United States v. Walter Dennis Thomas, Also Known as Dennis Thomas

6 F.3d 960, 1993 U.S. App. LEXIS 26511
CourtCourt of Appeals for the Second Circuit
DecidedOctober 8, 1993
Docket17-2307
StatusPublished
Cited by24 cases

This text of 6 F.3d 960 (United States v. Walter Dennis Thomas, Also Known as Dennis Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. Walter Dennis Thomas, Also Known as Dennis Thomas, 6 F.3d 960, 1993 U.S. App. LEXIS 26511 (2d Cir. 1993).

Opinions

CARDAMONE, Circuit Judge:

Walter Dennis Thomas appeals froih a sentence imposed on him on October 14, 1992 in the United States District Court for the Eastern District of New York (Glasser, J.). The sole issue on appeal is the propriety of the district court’s upward departure from the United States Sentencing Guidelines. In considering the defendant’s conduct, the sentencing court found that his criminal history category under the guidelines did not adequately reflect his criminal past'. Thomas’ criminal background included an extensive array of convictions, arrests, and bench warrants spanning more than 20 years. The extent of appellant’s prior conduct already placed him in criminal history category VI, the highest criminal history category available under the guidelines. Yet many of his previous brushes with the law had not been counted in computing his criminal history points and category. Hence, the district court departed upwardly from the guidelines range so that appellant’s sentence would more closely reflect his prior criminality. Since no higher criminal history category existed to guide the sentencing court’s departure, it selected what it determined- — given the defendant’s history — would be an appropriate sentence.

In addition to 'challenging the sentencing court’s authority to impose a sentence above the category VI range, Thomas attacks the court’s methodology in upwardly departing saying that each intermediate lower level departure should have been looked at and eliminated on the record before the final sentence was determined. That is, appellant would have the sentencing judge say, “I have considered 12 months, 18 months, 24 months, etc. and find none of them reasonably appropriate as a sentence in light of defendant’s criminal history.” The approach Thomas urges we adopt is epitomized by the answers given Hamlet when he asks a gravedigger for what man the grave is being dug — “For no man,” “For what woman then?” “For none, neither.” “Well who is to be buried?” asks Hamlet, and the gravedigger in triumph tells him: “One that was a woman.” W. Shakespeare, Hamlet Act V, Scene I. (Craig ed. 1928). To arrive at, a reasonable sentence when an upward departure is justified, the fair administration of our criminal law requires from judges no such false exactitude.

BACKGROUND

Appellant Thomas was arrested in the early morning hours of September 6, 1991 when he was discovered throwing a bag containing letters into a dumpster. The dumpster was located not far from a mailbox that had been broken into. When stopped by police, Thomas possessed several money orders in his pockets and a pair of pliers. He eventually admitted to a postal inspector that he had broken into and stolen mail from a mailbox. A1 grand jury later indicted Thomas for one count of possessing stolen mail in'violation of' 18 U.S.C. § 1708 (1988), and he plead guilty to the charge on November 6, 1991.

[962]*962The Probation Department’s presentence report calculated Thomas’ criminal history points at 17, generating a criminal history category of VI under the sentencing guidelines. Criminal history category VI covers any defendant with 13 or more points and is the highest category available under the guidelines. In conjunction with an offense level of eight, the resulting guidelines range — and the one recommended by' the Probation Department — was 18-24 months. The offense level of eight included a two-point upward adjustment for obstruction of justice based on inconsistent statements Thomas made to the court and probation officers in which he claimed he had only found, but not stolen, the mail.

The Probation Department suggested to the sentencing court that it could upwardly depart under U.S.S.G. § 4A1.3 from the recommended guidelines range due to Thomas’ extensive criminal history, particularly since many of his convictions were not counted in determining his. criminal history category. Thomas’ attorney disputed the availability of such a departure in a February 12, 1992 letter in which he posited that his client’s wide-ranging criminal history involved only minor offenses and outdated crimes and that the 17 criminal history points fit squarely within category VI.

At sentencing the district judge recited in some detail Thomas’ extensive criminal history, which included numerous offenses over 20 years ranging from drug charges to sexual misconduct to larceny. Although the district court found Thomas’ criminal past “mind boggling,” it did grant a two-level reduction in Thomas’ offense level for his acceptance of responsibility, reducing the Probation Department’s recommended sentencing range of 18-24 months to 12-18 months. It is from that lower range that Judge Glasser upwardly departed.

On March 10, 1992 after announcing its reasons for upwardly departing, the district court sentenced Thomas to 36 months imprisonment. It explained, in departing, that Thomas’ criminal history category did not adequately reflect the seriousness of defendant’s previous misconduct and that many prior offenses had not been counted in the criminal history category. Each of Thomas’ offenses was enumerated beginning with a May 3, 1970 criminal trespass conviction; 20 convictions and arrests over approximately two decades were recited. Eight of the convictions as well as other arrests not resulting in convictions, had not been counted. These convictions were not included due to their remoteness in time.

The sentencing court further considered that Thomas committed the current offense not only while out on bail on pending charges, but also while he was on probation from a January 8, 1990 sentence for grand larceny. Three local cases were pending at the time of sentencing against appellant, each of which was committed while he was on bail; two of those involved tampering with or breaking into mailboxes. At least four bench warrants against Thomas remained outstanding. The district court thus had before it the fact that Thomas’ criminal past was lengthy, continuous, and ongoing.

■ Defendant successfully appealed his sentence to this Court on the grounds that he had never been addressed personally, nor had he been provided with an opportunity to speak to the court before sentence was imposed, as is required under Fed.R.Crim.P. 32(a)(1)(C). In an unpublished order filed August 12, 1992 a prior panel vacated his sentence and remanded for resentencing. At the brief, directed resentencing hearing, Thomas spoke a few words, none of which persuaded Judge Glasser to change his mind. Telling Thomas that his record was “almost as long as the Pennsylvania Railroad Track,” the sentencing court then reaffirmed the earlier sentence it had imposed due to Thomas’ past criminal record. Thomas appeals from his sentence once again, this time arguing that the district court erred in upwardly departing under U.S.S.G. § 4A1.3. We affirm.

DISCUSSION

We think the district court properly granted an upward departure under U.S.S.G. § 4A1.3. That provision of the guidelines permits a sentencing court to depart upwardly when the applicable criminal history cate[963]*963gory does not adequately reflect the seriousness of a defendant’s criminal past or the real danger of recidivist behavior. Section 4A1.3 states, as it did at the time Thomas was sentenced,

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6 F.3d 960, 1993 U.S. App. LEXIS 26511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-walter-dennis-thomas-also-known-as-dennis-thomas-ca2-1993.