United States v. Bourdin

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 24, 1999
• Docket: 98-51227
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 98-51227 _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FREDERIC BOURDIN, a.k.a. Nicholas Patrick Barclay, a.k.a. Frederic Pierre Bourdin, a.k.a. Shedgin Guteyere, a.k.a. Benjamin Kent, a.k.a. Jimmy Peter Manfred Morins, a.k.a. Shadjan Raskovic, a.k.a. Marc Selopin, a.k.a. Thomas Wilson, a.k.a. Robin Morins, a.k.a. Arnaud Orions,

Defendant-Appellant.

________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (SA-98-CR-128-ALL) _________________________________________________________________

November 19, 1999

Before DAVIS, JONES, and Magill*, Circuit Judges.

EDITH H. JONES, Circuit Judge:**

On September 9, 1998, Appellant Frederic Bourdin pled

guilty to: 1) fraudulently obtaining a passport, in violation of 18

U.S.C. §1542; 2) perjury, in violation of 18 U.S.C. §1621; and 3)

possession of a fraudulent document, in violation of 18 U.S.C.

§1546(a). On December 17, 1998, the district court departed upward

from the Sentencing Guidelines and sentenced him to 71 months of

* Circuit Judge of the Eighth Circuit, sitting by designation. ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. imprisonment.1 Because the district court’s upward departure was

reasonable in light of the facts of the case, this Court affirms.

FACTS

In 1997 in Madrid, Spain, Frederic Bourdin began

representing himself as Nicholas Barclay, an American boy missing

since 1994. In the fall of 1997, Carrie Gibson, Nicholas Barclay’s

sister, flew to Spain to meet him. In October, Bourdin obtained a

United States passport under the name Nicholas Barclay, so that he

could accompany Gibson to the United States. For the next five

months, Bourdin lived with Gibson and her family in San Antonio,

Texas as Nicholas Barclay.

During the same period, FBI Special Agent Nancy Fisher

began an investigation as to whether Frederic Bourdin, as “Nicholas

Barclay,” was actually Nicholas Barclay. During the course of that

investigation, Bourdin stated that he had been rescued by a man

named Jonathan Duran. Agent Fisher then spent numerous hours

trying to locate Duran. When she eventually asked Bourdin to do so

for her, Bourdin pretended to call Duran and then informed Agent

Fisher that Duran did not want to talk to her. In addition,

Bourdin agreed to provide a blood sample only then to refuse after

arriving at the doctor’s office with Agent Fisher.

On February 24, 1998, FBI employees obtained Bourdin’s

fingerprints in San Antonio and confirmed with Interpol records

that he was not Nicholas Barclay, but Frederic Bourdin. The

documents provided by Interpol officials indicated that Bourdin

1 The district court also imposed a three-year term of supervised release, a $10,000 fine and a $300 special assessment.

2 used numerous aliases and had a foreign criminal history of

behavior similar to the behavior exhibited in this case. Bourdin

was arrested on March 6, 1998.

At sentencing, the district court determined that

Bourdin’s offense level was 15 and his criminal history category

was I, producing a guideline sentence range of 18 to 24 months’

imprisonment. The court then departed upward 10 levels and imposed

a sentence of 71 months’ imprisonment. In doing so, the judge

stated clearly that the departure was based on the nature and

extent of Bourdin’s continued obstructive behavior and the harm he

inflicted on various victims, particularly the family of Nicholas

Barclay. It also stated that it viewed all the reasons in the

Government’s motion for upward departure, which included the

argument that a criminal history category of I did not adequately

reflect the criminal history that Bourdin deserved as a result of

his criminal history in Europe, as reasons to depart upwards.

On appeal, Bourdin argues that the court’s 10-level

increase was unreasonable. Bourdin interprets the district court’s

departure as based only on Bourdin’s obstructive behavior and the

harm to vulnerable victims. Because the departure was greater than

the increase afforded those factors under the guidelines the

district court analogized to, Bourdin argues that the increase was

unreasonable. Bourdin further argues that, because the district

court did not clearly include the inadequacy of his criminal

history category in its oral statement describing its reasons for

upwardly departing, this Court cannot interpret the upward

3 departure as based also on the inadequacy of his criminal history

category.

STANDARD OF REVIEW

This Court reviews a district court’s decision to depart

from the Sentencing Guidelines for abuse of discretion. See United

States v. McKenzie, 991 F.2d 203, 204 (5th Cir. 1993).

DISCUSSION

The district court may depart from the Sentencing

Guidelines due to aggravating or mitigating circumstances not

considered or inadequately considered by the guidelines. See 18

U.S.C. §3553(b); U.S.S.G. §5K2.0. A departure from the guidelines

will be affirmed if the district court offers acceptable reasons

for the departure and the departure is reasonable. See United

States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993). This Court

has upheld as reasonable departures that were over several times as

much as the initial guideline range, and has stated that “the mere

fact that a departure sentence exceeds by several times the maximum

recommended under the Guidelines is of no independent consequence

in determining whether the sentence is reasonable.” United States

v. Roberson, 872 F.2d 597, 606 n.7 (5th Cir.), cert. denied, 493

U.S. 861, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989).

In this case, appellant does not contest that the

district court fulfilled prong one of the Lambert test. In any

case, the district court clearly articulated at least two

acceptable reasons for an upward departure – Bourdin’s obstructive

behavior and the harm he inflicted on vulnerable victims. These

reasons are analogous to U.S.S.G. §3A1.1 and §3C1.1 and are thus

4 based on the policies underlying the Guidelines. See United States

v. Moore, 997 F.2d 30, 36 (5th Cir. 1993) (stating that a district

court’s justification for departure from the initial guideline

range must be based on the policies underlying the Guidelines).

Appellant focuses on prong two of the above test.

Bourdin argues that the district court acted unreasonably in

imposing a sentence commensurate with a 10-level increase, rather

than the 4-level increase that the unavailable, but analogous,

guidelines provide.

Although the use of analogous guidelines indicates that

the district court has articulated acceptable reasons for

departure, the district court is not constrained to impose an

increase commensurate with that of the guideline. Bourdin’s

behavior was both egregious and well outside the heartland cases

covered by the guidelines. Thus, the district court acted within

its discretion in departing upward 10 levels and imposing a 71-

month sentence of imprisonment.

Because we find that the district court could reasonably

have based its upward departure on Bourdin’s obstructive behavior

and the harm he inflicted on vulnerable victims, we do not reach

the question whether the district court also based its departure on

the inadequacy of Bourdin’s criminal history category.

AFFIRMED.