United States v. Morgan

54 F. App'x 421
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 12, 2002
DocketNo. 00-6479
StatusPublished
Cited by2 cases

This text of 54 F. App'x 421 (United States v. Morgan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Morgan, 54 F. App'x 421 (6th Cir. 2002).

Opinion

PER CURIAM.

The defendant-appellant, Nancy Lynn Morgan, appeals the 70-month sentence imposed on her after she pleaded guilty to multiple counts of an indictment charging her with bank fraud, identity theft, and theft of motor vehicles. Although under the Sentencing Guidelines, the applicable sentencing range for Morgan’s conduct was 33 to 41 months, the district court determined that a sentence in this range did not adequately reflect her extensive prior criminal record. The court instead departed upward six levels and imposed a 70-month sentence. The sole issue on appeal is whether the district court’s decision to depart upward was appropriate under the Sentencing Guidelines. We hold that the decision to depart upward was erroneous. Accordingly, we vacate the defendant’s sentence and remand this case for resentencing.

II. BACKGROUND

In February 2000, a federal grand jury returned a 15-count indictment charging the defendant with multiple offenses stemming from her involvement in a bank fraud scheme from February 1999 through August 1999. The indictment alleged that the defendant would steal the personal identification documents of other individuals and assume their identities. If the defendant could not steal the actual documents, she would manufacture false ones. The defendant would then open bank accounts in Tennessee, Kentucky, and North Carolina under the false identifications. She wrote bad checks on these accounts to [423]*423buy a variety of items, including motor vehicles. In addition, the defendant would use false identification to obtain financing to purchase the automobiles.

The defendant had amassed a substantial criminal history before she was prosecuted for the instant offense. Her prior offenses included:

1. Passing or attempting to pass bad checks — sixteen instances;
2. Deceptive practices — eight instances;
3. Misdemeanor theft — two instances;
4. Forgery — four instances;
5. Making a false writing — three instances;
6. Larceny; and
7. Theft by taking.

In all, the defendant had a total of 21 criminal history points, placing her in criminal history category VI. J.A. at 70. Of particular importance, however, is the fact that some of the defendant’s above convictions were too remote to factor into her criminal history. These consisted of:

1. Fourteen counts of bad checks;
2. Five counts of deceptive practices;
3. One count of misdemeanor theft; and

4. One count of making a false writing. In anticipation of the sentencing hearing, the government filed a motion for an upward departure on two theories. First, the government argued that under U.S.S.G. § 2F1.1, an upward departure was warranted because the amount of loss used to calculate the defendant’s offense level did not fully capture the harmfulness and seriousness of her conduct. Second, the government argued that under U.S.S.G. § 4A1.3, the defendant’s criminal history category of VI did not reflect the seriousness of her past criminal conduct or the likelihood that she would recidivate.

The district court found the motion for upward departure well taken on both theories. Accordingly, the defendant’s offense level was increased by three levels under § 2F1.1 and three more levels under § 4A1.3. As a result, the defendant’s original offense level of 13 was increased by a total of six levels to 19. The defendant’s offense level of 19 and her criminal history category of VI corresponded to a sentencing range of 63 to 78 months. The district court sentenced Morgan to 70 months imprisonment. The sole issue on appeal is whether the district court was correct in departing upward three levels under § 4A1.3. The defendant does not contest the decision to depart upward under § 2F1.1.1

III. DISCUSSION

The Sentencing Guidelines require that a sentence be imposed within the guideline range unless “the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the [424]*424guidelines....” 18 U.S.C. § 3553(b). The Guidelines authorize an upward departure in circumstances where “the criminal history category [of the defendant] does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes....” U.S.S.G. § 4A1.3. In United States v. Thomas, 24 F.3d 829 (6th Cir.1994), the Sixth Circuit explained how we should determine whether a district court’s decision to depart upward under § 4A1.3 was appropriate:

“The Court employs a three-prong test to determine whether a departure was warranted. First, we review de novo the circumstances surrounding the departure to determine whether they are sufficiently unusual to warrant divergence from the guidelines. Second, we evaluate whether the circumstances upon which the district court based the departure actually exist in the case. In reviewing the trial court’s factfinding, we reverse only for clear error. Third, once we have assured ourselves that the circumstances are proper for departure and that those circumstances enjoy support in the record, we assess the degree or range of departure for reasonableness.”

Id. at 832 (citations omitted).

The district court committed error with regard to the first prong of the analysis described in Thomas. The circumstances surrounding this case were not sufficiently unusual to warrant a departure under § 4A1.3. The first thing to observe about § 4A1.3 is that a departure is authorized if the criminal history category does not reflect (1) the seriousness of the defendant’s criminal conduct, or (2) the likelihood that the defendant will recidivate. In other words, a departure is authorized if the district court believes that it is warranted under either factor.

A. Seriousness of the Defendant’s Criminal History

The district court based its decision to depart principally upon the defendant’s extensive criminal history. The court noted that her 21 criminal history points put her well above the 13 point threshold for Category VI:

“Ms. Morgan has eight unaccounted for criminal history points as well as similar convictions for similar crimes that also are not counted. Furthermore, her history not only suggests that she has made a livelihood out of her criminal activity but compels such a conclusion.”

J.A. at 39. However, “[i]n determining whether an upward departure from Criminal History Category VI may be warranted, the court should consider that the nature of the prior offenses rather than simply their number is often more indicative of the seriousness of the defendant’s criminal record.” United States v. Little, 61 F.3d 450, 453 (6th Cir.1995) (citing U.S.S.G.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. John Elliott
521 F. App'x 513 (Sixth Circuit, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
54 F. App'x 421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-morgan-ca6-2002.