UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4679
MAURICE CROMRATIE,
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-03-12)
Submitted: September 1, 2004
Decided: September 21, 2004
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
2 UNITED STATES v. CROMRATIE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Maurice Cromratie pled guilty to possession of a firearm by a con-
victed felon, 18 U.S.C. § 922(g)(1) (2000) (Count One), and posses-
sion of an unregistered sawed-off shotgun, 26 U.S.C. §§ 5841,
5861(d) (2000). He received a sentence of eighty-seven months
imprisonment. Cromratie appeals his sentence, arguing that the dis-
trict court erred in departing upward pursuant to U.S. Sentencing
Guidelines Manual § 4A1.3, p.s. (2002). We affirm.
With an offense level of nineteen and eighteen criminal history
points, Cromratie was in criminal history category VI. His guideline
range was 63-78 months. The district court determined that category
VI did not adequately reflect Cromratie’s criminal record and
departed upward by one offense level, which raised the guideline
range to 70-87 months.
We first conclude that Cromratie failed to contest the departure in
the district court. He contends that his attorney challenged the district
court’s decision to depart by arguing that the guideline range calcu-
lated in the presentence report "fairly embraced" his criminal record.
The record reflects that the attorney stated that the guideline range set
out a fair sentence for Cromratie’s offense, but then explicitly stated
that he would not contest a departure pursuant to § 4A1.3. Because
Cromratie failed to challenge the district court’s stated intention to
depart under § 4A1.3, we review the district court’s decision to depart
for plain error. Under the plain error test, United States v. Olano, 507
U.S. 725 (1993), a defendant must show that: (1) error occurred; (2)
the error was plain; and (3) the error affected his substantial rights.
Id. at 732. Even when these conditions are satisfied, this court may
exercise its discretion to notice the error only if the error "seriously
affect[s] the fairness, integrity or public reputation of judicial pro-
ceedings." Id. (internal quotation marks omitted). In this case, we
conclude that no error occurred.
UNITED STATES v. CROMRATIE 3
A sentencing court may depart from the guideline range only if the
court finds an aggravating or mitigating factor of a kind, or to a
degree, not adequately considered by the Sentencing Commission. 18
U.S.C.A. § 3553(b) (West Supp. 2004) (setting out general principles
for departures); Koon v. United States, 518 U.S. 81, 98 (1996). As of
April 30, 2003, the Prosecutorial Remedies and Tools Against the
Exploitation of Children Today Act of 2003 ("PROTECT Act"), Pub.
L. No. 108-21, § 401(d) 117 Stat. 650, 670 (2003), (amending 18
U.S.C. § 3742(e), (e)(3)), requires a reviewing court to review certain
departure decisions de novo. The appeals court must review de novo
whether the district court failed to provide a written statement of its
reasons for departing, 18 U.S.C.A. § 3742(e)(3)(A) (West Supp.
2004), and whether the departure was based on a factor that (1) does
not advance the objectives set forth in 18 U.S.C.A. § 3553(a)(2)
(West Supp. 2004), (2) is not authorized by § 3553(b), or (3) is not
justified by the facts of the case. 18 U.S.C.A. § 3742(e)(3)(B)(i)-(iii)
(West Supp. 2004). If the departure is justified, the appeals court must
review the extent of the departure deferentially. See United States v.
Davis. ___ F.3d ___, 2004 WL 1828353, at *12 n.3 (4th Cir. Aug. 17,
2004); see also 18 U.S.C.A. § 3742(e)(3)(C) (West Supp. 2004).
The objectives set out in § 3553(a)(2) call for the sentence: "(A) to
reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense; (B) to afford adequate
deterrence to criminal conduct; (C) to protect the public from further
crimes of the defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care, or other correctional
treatment in the most effective manner . . . ."
An upward departure pursuant to § 4A1.3 is encouraged, even if
the defendant is in category VI, if the court finds that the defendant’s
record is egregious or serious. The district court’s determination that
an encouraged factor is not already accounted for in the guideline is
reviewed de novo. United States v. Rybicki, 96 F.3d 754, 757-58 (4th
Cir. 1996); Koon, 518 U.S. at 96. Cromratie had eighteen criminal
history points, five more than were necessary to place him in category
VI. A factor listed in § 4A1.3(b) that may support a departure is
whether the defendant has received prior sentences "of substantially
more than one year imposed as a result of independent crimes com-
mitted on different occasions." Cromratie was sentenced to a term of
4 UNITED STATES v. CROMRATIE
three years confinement in 1989 following his general court-martial
for resisting apprehension, assault on a military policeman, and
related offenses. He was sentenced to a term of four years imprison-
ment in October 1995 for grand larceny in the fourth degree and
related offenses, and to a second four-year term in November 1995
for robbery in the third degree. These offenses occurred on different
occasions.
An additional factor that may support an upward departure is
"whether the defendant was pending trial or sentencing on another
charge at the time of the instant offense." USSG § 4A1.3(d). The
instant offense occurred on July 21, 2002. Cromratie wrote two bad
checks for small amounts in Newberry, South Carolina, in February
2000; charges were pending at the time the presentence report was
prepared in July 2003.
We conclude that these factors were not adequately accounted for
in the guideline and that the district court did not abuse its discretion
in deciding that these factors take Cromratie’s case "outside the heart-
land of situations encompassed within the applicable guideline."
United States v. Barber, 119 F.3d 276, 280 (4th Cir. 1997) (en banc).
Finally, the district court’s one level upward departure was not unrea-
sonable under the circumstances. United States v. Bellamy, 264 F.3d
448, 454 n.3 (4th Cir. 2001) (stating standard). Therefore, no error
occurred.
The PROTECT Act requires the district court to provide its reasons
for departure with specificity in the written judgment. 18 U.S.C.A.
§ 3553(c)(2) (West Supp. 2004). Cromratie argues that a remand is
required because the district court failed to give specific written rea-
sons for the departure pursuant to § 4A1.3 as are now required. USSG
§ 4A1.3(c)(2). We note that 18 U.S.C.A. § 3742(f)(2) (West Supp.
2004), provides that, "if the sentence is outside the applicable guide-
line range and the district court failed to provide the required state-
ment of reasons in the order of judgment and commitment . . . [the
court of appeals] shall state specific reasons for its conclusions." In
accord with this provision, we have stated specific reasons why the
upward departure was warranted. See United States v. Daychild, 357
F.3d 1082, 1108 (9th Cir. 2004).
UNITED STATES v. CROMRATIE 5
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED