United States v. Alvin Thomas Harrison, Jr., United States of America v. Alvin Thomas Harrison, Jr.

58 F.3d 115

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 25, 1995
• Docket: 94-5054, 94-5128
• Status: Published

Opinions

Vacated and remanded by published opinion. Judge HAMILTON wrote the majority opinion, in which Judge MURNAGHAN joined. Judge NIEMEYER wrote a dissenting opinion.

OPINION

HAMILTON, Circuit Judge:

Alvin Thomas Harrison (Harrison) appeals his sentence following his plea of guilty to conspiracy to import marijuana and cocaine, see 21 U.S.C.A. § 963 (West Supp.1994). For the reasons that follow, we vacate Harrison’s sentence and remand for resentencing.

I.

Following Harrison’s guilty plea, the pre-sentence report (PSR) calculated Harrison’s offense level at twenty-seven, which included a three-level reduction for acceptance of responsibility, see United States Sentencing Commission, Guidelines Manual, § 3E1.1 (Nov.1993). Harrison had forty-five criminal history points, putting him in Criminal History Category VI — the highest criminal history category.¹ Based on an offense level of twenty-seven and a Criminal History Category of VI, Harrison’s guideline range, as calculated in the PSR, was 130 to 162 months. Given the significant number of Harrison’s criminal history points, (forty-five), as compared to the maximum number of criminal history points in Criminal History Category VI, (thirteen), the PSR suggested that the district court consider an upward departure based on the inadequacy of Criminal History Category VI to reflect the seriousness of Harrison’s past criminal conduct or the likelihood that he would commit other crimes, see USSG § 4A1.3.

Forty-two of Harrison’s criminal history points resulted from his following convictions: (1) three counts of breaking and entering in 1984;² (2) no vehicle registration or insurance in 1985; (3) no vehicle insurance in 1988; (4) four counts of driving while license revoked in 1990; (5) driving while license permanently revoked in 1990; (6) breaking and entering in 1990 (commercial structure); (7) no vehicle insurance in 1990; (8) fictitious vehicle registration in 1990; (9) four counts of breaking and entering in 1992 (commercial structures); (10) four counts of forgery in 1992; (11) four counts of uttering in 1992; (12) sixteen counts of breaking and entering in 1993 (commercial structures); and (13) ten counts of larceny in 1993. Two of Harrison’s criminal history points resulted from his being on parole when he committed the instant offense, see USSG § 4A1.1(d), and one resulted from his committing the instant offense less than two years following his release from custody on another charge, see USSG § 4A1.1(e).

At the beginning of Harrison’s sentencing hearing, the district court adopted the recommendation of the PSR and found Harrison’s offense level to be twenty-seven and his Criminal History Category to be VI. The district court then permitted counsel for Harrison to address the court. Counsel for Harrison presented argument as to why his client should be sentenced at the lower end of the guideline range. Counsel’s argument focused on how his forty-five criminal history points painted a picture of him far more severe than in reality. Primarily, Harrison attributed his past criminal conduct to his addiction to drugs and alcohol. Secondarily, he attributed his high number ■ of criminal history points to his traumatic childhood and his tendency as a follower to involve himself with the “wrong crowd.” (J.A. 42)..

After hearing counsel for Harrison’s argument, the district court imposed sentence:

All right, pursuant to the Sentencing Reform Act of 1984, it is the judgment of the court that the defendant is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 235 months, to run concurrent with the term of imprisonment he is presently serving in the North Carolina Department of Corrections, pursuant to the provisions of 5G1.3C [sic]. The court has departed upwardly pursuant to section 4A1.3, as the defendant’s criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct, or the likelihood that he will commit other crimes, and the repetitive nature and seriousness of his prior criminal conduct involving breaking and entering offenses, warrants upward departure to punishment commensurate with career offender provisions.

Id. at 43-44. Notably, the district court did not indicate to which guideline range it was departing.³ Harrison filed a timely appeal.⁴

II.

On appeal, Harrison contends his sentence should be vacated because in departing upward based on the inadequacy of his criminal history category, see USSG § 4A1.3, the district court did not comply with the dictates of United States v. Cash, 983 F.2d 558, 561-63 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2380, 124 L.Ed.2d 284 (1993), or United States v. Rusher, 966 F.2d 868, 884 (4th Cir.), cert. denied, — U.S. -, 113 S.Ct. 351, 121 L.Ed.2d 266 (1992).

In Cash, we took the opportunity to outline the methodology a district court should employ in determining the extent of a departure ■ after it has concluded that the defendant’s criminal history category is inadequate. First, we explained that a district court may exercise its discretion under USSG § 5K2.0, p.s., not to depart, see Cash, 983 F.2d at 561, a decision that is unreviewable on appeal, see United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.), cert. denied, 498 U.S. 819, 111 S.Ct. 65, 112 L.Ed.2d 39 (1990). Second, we reiterated the level-by-level approach developed in Rusher. Cash, 983 F.2d at 561. Under this tack, the court can “move to successively higher categories only upon finding that the prior category does not provide a sentence that adequately reflects the seriousness of the defendant’s criminal conduct,” and may formulate additional “Criminal History Categories above Category VI, in order to craft a departure that corresponds to the existing structure of the guidelines.” Id. Third and finally, we recognized that once the district court has determined that a departure under USSG § 4A1.3 is warranted and the defendant’s prior criminal conduct is sufficiently serious to conclude that he should be treated as a career offender, the district court may depart upward directly, without making level-by-level findings, to the Guideline range applicable to career offenders similar to the defendant. Id. at 562.⁵ Under this de facto career offender method, the district court must conclude that the defendant’s “underlying past criminal conduct demonstrates that the defendant would be sentenced as a career offender but for the fact that one or both of the prior predicate convictions may not be counted.” Id. In other words, the district court may sentence a defendant as a de facto career offender when he has committed two crimes that would qualify as predicate crimes for career offender status, but for some reason cannot be counted. For example, a defendant may be sentenced as a de facto career offender if one or both of his prior predicate convictions is constitutionally infirm, see id., or if two of the defendant’s prior crimes of violence are consolidated for sentencing purposes and thus do not constitute two separate predicate felony convictions, see United States v. Hines, 943 F.2d 348, 354-55 (4th Cir.) (per curiam), cert. denied, 502 U.S. 993, 112 S.Ct. 613, 116 L.Ed.2d 635 (1991). At a minimum, the defendant has to have been convicted of two prior crimes each of which constitutes either a crime of violence or a controlled substance offense.

The district court did not make level-by-level findings to justify its departure from offense level twenty-seven to presumably offense level thirty-one (We assume that this is the offense level to which the district court departed, see note 3.), and thus its departure cannot be sustained on the authority of Rusher. Indeed, there is not even a hint in the record that the district court attempted to comply with the procedural dictates that we explicitly outlined in Rusher. Consequently, we must examine whether the district court properly departed upward pursuant to the de facto career offender method recognized in Cash.

With respect to Harrison’s de facto career offender argument under Cash, we note initially that Harrison does not challenge on appeal the propriety of the district court’s underlying reason for its decision to depart upward—the inadequacy of Harri- son’s criminal history category to reflect the seriousness of his past criminal conduct or the likelihood that he would commit other ciimes. See USSG § 4A1.3. Rather, his ar- gument is based solely on his contention that the district court could not employ the de facto career offender method because his past criminal conduct does not demonstrate that he “would be sentenced as a career offender but for the fact that one or both of the prior predicate convictions may not be under federal counted.” Cash, 983 F.2d at 562. We agree with Harrison’s argument.

Harrison satisfies the age and the instant offense requirements for treatment as a career offender under § 4B1.1. However, only Harrison’s three 1984 breaking and entering convictions may possibly qualify as predicate convictions under USSG § 4B1.2 as his post-1984 breaking and entering convictions all involved burglaries of commercial structures, and thus do not qualify as crimes of violence. See § 4B1.2, comment, (n.2). The PSR does not specify whether the 1984 breaking and entering convictions involved dwellings or commercial structures and under USSG § 4B1.2 only burglary of a dwelling constitutes a crime of violence. Because the record does not reflect whether the 1984 breaking and entering convictions involved dwellings or commercial structures, the district court was not at liberty to sentence Harrison as a de facto career offender. Accordingly, we cannot sustain Harrison’s sentence under the de facto career offender method that we recognized in Cash. This conclusion, when coupled with our previous conclusion that Harrison’s sentence cannot be sustained under Rusher, requires that we vacate Harrison’s sentence and remand for resentencing.

While we do not express any opinion on the merits of the departure in this case, if on remand, the district court holds to its decision to depart upwardly, it must either make level-by-level findings to justify its departure or, assuming supplementation of the record, conclude that Harrison qualifies as a defacto career offender under the principles set forth in Cash.

III.

For the reasons set forth in this opinion, we vacate Harrison’s sentence and remand this case to the district court for resentenc-ing.⁶

VACATED AND REMANDED.

1 . A defendant falls in Criminal History Category VI if he or she has thirteen or more criminal history points.

2 . Neither the PSR nor the record discloses whether these counts involved dwellings or commercial structures.

3 . We reasonably can infer from the scant record that the district court departed upward four offense levels from offense level twenty-seven, with a sentencing range of 130 to 162 months, to offense level thirty-one (the offense level the district court would have arrived at had Harrison been sentenced as a career offender pursuant to USSG § 4B1.1 and received a three-level reduction for acceptance of responsibility pursuant to USSG § 3E1.1).

Harrison’s conviction under 21 U.S.C.A. § 963 (West Supp.1995) carries a maximum statutory sentence of forty years, resulting in a career offender offense level of thirty-four. See USSG § 4B 1.1(B). We arrive at offense level thirty-one by subtracting three levels for acceptance of responsibility, a reduction the district court granted when it calculated Harrison’s offense level prior to addressing the question of departure. Based on an offense level of thirty-one and a Criminal History Category of VI, Harrison's Guideline range would have been 188 to 235 months.

4 . Shortly after Harrison was sentenced, the government filed a motion for reduction of sentence for substantial assistance pursuant to Fed.R.Crim.P. 35(b) and USSG § 5K1.1, p.s. Subsequently, .the district court reduced Harrison’s sentence to 178 months' imprisonment. Harrison appeals from both the original judgment and the amended judgment.

5 . "A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” USSG 4B1.1. "The term 'crime of violence' means any offense or stale law punishable by imprisonment for a term exceeding one year that—(i) has as an element the use, attempted use or threatened use of physical force against the per- son of another, or (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a seri- ous potential risk of physical injury to another.” USSG § 4B1.2. another.” USSG § 4B1.2.

6 . On appeal, Harrison also challenges his sentence on the ground that the district court did not provide him with adequate notice of a possible upward departure. Given our disposition, we need not address this challenge.