United States v. Lake

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 15, 2002
• Docket: 01-11117
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11117

UNITED STATES OF AMERICA Plaintiff - Appellee

v.

ROBERT LAKE, also known as Robert Dashaun Lake Defendant - Appellant

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CR-45-1-A - - - - - - - - - - July 12, 2002

Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

Robert Lake pleaded guilty to conspiracy to fraudulently use

identities in violation of 18 U.S.C. §§ 371 and 1028. He appeals

the district court’s four-level upward departure from the

sentencing guideline’s range. Lake asserts that the district court

failed to comply with FED. R. CRIM. P. 32 because it did not provide

notice that it was going to depart upward based on its finding that

the loss calculation did not fully take into account the loss of

the victims because there was no loss information from many of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-11117 -2-

them. He also contends that the district court did not provide

notice that it was going to consider his role in the offense as a

basis for an upward departure. Lake argues that the district court

erred in departing upward on both of these grounds and also on the

ground that his prior convictions had not deterred him from

committing the present offense.

Lake’s assertions that the district court: 1) failed to

provide reasonable notice pursuant to FED. R. CRIM. P. 32 of its

intention to depart upward from the sentencing guidelines based

upon Lake’s role in the offense; and 2) improperly relied upon

Lake’s role in the offense as a basis for an upward departure from

the sentencing guidelines are without merit. The district court

did not depart upward on the basis of Lake’s role in the offense.

The district court articulated its reasons for sentencing Lake and

dismissed him from the sentencing hearing. Before commenting about

one of Lake’s co-defendant’s role in the offense, the district

court stated; “[F]rom this point forward, of course, the hearing is

not to affect . . . Mr. Lake.” R. 3, 74-75. The district court’s

statement to a co-defendant that the co-defendant would not receive

a four-level upward departure but would only receive a three-level

upward departure does not imply that Lake’s sentence was based on

his role in the offense. Accordingly, notice was not required.

Lake’s contention that the district court failed to provide

proper notice of its intention to depart upward based upon its

finding that the loss calculation did not fully account for the No. 01-11117 -3-

loss of the victims fails. Based upon the Presentence Report’s

(“PSR”) statement that the victim loss information was not complete

and the court’s order requesting additional information regarding

monetary and non-monetary losses and informing the parties that it

was considering whether to depart upward based upon U.S.S.G.

§ 2F1.1 & § 5K2.0 due to the loss determination not fully

reflecting the seriousness of the offense conduct, Lake was

adequately notified of the possible grounds for an upward

departure. See Burns v. United States, 501 U.S. 129, 138-39

(1991); United States v. Milton, 147 F.3d 414, 420-21 (1998).

Given the uncontested statement in the PSR that the victim

loss information was incomplete, as well as the limited number of

responses regarding non-monetary losses, the district court’s

determination that the amount of loss as calculated under U.S.S.G.

§ 2F1.1 did not adequately reflect the loss of the victims was not

unreasonable. Therefore, the district court did not abuse its

discretion in considering this factor in departing upward from the

sentencing guidelines. See United States v. Dadi, 235 F.3d 945,

953 (5th Cir. 2000), cert. denied, 532 U.S. 1072 (2001); Milton,

147 F.3d at 421.

Departures regarding a defendant’s recidivism are generally

addressed pursuant to U.S.S.G. § 4A1.3, which relates to the

adequacy of a defendant’s criminal history category. This does not

preclude, however, an upward departure based upon recidivism under

U.S.S.G. § 5K2.0. United States v. McDowell, 109 F.3d 214, 218 No. 01-11117 -4-

(5th Cir. 1997). Even assuming, arguendo, that the district court

improperly considered Lake’s past criminal conduct and the

likelihood of his committing other crimes in departing upward under

U.S.S.G. § 5K2.0, we find that any such error was harmless. The

primary basis for the district court’s departure related to the

non-monetary losses of the victims, and the court clearly indicated

its intention to impose at least the 41-month sentence that Lake

received. See Williams v. United States, 503 U.S. 193, 203 (1992).

Therefore, Lake’s sentence is AFFIRMED.