F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 9 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 98-3191
v. (97-CR-40083-RDR)
TERRY LEE WYATT, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9.
The case is therefore ordered submitted without oral argument.
After a jury trial, Defendant was convicted in the United States District
Court for the District of Kansas of two counts of bank fraud in violation of 18
U.S.C. § 1344 and eleven counts of possessing and uttering a counterfeited and
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
forged security in violation of 18 U.S.C. § 513(a). The court sentenced
Defendant to fifty-one months’ imprisonment on each count, to be served
concurrently, and terms of supervised release. Included in this sentence was an
upward departure of two levels. The court imposed this departure because it
found that Defendant’s actual criminal history was not adequately represented by
the criminal history category. Defendant appeals only his sentence. We exercise
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
Defendant first argues that the district court erred in imposing an upward
departure to his sentence based on his criminal history. Specifically, he asserts
that the court erred in finding “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.” R., Vol. 2 at 9.
Defendant claims that the upward departure was based on “minor traffic
infractions and other convictions for crimes that were neither violent nor
substantially similar” to those for which he was sentenced in the instant case.
Appellant’s Opening Br. at 9. He also contends that “the district court did not
articulate reasonable factors in deciding to depart upward.” Id. at 10. Our review
of a sentencing court’s upward departure involves three steps. We review de
novo “whether the circumstances cited by the district court warrant departure.”
United States v. Flinn, 987 F.2d 1497, 1500 (10th Cir. 1993). However, we will
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disturb the factual findings underlying the district court’s decision to depart from
the United States Sentencing Guidelines only if they are clearly erroneous. See
id. We also must conduct a “reasonableness review of the degree of departure.”
Id. (citing United States v. White, 893 F.2d 276, 278 (10th Cir. 1990)). The
Government bears the burden of establishing that an upward departure is
warranted. See United States v. Kirk, 894 F.2d 1162, 1164 (10th Cir. 1990).
In calculating Defendant’s sentence, the court first determined that he had a
criminal history category of VI. The court then agreed with the presentence
report and decided that, pursuant to section 4A1.3 of the sentencing guidelines, an
upward departure was appropriate because Defendant’s criminal history category
did not adequately reflect his “lengthy and serious criminal history and the
likelihood that he will commit other crimes.” 1 R., Vol. 1, Doc. 52 at 6.
1
Section 4A1.3 of the sentencing guidelines allows a court to impose a
departure from the recommended guideline range “[i]f 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. The information
justifying a departure may include the following:
(a) prior sentence(s) not used in computing the criminal history category
(e.g. sentences for foreign and tribal offenses);
(b) prior sentence(s) of substantially more than one year imposed as a
result of independent crimes committed on different occasions;
(c) prior similar misconduct established by a civil adjudication or by a
failure to comply with an administrative order;
(d) whether the defendant was pending trial or sentencing on another
(continued...)
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Explaining its decision, the court noted that Defendant was only thirty-six years
old at the time of his sentencing, and yet he already had over twelve convictions.
See id. The court also stated that Defendant “ha[d] been engaged in the pursuit of
criminal activities since he was 18” and “[h]is records show no gainful
employment during his adult years.” Id. When a defendant’s criminal history
category is VI, section 4A1.3 of the guidelines recommends structuring the
departure “by moving incrementally down the sentencing table to the next higher
offense level in Criminal History Category VI until it finds a guideline range
appropriate to the case.” U.S.S.G. § 4A1.3. Following this procedure, the district
court imposed an upward departure of two offense levels to a guideline range of
41 to 51 months from a range of 33 to 41 months.
Although Defendant contends that his lengthy list of prior arrests and
convictions consists solely of “minor traffic infractions” and other, dissimilar
offenses, we note that a number of Defendant’s prior offenses involved terms of
probation in excess of one year and at least one of his offenses involved some
degree of violence. In addition, approximately seven of Defendant’s prior
1
(...continued)
charge at the time of the instant offense;
(e) prior similar adult criminal conduct not resulting in a criminal
conviction.
See U.S.S.G. § 4A1.3(a)-(e).
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offenses involved theft, embezzlement, and other types of fraudulent behavior,
which are sufficiently similar to the offenses for which he received a sentence in
this case to justify an upward departure pursuant to U.S.S.G. § 4A1.3. We also
note that Defendant previously has violated his probation eight times. Under
these circumstances, we conclude that the district court’s decision to impose an
upward departure was both proper and consistent with the criteria articulated in
the guidelines. We also conclude that the articulated reasons for the departure
and the degree of departure imposed by the district court were reasonable in light
of Defendant’s extensive criminal history.
Defendant’s second argument is that the court erred by failing to give him
notice that it intended to make an upward departure prior to the sentencing
hearing as required by 18 U.S.C. § 3553(d). As a result, Defendant claims that he
was unable to prepare an adequate objection to the departure. Defendant’s
argument is without merit. First, contrary to Defendant’s assertion, 18 U.S.C. §
3553(d) does not require courts to notify defendants of their intent to depart
upward from a recommended sentencing range. Section 3553(d) only applies to
situations in which the court intends to impose an order of notice 2 pursuant to
section 3555. This situation has not occurred here and, accordingly, the notice
2
An order of notice requires “the defendant [to] give reasonable notice and
explanation of the conviction, in such form as the court may approve, to the
victims of the offense.” 18 U.S.C. § 3555.
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requirement is inapplicable. Second, although “[i]t is indisputable that a
defendant is entitled to reasonable notice of the grounds for potential upward
departure before sentencing,” United States v. Ewing, 129 F.3d 430, 436-37 (7th
Cir. 1997), it is equally indisputable that Defendant received sufficient notice in
this case. See id. (stating that presentence report’s list of factors that may warrant
upward departure constitutes adequate notice). The presentence report in this
case specifically identifies Defendant’s criminal history as a possible ground for
an upward departure. See R., Vol. 3 at 24. Moreover, Defendant objected to an
upward departure on this basis in the objections to the presentence report that he
submitted to the court. He also had the opportunity to object, and did so, at the
sentencing hearing. The United States Supreme Court has stated that a sentencing
court need only give notice of its intent to make upward departures “on a ground
not identified as a ground for upward departure either in the presentence report or
in a prehearing submission by the Government.” Burns v. United States, 501 U.S.
129, 138 (1991); see also United States v. Burdex, 100 F.3d 882, 885 (10th Cir.
1996) (recognizing the well-settled proposition in Burns that a sentencing court
must provide notice before departing upward on a ground not identified in the
presentence report), cert. denied, __ U.S. __, 117 S. Ct. 1283 (1997). Because the
ground for departing upward was identified in the presentence report, the court
did not err in not providing additional notice to Defendant. For these reasons,
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Defendant cannot complain that the district court failed to provide him with
notice of the possibility of an upward departure.
We AFFIRM the sentence imposed by the district court.
Entered for the Court
Monroe G. McKay
Circuit Judge
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