United States v. Fordham ( 1999 )

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
7-30-1999
USA v. Fordham
Precedential or Non-Precedential:
Docket 99-3132
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Recommended Citation
"USA v. Fordham" (1999). 1999 Decisions. Paper 220.
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Filed July 30, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 99-3132
UNITED STATES OF AMERICA
v.
CHRISTOPHER PHILLIP FORDHAM,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. No.: 97-cr-00018-1
District Judge: Honorable James F. McClure, Jr.
Submitted Under Third Circuit LAR 34.1(a)
July 13, 1999
Before: GREENBERG, ALITO, and ROSENN,
Circuit Judges.
(Filed July 30, 1999)
George J. Rocktashel
Office of United States Attorney
240 West Third Street
P.O. Box 548
Williamsport, PA 17703
Counsel for Appellee
G. Scott Gardner
2117 West 4th Street
Williamsport, PA 17701
Counsel for Appellant
OPINION OF THE COURT
ROSENN, Circuit Judge:
Appellant, Christopher Phillip Fordham, pleaded guilty to
conspiracy to commit money laundering in violation of 18
U.S.C. S 1956(h). The Presentence Investigation Report
("PSR") calculated the defendant's guideline range at 87 to
108 months based on a Criminal History Category of I. The
United States District Court for the Middle District of
Pennsylvania, the Honorable James F. McClure, Jr.
presiding, found that a Criminal History Category of I
significantly under-represented the seriousness of the
defendant's prior record. Consequently, the court departed
upward to a Criminal History Category of II, which
calculated the increased guideline range at 97 to 121
months. The court then imposed a 120 month term of
imprisonment plus a special assessment of $100. 1
Defendant appealed. We affirm.
I.
A government investigation revealed that the defendant
procured large amounts of marijuana in Arizona and
Mexico, which he had others transport and sell in New York
and Pennsylvania. The defendant also used Federal Express
to transport marijuana to individuals located in State
College, Pennsylvania. In addition, at the defendant's
direction, several individuals flew to New York and
Pennsylvania carrying marijuana. Following the deliveries,
the defendant received either wire transferred funds in
Tucson, Arizona or, if not by wire transfer, those who
transported the marijuana to New York and Pennsylvania
would return to Tucson and personally deliver cash to him.
Investigators of the Pennsylvania Attorney General's office
identified in excess of $300,000 in Western Union and
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1. The district court had subject matter jurisdiction based on 18 U.S.C.
S 3231. This court has appellate jurisdiction under 28 U.S.C. S 1291 and
18 U.S.C. S 3742.
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American Express wire transfers from locations in State
College and Southeastern Pennsylvania to the defendant
when he resided in Tucson, and to other individuals located
in Jamaica. The defendant admitted to a probation officer
that a typical marijuana delivery consisted of a quantity in
the twenty to thirty pound range. He also stated that he
received approximately $150,000 via Western Union and
American Express.
At the sentencing hearing, government witness Agent
Kevin M. Barr verified the allegations contained in the PSR.
In light of Barr's testimony, the district court found that the
defendant was both an organizer and a leader of an
extensive conspiracy, consisting of in excess offive
participants. The court also sua sponte voiced the
possibility of an upward departure from the defendant's
criminal history category based mainly on the defendant's
prior foreign conviction.2 More particularly, on December 3,
1990, the defendant was arrested by the Federal Judicial
Police in Sonora, Mexico, while carrying 3.70 kilograms of
marijuana. He told authorities that he was transporting the
marijuana to the United States. He was convicted and
sentenced in the Seventh District Court in Mexico for
possession of marijuana and subsequently he was
transferred to the United States through a prisoner
exchange. Eventually United States Parole Commission
paroled him on February 3, 1992 to commence a five-year
term of supervised release.
Defense counsel objected to an upward departure,
contending that the district court lacked authority to depart
because the foreign conviction was purportedly a simple
possession of marijuana. Under the guidelines, such a
conviction meant that the defendant could not have
received more than six months if he had been convicted in
the United States. Hence, as a matter of law, defense
counsel asserted that the court lacked authority to depart
upward.
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2. In order to be consistent with the plea agreement, the Government
took no position when the court inquired as to whether it believed an
upward departure was warranted.
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Overruling defense counsel's objection, the district court
carefully considered its authority to depart under Guideline
Section 4A1.3, noting with particularity that the
accompanying commentary merely provided examples in
determining the appropriateness of an upward departure.
Pursuant to the Section 4A1.3, the court concluded that
the defendant's Criminal History Category of I as reflected
in the PSR significantly under-represented the seriousness
of his criminal history. The court adjusted upward the
defendant's category, placing the defendant in Category II
which resulted in a guideline range of 97 to 121 months.
The court then imposed a sentence of 120 months
imprisonment, stating that the offense committed was
serious in nature and that the defendant's continuing
criminal conduct while under community supervision
indicated a need for deterrence and protection for the
community.
II.
The defendant's sole argument on appeal is that the
district court erred when it departed upward. To the extent
the defendant questions the district court's decision to
depart, we review for abuse of discretion. Koon v. United
States, 518 U.S. 81, 98 (1996). On the other hand, to the
extent he questions the court's authority to depart, we
review de novo. Id. at 100.
A.
The defendant argues that the district court erred when
it adjusted upward his criminal category because not only
did it lack reliable information concerning the foreign
conviction, but the information that it possessed pertained
solely to a single offense that was not serious in nature. He
also contends that his case is unlike the example provided
in the policy statement accompanying Guideline Section
4A1.3, involving a defendant with a criminal history that is
extensive and serious in nature. On the other hand, his
foreign conviction was a single offense, was not serious in
nature, and would be only a misdemeanor if it had been
committed in Pennsylvania. He further asserts that his
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foreign conviction was not reliable because no certified copy
of that conviction was introduced at his sentencing hearing.
He concludes that a more suitable adjustment would have
been a sentence in the upper range of the applicable
guideline range under Category I rather than a departure.
In response, the Government contends that Guideline
Section 4A1.3 permitted the district court to depart
upward. It asserts that Section 4A1.3 contains no
requirement that there be more than one foreign conviction.
It avers that the information considered by the district
court indicated that the defendant was convicted in Mexico
for possession of 3.79 kilograms of marijuana, which he
himself admitted he was transporting to the United States.
Accordingly, it submits that because the offense involved a
significant quantity of marijuana, coupled with an intent to
import the substance into the United States and distribute
it there, the district court was vested with the discretion to
depart upward.
Lastly, as to the reliability of the defendant's foreign
conviction, the Government observes that the conviction
was honored through a prisoner exchange program and the
defendant was transferred to the United States and
released by the United States Parole Commission to
commence a five year term of supervised release. The
United States District Court for the District of Arizona
supervising defendant's release recognized the validity of
the underlying conviction when it found on May 3, 1993
that the defendant violated the condition of his supervised
release and imposed a 21 month term of imprisonment.
Therefore, the Government submits that the district court
here justifiably relied on the foreign conviction in
determining the appropriateness of an upward departure.
B.
Guideline Section 4A1.3 empowers the district court to
depart upward "[i]f 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 ... ."
U.S.S.G. S 4A1.3. Section 4A1.3 also indicates that reliable
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information can include " ... prior sentences' not used in
computing the criminal history category (e.g., sentences for
foreign and tribal offenses) ... ." U.S.S.G.S 4A1.3(a).
To establish reliability of the foreign conviction, certified
copies of the conviction albeit desirable are not required for
the sentencing court's determination as to whether an
upward adjustment is warranted. See United States v.
Soliman, 889 F.2d 441, 444-45 (2d Cir. 1989).
Furthermore, the sentencing court may, even in light of a
constitutionally infirm foreign conviction, consider any
reliable information concerning the conduct that led to the
conviction. See United States v. Delmarle, 99 F.3d 80, 85
(2nd Cir. 1996).
C.
In the case at bar, we conclude that the district court, in
exercising the discretion vested under Section 4A1.3,
committed no error in relying on the defendant's foreign
conviction, as well as the severity of the underlying offense,3
and the defendant's past criminal history in determining
that an upward departure was warranted. Not only was the
court apprised of the possible constitutional infirmities
surrounding the foreign conviction,4 but the court also
identified that evidence which it believed justified upward
departure. See United States v. Luscier, 983 F.2d 1507,
1511 (9th Cir. 1993). Specifically, the court remarked that
the defendant would have occupied the higher category had
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3. The district court's conclusion that the foreign offense conduct was
sufficiently serious to trigger its discretionary authority to depart
under
U.S.S.G. S 4A1.3 is supported by the fact that, had the defendant been
convicted of possessing 3.70 kilograms of marijuana in the United
States, he would have been subject to a 10-16 month sentence,
assuming a criminal history category of I. See U.S.S.G. S 2D1.1
(possession of between 2.5 and 5 kg. of marijuana results in base offense
level of 12).
4. See Soliman, 889 F.2d at 445 (citing Guidelines Manual Section 1B1.4
at 1.21)("Once appraised of the possible constitutional infirmities
surrounding a foreign conviction, the sentencing judge, in an exercise of
informed discretion, may rely on the conviction in deciding whether to
depart from a Guideline range ... .")
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the foreign conviction been counted in computing his
criminal history category before departure. The court
explained that "if [the foreign] conviction... was a federal
conviction, he'd have another five points added on."
Additionally, the court acknowledged that it was not certain
whether the Mexican authorities adhered to due process in
sentencing the defendant for possession of marijuana.
Nevertheless, the court stated that it was confident that the
conviction was fair. These reasons are not only well within
the court's sound discretion, but also permissible
considerations in fact and law. See Delmarle, 99 F.3d at 85;
Luscier, 983 F.2d at 1511; Soliman, 889 F.2d at 445. We
therefore perceive no error in the court's decision that it
could depart upward and see no abuse of discretion in its
decision to so depart.
III.
For the foregoing reasons, the judgment sentence of the
district court will be affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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