United States v. Kaether , 117 F. App'x 914 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10396
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHERRI ANN KAETHER,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-251-I-A
______________________
Before JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:*
Sherri Ann Kaether appeals her upward departure sentence for
unlawful possession of stolen mail. Kaether contends that the
“non-serious” nature of her prior conviction for possession of
stolen mail was insufficient to warrant an upward departure and
that her commission of the same offense within a five-year period
failed to render her criminal record “atypically egregious.”
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Based on the Sentencing Guidelines’ allowance for upward
departures based upon prior similar adult conduct that did not
result in a criminal conviction,1 Kaether draws the negative
inference that there is no basis for a departure if the prior
similar adult conduct did result in a conviction. Kaether also
argues that, because the guidelines assess additional criminal
history points for defendants who commit offenses while on
supervised release and/or within two years of their release from
confinement, it necessarily follows that increased punishment is
not intended for a defendant who, like Kaether, commits a new
offense beyond two years from release from incarceration and
after completion of a prior term of supervised release.
With respect to the extent of the departure, Kaether argues
that the district court failed to explain why intervening
criminal history categories V and VI under-represented Kaether’s
risk of recidivism. Kaether also contends that the district
court failed to distinguish her criminal record as more serious
than those of defendants falling within the intervening criminal
history categories.
The district court’s decision to depart upward was warranted
since it was based on Kaether’s likelihood to recidivate.2 In
1
U.S. SENTENCING GUIDELINES MANUAL § 4A1.3(a)(2)(E) (2003).
2
See United States v. Bell, 371 F.3d 239, 243 (5th Cir. 2004)
(exercising de novo review over district court’s decision to
depart); United States v. McDowell, 109 F.3d 214, 218 (5th Cir.
1997) (“We find no clear error in the district court’s conclusion
2
addition, the district court’s departure did not constitute an
abuse of discretion, and was adequately explained and justified
by the court.3
For the first time on appeal, Kaether cites to Blakely v.
Washington4 and asserts that the district court’s upward
departure violated her Sixth Amendment rights since it was based
upon findings that were neither charged in the indictment nor
found by a jury beyond a reasonable doubt. Kaether correctly
concedes that this argument is foreclosed by our decision in
United States v. Pineiro.5
AFFIRMED.
that the likelihood of recidivism, in the light of McDowell’s prior
conduct, warranted an upward departure from the guidelines.”);
United States v. De Luna-Trujillo, 868 F.2d 122, 125 (5th Cir.
1989) (“‘[P]rior similar adult criminal conduct’ may indicate the
seriousness of the past crime and the possibility of future crimes
whether or not it has resulted in conviction.” (alteration in
original)).
3
See Bell, 371 F.3d at 243; United States v. Lambert, 984 F.2d
658, 663 (5th Cir. 1993) (en banc) (“We do not . . . require the
district court to go through a ritualistic exercise in which it
mechanically discusses each criminal history category it rejects en
route to the category it selects.”).
4
124 S. Ct. 2531 (2004).
5
377 F.3d 464, 473 (5th Cir. 2004), pet. for cert. filed (U.S.
July 14, 2004, No. 03-30437).
3