United States v. Stewart ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-5975
KARLO ANTONI STEWART,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert F. Murray, Senior District Judge.
(CR-92-413-HM)
Argued: December 8, 1995
Decided: January 12, 1996
Before RUSSELL and HALL, Circuit Judges, and THORNBURG,
United States District Judge for the Western District
of North Carolina, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Donald Douglas Hecht, Baltimore, Maryland, for Appel-
lant. Ira Lee Oring, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United
States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Karlo A. Stewart was convicted following a jury trial of interstate
transportation of stolen property, 18 U.S.C. § 2314, and was sen-
tenced to 30 months' imprisonment. He appeals his sentence, claim-
ing that the district court erred in departing upward because he
committed similar criminal acts while on pretrial release. He also
complains that the district court erred in increasing his offense level
based on a finding that he used a "special skill" in committing the
check forgeries. We affirm.
I
Stewart stole a number of checks from Dental Benefit Providers,
Inc. (DBP), Bethesda, Maryland, where he worked as an accounts
payable clerk between May, 1990, and January, 1991. He made the
checks out to himself and endorsed them using either a signature
stamp or a forged signature. Some of the checks were cashed, and
three were deposited in Stewart's bank account in Washington, D.C.
DBP lost in excess of $40,000.
Stewart quit his job at DBP before his thefts were discovered, and
he obtained another position as an accounts payable clerk with Wash-
ington Consulting Group (WCG). He continued to work at WCG after
being charged in the instant offense on November 5, 1992. He was
terminated by WCG on May 3, 1993, for forging its checks.
At the December 13, 1993, sentencing hearing, the government
produced evidence that Stewart stole $40,227 from DBP and $16,265
from WCG. The court agreed with the government that Stewart's
commission of the WCG thefts while on pretrial release warranted an
upward departure, and two offense levels were added. The total
offense level of 17, combined with a criminal history score of III,
2
yielded a sentencing range of 30-37 months.1 The district court sen-
tenced at the bottom of this range.
II
Stewart's first assignment of error involves the upward departure
based on the WCG thefts. He argues that the sentencing guidelines do
not permit departures for such conduct and, alternatively, even if such
a departure were allowable in this case, the district court's failure to
cite the specific reason for its decision to depart forecloses appellate
review and requires a remand for resentencing. We find no merit in
either of Stewart's arguments.
A
Departures are reviewed under the four-part "test of rea-
sonableness" established in United States v. Hummer, 916 F.2d 186,
192 (4th Cir. 1990), cert. denied, 499 U.S. 970 (1991). Our inquiry
in this case focuses on the first part of the test, which calls for de novo
review of the district court's reasons for its departure decision "to
ascertain whether those reasons encompass factors`not adequately
taken into consideration by the Sentencing Commission in formulat-
ing the guidelines.'" Id. (quoting 18 U.S.C. 3553(b)).2 The Commis-
sion has indicated, however, that departures may be warranted on the
basis of the type of conduct involved here.
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1 The guideline calculation began with a base offense of 4, and 7 levels
were added for loss of more than $40,000. U.S.S.G.§ 2B1.2(a)-(b) (Nov.
1993). The district court added two offense levels for use of a "special
skill" in committing the DBP forgeries (§ 3B1.3), and two additional
levels for "more than minimal planning" (§ 2B1.2(b)(5)(A)).
2 The second part of the Hummer test involves review for clear error of
the district court's factual basis for the departure, and the final two parts
call for application of an abuse of discretion standard to the district
court's decision to depart at all and to the extent of the departure. Stewart
does not contend that there was insufficient evidence of the WCG thefts.
He also does not raise any issues with regard to the latter two parts of
the test.
3
Stewart had only been released from prison in 1990 after serving
a sentence for precisely the same type of offense involved here.
Although this prior sentence, as well as the fact that Stewart was on
probation when he committed the DBP thefts, were factored into the
criminal history calculation,3 there is no provision in the Guidelines
that would specifically account for the WCG thefts. However,
U.S.S.G. § 4A1.3(e), p.s., permits the court to depart in situations
where "reliable information indicates that the criminal history cate-
gory does not reflect the seriousness of the defendant's past criminal
conduct or the likelihood that the defendant will commit other crimes
. . . ." Stewart's commission of the WCG thefts, while he was still on
parole from a 1989 forgery conviction and on pretrial release on the
DBP charges, certainly indicates a likelihood of future similar con-
duct, and § 4A1.3 is broad enough to authorize the departure under
the circumstances of the instant case. See United States v. Morse, 983
F.2d 851, 854-55 (8th Cir. 1993) (pending charges in conjunction
with other factors justified departure); see also United States v.
Gaddy, 909 F.2d 196, 201 (7th Cir. 1990) (same). We hold, then, that
a departure was warranted. We turn to whether the district court's
decision to depart is amenable to appellate review.
B
Under Hummer, we review the district court's"specific reasons
cited by the district court in support of its sentence outside the Guide-
lines range . . . . " 916 F.2d at 192. Although the district court did not
cite a specific section of the Guidelines, it is abundantly clear that the
concerns represented by § 4A1.3(e) are the same concerns that ani-
mated the departure decision here. The probation officer's discussion
of a possible departure and the government's arguments at the sen-
tencing hearing focused not only on the extent and seriousness of the
continuing criminal conduct, but also on the fact that such conduct
had not been accounted for anywhere in the calculation of Stewart's
sentencing range.4 The district court obviously agreed with the gov-
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3 See U.S.S.G. § 4A1.1(d).
4 Had the district court explicitly departed pursuant to § 4A1.3, the
departure should have been made by increasing Stewart's criminal his-
tory category from III to IV, instead of by increasing his offense level
from 15 to 17. See United States v. Rusher, 966 F.2d 868, 884 (4th Cir.),
cert. denied, 113 S. Ct. 351 (1992). However, the guideline range would
be 30-37 months in either case.
4
ernment that Stewart's thefts from WCG was conduct not adequately
taken into account under the Guidelines, and we reject Stewart's argu-
ment that the district court's failure to specifically cite chapter and
verse precludes review of the departure under Hummer.
III
Having affirmed the upward departure, we need not review the pro-
priety of the district court's adjustment for use of a special skill,
because the district court found that it would impose a sentence of 30
months whether the sentencing range were 30-37 months (with the
two levels added for special skills) or 24-30 months (without the two-
level enhancement). See United States v. Willard , 909 F.2d 780, 782-
83 (4th Cir. 1990); United States v. White, 875 F.2d 427, 432-33 (4th
Cir. 1989) (appellate review unnecessary when same sentence would
be imposed regardless of which guideline range applies). We there-
fore affirm the sentence imposed.
AFFIRMED
5