United States v. Locklear , 53 F. App'x 669 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4822
RICHIE DALE LOCKLEAR,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-00-21)
Argued: September 26, 2002
Decided: December 17, 2002
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,
in which Judge Luttig and Judge Michael joined.
COUNSEL
ARGUED: Christopher G. Browning, Jr., John David Burns, HUN-
TON & WILLIAMS, Raleigh, North Carolina, for Appellant. Felice
McConnell Corpening, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. LOCKLEAR
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
NIEMEYER, Circuit Judge:
Richie Dale Locklear pleaded guilty to two counts charging him
with possessing and passing counterfeit money, in violation of 18
U.S.C. §§ 472 and 2. The district court sentenced him to 57 months’
imprisonment. On appeal, Locklear contends that the district court
erred by (1) departing upward two levels from the otherwise applica-
ble Sentencing Guideline level based on his criminal history; (2) fail-
ing to proceed level-by-level in its upward departure; (3) enhancing
his offense level for his use of a minor to commit the offense; and (4)
failing to verify that he and his counsel had an opportunity to review
the presentence report before sentencing. Finding no reversible error,
we affirm.
I
Locklear and eight others, including two minors, ages 15 and 16,
used a scanner, computer, and printer to manufacture counterfeit bills
and then used the bills to make purchases at various locations in
North and South Carolina. Locklear involved the minors in cutting
out the bills after they were printed and crumpling them to make them
look worn. He also traveled with one minor when he used the coun-
terfeit currency to purchase cocaine and drinks, to attempt to play
video poker, and to make purchases at various stores.
After Locklear pleaded guilty without a plea agreement, he was
sentenced to 57 months’ imprisonment. In sentencing Locklear, the
district court included a two-level enhancement for Locklear’s use of
a minor and a two-level enhancement because the applicable Criminal
History Category VI did not adequately reflect the seriousness of his
criminal history.
On appeal, Locklear challenges several aspects of his sentencing.
Because none of his assignments of error were presented to the dis-
UNITED STATES v. LOCKLEAR 3
trict court, we review his claims under the well-known plain error
analysis of Federal Rule of Criminal Procedure 52(b). See United
States v. Olano, 507 U.S. 725, 731-35 (1993).
II
A
Locklear first contends that the district court erred in departing
upwardly two levels because Criminal History Category VI, which
was applicable, did not adequately reflect Locklear’s criminal history.
Locklear argues that in departing, the district court erred because it
failed to articulate reasons to justify the departure.
Section 4A1.3 of the Sentencing Guidelines authorizes a sentenc-
ing court to depart upwardly if the defendant’s criminal history is not
adequately represented by the criminal history category. U.S.S.G.
§ 4A1.3, p.s. If the court determines to depart upwardly, however, it
must consider "not only the number of prior offenses committed by
a defendant but also their seriousness," United States v. Cash, 983
F.2d 558, 560-61 (4th Cir. 1992), and it must provide "‘a short clear
written statement or a reasoned statement from the bench’ to support
its departure," United States v. Rusher, 966 F.2d 868, 882 (4th Cir.
1992) (internal citations omitted).
In this case, Locklear was sentenced at a Criminal History Cate-
gory VI which is called for when a defendant has 13 or more criminal
history points. Locklear had 30 criminal history points, and at the
time he committed the instant offenses, he faced pending charges for
drug paraphernalia possession, assault, and communicating threats. At
sentencing, Locklear did not contest the criminal history set out in the
presentence report. Rather, he observed that this history was the prod-
uct of a deprived childhood and a drug habit.
In announcing its decision to depart upwardly because Criminal
History Category VI inadequately reflected the seriousness of
Locklear’s criminal history, the district court explained:
I have looked at his criminal history and it is pretty sub-
stantial. There’s one, two — three cases of breaking and
4 UNITED STATES v. LOCKLEAR
entering and there’s larceny and there’s possession of mari-
juana and there’s injury to personal property and assault on
a government official and, then, a second assault on a gov-
ernment official and resisting arrest and simple assault and,
then, there’s driving while license revoked and an unautho-
rized use of a motor vehicle and there’s larceny, driving
while license revoked and there’s resisting a public officer
and larceny from the government and there’s further larceny
and I don’t think that his criminal history category is ade-
quately represented, Mr. Edwards.
Rather than selecting a sentence that it thought appropriate and work-
ing backwards to rationalize the sentence, as prohibited by Rusher,
966 F.2d at 883, the district court determined that Category VI "un-
derstated" Locklear’s criminal history, and because Category VI was
the maximum, "the proper way to make the adjustment upwardly
would [be to] increase the offense level to 16," a two-level enhance-
ment. The court then sentenced Locklear within the corresponding 46-
57 month guideline range, sentencing him to 57 months’ imprison-
ment. The effect of the district court’s departure was to increase
Locklear’s sentence by 11 months based on the fact that a criminal
history category VI did not adequately represent the seriousness of
Locklear’s criminal history.
If the court had extrapolated from the Sentencing Table and applied
successively higher criminal history categories, a posited Category
VIII would exist for roughly 21-24 criminal history points — a mod-
est increase in view of the fact that Locklear had 30 points — and
would produce a sentencing range of roughly 46-57 months at his
offense level of 14. Because Category VIII does not exist, a corre-
sponding — and equally modest — sentencing range is produced by
moving down the Table from level 14 to level 16, which imposes a
sentencing range of 46-57 months.
We find no error in the district court’s decision to depart upwardly
two levels — from 14 to 16 — in these circumstances, and we find
that the court’s reasons were adequately stated.
B
Locklear also argues that in departing upward, from a level 14 to
a level 16, the district court failed to consider the interim level 15, as
UNITED STATES v. LOCKLEAR 5
required by Rusher and Cash. See Rusher, 966 F.2d at 884-85; Cash,
983 F.2d at 560-62 ("Although this language [in Rusher] is dicta
. . ., we believe that it identifies the proper approach to be taken").
The policy statement under § 4A1.3 of the Sentencing Guidelines pro-
vides that when a court departs upwardly from Category VI, "the
court should structure the departure by moving incrementally down
the sentencing table to the next higher offense level in Criminal His-
tory Category VI until it finds a guideline range appropriate to the
case." This incremental approach reflects the interest of the Sentenc-
ing Commission in narrowing judicial discretion while, at the same
time, permitting adjustments "‘to reflect the unique characteristics of
each case.’" Rusher, 966 F.2d at 884-85 (internal citations omitted).
In this case, the court found that Category VI inadequately repre-
sented the seriousness of Locklear’s criminal history, and because
there were no categories higher than Category VI, the court moved
down the table raising Locklear’s offense level from 14 to 16 to pro-
duce the equivalent of a higher criminal history category. We find no
reversible error in this court’s method of proceeding. If it was error
for the court to have failed to state explicitly that level 15 was inade-
quate, we nevertheless find any such error harmless. Given Locklear’s
extensive and serious criminal history, the failure to explain to
Locklear why level 15 as opposed to level 16 was not appropriate did
not affect his substantial rights, particularly when a level higher than
16 could have been justified.
C
Locklear also challenges the district court’s enhancement of his
offense level for use of a minor in committing the offense, arguing
that the record does not factually support the conclusion.
Section 3B1.4 of the Sentencing Guidelines imposes a two-level
enhancement if the defendant "used or attempted to use a person less
than 18 years of age to commit the offense." U.S.S.G. § 3B1.4. An
application note to this provision defines "use" to "include[] directing,
commanding, encouraging, intimidating, counseling, training, procur-
ing, recruiting, or soliciting." Id. at § 3B1.4, cmt. n.1.
In this case, Locklear engaged minors to cut out the counterfeit
money from printed sheets and to crumple up the money to make it
6 UNITED STATES v. LOCKLEAR
look old. He also procured their attendance during his traveling to use
and pass the counterfeit money for the purchase of various items. We
conclude that the district court did not err in applying this enhance-
ment.
D
Finally, Locklear contends that the record fails to show that the dis-
trict court verified that he and his counsel read and discussed the pre-
sentence report before the court imposed sentence. See Fed. R. Crim.
P. 32(c)(3)(A).
A sentencing court "need not expressly ask whether the defendant
has read the presentence report and discussed it with his counsel, pro-
vided ‘there is . . . evidence in the record from which one could rea-
sonably infer’ that the defendant and his counsel have read and
discussed the report." United States v. Lockhart, 58 F.3d 86, 88 (4th
Cir. 1995) (internal citations omitted).
Although the record does not show that the court expressly asked
Locklear whether he had read the report, we conclude that the record
supports the inference that Locklear and his counsel in fact read and
discussed the report prior to sentencing. First, Locklear’s counsel
objected to the presentence report’s enhancement for manufacture of
counterfeit currency. While Lockhart makes clear that a written objec-
tion, standing alone, is not a sufficient basis to find compliance with
Rule 32, see 58 F.3d at 88-89, here the evidence shows that
Locklear’s counsel not only objected in writing but also pursued the
objection at the sentencing proceeding, at which Locklear was pres-
ent. Second, Locklear’s counsel made reference at the proceeding to
the presentence report’s summary of Locklear’s childhood, and, rely-
ing on that summary, he stated that Locklear "has indicated to me" an
explanation for his offenses. Finally, in the presence of Locklear and
his counsel, the court concluded that "the basis for the findings con-
tained in the presentence report [were] credible and reliable." We are,
therefore, satisfied that Locklear and his counsel read and discussed
the report prior to sentencing, even though this was not explicitly ver-
ified on the record. Accordingly, we find no plain error.
For the foregoing reasons, the judgment of the district court is
affirmed. We also deny Locklear’s motion, filed in this court, to adopt
UNITED STATES v. LOCKLEAR 7
into this record the record made in United States v. Harrison, 58 F.3d
115 (4th Cir. 1995).
AFFIRMED