United States v. Baker

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 9, 2002
• Docket: 01-11085
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11085 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

MICHAEL ANTHONY BAKER

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CR-466-1-X -------------------- April 8, 2002

Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit Judges.

PER CURIAM:*

Michael Anthony Baker appeals his sentence of 46 months’

imprisonment after pleading guilty to conspiracy to commit bank

fraud. Baker waived his right to appeal his sentence in his plea

agreement, except in the event of an upward departure. The

district court did depart upward from the sentencing guideline

range, and it is that action which Baker appeals.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-11085 -2-

Baker argues that the guidelines had already taken into

account his prior conviction and the fact that this offense was

committed while he was under a criminal justice sentence and so

quickly after his release. Baker’s argument ignores the district

court’s stated reasons for the departure: the similarity of the

offenses and the resulting greater likelihood of recidivism.

This court upheld an upward departure for these reasons in United

States v. De Luna-Trujillo, 868 F.2d 122, 124-25 (5th Cir. 1989),

specifically noting that similarity of offenses is not a factor

considered by the criminal history guidelines, and that

similarity of offenses suggests an increased likelihood of

recidivism. The district court specifically cited this case in

its reasons. The district court also noted its concern for

giving Baker a lesser sentence than that imposed for his previous

conviction, another factor not considered by the guidelines, and

a factor approved as a reason for upward departure in United

States v. Barnes, 910 F.2d 1342, 1345 (6th Cir. 1990).

Baker’s second argument, that his criminal history was not

significantly more serious than that of most others in criminal

history category III, also ignores the district court’s reasons

for departure. The district court did not base its departure on

a determination that his criminal history category significantly

underrepresented the seriousness of his criminal history. The

district court focused solely on the likelihood of recidivism and No. 01-11085 -3-

the need for incapacitation by incarceration, which reasons Baker

does not address.

Baker argues that the district court did not follow this

court’s methodology for upward departures in United States v.

Lambert, 984 F.2d 658 (5th Cir. 1993)(en banc) because it gave no

explanation for why it bypassed intermediate criminal history

categories between III and VI. The district court stated that it

had

considered all alternatives between the applicable pre- departure guideline range of offense level 14, criminal history category III and the departed to guideline range of offense level 14, criminal history category VI. The Court found them to all be inadequate to fulfill the purposes of sentencing . . . under the specific facts of this case.

The district court complied with Lambert. The district court was

not required to discuss each category rejected. Lambert, 984

F.2d at 663. The district court’s reason for rejecting the

intermediate categories was implicit in its explanation of its

reasons for departure, incapacitation from further criminal

activity for as long as possible, and imposition of a higher

sentence for the second offense to impress upon Baker the

seriousness of his repeated conduct.

Baker’s last argument, that the district court’s action

effectively nullified his substantial assistance, again ignores

the fact that the district court granted the Government’s motion

for downward departure and gave Baker a sentence of 46 months, 14

months less than the 60 months that the court was originally No. 01-11085 -4-

contemplating. The district court gave effect to Baker’s

substantial assistance to the extent that the court determined it

was outweighed by the other factors warranting an upward

departure.

The district court did not abuse its discretion in departing

upward. United States v. Ashburn, 38 F.3d 803, 807 (5th Cir.

1994)(en banc). Baker’s sentence is AFFIRMED.