United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS June 11, 2003 FOR THE FIFTH CIRCUIT _____________________________________ Charles R. Fulbruge III Clerk No. 01-31099 consolidated with No. 01-31101 _____________________________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
KENNETH RICHMOND
Defendant - Appellant
_______________________________________________
_____________________________________
consolidated with No. 02-30236 _____________________________________
Plaintiff - Appellee v.
KENNETH RICHMOND; ARMSTEAD L. KIEFFER
Defendants -Appellants
__________________________________________________
Appeals from the United States District Court For the Eastern District of Louisiana, New Orleans __________________________________________________
Before DAVIS, HALL* and EMILIO M. GARZA, Circuit Judges.
* Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation. W. EUGENE DAVIS, Circuit Judge:**
I.
Appellants, Kenneth Richmond and Armstead Kieffer raise a
number of issues in their challenge of their convictions and
sentences relating to a mail theft scheme. Richmond also appeals
his two sentences for violations of supervised release imposed
for earlier convictions. For the reasons that follow, we affirm
Richmond and Kieffer’s convictions and sentences for the current
offenses. We vacate Richmond’s sentences for violations of his
supervised release imposed as part of his sentence on an earlier
conviction and remand for re-sentencing consistent with this
opinion.
II.
In 1999, while serving the last few months of an earlier
sentence in a halfway house, Richmond recruited Postal Service
Employee Yvette Jones to steal mail from the United States Post
Office on Loyola Avenue in New Orleans. Jones testified that she
regularly hid mail in her lunch pail beginning in early 2000.
The stolen mail included personal checks, Treasury checks, and
credit card bills. Jones testified that she delivered mail to
Richmond two to three times a week over an eight or nine month
period in return for payment. She delivered the mail to Richmond
** 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
-2- either at a designated place outside the post office, at his
liquor store, or at his home.
Richmond used the stolen mail to counterfeit Louisiana
driver’s licenses. Honey Marie Carey (“Carey”), a member of
Richmond’s “inner circle,” testified that she sorted the stolen
mail and telephoned banks and credit card companies to verify
balances. Carey further testified that she made fake credit
cards with an embossing machine using the credit card statement
information and blank credit cards supplied by Richmond.
Richmond recruited, trained and paid a number of “runners”
to negotiate the forged checks, using counterfeit identification
bearing their likenesses, and to obtain cash advances or make
actual purchases using the stolen credit cards. These runners
reported to work regularly, adhered to a prescribed dress code,
and were assigned pre-bundled packages of checks and fake
licenses two to three times a week to obtain cash and return it
to Richmond. The runners used Richmond’s fleet of fraudulently
leased vehicles to travel the state cashing the checks. Richmond
paid one-third of the profits of his operation to Jones and one-
third of the profits to the runners.
Kieffer cashed several stolen checks as a part of Richmond’s
scheme. Kieffer admitted to cashing five stolen personal checks
on July 11 and 12, 2000, in a combined amount of $12,100.00.
Kieffer also admits to cashing several other checks around this
-3- time for which he was not indicted. At trial, Carey and another
co-conspirator testified that Kieffer traveled to Texas with
Richmond to target check-cashing machines, and while there went
on a shopping spree with other members of the conspiracy using a
counterfeit credit card.
Postal Inspectors eventually suspected Jones was stealing
mail. On September 29, 2000, Postal Inspectors observed Jones
placing mail in her lunch pail, leaving the Post Office, getting
into her car and exiting the parking garage. Postal Inspectors
stopped Jones and she consented to a search. Her lunch pail
contained 161 Treasury checks and 124 credit card statements.
Jones implicated Richmond during interrogation and explained that
she was planning to deliver the mail to Richmond’s liquor store.
At the request of the Postal Inspectors, Jones telephoned
Richmond and asked him to meet her outside the Post Office to
pick up the mail. Richmond arrived and parked outside the Post
Office in the designated spot. Another co-conspirator
accompanied Richmond in the front seat, and Kieffer rode in the
back seat. Jones entered the car and left the lunch pail on the
seat next to Kieffer. Postal Inspectors taped Jones’s telephone
conversation and videotaped the encounter with Richmond. All
three men were arrested.
Prior to trial, Richmond filed a motion to exclude evidence
of his past convictions under Fed. R. Evid. 403(b). The district
-4- court denied the motion and allowed the government to introduce
Richmond’s two prior convictions to show knowledge and intent.
Appellants were charged with various offenses related to
this scheme which included charges for conspiracy to possess
stolen mail and commit bank fraud, attempted possession of stolen
mail, possession of identification documents for an unlawful
purpose and possession of counterfeit access devices. A jury
convicted both defendants on all counts.
Before Richmond was sentenced, the government provided
Richmond with a letter written by Carey, a key government witness
at trial. Carey wrote to a friend that she had lied on the
stand. Richmond moved for a new trial based on the letter, and
the district court denied the motion without an evidentiary
hearing. The district court sentenced Richmond in February
2002, and departed upward from the 110-137 month Sentencing
Guideline range to impose a 240-month term of imprisonment.
The district court sentenced Kieffer to 72 months’
imprisonment. This sentence reflects an upward departure from
the 24 to 30 month Sentencing Guideline range.
At the time of his arrest, Richmond had two prior
convictions involving identity theft. In 1997, Richmond pled
guilty to possession of counterfeit securities, and the district
court sentenced him to thirty months’ imprisonment to be followed
by three years of supervised release. In 1998, the district
-5- court sentenced Richmond to thirty-five months’ imprisonment and
three years of supervised release after he pled guilty to
possession and transfer of false identification documents and
possession of forged securities. The district court ordered
Richmond to serve these sentences concurrently.
In August, 2001, the government filed a rule to show cause
why these two terms of supervised release should not be revoked.
The charges in the current case formed the basis of the
government’s motion. The district court held a consolidated
hearing and revoked the terms of Richmond’s supervised release.
Richmond received consecutive sentences of 24 months’
imprisonment to be followed by one year of supervised release in
each case to run concurrently. The district court ordered the
two 24-month terms to run consecutively to his new 240-month
sentence. We consider appellants’ arguments below.
III.
Richmond argues first that the district court erred in
denying his motion for a new trial without conducting an
evidentiary hearing. Following Richmond’s conviction, the
government intercepted a letter from an incarcerated co-
defendant, Carey, in which she admitted to lying on the stand at
Richmond’s trial.1 Richmond filed his motion for a new trial
1 Carey’S letter reads in part:
I testified on Tuesday. I know I f***ed up the government’s case. I LIED my ass off on
-6- based on Carey’s recantation.
We review a district court’s denial of a motion for new
trial for abuse of discretion. United States v. Metz, 652 F.2d
478, 479 (5th Cir. 1981). We also review a district court’s
decision to rule on a motion for new trial without an evidentiary
hearing for abuse of discretion. See United States v. Blackburn,
9 F.3d 353, 358 (5th Cir. 1993).
Richmond did not request an evidentiary hearing.
Additionally, Richmond did not argue to the district court that
the meaning of Carey’s letter was unclear. In fact, he argues
for the first time on appeal that an evidentiary hearing was
necessary to determine the exact nature and extent of Carey’s
admitted perjury. Thus, Richmond waived his argument that an
evidentiary hearing was necessary by not presenting it to the
district court.
A new trial may be granted on defendant’s motion “if the
interests of justice so require.” Fed. R. Crim. P. 33. However,
a new trial is warranted “only where there would be a miscarriage
of justice or where the evidence preponderates against the
verdict.” United States v. O’Keefe, 128 F.3d 885, 898 (5th Cir.
1997) (internal quotations and citations omitted). To obtain a
new trial based on newly discovered evidence, a defendant must
show:
the stand.
-7- (1) that the evidence was newly discovered and unknown to the defendant at the time of trial, (2) that his failure to discover the evidence was not the result of a lack of due diligence, (3) the evidence is material and not merely cumulative or impeaching, and (4) the evidence will probably produce an acquittal.
United States v. Mulderig, 120 F.3d 534, 545 (5th Cir. 1997).
The district court denied the motion for new trial because
Richmond did not demonstrate that the alleged admissions in
Carey’s letter “would probably produce an acquittal.” Further,
the court found that Carey’s statements were exculpatory and that
evidence other than Carey’s testimony strongly supported the
verdict.2
Richmond contends that he would not have been convicted of
possession of fifteen or more counterfeit or unauthorized access
devices in violation of 18 U.S.C. § 1029(a)(3) without Carey’s
perjured testimony at trial. Carey was the only government
2 It is also significant that Carey’s letter makes it clear that she lied to help Richmond, not hurt him. Carey explained:
I took total responsibility for everything between July and September. I told them I made everything, everything was at my house, etc. (I’ve never made a D in my life)[sic] I knew the bulk of the case was built around the events that took place between 7/00 & 9/00. [sic] and them trying to put it all off on him. Maybe now he’ll have a ½ way decent chance at giving back some of the charges. If not, he’ll definitely have a good chance with his appeal. I couldn’t just get up there and just let shit happen like that.
-8- witness to testify that Richmond possessed fifteen or more
counterfeit credit cards at one time. At trial, the government
questioned Carey regarding the number and type of blank credit
cards Richmond possessed for counterfeiting purposes. Carey
stated, “The most I’ve ever seen at one time were like 25 of
each, so maybe 100, altogether.” Other witnesses testified that
they saw Richmond in possession of counterfeit credit cards at
different times, but no other witness testified that Richmond
possessed more than fifteen cards at one time. Richmond argues
if Carey’s testimony is properly disregarded, the government
failed to offer sufficient evidence to support his conviction on
this count because § 1029(a)(3) does not allow aggregation of
access devices possessed at different times to meet the requisite
fifteen-card threshold.
Richmond relies on the Eighth Circuit’s holding in United
States v. Russell, 908 F.2d 405 (8th Cir. 1990), that access
devices may not be aggregated for purposes of § 1029(a)(3).
However, the next year the Eighth Circuit held in Unites States
v. Farkas, 935 F.2d 962 (8th Cir. 1991), that access devices may
be aggregated to satisfy the fifteen-card threshold of §
1029(a)(3) based on evidence that the defendant possessed
different cards on different occasions as part of an ongoing
scheme. The Eighth Circuit distinguished its earlier decision in
Russell because the record contained evidence that Russell sold
-9- his counterfeited credit cards as he made them and never
possessed more than twelve at a time. The defendant in Farkas
did not sell the cards or dispose of them after he used them to
make purchases. Thus, the court held that it was appropriate to
aggregate the total number of access devices because Farkas could
not claim that his possession of the cards ended at any specific
point. Id. at 967. We agree with this reasoning.
Richmond’s case is similar to that of the defendant in
Farkas. The record contains no evidence to suggest that Richmond
sold the counterfeit cards or disposed of them in any other way.
Therefore, we agree that the government was not required to
present a witness to testify that Richmond possessed fifteen or
more cards on a single occasion, and the district court properly
determined that the access devices in this case could be
aggregated. In addition to the testimony by several witnesses
that Richmond possessed counterfeit credit cards at various
times, Jones delivered to Richmond 126 credit card statements
which were in his possession at the time of his arrest. Under 18
U.S.C. § 1029(e)(1), credit card account numbers are included in
the definition of “access devices.” Because Richmond cannot show
that he would probably have been acquitted on this charge without
Carey’s testimony, the district court did not abuse its
discretion in denying his motion for a new trial.
-10- IV.
Richmond argues next that the district court erred in
admitting evidence of his two prior criminal convictions at his
trial. “The district court’s decision to admit Rule 404(b)
evidence is reviewed for abuse of discretion. This review is
necessarily heightened in criminal cases.” United States v.
Peterson, 244 F.3d 385, 392 (5th Cir. 2001) citing United States
v. Richards, 204 F.3d 177, 199 (5th Cir. 2000).
Federal Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
In United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en
banc), this circuit established a two-prong test for the
admissibility of offenses extrinsic to a defendant’s indictment
to prove criminal intent:
First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant’s character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of rule 403.
-11- Id. at 911.
Richmond contends that the district court erred in denying
his motion to exclude evidence of his prior convictions without
specifically articulating on the record why the court concluded
that the probative value of the evidence outweighed its
prejudicial effect. Richmond argues that this requires us to
vacate his convictions and remand.
“Upon the request by a party, the district court determining
the admissibility of 404(b) evidence must make an on-the-record
articulation of its Beechum probative value/prejudice inquiry.”
United States v. Elwood, 993 F.2d 1146, 1153 (5th Cir. 1993). In
the absence of such a request, a remand is not required “if the
trial court expressly states that it has made the Beechum
probative value/prejudice weighing and finds that prejudice does
not substantially outweigh the probative value [and] there is
nothing to indicate that the trial court misunderstood or
misapplied the Beechum test.” United States v. Olsum, 943 F.2d
1394, 1403 (5th Cir. 1991).
Richmond did not request that the trial court make its
Beechum analysis on the record. The trial court clearly refers
to the Beechum test in its Order and Reasons, and found that the
probative value was strong enough to allow admission of the
evidence. For the reasons below, we are satisfied that the
trial court correctly applied the Beechum test.
-12- Richmond argues that he did not place his intent at issue,
and even if he did, the government had alternative evidence of
his intent. Richmond suggests that the government used the
evidence in its opening statement to prove character propensity,
and the trial court’s limiting instructions could not cure the
prejudice.
Every defendant on trial for conspiracy places his intent
and knowledge at issue and justifies the introduction of
extrinsic offense evidence unless the defendant “affirmatively
take[s] the issue of intent out of the case.” United States v.
Mergist, 738 F.2d 645, 650 (5th Cir. 1984) (internal citations
omitted). This court stated: “Because of the unique nature of
conspiracy charges, we cannot apply to them the policy suggested
in Beechum of uniformly excluding extrinsic offense evidence when
the defendant does not actively contest intent.” Id. Every not
guilty plea in a conspiracy case puts the defendant’s intent at
issue, and the only way the defendant can “affirmatively take the
issue out of the case” is to stipulate that if his participation
is proved, he does not contest intent. Id. Richmond did not
stipulate to knowledge, and Richmond’s answers to defense
counsel’s questions apparently were aimed at proving he had no
knowledge of the conspiracy. Thus, Richmond’s intent was at
issue, and the district court did not err in admitting the
evidence of his past convictions to show intent.
-13- Richmond’s recent prior convictions were similar to the
charged offenses. Richmond started each new scheme before
completing his sentence for his previous conviction, and the
schemes became more elaborate. These earlier offenses have a
tendency to show that Richmond had knowledge and intent to commit
fraud in this case. The trial court gave limiting instructions
to the jury, during and after trial, explaining the limited
purposes of the Rule 404(b) evidence. The prosecutor emphasized
the instructions at closing. Although the evidence of his prior
convictions was clearly prejudicial, the district court did not
abuse its discretion in finding that their probative value
outweighed the potential for prejudice.
Kieffer argues that the evidence was insufficient to support
his conviction for attempted mail theft in violation of 18 U.S.C.
§ 1708. In reviewing sufficiency claims, we “must determine
‘whether viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001)
(citations omitted). The “jury is ‘free to choose among all
reasonable constructions of the evidence,’ and ‘it is not
necessary that the evidence exclude every reasonable hypothesis
of innocence or be wholly inconsistent with every conclusion
-14- except that of guilt.’” Id. Our “review is limited to whether the
jury’s verdict was reasonable, not whether we believe it to be
correct.” Id.
To obtain a conviction under 18 U.S.C. § 1708, the
government must prove beyond a reasonable doubt that (1) the
defendant possessed the item described in the indictment, (2) the
item had been stolen from the mail, (3) the defendant knew the
item was stolen, and (4) the defendant had the specific intent to
possess the item unlawfully. U.S. v. Osunegbu, 822 F.2d 472, 475
(5th Cir. 1987).
Mail theft was an object of the conspiracy. The jury was
properly instructed on aiding and abetting and a co-conspirator’s
liability for substantive offenses committed by a co-conspirator
in furtherance of the conspiracy. To find Kieffer guilty of
aiding and abetting, the jury was required to find: (1) that the
offense of attempted possession of stolen mail was committed by
some person; (2) that the defendant associated with the criminal
venture; (3) that the defendant purposefully participated in the
criminal venture; and (4) that the defendant sought by action to
make that venture successful. United States v. Garcia, 242 F.3d
593, 596 (5th Cir. 2001). Additionally, a conspirator is
responsible for the offenses committed by other conspirators if
he was a member of the conspiracy when the offense was committed
and if the offense was committed in furtherance of, or as a
-15- foreseeable consequence of, the conspiracy. Pinkerton v. United
States, 328 U.S. 640 (1946).
Kieffer argues that he was merely present at the time Jones
made the last delivery of mail to Richmond. Kieffer admits that
he knew Richmond was receiving stolen mail from Jones. However,
Kieffer argues that the evidence was insufficient to convict him
on this count because “mere knowing presence” at the scene of
criminal activity is insufficient to support a criminal
conviction.
We are satisfied that the evidence was sufficient to allow
the jury to convict Kieffer for attempted possession of stolen
mail. Our review of the record reveals that there was clear
evidence that Jones stole mail from the U.S. Post Office and
delivered it to Richmond for use in his scheme. Jones testified
that Kieffer accompanied Richmond to retrieve stolen mail from
her on at least two occasions before the day of his arrest. In
addition to Kieffer’s presence at the scene on September 29,
2000, the government presented evidence of Kieffer’s intentional
involvement in the conspiracy. First, Kieffer admitted cashing
stolen checks for Richmond in July of 2001 in various parts of
Louisiana. Kieffer also admitted to possessing various
counterfeit Louisiana driver’s licenses which he used to cash the
checks. The government also produced testimony from Carey that
Kieffer came to her home to retrieve the laptop computer that the
-16- conspirators used to make the counterfeit ID’s. Two co-
conspirators testified that Kieffer was involved in the attempt
to cash checks in Texas using check-cashing machines, and one
witness testified that Richmond and Kieffer shopped together
using the counterfeit credit cards. A co-conspirator testified
that Kieffer drove a black Expedition, and his family had a
Lexus. Another co-conspirator testified that Richmond
fraudulently leased six Ford vehicles, including the Expedition
that Kieffer drove, from a dealership in Jackson, Mississippi.
This evidence is sufficient to allow a jury to find that Kieffer
actively participated in the conspiracy at the time Jones
delivered the last bundle of stolen mail and that the jury was
entitled to hold him accountable for the criminal conduct that
furthered the aims of the conspiracy. Thus, we conclude that the
evidence was sufficient to support Kieffer’s conviction on this
count.
VI.
Both Kieffer and Richmond argue that the trial court’s
upward departure from the Sentencing Guidelines was improper.
This court reviews an upward departure for an abuse of
discretion. United States v. Winters, 174 F.3d 478, 482 (5th
Cir. 1999); see also United States v. Ashburn, 38 F.3d 803, 807
(5th Cir. 1994) (en banc). “A district court has wide discretion
in determining the extent of the departure, and [this court] will
-17- affirm an upward departure if (1) the court gives acceptable
reasons for departing and (2) the extent of the departure is
reasonable. United States v. Route, 104 F.3d 59, 64 (5th Cir.
1997). The reasonableness of the extent of a departure is to be
determined in light of the reasons for departure. See United
States v. Hawkins, 87 F.3d 722, 730-31 (5th Cir. 1996).
A.
The district court departed upwardly from the Sentencing
Guideline range of 24 to 30 months when it imposed a 72-month
sentence on Kieffer. The district court based its departure on
disruption to governmental function, losses uncaptured by the
Guidelines and Kieffer’s prior criminal record. Kieffer argues
that his sentence must be vacated and his case remanded for re-
sentencing because the district court failed to adequately
explain the departure, the reasons offered cannot properly
support the departure, and the extent of the departure was
unreasonable. We disagree and affirm his sentence.
First, Kieffer argues that disruption to governmental
function cannot support an upward departure in this case because
the disruption is inherent in the offense.
United States Sentencing Guideline § 5K2.7 allows a district
court to base an upward departure on disruption to governmental
-18- function if the circumstances are unusual.3 In departing in this
case, the district court explained that this court upheld an
upward departure on the basis of disruption to governmental
function in United States v. Garcia, 900 F.2d 45 (5th Cir. 1990),
because of the amount of mail stolen, a total of 950 pieces. The
district court reasoned that although the amount of mail stolen
in Garcia was greater in quantity, the “quality of the mail
stolen by these Defendants in this case is an unusual
circumstance that’s not taken into account by the guidelines.”
The court pointed out that the mail stolen in this case included
a large number of personal checks, Treasury checks and credit
card statements. The Treasury checks that were stolen had been
issued by various federal agencies including the Internal Revenue
Service, Social Security and the Veterans Administration. As a
3 The Sentencing Guidelines provide:
If the defendant’s conduct resulted in a significant disruption of a governmental function, the court may increase the sentence above the authorized guideline range to reflect the nature and extent of the disruption and the importance of the governmental function affected. Departure from the guidelines ordinarily would not be justified when the offense of conviction is an offense such as bribery or obstruction of justice; in such cases interference with governmental function is inherent in the offense, and unless the circumstances are unusual the guidelines will reflect the appropriate punishment for such interference.
U.S.S.G. § 5K2.7 (2001).
-19- result of the thefts, these agencies had to contact beneficiaries
and reissue checks. The district court did not abuse its
discretion in concluding that the theft of these items caused
substantial disruption in governmental function to these
agencies.
Second, Kieffer argues that the district court improperly
based its upward departure on losses uncaptured by the
Guidelines. Kieffer argues that he cashed a discreet number of
personal checks in mid-July, and should not be held accountable
for losses that occurred as a result of the entire conspiracy.
The district court specifically rejected Kieffer’s claim
that he should only be held responsible for the stolen checks he
cashed in July, a total of $25,000. The district court pointed
to the value of the stolen mail retrieved when Kieffer and
Richmond were arrested, approximately $300,000, and the
sophistication of the scheme as a whole in deciding that the
actual losses were uncaptured by the Guidelines. Kieffer’s
argument that he should not be held responsible for the losses
related to the conspiracy fails for the same reason his
sufficiency of the evidence claim fails.
Third, Kieffer argues that the district court’s departure
based on U.S.S.G. § 4A1.3 (2002) was improper. Kieffer contends
that the district court gave his criminal history undue and
unexplained weight. A district court may depart from an
-20- otherwise applicable guideline range “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.” U.S.S.G. § 4A1.3, p.s.
In United States v. Lambert, 984 F.2d 658, 663 (5th Cir.
1993) (en banc), this court rejected the notion that a district
court, when departing on the basis of § 4A1.3, must “go through a
ritualistic exercise in which it mechanically discusses each
criminal history category it rejects en route to the category
that it selects.”
At the sentencing hearing, the district court specifically
addressed the circumstances under which an upward departure is
allowed based on the inadequacy of the defendant’s criminal
history category under USSG § 4A1.3 (2002). A sentencing court
may upwardly depart from the Guideline range “if reliable
information indicates that the criminal history category does not
adequately reflect the seriousness of the defendant’s past
criminal conduct or the likelihood that the defendant will commit
other crimes.” Id. Noting that a prior arrest record, by itself,
does not warrant a departure, the court in considering the
totality of the evidence pointed to Kieffer’s fifteen prior
arrests in determining that Kieffer was a serious career
recidivist. Consideration of Kieffer’s past criminal history
resulted in zero points being added to his base offense category
-21- of I because the convictions were outside the time frame for
consideration under the Guidelines. Kieffer had three juvenile
convictions for simple robbery, simple burglary, armed robbery
and possession of stolen property. Kieffer also had a conviction
for simple battery as an adult. Although Kieffer has not been
arrested as an adult for any other fraud-based crime, he has been
repeatedly arrested for fighting and drug crimes. The district
court did not err in departing on this ground.
Lastly, Kieffer argues that the extent of the departure is
unreasonable. The district court has wide discretion in
determining the extent of departure. Hawkins, 87 F.3d 730-31.
The reviewing court generally defers to the sentencing court in
making this determination. United States v. Lara, 975 F.2d 1120,
1125 n.3 (5th Cir. 1992). After hearing all of the evidence in a
case and observing the defendants and the witnesses, the trial
court has a much better feel for the case than we can ever get
from the cold record. We have upheld departures of greater
magnitude than that assessed to Kieffer. See United States v.
Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995) (upholding a
departure from a range of 57 to 71 months to 240 months); United
States v. Ashburn, 38 F.3d 803, 809 (5th Cir. 1994)(en
banc)(upholding an increase from a range of 63 to 78 months to
180 months). Thus, the district court did not abuse its
discretion in departing upwardly from the Sentencing Guideline
-22- Range to impose upon Kieffer a sentence of 72 months.
B.
In sentencing Richmond, the district court imposed a 240-
month prison sentence which reflected an upward departure from
the guideline range of 110 to 137 months. The district court
based its upward departure on disruption of governmental function
and the inadequacy of Richmond’s criminal history category.
Richmond objects to the upward departure based on disruption
to governmental function for the same reasons Kieffer objected.
The district judge adopted the reasons for the departure given
during Kieffer’s sentencing, which occurred as part of the same
proceeding. For the reasons given above, the district court did
not abuse its discretion by departing on this basis.
Richmond also argues that the district court abused its
discretion in increasing his sentence based on his past criminal
history. As noted by the district court, Richmond has a history
of arrests and convictions for two earlier mail fraud schemes
similar to the instant case. Richmond continued to commit the
same type of offenses, despite arrests and prosecution. In fact,
Richmond began each new scheme before he completed his sentence
for the prior conviction. Additionally, Richmond had sixteen
prior arrests for various offenses. A criminal history category
of VI requires 13 or more criminal history points. Richmond’s
Presentence Investigation Report assigned him 17 criminal history
-23- points. No abuse of discretion has been shown.
VII.
Richmond argues last that his sentence for violation of
supervised release must be vacated and remanded for re-sentencing
because the district court did not allow him the opportunity to
allocute. Additionally, Richmond contends that the imposition of
the two one-year periods of supervised release in addition to
prison time violates 18 U.S.C. § 3583(e)(3) and must be vacated.
We agree and vacate Richmond’s sentences and remand for re-
sentencing with instructions to the district court to allow
Richmond to allocute prior to sentencing.
Because there are no applicable guidelines for sentencing
after revocation of supervised release, this court upholds a
defendant’s sentence unless it is in violation of law or plainly
unreasonable. see U.S.S.G. Chapter 7 Part A 1 ("At this time, the
Commission has chosen to promulgate policy statements only.");
United States v. Headrick, 963 F.2d 777, 779 (5th Cir. 1992). "A
sentence is imposed in an illegal manner if the court fails to
comply with the procedural rules in imposing sentences." United
States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984). "Once it
is found that the district court failed to comply with a
procedural rule of sentencing, a new sentencing hearing should be
ordered." Id.
The court is required by Federal Rule of Criminal Procedure
-24- 32(c)(3)(C) to personally address the defendant, inquiring
whether the defendant wishes to speak for himself.4 A district
court’s failure to comply with Rule 32(c)(3)(C) is not subject to
the harmless or plain error provision of Fed. R. Crim. P. 52.
United States v. Dabeit, 231 F.3d 979, 981 (5th Cir. 2000). This
court reviews whether the district court complied with this Rule
de novo. Id.
We have consistently held that a sentencing court’s failure
to ask whether a defendant wishes to speak in his own behalf
requires automatic reversal. See Dabeit, 231 F.3d at 981. We
have applied this rule to sentencing after revocation of
supervised release. United States v. Rodriguez, 23 F.3d 919 (5th
Cir. 1994). Although the district court gave Richmond the
opportunity to explain what he would have said at allocution
during sentencing for his most recent conviction, this was not
enough. See United States v. Dominguez-Hernandez, 934 F.2d 598,
599 (5th Cir. 1991) (vacating sentence and remanding for re-
sentencing for failure of court to allow defendant to allocute
prior to sentencing).
4 Fed. R. Crim. P. 32 (c)(3) states:
Before imposing a sentence, the court must: C: address the defendant personally and determine whether the defendant wishes to make a statement and to present any information in mitigation of the sentence
-25- Upon revocation of Richmond’s supervised release, the
district court sentenced him to two consecutive 24-month terms of
imprisonment followed by one year of supervised release in each
case. Richmond argues that the two 24-month sentences were the
maximum permitted by 18 U.S.C. § 3583(e)(3), and this court must
vacate the one year terms of supervised release. This court
reviews issues of statutory construction de novo. See Kemp v. G.
D. Searle & Co., 103 F.3d 405, 407 (5th Cir. 1997).
Both of Richmond’s earlier convictions were for Class C
felonies that carried a maximum term of imprisonment of more than
ten years but less than 25 years. The maximum sentence of
imprisonment authorized under 18 U.S.C. § 3583(e)(3) following
revocation of supervised release is two years in each case. 18
U.S.C. § 3583(h) addresses imposition of supervised release
following revocation. It provides:
When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized under subsection (e)(3), the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment.5
5 Section 3583(h) was recently amended to read:
When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised
-26- The district court imposed the maximum 24-month term of
imprisonment on each count, so it was unauthorized to also impose
a term of supervised release.
We vacate Richmond’s sentences for violation of his terms of
supervised release and remand to the district court for re-
sentencing. The district court is instructed to allow Richmond
an opportunity to allocute prior to sentencing.
VIII.
For the foregoing reasons, we affirm Kieffer’s conviction
and sentence. We also affirm Richmond’s conviction and sentence
for the present offenses, and we vacate his two sentences for
violation of supervised release imposed as part of his sentence
on an earlier conviction and remand for re-sentencing in
accordance with this opinion.
release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.
18 U.S.C. § 3583(h) (2003).
-27-