United States v. David Lambert

963 F.2d 711, 1992 WL 121391

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 14, 1992
• Docket: 91-1856
• Status: Published

Opinions

REYNALDO G. GARZA, Circuit Judge:

PRELIMINARY STATEMENT

In this case, defendant-appellant complains that the sentencing court improperly and unreasonably departed upward from the Sentencing Guideline range. For the reasons discussed below, we affirm the sentence of the district court.

PROCEDURAL HISTORY

On or about February 21, 1991, David Lambert, appellant herein, was indicted in the United States District Court for the Northern District of Mississippi. The indictment charged:

On or about June 15, 1990, in the Northern District of Mississippi, the defendant, DAVID LAMBERT, did while in the lawful custody of an institution and facility in which he was confined by the direction of the Attorney General of the United States and a judgment and commitment order of the United States District Court for conviction of a felony, did [sic] knowingly escape from said institution and facility, in violation of Section 751(a) of Title 18, United States Code.

(nm $250,000 or nm 5 years or both)

Lambert pled guilty on April 24, 1991, and a presentence investigation report was prepared. On July 31, 1991, a sentencing hearing was conducted. The presentence report determined that Lambert had an offense level of seven and a criminal history category of V which provided for an imprisonment range of 12 to 18 months according to the United States Sentencing Guidelines. On July 31, 1991, the district court departed upward from the Guidelines range and sentenced Lambert to imprisonment for 36 months, twice the maximum Guideline sentence, and three years of supervised release. The district court imposed no fine beyond a $50 special assessment due to Lambert’s inability to pay.

FACTS

On June 15, 1990, Lambert was in federal custody and assigned to the Community Treatment Services Center (“CTSC”) at Tu-pelo, Mississippi, having been sentenced on June 17, 1986, to serve four years and two years consecutively for a conviction under Title 18 U.S.C. §§ 2 and 494 (possessing with intent to alter and publish altered United States postal money orders). Lambert was to be eligible for parole on September 21, 1991. On June 15, 1990, after being assigned to the CTSC for less than one month, he was given a weekend pass to visit the residence of one W.C. McHardy in Boyle, Mississippi, and failed to return to the CTSC. An arrest warrant was issued immediately, but because Lambert was hiding in a specially arranged compartment in the home of McHardy, the warrant was not served until February 3, 1991. McHardy was subsequently charged and convicted for harboring and containing, assisting and abetting an escaped federal prisoner.

Lambert’s presentence report suggested that an upward departure might be appropriate “since the criminal history category may significantly under-represent the seriousness of the defendant’s criminal history or the likelihood that he will commit further crimes.” The report cited two reasons for this assertion. First, Lambert received two convictions in 1978, one for an armed robbery committed on August 14 and one for a burglary committed on August 15. These convictions were consolidated for sentencing so Lambert received only three criminal history points. Second, the report noted that Lambert committed two offenses, including the instant conviction, while in custody.

At the sentencing hearing, the district judge briefly summarized Lambert’s criminal history, which began with an armed robbery in 1976, for which Lambert received two years imprisonment. Shortly after being released, Lambert used a pistol to rob a woman, and the following day committed burglary in a store owned by the woman’s family. Lambert was sentenced to ten years on the robbery count and six years on the burglary count, and served the terms concurrently.

Seven years after the commencement of Lambert’s incarceration at the Mississippi State Penitentiary, he was found in possession of forged U.S. Postal Service money orders. After Lambert was discharged from the Mississippi facility, he began to serve a six year term in federal prison, and thereafter committed the instant offense.

At the sentencing hearing for the instant offense, the court stated:

What really concerns me, first of all, are two offenses where weapons were used, first a knife and then a gun. But to show total disrespect for the law while you were incarcerated first in the Mississippi State Penitentiary [and] in there you committed a federal crime. While incarcerated in the federal penitentiary you committed another federal crime ...

The armed robbery and burglary convictions in 1978 were consolidated for sentencing, and they resulted only in three criminal history points. You haven’t committed just one offense while in custody; you have committed two while lawfully incarcerated on other charges.

If ever there was an instance where the guidelines did not adequately consider the seriousness of the offense that you have committed, considering your criminal history as a whole, this is that case.

I’m of the opinion that your criminal history, particularly the two offenses committed while in lawful custody on other offenses, are significantly more serious than that of most defendants who are in this same criminal history category. And you’re in a criminal history category of V, even after giving you the two points for the acceptance of responsibility. VI is the highest.

But I do not believe that the guidelines in this case adequately reflect the seriousness of the offense nor do they adequately provide punishment commensurate to the gravity of the offense in this case considering your criminal history category as a whole.

[Emphasis added].

Accordingly, the court departed upwards in sentencing Lambert. Lambert appeals.

ANALYSIS

Lambert contends that the district court failed to provide acceptable reasons for the departure, and that, even if acceptable reasons existed, the departure was unreasonable. In reviewing a challenge to a sentence, we must accept the factual findings of the district court unless clearly erroneous. “A departure from the guidelines will be affirmed if the district court offers ‘acceptable reasons’ for the departure and the departure is ‘reasonable.’ ” United States v. Velasquez-Mercado, 872 F.2d 632 (5th Cir.) (quoting United States v. Mejia-Orosco, 867 F.2d 216, 219 (5th Cir.1989)), cert. denied, 493 U.S. 866, 110 S.Ct. 187, 107 L.Ed.2d 142 (1989).

I. The District Court Provided Acceptable Reasons for the Upward Departure.

18 U.S.C. § 3553(b) authorizes the trial court to sentence a defendant for an imprisonment term outside the range established by the Guidelines if the court finds that an aggravating or mitigating circumstance exists of a kind or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines. Guideline § 4A1.3, p.s. implements 18 U.S.C. § 3553(b) and provides further guidance by stating that “[a] departure under this provision is warranted when the criminal history category significantly under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit further crimes.”

18 U.S.C. § 3553(c)(2) requires the sentencing court, at the time of sentence, to articulate specific reasons for imposing a sentence outside the range provided for by the Guidelines. We have stated:

When a district court relies on Section 4A1.3 to depart from the established guidelines, it should articulate its reasons for doing so explicitly. We do not, of course, require sentencing judges to incant the specific language used in the guidelines, and, indeed, such a ritualistic recital would make the sentence less comprehensible to the defendant and our review more difficult. What is desirable, however, is that the court identify clearly the aggravating factors and its reasons for connecting them to the permissible grounds for departure under section 4A1.3.

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

The district court evinced concern over Lambert’s use of weapons in two of his past crimes, something not taken into consideration by the Guidelines.¹ The court also mentioned the fact that Lambert had committed two offenses, armed robbery and burglary, which added only three criminal history points to his calculation because the Mississippi court had consolidated the offenses for sentencing.

Guidelines § 4A1.2(a)(2) allows for related cases to be treated as one for sentencing purposes. Lambert argues, therefore, that the Sentencing Commission fully considered the effect of consolidated sentences such as the Lambert’s in formulating the Guidelines. As the Supreme Court has recently concluded, “it is an incorrect application of the Guidelines for a district court to depart from the applicable sentencing range based on a factor that the Commission has already fully considered in establishing the guideline range ...” Williams v. United States, — U.S. —, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992). If the sentencing court relied on an incorrect factor in deciding to depart, then there has been an incorrect application of the Sentencing Guidelines under 18 U.S.C. § 3742(f)(1) and “a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court’s selection of the sentence imposed.” 112 S.Ct. at 1120-21.

We do not believe, however, that the district court misapplied the Guidelines. Comment 3 to section 4A1.2 states:

The court should be aware that there may be 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. For example, if the defendant was convicted of a number of serious non-violent offenses committed on different occasions, and the resulting sentences were treated as related because the cases were consolidated for sentencing, the assignment of a single set of points may not adequately reflect the seriousness of the defendant’s criminal history or the frequency with which he has committed crimes. In such circumstances, an upward departure may be warranted. Note that the above example refers to serious non-violent offenses. Where prior related sentences result from convictions of crimes of violence, § 4Al.l(f) will apply.

An upward departure in criminal history due to the crimes committed against the Mississippi family seems especially apropos. The crimes, performed on different days, were certainly serious. In fact, Lambert threatened Ms. Breaux in Mississippi with a pistol. Certainly Lambert had become no less violent then when he committed his 1976 offense involving a knife. Nevertheless, Lambert escapes application of section 4Al.l(f) because the consolidated crimes did not involve a series of violent offenses.

The district court also pointed out that Lambert displayed contempt for the law by committing crimes while in lawful custody for other offenses. While the Guidelines do take into account the obvious fact that Lambert was in custody when he escaped, they fail to consider that he was in custody when he was in possession of forged money orders.

Lambert argues that the district court failed to state its reasons for departing with sufficient clarity, and cites United States v. Shaw, 891 F.2d 528 (5th Cir.1989), where we remanded the case after the district court had given a 60 month sentence to a defendant whose Guideline range was from 30 to 37 months. We note that the district court in Shaw was not as precise as the sentencing court in this case regarding the reasons for its sentence. More importantly, however, the district court in Shaw was apparently unaware that it had departed. Id. at 529. This was an incorrect application of the Guidelines which mandated a remand under the emerging jurisprudence which recently culminated in the Supreme Court’s opinion in Williams, supra.

II. The Extent of the District Court’s Departure was Reasonable.

Lambert argues that even if an upward departure was warranted, the extent of the departure was unreasonable. We do not agree.

Lambert maintains that the district court erred in failing to consider a sentence within the next highest criminal history category, i.e., category VI. Guidelines § 4A1.3, p.s., states, in pertinent part:

In considering a departure under this provision, the Commission intends that the court use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable. For example, if the court concludes that the defendant’s criminal history category of III significantly un-derrepresents the seriousness of the defendant’s criminal history, and that the seriousness of the defendant’s criminal history most closely resembles that of most defendants with a Category IV criminal history, the court should look to the guideline range specified for a defendant with a Category IV criminal history to guide its departure. The Commission contemplates that there may, on occasion, be a case of an egregious, serious criminal record in which even the guideline range for a Category VI criminal history is not adequate to reflect the seriousness of the defendant’s criminal history. In such a case, a decision above the guideline range for a defendant with a Category VI criminal history may be warranted. However, this provision is not symmetrical. The lower limit of the range for a Category I criminal history is set for a first offender with the lowest risk of recidivism.

[Emphasis added].

Lambert contends that this policy statement requires that the district court clearly state that it considered a sentence within Criminal History Category VI and specifically explain why such a sentence is inadequate. As explained below, we have held that it is appropriate, as a prophylactic measure, for sentencing courts to take such measures when the defendant’s criminal history category is low and it is not therefore initially apparent that the risk of recidivism is great. We do not, however, read the policy statement as mandating a step by step procedure, especially not where the criminal history category is high. The policy statement indicates that the sentencing court should look to the next highest category if the seriousness of the defendant’s criminal history most closely resembles that of most defendants with the next highest category. It does not say that the sentencing court must do so if the seriousness of the defendant’s criminal history does not resemble that of most defendants with the next highest category. We read the policy statement to mean that the Sentencing Commission intended that the court explain why it reached the level of departure that it did, not why it did not reach some other level.²

Clearly, the higher the criminal history category, the greater the chance of recidivism. In United States v. Lopez, 871 F.2d 513, 515 (5th Cir.1989), the defendant scored a zero in the criminal history calculation which, along with her offense level of nine, rendered a sentencing range between four to ten months. The district court, however, more than doubled the maximum and sentenced her to two years imprisonment, which was at the top of the range for a defendant with a criminal history category of V. In such a situation, we held that such a sentence is improper unless the district court states that it has considered sentences corresponding to lower criminal history categories and explains why such sentences are inadequate. Id. at 515.

We have held, however, that Lopez is most applicable in cases where the defendant’s criminal history category is low. United States v. Harvey, 897 F.2d 1300, 1306 (5th Cir.), cert. denied, — U.S. —, 111 S.Ct. 568, 112 L.Ed.2d 574 (1990). In cases such as the one before us, where the defendant has been in the criminal justice system virtually his entire adult life and has shown a consistent disrespect for the law, it is not so important that the sentencing court explain fully why sentences corresponding to lower criminal history categories do not suffice. In Harvey, the defendant had a base offense level of 9 and a criminal history category of V. After various adjustments, the applicable sentencing range was between 18 to 24 months. The district court, however, more than doubled the maximum amount and sentenced Harvey to the statutory maximum of 60 months, without explicitly stating that it had considered a sentence within the category VI range and had found it inadequate. Relying on United States v. Geiger, 891 F.2d 512 (5th Cir.1989), cert. denied, 494 U.S. 1087, 110 S.Ct. 1825, 108 L.Ed.2d 954 (1990), we affirmed, stating that “Lopez was confined to those cases where a defendant’s criminal history category is low,” and is not as applicable in a case where the criminal history category was V. 897 F.2d at 1306.

Nevertheless, in United States v. Jones, 905 F.2d 867 (5th Cir.1990), we remanded for resentencing notwithstanding the fact that the defendant had a criminal history category of V. In Jones, the district court had sentenced the defendant to a prison term four times the applicable Guideline maximum. Relying on United States v. Landry, 903 F.2d 334 (5th Cir.1990) (vacating sentence 3.5 times greater than the Guideline maximum), we remanded for a more complete explanation of the departure. What disturbed us most in Jones, however, was that the sentencing court did not fully explain why it departed at all. The district court recited the defendant’s criminal history, but did not state why category V was inadequate. To then depart to such a great extent was unacceptable.

In the case before us, the district court was more explicit than were the courts in Lopez, Jones or Landry. Moreover, the extent of the departure was less than in any of these cases, including Harvey. Therefore, we find that Harvey governs this case, and we hold that the district court did not err in failing to be more explicit than it was. We do not require that sentencing courts make explicit analogies to other criminal history categories in all cases because, as was explained in one scholarly article,

[requiring courts to look to analogies on all occasions would prove unduly burdensome, adding needlessly to the strain which guideline sentencing has already put on overtaxed judicial resources. Thus, in light of the diverse and unforeseen situations that sentencing courts confront, as well as Congress’ intent not to desiccate the limited discretion that remains after implementation of the Guidelines, any absolute requirement to link unguided³ departures to the Guidelines unjustifiably infringes on the domain of the sentencing court, increasing complication and uncertainty in the law without securing any practical advantage. The concern should be with the reasonableness of the sentence imposed, not with the intricacies of the calculations that produced it.

Selya and Kipp,⁴ An Examination of Emerging Departure Jurisprudence Under the Federal Sentencing Guidelines, 67 Notre Dame Law Review 1, 49 (1991).

Nor do we believe that the district court abused its discretion in the amount of the departure. As we stated in affirming a sentence of 36 months when the Guideline range was between ten and sixteen months,

[w]e will not disturb a sentence that falls within the statutory limits, even though an upward departure from the Guidelines, absent a “gross abuse of discretion.”

United States v. Perez, 915 F.2d 947, 948 (5th Cir.1990) (quoting United States v. Murillo, 902 F.2d 1169 (5th Cir.1990)). See also United States v. Campbell, 878 F.2d 164 (5th Cir.1989) (affirming sentence 3½ times the Guideline maximum).

CONCLUSIONS

The district court sufficiently explained its reasons for departing in this case. Moreover, doubling the maximum Guideline sentence was not unreasonable. Therefore, the decision of the sentencing court is

AFFIRMED.⁵

1 . Guidelines § 5K2.6, p.s. lists the possession or use of weapons or dangerous instrumentalities to commit crimes as a ground for departing above the normal Guideline range. While we note that the Guidelines refer here to departures due to the gravity of the crime rather than to departures due to the under-representation of criminal history, we nevertheless find this instructive because criminal history categories may not take into account the gravity of past wrongdoing.

2 . In Williams, the district court had departed on grounds that were in part contrary to Section 4A1.3, p.s., in that it relied inter alia on defendant’s arrest record. The dissent argued that a violation of a policy statement is not a violation of a Guideline. The majority answered by saying that

to say that guidelines are distinct from policy statements is not to say that their meaning is unaffected by policy statements. Where, as here, a policy statement prohibits a district court from taking a specified action, the statement is an authoritative guide to the meaning of the applicable guideline. An error in interpreting such a policy statement could lead to an incorrect determination that a departure was appropriate.

Williams v. United States, — U.S. —, —, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341, 353 (1992) (emphasis added).

The Supreme Court clearly resolved that Section 4A1.3’s prohibition against relying on arrest records for departure purposes was a correct interpretation of the Guidelines by the Sentencing Commission. We do not believe that the Supreme Court meant that an authoritative guide to the meaning of Guidelines is an infallible guide. While the Supreme Court stated that a misapplication of a policy statement could lead to misapplication of the Guidelines "where ... a policy statement prohibits a district court from taking a specified action,” it did not state that it must so lead, especially in a case where, as here, the policy statement does not prohibit the district court from taking a specified action, but merely explains how that action should be taken. Even if our interpretation of Williams is in error, however, it would not alter the outcome of the case before us as we conclude that the district court did not misapply the policy statement.

3 . We view departures from the upper criminal history categories under Guidelines § 4A1.3 as basically “unguided,” Le., as similar to departures under § 5K2.0, as opposed to "guided" departures, such as those under Guidelines § 2G1.1, comment (n.l) (with respect to offense of interstate transportation of prostitutes, where the defendant did not commit the offense for profit and the offense did not involve physical force or coercion, a downward departure of 8 levels is recommended).

4 . This article was authored by the Honorable Bruce M. Selya, Judge, United States Court of Appeals for the First Circuit, and his former law clerk, Matthew R. Kipp.

5 .As author of this opinion, I have no objection to the suggestion of my colleagues that we take this question en banc to settle our jurisprudence.