Revised December 10, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-20845
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SAMMIE LEE NEVELS,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
November 9, 1998
Before SMITH, DUHÉ, and WIENER, Circuit Judges
DUHÉ, Circuit Judge:
Sammie Lee Nevels (“Nevels”) pleaded guilty to two counts of
possession of stolen mail for possession of a stolen social
security check and a stolen sweepstakes promotion. In computing
Nevels’ offense level under the United States Sentencing Guidelines
(“Guidelines”), the district court increased the base offense level
by two under §2B1.1(b)(2) based on theft from a person. Further,
the court departed above the Guidelines’ maximum range, because
Nevels’ behavior was egregious and Nevels had not disclosed his
total involvement. Nevels appeals the increased base offense level
and the upward departure. We affirm.
I. Background
On January 3, 1997, an unidentified individual stole two
bundles of mail containing Social Security checks from a United
States Postal Service letter carrier at gunpoint. The bundles of
mail, minus the Social Security checks, were recovered about eight
blocks away approximately thirty minutes after the theft. Nevels’
fingerprints were on a sweepstakes promotion and Dimitris Simpson’s
fingerprints were on several pieces of mail in the recovered
bundles.
Three months later, an unidentified individual broke into a
Postal Service vehicle and stole a bundle of mail, including social
security checks. While the Postal Inspection Service was
investigating an attempt by Simpson to cash a check from the bundle
stolen from the Postal vehicle, a store owner provided
documentation that Nevels had cashed a Social Security check from
the bundles stolen in January. Nevels cashed a check for $653
payable to Johnie M. Ward on January 3, 1997, using identification
with Ward’s name but Nevels’ picture. Nevels admitted that he had
received and cashed a social security check payable to Johnie M.
Ward. Nevels stated that the same couple who gave him the check
helped him obtain the false identifications, and paid him 35% of
the check proceeds. Nevels also admitted that he had been cashing
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checks for the couple since October 1996.
Nevels pleaded guilty to two counts of possession of stolen
mail. The Presentence Investigation Report (“Report”) calculated
a total offense level of seven, based on: (1) a base offense level
of four under 1997 U.S.S.G. § 2B1.1(a), which applies to the most
basic property offenses, see 1997 U.S.S.G. § 2B1.1(a) introductory
comment; (2) a one level increase under 1997 U.S.S.G. §
2B1.1(b)(1)(A) because the amount of the check exceeded $100; (3)
a two level increase under 1997 U.S.S.G. § 2B1.1(b)(2) because the
theft constituted relevant conduct and the theft was from a person;
(4) a two level increase under 1997 U.S.S.G. § 2B1.1(b)(4)(A)
because the crime required more than minimal planning; and (5) a
two level decrease under 1997 U.S.S.G. § 3E1.1(a) for acceptance of
responsibility. The Report also calculated Nevels’ criminal
history category as IV.1 The Report suggested use or possession of
a weapon during the commission of the offense as a possible ground
for upward departure under 1997 U.S.S.G. § 5K2.6. Nevels objected
to the two level increase based on theft from a person as relevant
conduct, and the upward departure based on use or possession of a
weapon.
At sentencing, the district judge overruled Nevels’ objections
and adopted the Report’s findings and recommendations. Further,
1
A total offense level of seven and a criminal history category
of IV translated to a Sentencing Guidelines imprisonment range of
8 to 14 months.
3
the judge upwardly departed to a base level of 142 under 1997
U.S.S.G. § 5K2.0 because of the egregious nature of Nevels’
conduct3 and his lack of truthfulness. He sentenced Nevels to 33
months imprisonment, three years supervised release, and $653 in
restitution. Nevels appeals the two level upward adjustment for
theft from a person, and the seven level upward departure based on
egregious behavior and lack of truthfulness.
II. Two Level Increase in Nevels’ Base Level Based on Relevant
Conduct
A. Standard of Review
The district court’s determination of what constitutes
relevant conduct for sentencing purposes is a factual finding. See
United States v. Peterson, 101 F.3d 375, 384 (5th Cir. 1996).
The trial judge’s factual findings must be supported by a
preponderance of the evidence. See United States v. Sotelo, 97
F.3d 782, 799 (5th Cir. 1996). We review factual findings for
sentencing purposes for clear error. See United States v. Narviz-
Guerra, 148 F.3d 530, 540 (5th Cir. 1998).
B. Analysis
2
A base level of 14 and a criminal history category of IV
translate to a range of 27 to 33 months.
3
The judge comments at length on the Social Security recipients’
reliance on their checks for the necessities of life, and the
stress and anxiety resulting when the checks are not promptly
received.
4
The district judge increased Nevels’ base level by two for the
specific offense characteristic “theft from the person of another”
under § 2B1.1(b)(2). The Guidelines permit a judge to “hold a
defendant accountable for all relevant conduct.” United States v.
Maseratti, 1 F.3d 330, 340 (5th Cir. 1993), cert. denied, 510 U.S.
1129 (1994). A defendant who is part of a “jointly undertaken
criminal activity”4 is accountable for “all reasonably foreseeable
acts . . . of others in furtherance of the . . . activity.” 1997
U.S.S.G. § 1B1.3(a)(1)(B); 1997 U.S.S.G. § 1B1.3(a)(1)(B) comment
2. However, conduct occurring before a defendant joined the
criminal venture is not “reasonably foreseeable.” 1997 U.S.S.G. §
1B1.3(a)(1)(B) comment 2; see also United States v. Carreon, 11
F.3d 1225, 1235-38 (5th Cir. 1994).
Nevels agrees that the mail was stolen from the person of
another. However, he disputes that this theft from a person is
relevant conduct for his sentencing. He maintains that the
government has no evidence that he robbed the letter carrier.
Further, the government has no evidence that he was part of any
joint criminal activity before he cashed the check, thus theft from
the person of the letter carrier was not reasonably foreseeable.
The district judge’s determination that Nevels’ involvement in
the joint criminal activity preceded his cashing the check is not
4
Criminal activity includes “a criminal . . . scheme . . .
undertaken by the defendant in concert with others, whether or not
charged as a conspiracy . . . .” 1997 U.S.S.G. § 1B1.3(a)(1)(B) &
comment 2.
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clearly erroneous. First, Nevels admitted that he had been cashing
checks for the couple since October 1996. Second, fingerprints of
both Nevels and Simpson were on mail in the bundles recovered just
30 minutes after and about eight blocks from the scene of the
January robbery. Third, Nevels admitted that he received the check
from a couple who also provided his fake identifications, and
presumably to whom he gave the money from the cashed check, minus
his 35% share.
Further, the district judge’s determination that theft from
the person of another was reasonably foreseeable and furthered the
joint criminal activity is not clearly erroneous. A judge
determining the scope of a jointly undertaken criminal activity may
consider “any . . . implicit agreement fairly inferred from the
conduct of the defendant and others.” 1997 U.S.S.G. §
1B1.3(a)(1)(B) comment 2. The district judge could reasonably
infer from the scheme to cash stolen checks that Nevels should have
reasonably foreseen that checks might be stolen from the person of
a letter carrier.
Although the district judge did not explicitly state that
Nevels jointly undertook criminal activity, and that theft from the
person of another was reasonably foreseeable and in furtherance of
this joint activity, these conclusions are reasonably clear in the
district court’s findings. See United States v. Lghodaro, 967 F.2d
1028, 1030 (5th Cir. 1992).
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III. Upward Departure
A. Standard of Review
We review the district judge’s departure from the Guidelines
for abuse of discretion. See Koon v. United States,518 U.S. 81,
98 (1996); United States v. Arce, 118 F.3d 335, 339 (5th Cir.
1997). There is no abuse of discretion if the judge provides
acceptable reasons for departure and the degree of departure is
reasonable. See United States v. Clements, 73 F.3d 1330, 1341 (5th
Cir. 1996).
B. Analysis
The district judge upwardly departed from the Guidelines under
§ 5K2.0 although the Report did not recommend such a departure. He
boosted Nevels’ offense level from seven to 14 for behaving
egregiously and for not being truthful concerning his total
involvement in the scheme. Nevels asserts that the district judge
abused his discretion by upwardly departing on these bases, and
that the judge did not give adequate notice of his intent to
upwardly depart.
1. Upward departure based on Nevels’ egregious conduct
and his untruthfulness about his total involvement
The Guidelines carve out a “‘heartland,’ a set of typical
cases embodying the conduct that each guideline describes.” 1997
U.S.S.G. ch. 1, pt. A, intro. comment 4(b). The district judge can
depart from the Guidelines based on factors “not adequately taken
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into consideration by the Sentencing Commission in formulating the
guidelines,” with the exception of several factors that the
Guidelines explicitly exclude from consideration. 1997 U.S.S.G. §
5K2.0. The judge can consider acts and factors that are not
necessarily criminal or illegal when deciding whether or how much
to depart. See Arce, 118 F.3d at 340-41 (citing specific
Guidelines provisions and comments to justify this finding).
The judge did not abuse his discretion in upwardly departing
based on Nevels’ egregious conduct. Section 2B1.1 covers the most
basic property offenses, and warrants an upward departure if the
monetary loss adjustment “does not fully capture the harmfulness of
the conduct.” 1997 U.S.S.G. § 2B1.1 commentary n.15. The judge
provided acceptable reasons for his departure, focusing on the fact
that Social Security checks are government securities; that
recipients rely on these checks for subsistence; that Nevels had
participated in this scheme for several months; that Nevels had
jointly participated with others; that Nevels had used fake
identifications. The degree of the departure is also reasonable,
since the ultimate sentencing range of 27-33 months is well within
the five year statutory maximum for possession of stolen mail.
We need not address whether the judge abused his discretion in
upwardly departing based on Nevels’ “untruthfulness.” Even if
Nevels’ “untruthfulness” were an invalid reason for departure, “the
district court would have imposed the same sentence absent reliance
8
on [this] invalid factor[].”5 Koon, 518 U.S. at 113.
Nevels claims that the Guidelines account for both bases for
the judge’s upward departure. The Guidelines include a vulnerable
victim adjustment, permitting the judge to increase two levels from
the base level if the defendant “knew or should have known that a
victim of the offense was unusually vulnerable due to age, . . .
[or] was otherwise particularly susceptible.” 1997 U.S.S.G. §
3A1.1. The Guidelines also include a downward adjustment for
acceptance of responsibility. See 1997 U.S.S.G. § 3E1.1. Nevels
pled guilty to both counts of possession of stolen mail, admitted
to the elements of the crime, and expressed remorse, entitling him
to a downward adjustment. Nevels asserts that because refusal to
admit relevant conduct beyond the convicted offense will not
justify a denial of an adjustment for acceptance of responsibility,
such refusal can not provide the basis for an upward departure.
We need not resolve whether the Guidelines account for
“untruthfulness.” Even if the Guidelines explicitly include
adjustments for certain factors, the district judge has the
discretion to determine that the particular conduct at issue is
outside the “heartland,” because the conduct is of “a kind or to a
degree not adequately accounted for in the Guidelines.” See United
States v. Arce, 118 F.3d 335, 340 (5th Cir. 1997). The judge
determined Nevels’ unadjusted base level under 1997 U.S.S.G. §
5
See supra n.3 (noting that the judge repeatedly stressed the
egregious nature of Nevels’ conduct).
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2B1.1(a). Section 2B1.1(a) applies to the most basic property
offenses and warrants an upward departure if the monetary loss
adjustment “does not fully capture the harmfulness of the conduct.”
1997 U.S.S.G. § 2B1.1 commentary n.15. Nevels’ extensive
involvement as discussed above is “of a kind or degree not
adequately accounted for” by § 2B1.1(a). Therefore, his egregious
conduct constitutes an acceptable reason for the judge’s departure.
Further, the degree of the departure is reasonable, since the 33
month sentence is well below the five year statutory maximum. We
need not address the issue of Nevels’ “untruthfulness,” since “the
district court would have imposed the same sentence absent reliance
on [any] invalid factor[].”6 Koon, 518 U.S. at 113.
2. The district judge’s failure to give notice of the upward
departure
The judge must give the parties reasonable notice and
specifically identify the grounds for an upward departure if he
departs for reasons not included in the Sentencing Report or other
presentencing submissions by the parties. See Burns v. United
States, 501 U.S. 129, 138-39 (1991). We review Nevels’ lack of
notice claim for plain error because he did not object to this
aspect of departure in the district court on notice grounds. See
United States v. Milton,147 F.3d 414, 416, 418 (5th Cir. 1998).
Even assuming plain error, we reverse only if the error “affects
6
See supra n.3 (noting that the judge extensively commented on
the egregiousness of Nevels’ conduct).
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the substantial right of the defendant” or “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
United States v. McDowell, 109 F.3d 214, 216 (5th Cir. 1997). The
defendant has the burden of proving prejudice from the error. See
United States v. Olano, 507 U.S. 725, 734 (1993). Nevels has not
carried his burden of proving prejudicial error. He simply asserts
that if he had known the judge would view theft of a Social
Security check as egregious conduct because the theft would cause
the vulnerable recipient unusual despair, he could have directed
the judge to the vulnerable victim adjustment, which carries only
a two level adjustment. For the reasons stated above, the judge
would have had the discretion to upwardly depart from the
Guidelines by seven levels even if the vulnerable victim adjustment
applied to the circumstances of this case.
AFFIRMED.
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