.3d 1191 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD BEN BARTSMA, Defendant-Appellant.

No. 98-3305

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 9, 1999

Appeal from the United States District Court for the District of Kansas. D.C. No. 98-CR-10047

[Copyrighted Material Omitted] David M. Lind (Jackie N. Williams, United States Attorney, with him on the brief), Assistant United States Attorney, Wichita, Kansas, for Plaintiff-Appellee.

Timothy J. Henry (David J. Phillips, Federal Public Defender, with him on the briefs), Assistant Federal Public Defender, Wichita, Kansas, for Defendant-Appellant.

Before BRORBY, HENRY and LUCERO, Circuit Judges.

BRORBY, Circuit Judge.

Appellant Donald Ben Bartsma pleaded guilty to one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and was sentenced to fifty-eight months imprisonment. In arriving at the final sentence, the district court departed upward from the otherwise applicable Guideline range pursuant to United States Sentencing Guideline 4A1.3. The district court also imposed a special condition of supervised release requiring Mr. Bartsma to register as a "sex offender" in any state in which he resides after his release from prison. Mr. Bartsma now appeals, challenging the district court's upward departure, the special condition of supervised release, and also claiming he was entitled to presentence notice of the court's intention to consider imposing sex offender registration as a special condition of supervised release. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm in part, reverse in part, and remand for resentencing.

BACKGROUND

Mr. Bartsma's appeal focuses exclusively on the propriety of his sentence and conditional release. As such, we only briefly discuss the facts. On July 20, 1998, Mr. Bartsma pleaded guilty to one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).¹ The Presentence Investigation Report listed Mr. Bartsma's base offense level at 20, as prescribed in U.S.S.G. § 2K2.1(a)(4)(A). A three-level downward adjustment was recommended for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b) to reach a total offense level of 17. When the offense level was cross-referenced with the applicable criminal history category of IV,² Mr. Bartsma's Guideline range stood at thirty-seven to forty-six months.

At the sentencing hearing the district court determined the criminal history category of IV did not adequately reflect either the seriousness of Mr. Bartsma's past criminal conduct, or the likelihood he would commit other crimes. Accordingly, the district court imposed an upward departure to category VI, and sentenced Mr. Bartsma to fifty-eight months imprisonment. The district court also sentenced Mr. Bartsma to three years of supervised release, and as a condition of the release required him to register as a sex offender in any state in which he resides. The district court justified the upward departure and the registration requirement by citing: (1) the nature of Mr. Bartsma's prior offenses, which include child molestation and rape; (2) Mr. Bartsma's history of prompt recidivism after being released for prior offenses; and (3) California's refusal to grant Mr. Bartsma parole on several occasions because he was viewed as a danger to the community.

Mr. Bartsma asserts several errors: (1) the district court abused its discretion by imposing the upward departure; (2) the district court failed to notify Mr. Bartsma it was considering imposing a sex offender registration requirement as a condition of supervised release; and (3) the district court abused its discretion by imposing the sex offender registration requirement as a condition of supervised release because the condition (sex offender registration) was not reasonably related to the nature or circumstances of the offense charged (possession of a firearm by a felon).

DISCUSSION

I. The Upward Departure

The analysis we use when reviewing Sentencing Guideline departures is well settled, and need not be spelled out exhaustively here. Following the Supreme Court's seminal case of Koon v. United States, 518 U.S. 81 (1996), we developed our general framework for reviewing Guideline departures in United States v. Collins, 122 F.3d 1297 (10th Cir. 1997). See United States v. Whiteskunk, 162 F.3d 1244, 1248-49 (10th Cir. 1998). The Guidelines specifically allow a sentencing court to depart from the otherwise applicable Guideline range "if 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.'" U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). The Guidelines make a distinction between a "heartland case," fully anticipated and covered by the applicable guideline, and an "atypical case," in which a departure may be warranted. See Koon, 518 U.S. at 93-94. "It is up to the district court to determine whether certain factors take the case out of the 'heartland,' and 'make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing.'" Whiteskunk, 162 F.3d at 1249 (quoting Koon, 518 U.S. at 98). This assessment "embodies the traditional exercise of discretion by a sentencing court," and in most cases is given "substantial deference." Koon, 518 U.S. at 98.

In reviewing a departure from the Guidelines, we must evaluate:

(1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable.

Collins, 122 F.3d at 1303. We review all four steps of the departure analysis under a unitary abuse of discretion standard. Id. When the district court's decision to depart is based on factual findings, the decision is "entitled to substantial deference." Whiteskunk, 162 F.3d at 1249.

As we stated earlier, the district court departed upward from the applicable criminal history category of IV to a category of VI. The Sentencing Guidelines specifically encourage an upward departure when the district court concludes "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." U.S.S.G. § 4A1.3. Because § 4A1.3 provides an encouraged basis for departure, we find the district court relied on permissible departure factors when imposing the upward departure. See Collins, 122 F.3d at 1304.

While conceding § 4A1.3 permits an upward departure for an under-represented criminal history category, Mr. Bartsma focuses on the last three steps of the Collins inquiry and contends the facts of this case are insufficient to remove him from the heartland of criminal history category IV, the record is insufficient to support the factual basis underlying the departure, and the departure was not reasonable. After reviewing the record before us, we conclude the district court did not abuse its discretion in deciding to depart upward. However, the district court failed to articulate sufficient findings to support the degree of the departure, and therefore we remand for resentencing.

The district court based its departure on Mr. Bartsma's "extensive criminal record involving repeated crimes of violence," and its determination he was "a repeat criminal who repeats ... quickly after his release into the community." The court also noted "the prison records received from California Department of Corrections reveal the defendant was not granted parole on several occasions because he was viewed as a danger to the community." The Presentence Investigation Report, which the district court adopted, supports these conclusions. Specifically, the report noted Mr. Bartsma had several juvenile adjudications, including a charge of child molestation and a charge of unlawful sexual intercourse with a minor, which went uncounted for the purposes of criminal history. In addition, Mr. Bartsma had shown an inability to stay out of trouble he was arrested on the sexual intercourse with a minor charge just two months after jurisdiction in the child molestation case terminated; he committed rape by force four months after being paroled from the confinement sentence he received for the sexual intercourse with a minor charge; he was arrested in the current case four months after serving his sentence on the rape charge.³ Finally, California Department of Corrections records indicated Mr. Bartsma had poor impulse control, sadistic impulses toward women, and had fantasies that included raping and torturing a woman. Given the record as a whole, and recognizing the district court's special competence in determining the unusualness of a case, see Collins, 122 F.3d at 1305, we are unable to say the district court abused its discretion in granting the upward departure. The district court provided a sufficient explanation, supported by specific facts in the record, for the departure.

Having upheld the district court's determination to depart upward, we now consider whether the extent of the departure from a category IV to a category VI was reasonable. Our review of the reasonableness of a district court's departure is deferential. See Whiteskunk, 162 F.3d at 1253; Collins, 122 F.3d at 1303. To adequately review a departure decision, we must examine the district court's stated reasons for the degree of departure, see United States v. Pool, 937 F.2d 1528, 1534 (10th Cir. 1991), "together with factors such as: 'the seriousness of the...