UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5155
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH H. HARRIS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (3:06-cr-00163)
Submitted: July 11, 2007 Decided: July 20, 2007
Before WILKINSON and SHEDD, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles A. Gavin, BLACKBURN, CONTE, SCHILLING & CLICK, P.C.,
Richmond, Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, Elizabeth C. Wu, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Harris and Michael Pierce entered a Wachovia Bank
in Chesterfield County, Virginia on December 28, 2004. Both were
armed and wearing masks and gloves. Upon entering, Harris jumped
over the counter and demanded that the tellers give him U.S.
currency in large bills only with “no dye packs or funny money.”
Meanwhile, Pierce remained in the lobby controlling the crowd by
pointing a gun in the direction of bank employees and customers and
yelling for them to get on the floor.1 Harris took about $8400
from the teller’s drawer, and he and Pierce then fled the area on
foot to a wooded area adjacent to the bank.
Harris was ultimately indicted on May 16, 2006 for one
count of bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d)
(2000). On August 16, 2006, Harris pled guilty, without the
benefit of a plea agreement, to the sole count in the indictment.
Following Harris’ guilty plea, the United States Probation Office
prepared Harris’ presentence report. The probation office
calculated Harris’ total offense level at 24 and his criminal
history at category VI based on Harris’ 30 criminal history points.
The guidelines recommended a sentencing range of 100-125 months’
imprisonment. Harris’ presentence report also noted that an upward
departure pursuant to United States Sentencing Guidelines § 4A1.3
1
According to the presentence report, Harris and Pierce both
pointed their weapons at employees and customers.
- 2 -
might be appropriate in Harris’ case. According to the presentence
report, a number of Harris’ convictions were not included in his
criminal history score because they occurred outside the applicable
time periods under U.S.S.G. § 4A1.2(e), and one of Harris’
convictions was not included because the maximum number of one-
point convictions under U.S.S.G. § 4A1.1(c) had been exceeded. If
all of Harris’ adult convictions had been included in his criminal
history score, Harris would have had an additional 48 criminal
history points for a total of 78 criminal history points.
The Government filed a motion for upward departure,
alleging that Harris’ criminal history score underrepresented the
seriousness of Harris’ criminal history. Harris filed a response
in opposition to the Government’s motion. At Harris’ November 1,
2006 sentencing hearing, the Government argued that Harris,
although not technically a Career Offender, should be sentenced as
a Career Offender because Harris had been committing crimes his
entire life. The district court agreed with the Government. The
court determined that Harris’ criminal history placed him in a
criminal history category VI and that if Harris had been sentenced
as a Career Offender, his advisory guidelines range would have been
34. The court then adjusted Harris’ guidelines range three points
from 34 to 31 for acceptance of responsibility and sentenced Harris
to 188 months’ imprisonment, which was within Harris’ adjusted
advisory guidelines range. Harris timely noted an appeal.
- 3 -
On appeal, Harris raises three challenges to the district
court’s grant of the Government’s motion for an upward departure of
his sentence. First, Harris alleges that the district court abused
its discretion in granting the Government’s motion. Second, Harris
alleges that his sentence was substantively unreasonable. Third,
Harris challenges the method the court used in determining his
upward departure. For the reasons that follow, we affirm the
judgment of the district court.
A decision by a district court to impose a departure
sentence under U.S.S.G. § 4A1.3 is reviewed for reasonableness.
See United States v. Dalton, 477 F.3d 195, 197 (4th Cir. 2007).
This reasonableness review involves both procedural and substantive
components. United States v. Moreland, 437 F.3d 424, 434 (4th Cir.
2006). Following United States v. Booker, 543 U.S. 220 (2005), a
district court must engage in a multi-step process at sentencing.
Moreland, 437 F.3d at 432. After making appropriate findings of
fact and determining the applicable guidelines range, the court
must determine whether a sentence within that range serves the
factors set forth in 18 U.S.C. § 3553(a) (West 2000 and Supp. 2007)
and if not, select a sentence that does serve those factors. Id.
Prior to imposing a departure sentence, the district court must
first determine whether a departure is appropriate based on the
guidelines or relevant case law. Id. The district court also must
articulate the reasons for departing from the advisory guidelines
- 4 -
range. Id. Here, the district court’s decision to depart upward
from Harris’ original advisory guidelines range was both
procedurally and substantively reasonable.
The district court specifically determined that, to serve
the factors in 18 U.S.C. § 3553(a), it was necessary to depart
upward and sentence Harris as though he were a Career Offender.
The court properly identified U.S.S.G. § 4A1.3 as an appropriate
basis on which to depart upward from Harris’ guidelines range.
According to U.S.S.G. § 4A1.3, a district court may depart upward
from an applicable guidelines range if “reliable information
indicates that the criminal history category does not adequately
reflect the seriousness of the defendant’s past criminal conduct or
the likelihood that the defendant will commit other crimes.”
U.S.S.G. § 4A1.3. This reliable information a district court may
use to depart upward includes prior convictions that fall outside
the time frame for calculating criminal history points if the prior
convictions are evidence of similar or serious dissimilar conduct.
U.S.S.G. § 4A1.2(e), comment (n.8). As noted by the Government,
Harris’ original advisory guidelines range did not include criminal
history points for approximately forty of his prior convictions as
they fell outside the applicable time period in U.S.S.G.
§ 4A1.2(e). Had these convictions been counted, Harris would have
had an additional forty-eight criminal history points. Despite
Harris’ argument to the contrary, a number of his prior convictions
- 5 -
were similar in nature to his armed bank robbery conviction as the
prior offenses involved violence and theft. Harris had twenty-four
larceny convictions, seven misdemeanor assault convictions, and a
conviction for being an accessory after the fact to robbery.
Finally, the district court clearly articulated the basis and
reasons for imposing a departure sentence on Harris. Accordingly,
Harris’ sentence was procedurally reasonable.
Harris’ departure sentence was also substantively
reasonable. Harris’ alleges that his sentence was substantively
unreasonable because of his poor health, limited vocational skills,
and because he is not likely to reoffend. Harris committed his
first offense in 1970, while still a juvenile. As the Government
points out, for every year since Harris was first tried as an adult
in 1973 until 2006, Harris was either incarcerated or committing a
new crime. Moreover, his criminal behavior was often motivated by
drug addiction, and had escalated over time into an armed bank
robbery in which weapons were brandished at innocent bystanders.
Finally, as the district court noted, Harris’ criminal record
indicates that it is a near certainty that he will reoffend.
Accordingly, the court’s decision to depart upward from Harris’
original advisory guidelines range was substantively reasonable.
Harris’ final argument on appeal is that the court
employed the wrong method in departing upward from his original
advisory guidelines range. According to Harris, the district court
- 6 -
determined what guidelines range it believed would be appropriate
and then reasoned backward to rationalize the sentence. The
district court did recognize that, typically, it is appropriate in
granting an upward departure for a defendant in criminal history
category VI, to increase from offense level to offense level until
an appropriate guidelines range is found. Harris argues that if
the court had employed this approach his sentencing range would
have been 130-162 months. The court, however, simply sentenced
Harris as though he were a Career Offender, which Harris contends
was erroneous.
Harris’ final claim is without merit. As we have
consistently recognized, an upward departure does not require the
sentencing court “to move only one level or to explain its
rejection at each and every intervening level.” Dalton, 477 F. 3d
at 199 (quoting United States v. Little, 61 F.3d 450, 454 (6th Cir.
1995)). See United States v. Lawrence, 349 F.3d 724, 729 (4th Cir.
2003); United States v. Cash, 983 F.2d 558, 562 (4th Cir.
1992)(stating that “once the district court determines that a
departure under U.S.S.G. § 4A1.3, p.s. is warranted and that the
defendant’s prior criminal conduct is of sufficient seriousness to
conclude that he should be treated as a career offender, the
district court may depart directly to the guideline range
applicable to career offenders similar to the defendant.”).
- 7 -
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 8 -