United States v. Shockey

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 15, 1998
• Docket: 17-50518
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 97-50685

(Summary Calendar) _________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

STEVE RICHARD SHOCKEY,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Texas (A-94-CR-67-4)

April 9, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Steve Richard Shockey, federal prisoner #60947-080, appeals his sentence following a guilty plea for possession with intent to

distribute cocaine in violation 18 U.S.C. § 841(a)(1) and for using

and carrying a firearm during and in relation to a drug trafficking

offense in violation of 18 U.S.C. § 924(c).

Shockey contends that the factual basis was inadequate to

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

1 support his guilty-plea conviction for carrying a firearm in

relation to a drug-trafficking crime. Although Shockey does not

dispute that he “carried” the firearm, he argues that his carrying

of the firearm was not “in relation to” the underlying drug

trafficking offense. According to the facts presented in the plea

agreement and at the plea hearing, officers observed that when

Shockey was leaving his apartment, after arranging the drug

transaction over the telephone, he was holding an object in his

hand, concealed under his jacket. The officers then executed an

existing warrant for Shockey’s arrest and discovered that the

object Shockey had been holding under his jacket was a firearm;

Shockey was in possession of the narcotics at that time. The

district court’s finding that the weapon was carried in relation to

Shockey’s narcotics offense, rather than simply coincidental to it,

was, therefore, not clearly erroneous. See United States v.

Tolliver, 116 F.3d 120, 125-26 (5th Cir.), cert. denied, 118 S. Ct.

324 (1997); United States v. Wilson, 884 F.2d 174, 176-77 (5th Cir.

1989).

Shockey also argues that the district court erred in departing

upward from the sentencing guidelines based on his criminal history

score. Shockey’s presentence investigation report (PSR), which the

district court adopted, placed him at an offense level of 8 and

criminal history category VI, yielding an imprisonment range of 18

to 24 months. Pursuant to U.S.S.G. § 4A1.3, the district court

then upwardly departed from the guideline range and sentenced

Shockey to a term of 46 months. Shockey contends that the district

2 court unreasonably based the departure on his prior convictions,

which he characterizes as primarily property and drug or drug

paraphernalia possession cases and not violent or other “major”

offenses. Shockey also argues that the district court failed to

evaluate and state for the record the appropriateness of each level

above which it departed before arriving at its sentence, as

required by United States v. Lambert, 984 F.2d 658 (5th Cir. 1993)

(en banc).

We generally review the district court’s decision to depart

upward for abuse of discretion. See United States v. Ashburn, 38

F.3d 803, 809 (5th Cir. 1994) (en banc), cert. denied, 115 S. Ct.

1969 (1995). We affirm a departure from the guidelines if the

district court offers acceptable reasons for the departure and the

departure is reasonable. See id. However, a defendant who seeks

to appeal his sentence must have objected to his PSR or at his

sentencing hearing in order to preserve the alleged error for

appeal. See United States v. McCaskey, 9 F.3d 368, 376 (5th Cir.

1993), cert. denied, 114 S. Ct. 1565 (1994). A failure to object

limits us to plain error review. See United States v. Ravitch, 128

F.3d 865, 869 (5th Cir. 1997) (per curiam).

The government maintains that Shockey failed to object to the

upward departure. Although Shockey concedes that he did not file

objections to the PSR, he claims that he objected at his sentencing

hearing when, prior to its imposition of sentence, the court asked

Shockey and his attorney if they had any comments or objections

regarding the PSR. Shockey replied in the negative, and his

3 attorney said that they “did not file objections” to the PSR but

that he “would like to make a few observations about the report.”

He asked the court to consider the following in reviewing the

recommendations of the probation officer:

[Shockey’s] criminal record, arrest and conviction record in the past takes several pages, but I would respectfully point out to the court that virtually every one of those offense relates to the original mistake that Mr. Shockey made which is becoming a drug addict or a drug user. The conviction record does not indicate a record of violent crimes against the person but crimes that are directly related to drug use and drug possession, which has been a continuing problem. Mr. Shockey has repeatedly expressed his desire and interest in entering a drug rehabilitation program, [and] hopes to do that as soon as possible.

At no other time did either Shockey or his attorney comment on

Shockey’s criminal history. Later in the sentencing hearing, the

court expressed concern about Shockey’s criminal history as

reflected in the PSR and, after comments by the prosecutor and

probation officer, imposed sentence, including the upward

departure. Neither Shockey nor his attorney objected to the

sentence; in fact, neither of them said anything after the court

imposed the sentence.

For an objection to be adequate, a party must raise the

objection with sufficient specificity so that the district court is

alerted to the issue before it. See United States v. Richardson,

87 F.3d 706, 710 (5th Cir. 1996) (per curiam). “A party must raise

a claim of error with the district court in such a manner so that

the district court may correct itself and thus, obviate the need

for our review.” United States v. Krout, 66 F.3d 1420, 1434 (5th

Cir. 1995) (internal quotations and citation omitted). An argument

4 for leniency does not constitute an objection for purposes of

preserving error for appeal. See United States v. McDowell, 109

F.3d 214, 216 (5th Cir. 1997) (holding that the defendant’s plea

for leniency was inadequate to preserve the issue of upward

departure for appeal because it did not directly address the

issue); Krout, 66 F.3d at 1434 (holding that defendant’s request at

sentencing that the district court reconsider its decision to run

two sentences concurrently was a simple plea for leniency and that

the corresponding objection was insufficient to preserve the issue

for appeal because it offered no particular legal basis). Here,

the attorney’s comments, which merely set forth reasons for

leniency and did not offer any relevant legal basis for objection,

were not sufficiently specific to inform the court that Shockey

objected to the district court’s reasons for departing, to its

method of calculating the departure, or even to the extent of the

departure. Thus, we are limited to reviewing for plain error.

In order to show plain error, the appellant must show that (1)

there was an error, (2) the error was clear or obvious, and (3) the

error affected the substantial rights of the defendant. See United

States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc),

cert. denied, 115 S. Ct. 1266 (1995). While it is error to depart

from the guidelines, it is plain error only if a court on remand,

after correctly applying the sentencing guidelines, could not

reinstate the same sentence. See Ravitch, 128 F.3d at 872

(affirming the defendant’s sentence even though the district

court’s method of departing may have been incorrect because the

5 district court could have imposed the same sentence if it had

properly applied the guidelines); McDowell, 109 F.3d at 219

(concluding that although the district court erred in relying on an

inappropriate reason for departing upward, the sentencing error was

harmless because the departure was valid for another stated reason

and the court could have imposed the same sentence had it relied

only on that proper reason).

Here, the district court concluded that Shockey’s criminal

history score of 25 points, which the court considered to be

“substantially greater than the average category score,” and the

nature and extent of Shockey’s criminal history, including “a

number of felony forgery passing convictions, convictions of stolen

property, grand theft, possession of controlled substances,

carrying concealed weapons and escape,” supported a departure for

an inadequate criminal history score. Upon review of the record,

we hold that the imposed departure from the guidelines and the

extent of the departure were reasonable and, therefore, did not

amount to plain error. See Ashburn, 38 F.3d at 809 (upholding a

sentence that was more than twice the recommended guideline range

because the § 4A1.3 departure was reasonable); Pennington, 9 F.3d

at 1118 (reasoning that the defendant’s history of crime, which

resulted in a criminal history score of 26 points, although

nonviolent, demonstrated a disrespect for the law and justified an

upward departure); United States v. Chappell, 6 F.3d 1095, 1102

(5th Cir. 1993) (upholding district court’s decision to depart

upwardly because the defendant’s criminal history score of 25 far

6 exceeded the minimum score of category VI and did not take into

account several stale offenses).

With regard to the method of departure, we note that “when a

district court intends to depart above Category VI, it should stay

within the guidelines by considering sentencing ranges for higher

base offense levels.” Lambert, 984 F.2d at 663 (citing U.S.S.G. §

4A1.3). The application of this requirement need not be

ritualistic or mechanical. See, e.g., United States v.

Daughenbaugh, 49 F.3d 171, 175 (5th Cir. 1995), cert. denied, 116

S. Ct. 258 (1995) (holding that the district court’s explanation

was sufficient to satisfy Lambert’s requirements, where it had

“considered all of the other offense levels up to a level 35" and

concluded that level of sentencing was appropriate). However, even

if the departure is reasonable, it is error for the court to

calculate upward departures beyond category VI without consulting

higher base offense levels and thus staying within the guidelines.

See United States v. Pennington, 9 F.3d 1116, 1119 (5th Cir. 1993)

(remanding for resentencing although the departure was reasonable

because the district court used the wrong method of departure,

apparently relying on the government’s suggested, imaginary higher

criminal history categories rather than on the guideline’s higher

base offense levels). The court in the instant case, like the

court in Pennington, completely failed to mention base offense

levels and appeared to erroneously extrapolate criminal history

categories outside the guidelines to account for Shockey’s

excessive criminal history points. We conclude, however, that

7 although the court’s method of departure was inappropriate, it

could arrive at the same sentence that it imposed if the district

court were to apply the method required by Lambert. See Ravitch,

128 F.3d at 872. Shockey has therefore failed to show plain error

with respect to the method of departure. We accordingly affirm the

sentence imposed by the district court.

AFFIRMED.