United States v. Barber ( 2000 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0013P (6th Cir.)
File Name: 00a0013p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

UNITED STATES OF AMERICA,

Plaintiff-Appellee,


No. 98-1558
v.

>
SCOTT MICHAEL BARBER, 
Defendant-Appellant. 
1
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 97-00091—Gordon J. Quist, District Judge.
Argued: May 19, 1999
Decided and Filed: January 11, 2000
Before: NORRIS and COLE, Circuit Judges; SARGUS,
District Judge.*
*
The Honorable Edmund A. Sargus, Jr., United States District Judge
for the Southern District of Ohio, sitting by designation.
1
2 United States v. Barber No. 98-1558 No. 98-1558 United States v. Barber 11
_________________ IV.
COUNSEL Based upon the foregoing, this Court concludes that the
district court did not abuse its discretion in determining that
ARGUED: Craig A. Frederick, Grand Rapids, Michigan, for the defendant’s criminal history did not adequately represent
Appellant. Daniel Y. Mekaru, OFFICE OF THE U.S. his past criminal conduct or the likelihood that he would
ATTORNEY FOR THE WESTERN DISTRICT OF commit other crimes. This Court further finds that the trial
MICHIGAN, Grand Rapids, Michigan, for Appellee. court’s upward departure by three offense levels was
ON BRIEF: Craig A. Frederick, Grand Rapids, Michigan, warranted by the circumstances of this case and was not an
for Appellant. Daniel Y. Mekaru, OFFICE OF THE U.S. abuse of discretion. Finally, this Court concludes that the trial
ATTORNEY FOR THE WESTERN DISTRICT OF court’s use of the offense level axis, rather than criminal
MICHIGAN, Grand Rapids, Michigan, for Appellee. history category, as a basis for departure premised on the
defendant’s criminal history was not erroneous under the
_________________ circumstances of this case.
OPINION The judgment of the district court is therefore
_________________ AFFIRMED.
SARGUS, District Judge. Defendant, Scott Michael
Barber, entered a plea of guilty to a violation of 18 U.S.C.
§922(g)(1), charging him with knowingly possessing a
firearm as a convicted felon. At sentencing, the district court
granted the Government’s motion for an upward departure
based upon its determination that the defendant’s criminal
history failed to reflect the seriousness of his past criminal
conduct. The district court departed upward by three offense
levels and sentenced the defendant to a term of incarceration
of 96 months.
Defendant, Scott Michael Barber, raises two issues on
appeal. The defendant asserts that the district court abused its
discretion by granting an upward departure. The defendant
also appeals the decision of the district court to depart upon
the offense level axis as opposed to the criminal history
category.
I.
On November 11, 1997, defendant entered into a written
plea agreement which stated in paragraph 4:
10 United States v. Barber No. 98-1558 No. 98-1558 United States v. Barber 3
While the Government assumes that a departure from the The Defendant understands that, if the Court accepts his
defendant’s original offense level rather than criminal history plea of guilty, his sentence will be computed under the
category based on prior3criminal conduct was error, this Court United States Sentencing Guidelines. Further, the
is of a different view. The precise language of U.S.S.G. Defendant understands that the final determination
§4A1.3 encourages a district court to “consider imposing a concerning the calculation of his sentence will be made
sentence departing from the otherwise applicable guideline by the Court after its review of the facts and of any report
range.” This language does not limit a court to departing in prepared by the United States Probation Office. He also
the criminal history category alone and does not prohibit a understands that in certain situations, the Court may
court from using an increase in the offense level to depart from the Guidelines.
accomplish the same result. This is particularly true when the
district court articulated the fact that by increasing the offense (Joint Appendix (“JX”), 18.)
level, it was reaching the same result as if it increased by two
levels the criminal history category. In this context, this The district court accepted defendant’s plea of guilty and
Court is of the view that to reverse a departure on such basis approved the terms and conditions of the plea agreement. The
would elevate form above substance. presentence report thereafter completed details the
defendant’s extensive criminal history beginning at age
twelve and extending to the time of conviction in this case.
3
The presentence report documents that the defendant was
The Government also contends that the defendant did not object to convicted of fifteen criminal offenses from 1984 through
the district court’s use of offense levels rather than criminal history 1996 including larceny, malicious destruction of property,
categories to depart and has, therefore, waived the right to raise this issue breaking and entering, making a false bomb threat, receiving
on appeal, absent plain error or defects affecting substantial rights under
Federal Rule of Criminal Procedure 52(b). The district court granted the and concealing stolen property, unlawful use of marijuana,
Government’s motion for an upward departure, which had expressly carrying a concealed weapon, and resisting and obstructing a
requested an increase in the defendant’s criminal history category, rather police officer. Based upon these convictions, the probation
than an increase in the offense level. While this Court finds no officer concluded in the presentence investigation report that
procedural fault in the method used by the district court in imposing the defendant’s prior convictions placed him in a criminal
sentence, it does note that this issue raised on appeal resulted from the history category of IV. The defendant made no objection to
trial court’s use of the offense level axis as a basis for upward departure,
an issue not addressed in the Government’s motion. Because the the computation set forth in the presentence investigation
defendant and his counsel were advised of this aspect of the Court’s report.
ruling at the time of sentencing, there is no requirement that the defendant
object following sentencing. Thus, failure to object after sentencing does The probation officer included the following in the
not waive an opportunity to raise this issue on appeal. Unlike a presentence investigation report:
circumstance in which a defendant has failed to object to one or more
provisions of a presentence investigation report, the conclusions reached
by the district court were not submitted in advance with an opportunity to The Court may wish to consider the defendant’s
object prior to final sentencing. Under Federal Rule of Criminal extensive criminal record dating back to the age of 12, as
Procedure 32, all parties receive the presentence report and may make a means of imposing an upward departure from the
objections in advance of sentencing. While the failure to object to a applicable guideline range of imprisonment pursuant to
provision of a presentence investigation report waives appellate review of U.S.S.G. §4A1.3. Mr. Barber has been convicted of a
any issues other than plain error, United States v. Koeberlein, 161 F.3d
946 (6th Cir. 1998), this issue involves a decision of the sentencing judge, wide range of misdemeanor and felony offenses and it
rather than an adaptation of a provision of a presentence report.
4 United States v. Barber No. 98-1558 No. 98-1558 United States v. Barber 9
appears no measure of punishment has been able to deter The fact that the defendant received two additional points
him from committing crimes. for committing the instant offense while on parole does not
prohibit the district court from basing a departure on such
(JX 127.) circumstances. District courts may consider the length of the
term of probation, the temporal proximity to the instant
Prior to sentencing, the United States filed a motion for an offense, and the basis for probation in the first instance. In
upward departure. Specifically, the Government contended this case, the term of probation was for life, the instant
that the defendant’s criminal history category did not offense occurred shortly after the imposition of probation, and
adequately reflect the seriousness of the defendant’s past the underlying criminal offense leading to probation was
criminal conduct or the likelihood that he will commit other serious. By way of example, a defendant may be serving a
crimes, as referenced in U.S.S.G. §4A1.3. The Government four year term of probation for passing a series of bad checks.
further noted that the defendant received no points for his first If a new conviction resulted in the fourth year of probation,
nine convictions due to the fact that he was a minor at the this hypothetical defendant would receive the same points in
time the offenses were committed. Further, the defendant was computing criminal history as the defendant in this case. To
on lifetime parole in the State of Alabama at the time the insure that very dissimilarly situated defendants are not
offense of conviction occurred. The Government accorded the same criminal history points, the Sentencing
recommended an upward departure in the defendant’s Guidelines wisely encourage a district court to consider
criminal history category from a category IV to VI. whether the criminal history computation is truly reflective of
a defendant’s past. For these reasons, this Court concludes
At the sentencing hearing, the district court stated: that the district court did not abuse its discretion in granting
an upward departure under U.S.S.G. §4A1.3.
I find that your Criminal History Category does not
adequately reflect your past criminal behavior or the III.
likelihood that you will commit other crimes.
... The defendant asserts that the district court erred in
departing three levels on the offense level axis, rather than the
Putting aside the crimes that were committed when you criminal history categories, when the stated reasons for
were 12 years old, you have been committing crimes departure had to do with prior or future criminal conduct.
since you were 14 years old. You’ve been a person who While the district court based its departure on the defendant’s
will simply not obey the law. criminal history, it increased the defendant’s offense level,
... rather than his criminal history category. The district court,
however, was well aware that the increase in the offense level
You were sentenced to life imprisonment in Alabama which it imposed resulted in the identical sentencing range as
and then released on lifetime parole. Yet, you went back if the court had simply increased the defendant’s criminal
and committed several crimes right after that upon your history category by two levels, from IV to VI. The district
release. court expressly stated in granting the Government’s motion
for an upward departure that adding a three level increase in
(JX 86-87.) The district court summarized the defendant’s the offense level resulted in the same sentencing range that
criminal history as “unrelenting unremitting lawlessness.” would result by increasing the defendant’s criminal history
(JX 82.) category from IV to VI.
8 United States v. Barber No. 98-1558 No. 98-1558 United States v. Barber 5
in a motor vehicle.2 Two years later, he was convicted of Based upon its findings that the defendant’s criminal
carrying a concealed weapon and resisting and obstructing a history did not adequately represent his past criminal
police officer. One month later, the defendant was convicted behavior, the district court granted the Government’s motion
of three counts of breaking and entering with intent to commit for an upward departure and increased the offense level from
larceny. 21 to 24. The district court also explained that, “looked at
another way, it’s an increase in criminal history category to
From this, the trial court concluded that the defendant had VI.”1
been committing crimes since early in his youth and
continued to do so until the offense of conviction. The fact II.
that he was released from prison in Alabama and placed on
lifetime parole had no deterrent effect on his future criminal This Court reviews a district court’s decision to depart from
conduct. the Sentencing Guidelines for abuse of discretion. This Court
recently described the seminal decision in Koon v. United
The defendant contends that the trial court improperly States, 518 U.S. 81 (1996), as follows:
relied upon nine juvenile criminal adjudications which, under
U.S.S.G. §4A1.2, resulted in no criminal history points. Because questions concerning sentencing departures
Further, the defendant contends that the district court should necessarily address the district court’s “refined
not have considered an upward departure based on the fact assessment of the many facts bearing on the outcome,
that he was serving a term of lifetime parole in the State of informed by its vantage point and day-to-day experience
Alabama, since the defendant received two additional points in criminal sentencing,” we normally accord substantial
for committing the instant offense while on parole. The deference to the district court’s judgment on the matter.
defendant contends that since these factors were already taken Nevertheless, “the deference that is due depends on the
into account by the Guidelines, such circumstance could not nature of the question presented.” When the question is
provide a proper basis for departure. “whether a factor is a permissible basis for departure . . .
the courts of appeals need not defer to the district court’s
These arguments ignore the fact that U.S.S.G. §4A1.3 resolution of the point.”
explicitly contemplates and encourages a district court to
consider a defendant’s likelihood of recidivism together with United States v. Pluta, 144 F.3d 968, 977 (6th Cir.
a more particularized consideration of the defendant’s past. 1998)(quoting Koon, 518 U.S. at 98, 100)(internal citations
Further, U.S.S.G. §4A1.3 authorizes the Court to consider, in omitted)).
addition to prior conviction, in the computation of criminal
history, “prior sentence(s) not used in computing the criminal As the Sentencing Reform Act of 1984, 18 U.S.C. §3551,
history category.” Other circuits have held that while juvenile together with the implementing Sentencing Guidelines make
offenses may not be counted in computing criminal history, clear, a district court must sentence within the Guidelines
such offenses may nonetheless be considered as part of a range “unless the Court finds that there exists an aggravating
recidivism inquiry. See United States v. Croom, 50 F.3d 433, or mitigating circumstance of a kind, or to a degree, not
435 (7th Cir. 1995).
1
Had the district court increased the defendant’s criminal history
2 from IV to VI, rather than increasing the offense level from 21 to 24, the
The charge of fleeing a police officer was dismissed. resulting guideline range would be the same, that being 77 to 96 months.
6 United States v. Barber No. 98-1558 No. 98-1558 United States v. Barber 7
adequately taken into consideration by the Sentencing adequately reflect the seriousness of the defendant’s past
Commission in formulating the Guidelines that should result criminal conduct or the likelihood that the defendant will
in a sentence different from that prescribed.” 18 U.S.C. commit other crimes, the court may consider imposing a
§3553(b); see also U.S.S.G. Ch. 1, Pt. A4(b). As the sentence departing from the otherwise applicable guideline
Supreme Court explained in Koon, a sentencing court range.” The district court expressly cited this provision of the
considering a departure should address the following Guidelines and found that the defendant’s completed criminal
questions: history neither adequately reflected the seriousness of his past
criminal conduct nor did it indicate the likelihood that he
1) What features of this case, potentially, take it outside would commit other crimes.
the Guidelines’ “heartland” and make of it a special, or
unusual case? Given the formulation set forth in U.S.S.G. §4A1.3, it is
2) Has the Commission forbidden departures based on clear that the Sentencing Guidelines do not prohibit
those features? departures based upon a finding that the criminal history
3) If not, has the Commission encouraged departures computation is simply not representative of a defendant’s past
based on those features? criminal behavior nor indicative of future unlawful conduct.
4) If not, has the Commission discouraged departures As this Court concluded in United States v. Pluta, 144 F.3d
based on those features? at 877, a departure upon this basis is expressly encouraged by
the Sentencing Guidelines.
Koon, 518 U.S. at 95(quoting United States v. Rivera, 994
F.2d 942, 949 (1st Cir. 1993)). While the order of these Because the basis for the departure by the sentencing court
questions guides the district court, for this Court to determine was an encouraged factor under the Guidelines, we review the
the appropriate standard of review, the analysis must initially decision of the trial court to depart for an abuse of discretion.
address whether the basis for departure is prohibited, United States v. Bond, 171 F.3d 1047 (6th Cir. 1999); United
encouraged, or discouraged by the Sentencing Guidelines. States v. Koeberlein, 161 F.3d 946 (6th Cir. 1998). As noted
by the Supreme Court, “[a] district court’s decision to depart
If the district court has departed from the Sentencing from the Guidelines . . . will in most cases be due substantial
Guidelines based upon a prohibited factor (such as a deference, for it embodies the traditional exercise of
defendant’s race, sex, national origin, creed, religion, or discretion by a sentencing court.” Koon, 518 U.S. at 98.
socio-economic status, factors prohibited by U.S.S.G.
§5H1.10) this Court’s analysis is complete and the sentence The sentencing court based its decision to grant an upward
must be reversed. Much more likely, if the Sentencing departure on an abundance of prior criminal conduct
Guidelines have not prohibited departures based on what the committed by the defendant. At the time of sentencing, the
district court has determined to be one or more unusual defendant was 26 years old. Prior to sentencing, he had been
aspects of the case, this Court must then consider whether the sentenced to life imprisonment in Alabama and was released
basis for the departure is encouraged or discouraged by the on February 14, 1994 on lifetime parole. Only a few months
Sentencing Guidelines. later, on May 17, 1994, he was charged with driving with a
suspended license, fleeing a police officer and having alcohol
The motion filed by the Government seeking an upward
departure made specific reference to U.S.S.G. §4A1.3 which
states that if “[t]he criminal history category does not