United States v. Mottram

Opinion

USCA1 Opinion

August 24, 1994
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

No. 94-1023

                                    UNITED STATES,

                                      Appellee,

                                          v.

                               WESLEY F. MOTTRAM, SR.,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                 [Hon. Francis J. Boyle, Senior U.S. District Judge]
                                         __________________________

                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Edward C. Roy and Roy & Cook on brief for appellant.
            _____________     __________
            Sheldon  Whitehouse, United  States Attorney,  Margaret E.  Curran
            ___________________                            ___________________
        and James H. Leavey,  Assistant United States Attorneys, on  brief for
            _______________
        appellee.

____________________

____________________

Per  Curiam.    Defendant-appellant Wesley  Mottram
                      ___________

            pleaded guilty  to a  one-count indictment charging  him with

            passing  a  United  States   Treasury  check  with  a  forged

            endorsement, in violation of 18 U.S.C.   510(a)(2).  Imposing

            sentence  under  the  United  States   Sentencing  Guidelines

            ("U.S.S.G."), the  district court, departing upward  from the

            applicable guideline range, sentenced  Mottram to an 18-month

            prison term in a  facility with a substance abuse  program, a

            3-year  term  of  supervised  release during  which  he  must

            participate in a substance  abuse program, restitution in the

            amount  of $  1,303,  and an  assessment of  $  50.   Mottram

            appeals from this sentence.  We affirm.

Background
                                  __________

The  presentence  investigation report  ("the PSR")

            recounted  a long  and  extensive criminal  history extending

            from the 1960's through the instant offense.  Neither Mottram

            nor  his counsel raised any objections to this account.  Many

            of these prior  convictions, moreover, did not result  in the

            assignment  of  criminal  history points  against  Mottram.  

            Thus,  the PSR  stated  that  an  upward departure  might  be

            warranted in  view of the  sheer number of  prior convictions

            and  the  "extreme  likelihood"  that  Mottram  would  commit

            further crimes.

There  were  two  reasons  why many  of  the  prior

            convictions did not produce criminal history points.  For one

            thing,  convictions over ten years old that did not involve a

            sentence of imprisonment exceeding one year and one month  do

            not result in criminal history  points.  U.S.S.G.   4A1.2(e).

            A  number of  Mottram's  convictions fell  outside this  time

            limitation:    six  separate convictions  for  driving  while

            intoxicated,  plus  separate  convictions  for  breaking  and

            entering, assault, possessing marijuana, and resisting arrest

            and contempt of court.  

                      Second, a  prior  conviction  that  resulted  in  a

            sentence of less than 60 days' imprisonment adds one criminal

            history  point, but  not  to exceed  a  total of  4  criminal

            history  points  for  all  such  convictions.       4A1.1(c).
                                  ___

            Mottram,  however, has had far more  than four convictions in

            this category.  In fact, the  PSR lists no fewer than  twelve

            separate convictions, all in 1991 or 1992,  for which Mottram

            received no  criminal history points because  all resulted in

            sentences of  less than 60 days'  imprisonment (most resulted

            in  suspended sentences or  probation).  Almost  all of these

            convictions  involved  offenses  of receiving  stolen  goods,

            obtaining  money  under  false  pretences,   or  forgery  and

            counterfeiting.

                      The district court,  following the  recommendations

            of  the PSR, determined Mottram's total offense level to be 4

-3-

-- a base offense level of 6 under U.S.S.G.   2F1.1(b)(1)(A),

            with   a  subtraction   of   2  points   for  acceptance   of

            responsibility under   3E1.1.  The district court assigned 14

            criminal  history  points on  the  basis  of Mottram's  prior

            convictions, and  added 2 additional points  under   4A1.1(d)

            because Mottram  was serving a  suspended sentence on  a 1990

            state conviction  for assault  at the  time he committed  the

            instant  offense.  This  total of 16  criminal history points

            placed Mottram in criminal history category VI.     5A.  This

            offense level of  4 and  criminal history category  of VI  --

            which  Mottram does not challenge -- would produce a range of

            imprisonment of 6 to 12 months.  Id.
                                             __

                      Thus, even though many of his prior convictions did

            not yield criminal history points, Mottram nonetheless was in

            the highest criminal history category, VI.  Adding additional

            criminal history points could not have placed him in a higher

            category.

                      The  district court  decided to depart  upward from

            this guideline range on the ground  that the criminal history

            category VI  --  although the  highest  category --  did  not

            adequately reflect the seriousness of Mottram's past criminal

            conduct or the likelihood of recidivism.  The district  court

            explained the upward departure as follows:  "I don't know how

            many instances [prior convictions] there are here but I guess

            they number  34.   Thirty-four convictions.   The last  three

-4-

years  it's  been either  cashing  stolen  checks or  writing

            checks on accounts that  don't exist. . . .   In light of the

            number  of offenses  here,  the persistent  criminal  conduct

            which nothing seems to deter, it seems to me appropriate that

            the  offense level  be increased  by two  to a level  of six.

            That's a guideline range of 12 to 18 months."

                      Mottram's counsel  argued that  there should  be no

            upward departure, and indeed that there should  be a downward

            departure,  because   Mottram  has  a   persistent,  episodic

            drinking  problem,  and  because  most  of  Mottram's   prior

            offenses  occurred  during  particular  periods  of excessive

            drinking.    Counsel further  noted  that  most of  Mottram's

            offenses  do not  involve violence or  a threat  of violence.

            The important thing, counsel urged, was to require Mottram to

            obtain alchohol counselling.

                      In  rejecting these  arguments, the  district court

            remarked, "I have a  lot of trouble figuring out how  if your

            drinking  causes this  problem that  you can be  doing things

            like  this while you're drinking.  It  seems to me it takes a

            little bit  of skill, a little bit of  guile to be able to go

            into a  bank and cash a check and I doubt that, I don't know,

            I  suppose  somebody  would  have  difficulty  if  they  were

            intoxicated and doing that."

-5-

The Merits
                                      __________

            There is no dispute on appeal over whether the evidence

            supports the departure-related  findings of fact,  see United
                                                               __________

            States v. Rivera,  994 F.2d 942, 950 (1st Cir. 1993), or over
            ______    ______

            the degree of departure, see id.  The only issue in this case
                                     ______

            is  whether the specific departure-related circumstances here

            "are  of  a kind  or degree  that  they may  appropriately be

            relied  upon  to justify  departure."    Id. (quoting  United
                                                     __   _______________

            States v. Diaz-Villafane, 874  F.2d 43, 49 (1st  Cir.), cert.
            ______    ______________                                _____

            denied, 493 U.S. 862 (1989)).
            ______

                      U.S.S.G.    4A1.3 states,  "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."  This section goes on

            to  specifically  discuss  departures  from  criminal history

            category VI:  

                    "The Commission contemplates that  there may,
                    on  occasion,  be  a  case  of an  egregious,
                    serious criminal  record  in which  even  the
                    guideline range for Criminal History Category
                    VI is not adequate to reflect the seriousness
                    of the defendant's criminal history.  In such
                    a case, a departure above the guideline range
                    for   a   defendant  with   Criminal  History
                    Category VI may be warranted.  In determining
                    whether  an  upward  departure from  Criminal
                    History Category  VI is warranted,  the court
                    should consider that the  nature of the prior
                    offenses rather than  simply their number  is

-6-

often more indicative  of the seriousness  of
                    the defendant's criminal record."

                      Mottram argues that  although he may have had a lot

            of prior convictions that did not contribute  to his criminal

            history points  or category, these were  all relatively minor

            offenses that did not  involve violence.  In  this situation,

            according  to   Mottram,   the  Sentencing   Commission   has

            discouraged  departures  by stating  that  "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."       4A1.3.

            The  district court thus erred in relying solely on the sheer

            number of prior convictions to justify an upward departure.

                      We find this argument unpersuasive.  For one thing,

            the  Sentencing  Commission's   policy  statement  does   not

            preclude a sentencing  judge from giving weight to  the sheer

            number  of prior  convictions,  even  though relatively  non-

            serious.   The  Commission has  said that  the nature  of the

            prior offenses "is  often more  indicative" (emphasis  added)
                                _____

            than their  number.  Obviously, this  formulation leaves open

            the possibility  that nonetheless there may  be situations in

            which an upward departure might be appropriate because of the

            sheer number of prior convictions.

                      In any event, the sentencing judge here plainly did

            not rely  solely on  the sheer number  of prior  convictions.

            The judge  expressly noted  the spate of  recent convictions,
                                                      ______

-7-

most of them not resulting in any actual time  in prison, for

            offenses very  similar to the instant  offense, i.e., passing

            stolen  or forged  checks.    From  this,  as  well  as  from

            Mottram's long  history  of  repeating  other  categories  of

            crimes, the  district court concluded that  the likelihood of

            Mottram  committing  further  offenses  involving  stolen  or

            forged  checks was  very high.   Indeed,  the  district court

            concluded that  it  was so  high that  placement in  Criminal

            History Category VI did not take adequate account of it.  

                      We see  no reason  to disturb the  district court's

            eminently  reasonable  assessment.    Section  4A1.3  of  the

            Sentencing  Guidelines   expressly  states  that   an  upward

            departure "is  warranted when  the criminal  history category

            significantly under-represents . .  . the likelihood that the

            defendant  will commit  further  crimes."   We  have made  it

            clear, moreover, that  we will accord deference to a district

            court's departure  determination insofar as  it reflects  the

            district court's  sentencing experience,  as  opposed to  the

            "quintessentially  legal  interpretation  of the  words  of a

            guideline."  Rivera, supra,  994 F.2d at 951.   Accord United
                         ______  _____                      _____________

            States  v. Doe,  18 F.3d  41, 43-44  (1st Cir.  1994).    The
            ______     ___

            district court's ruling, premised as it was on the fact-based

            judgment that  Mottram's record posed an  unusually high risk

            of  recidivism,  easily  passes  muster  under  the governing

            standard of review.

-8-

The ruling of the district court is affirmed.
                                                          ________

-9-