IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-10341
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISPUS DARIUS TAYLOR, JR,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(7:97-CR-11-1-X)
_________________________________________________________________
February 22, 1999
Before KING, Chief Judge, REAVLEY and BENAVIDES, Circuit Judges.
PER CURIAM:*
Chrispus Taylor pleaded guilty to sexually abusing a
minor in violation of 18 U.S.C. § 2243. The district judge
initially calculated the appropriate sentence under the United
States Sentencing Guidelines to be between twelve and eighteen
months’ imprisonment, and then, based on evidence of prior
similar sexual predatory behavior by Taylor, granted the
government’s motion for an upward departure and sentenced Taylor
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
to a 120-month term. Taylor appeals his sentence, arguing that
the district court abused its discretion in departing under the
guidelines and that the degree to which the district court
departed was unreasonable. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Chrispus Taylor, a twenty-three-year-old male, was indicted
on June 24, 1997, for engaging in a sexual act with a thirteen-
year-old (N.N.) within the boundaries of Sheppard Air Force Base
in violation of 18 U.S.C. § 2243(a). Taylor pleaded guilty to
the indictment.
At the guilty-plea hearing, Taylor agreed that the facts set
forth in the indictment and in the factual resume were true and
correct. The factual resume stated that Taylor was a friend of
N.N.’s family, that he had spent the night at their house, and
that, while other family members were sleeping, he had entered
N.N.’s bedroom, woke her, and had sex with N.N. According to the
factual resume, N.N. was responsive to Taylor’s sexual advances
and “never told [Taylor] to stop.” The resume also stated that,
as a result of the sexual intercourse, N.N. became pregnant. At
the sentencing hearing, N.N. testified that she had not consented
to having sex with Taylor, but had been too scared to scream or
tell him to stop.
The pre-sentencing report (PSR) prepared by the probation
office in preparation for Taylor’s sentencing assessed a base
offense level of twenty-seven on the basis that the offense
involved criminal sexual abuse, i.e., that the sex resulted from
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the threat of force. See U.S. SENTENCING GUIDELINES MANUAL
§ 2A3.2(c)(1). After hearing testimony from N.N., Taylor, and
N.N.’s mother, the district court found that the record did not
support application of § 2A3.2(c)(1) and instead assessed a base
offense level of fifteen pursuant to § 2A3.2(a). The court then
granted a two-level reduction for acceptance of responsibility,
resulting in a total offense level of thirteen. Based on
Taylor’s criminal history category of I, the district court noted
that the appropriate sentencing range under the guidelines was
between twelve and eighteen months’ imprisonment.
The district judge then considered whether to grant the
government’s motion for an upward departure. The government
argued that the court should depart upward under § 4A1.3 because
the applicable sentence under the guidelines did not adequately
reflect the seriousness of Taylor’s past criminal conduct or the
likelihood that he would commit other crimes, and that the court
should impose the statutory maximum sentence of fifteen years.
Both the PSR and the testimony at the sentencing hearing
revealed numerous instances of allegations of past sexual
assaults by Taylor. According to the PSR, Taylor’s criminal
history began in 1990, when he was fourteen years old. Taylor,
whose father was in the Air Force, was babysitting the four-year-
old daughter of a noncommissioned officer at the Charleston,
South Carolina Air Force Base. The child reported that Taylor
placed his penis in her mouth, vagina, and rectal area. Taylor
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admitted the offense to a psychiatrist, was placed on probation,
and was assessed one criminal history point.
The PSR also detailed an allegation that Taylor committed
another sexual assault in Charleston three years later.
According to the PSR, which cites Air Force Base Security
Squadron reports, the victim in that case revealed that she heard
noises outside the back of her house, and that she went outside
with a kitchen knife to see what had caused the noise. She then
saw Taylor, with whom she had been friends for about a year,
standing in her backyard. Upon seeing Taylor, the PSR states
that she put her knife down and they sat on a picnic table and
began talking. After talking for a while, Taylor allegedly
picked up the knife and “told her he was going to kill her if she
did not do what he said.” The PSR recounts that Taylor then
grabbed the woman, dragged her into her house, and continued to
threaten her with the knife. The woman stated that Taylor then
started pulling off her shorts and underwear, and that, as she
continued to struggle and yell for help, he laid on top of her.
After several attempts to restrain the victim and put on a
condom, Taylor allegedly fled the residence. Taylor was charged
with assault with intent to commit sexual conduct, but the victim
later refused to press charges.
The prosecution, during the sentencing hearing, elicited
testimony concerning another instance of sexual predation by
Taylor detailed in the PSR. During the hearing, a sixteen-year-
old girl testified concerning a pending charge of rape and
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aggravated burglary against Taylor. The alleged attack occurred
in 1997 in Garden City, Kansas, where Taylor attended junior
college. The girl testified that, when she was fifteen years
old, she had gone to a party at an ex-boyfriend’s house, at which
she had talked to Taylor and drank heavily. She stated that she
was visibly drunk when she left the party, that she drove home,
and that, upon arriving home, she passed out in her bed. She
then told the court that the next event she remembered was a
light coming on in her room and Taylor pulling his penis out of
her vagina and leaving the room. She testified that she had not
consented to sex with Taylor, and that she could not have
consented because she “was passed out” and did not “even remember
[the sex] happening until he was getting off me.”
The district judge granted the government’s motion to depart
upward based on the evidence of Taylor’s criminal history. The
district judge stated in the written judgment that:
USSG Section 4A1.3 (Adequacy of Criminal History
Category) states that 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, the court may consider
imposing a sentence departing from the otherwise
applicable guideline range. The defendant’s prior
conviction is similar conduct to the instant offense.
However, in that case, the victim was 4 years old and
the defendant was 13 years old. Yet, due to his
juvenile status, he received a one year probation
sentence. This resulted in a Criminal History Category
of I. Pursuant to the commentary of USSG Section
4A1.3(e), the Court may consider prior similar adult
criminal conduct not resulting in a criminal conviction
as a reason for departure. In view of the
aforementioned, this policy statement authorizes the
consideration of a departure from the established
guideline range. Thus, the Court [departs] upward to a
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Total Offense Level of 24, and a Criminal History
Category of VI.
The court then granted the government’s motion for an upward
departure and sentenced Taylor to a term of 120 months of
imprisonment and three years of supervised release.
II. DISCUSSION
Taylor argues on appeal that the district court erred in
departing upward from the guidelines in determining his sentence.
A district court’s decision to depart from the guidelines is
reviewed for abuse of discretion. See Koon v. United States, 518
U.S. 81, 91 (1996); United States v. Wells, 101 F.3d 370, 372
(5th Cir. 1996). A departure will be affirmed on appeal if (1)
the district court gives acceptable reasons for departing and (2)
the extent of the departure is reasonable. See United States v.
Route, 104 F.3d 59, 64 (5th Cir.), cert. denied, 117 S. Ct. 2491
(1997).
A district court may depart upward from the guidelines if
the court finds that an aggravating circumstance exists that was
not adequately taken into consideration by the Sentencing
Commission. See 18 U.S.C. § 3553(b). The district court based
its upward departure on the extensive evidence presented in the
PSR and at the sentencing hearing of Taylor’s prior criminal
conduct, finding that “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.
SENTENCING GUIDELINES MANUAL § 4A1.3. A district court’s finding that
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“a defendant’s criminal history category does not adequately
reflect the seriousness of a defendant’s past criminal conduct is
a factor not taken into account by the Guidelines and is a
permissible justification for upward departure.” United States
v. Laury, 985 F.2d 1293, 1310 (5th Cir. 1993) (internal quotation
marks omitted); see also Koon, 518 U.S. at 96 (stating that when
sentencing guidelines encourage departure based on special
factor, “the court is authorized to depart if the applicable
Guideline does not already take [the special factor] into
account”).
We review the district court’s factual determination that
Taylor’s criminal history category did not adequately reflect the
seriousness of his past criminal conduct for clear error.
See Laury, 985 F.2d at 1310. The district judge explicitly
considered several prior instances in which Taylor had been
accused of, was prosecuted for, or was found guilty of, sexual
crimes against vulnerable young women and girls. Based on
Taylor’s extensive criminal past, and the fact that his criminal
history category as computed under the guidelines was I, we have
no trouble concluding that the district judge had adequate
justification for finding that Taylor’s criminal history
category, as recommended by the guidelines, did not reflect his
criminal past.
Taylor also argues that the district court failed to follow
the procedural requirements for an upward departure as set forth
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in United States v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en
banc).
When departing on the basis of § 4A1.3, “the district court
should consider each intermediate criminal history category
before arriving at the sentence it settles upon; indeed, the
court should state for the record that it has considered each
intermediate adjustment.” Id. at 662. However, we do not
require the district court to explicitly and mechanically
consider each intermediate criminal history category it rejects;
as we stated in Lambert, “[o]rdinarily the district court’s
reasons for rejecting intermediate categories will clearly be
implicit, if not explicit, in the court’s explanation for its
departure . . . and its explanation for the category it has
chosen as appropriate.” Id. at 663.
After reviewing the record, in particular the transcript of
the sentencing hearing and the written judgment, it is clear that
the district court complied with the procedural requirements this
court outlined in Lambert. The judge stated explicitly during
the hearing that he departed upward to a 120-month sentence
“after having considered incrementally all points in between.”
In addition, the district judge explained at length his decision
to depart as based on his concern that Taylor’s criminal history
category did not accurately reflect his extensive criminal past.
The justification offered by the district court thus clearly
indicates why the sentencing range recommended by the guidelines
was inappropriate and why the court found the sentence actually
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imposed to be appropriate. See United States v. Ashburn, 38 F.3d
803, 809 (5th Cir. 1994) (en banc) (stating that district court’s
failure to expressly examine each intervening criminal history
category was not dispositive because “it [was] evident from the
stated grounds for departure why the bypassed criminal history
categories were inadequate”).
Lastly, Taylor argues that the extent to which the district
court departed from the guidelines was unreasonable. He points
out that the district court increased his sentence by 102 months;
the guidelines recommended a sentence of between twelve and
eighteen months’ imprisonment and the district court imposed a
120-month term. We conclude that this departure was not
unreasonable in light of the extensive evidence concerning
Taylor’s continuing pattern of sexually predatory conduct that
was not considered in the criminal history calculation. See
United States v. Daughenbaugh, 49 F.3d 171, 175 (5th Cir. 1995)
(stating that district court’s upward departure of 169 months was
not extensive given defendant’s “unusually violent
propensities”); Ashburn, 38 F.3d at 810 (stating that upward
departure of 108 months was reasonable based on evidence of
numerous instances of past criminal conduct not considered in
criminal history calculation). We also note that the sentence
imposed by the district court was five years less than the
statutory maximum for Taylor’s offense. See 18 U.S.C. § 2243(a)
(setting forth statutory maximum of fifteen years’ imprisonment);
Daughenbaugh, 49 F.3d at 175.
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III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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