United States v. McCoy ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4519
MARK RICHMOND MCCOY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-97-30)
Submitted: April 30, 1998
Decided: February 10, 1999
Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William Arthur Webb, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Thomas B. Murphy, Assis-
tant United States Attorney, Bryan J. Ng, Third Year Law Student,
Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Mark Richmond McCoy appeals the sixty-month sentence he
received after pleading guilty to making false statements to a financial
institution. See 18 U.S.C.A. § 1014 (West Supp. 1998). He contends
that the district court abused its discretion by departing upward above
criminal history category VI under U.S. Sentencing Guidelines
Manual ("USSG or Guidelines"), § 4A1.3, p.s. (Nov. 1995), and fail-
ing adequately to explain the extent of the departure. We affirm.
McCoy's 14 criminal history points placed him in category VI.
With an offense level of 10, his guideline range was 24 to 30 months.
At his sentencing hearing, the district court upwardly departed under
USSG § 4A1.3 because it found that McCoy's criminal history did
not adequately reflect the seriousness of his past criminal conduct or
the likelihood that he would commit other crimes. Referring to
McCoy's presentence report ("PSR"), the court noted that he had
sixty-eight separate convictions for worthless checks, which only
yielded three criminal history points as calculated in the PSR. The
court then "hypothetically assign[ed] one criminal history point to
each [worthless check] conviction"1 for which McCoy had previously
received a six-month sentence, increasing McCoy's criminal history
points by 32 and resulting in 46 points. Beginning with McCoy's
PSR-calculated offense level of 10 and criminal history category VI,
the court moved down one offense level for each three criminal his-
tory points until a total of 46 criminal history points had been consid-
ered for departure. This methodology yielded an offense level of 21
with a criminal history category of VI. Because, however, the court
considered "each intervening offense level" it found that "a criminal
history category of VI with a corresponding offense level of 17 would
adequately account for McCoy's past criminal record, and his propen-
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1 Joint appendix ("J.A.") at 19-20.
2
sity for future criminality."2 The court sentenced McCoy within that
Guidelines range to 60 months incarceration. We have approved of
departing above category VI by moving to successively higher
offense levels. See United States v. Cash, 983 F.2d 558, 561 & n.6
(4th Cir. 1992).
We review McCoy's claim that the departure was unjustified for an
abuse of discretion. See Koon v. United States , 518 U.S. 81, ___, 116
S. Ct. 2035, 2043 (1996). Under USSG § 4A1.3, departure is encour-
aged if the defendant's criminal history and likelihood that he will
commit other crimes is over- or underrepresented. The district court
found that category VI was not adequate because of the frequency and
seriousness of McCoy's prior criminal conduct. We agree. McCoy,
although only age twenty-eight at the time of his sentencing, had a ten
year record of criminal conduct comprised primarily of fraud convic-
tions with much of his criminal conduct effected while he was on
supervised release, probation, or parole. His criminal history also
revealed numerous instances of failure to appear in court. See United
States v. Wilson, 913 F.2d 136, 138-39 (4th Cir. 1990) (upholding
upward departure based upon defendant's fifty-five worthless checks
convictions).
McCoy also contends that the district court failed to consider each
successively higher offense level and make specific findings before
proceeding to the next higher one. See Cash, 983 F.2d at 561-63;
United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992). While the
court did not make a specific finding concerning each higher offense
level, its comments indicate that its intention was to comply with the
dictates of Cash and Rusher, and that it considered the intervening
offense levels inadequate to account for McCoy's past criminal con-
duct and likelihood of future criminal conduct. We find that remand
for a more explicit statement from the court is unnecessary.
The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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2 (J.A. at 20).
3