United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1759
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United States of America, *
*
Plaintiff – Appellee, * Appeal from the United States
* District Court for the
v. * Northern District of Iowa.
*
Jon Patrick King, *
*
Defendant – Appellant. *
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Submitted: November 19, 2010
Filed: December 13, 2010
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Before MURPHY, SMITH, and BENTON, Circuit Judges
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MURPHY, Circuit Judge.
Jon Patrick King was charged with conspiracy to distribute 500 grams or more
of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 846. King pled guilty pursuant to a plea agreement,
admitting that he and his coconspirators had distributed at least 750 grams of
methamphetamine and 455 pounds of marijuana. The district court1 sentenced him
to 200 months. King appeals, arguing that the court improperly granted the
1
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
government's motion for an upward departure based on under representation of his
criminal history. We affirm.
At sentencing the district court calculated an offense level of 34 and a criminal
history category of VI with a guideline range of 262–327 months. The court found
that King was a career offender under U.S.S.G. § 4B1.1 because of his prior
convictions for attempted burglary and kidnapping. Because King's offense was
punishable up to life imprisonment, his career offender status raised the offense level
to 37. See U.S.S.G. § 4B1.1(b). That total was then reduced by three levels for
acceptance of responsibility. See U.S.S.G. § 3E1.1.
The court then turned to motions made by the parties. The government moved
for an upward departure based on the under representation of King's criminal history,
under U.S.S.G. § 4A1.3, as well as a downward departure based on his substantial
assistance, under U.S.S.G. § 5K1.1. King moved for a downward variance based on
his alcohol and drug addictions.
The government's motion for an upward departure was granted. The court
found it was "appropriate here because the [category VI criminal history did] not
adequately reflect the defendant's propensity towards violence." In order to avoid any
"double counting" of convictions, the court did not base its departure on the attempted
burglary and kidnapping which had triggered King's classification as a career
offender. Instead it relied on King's convictions for serious assault, assault causing
bodily injury, and domestic assault causing bodily injury. In those offenses King had
tried to run over a victim with a truck, broken a victim's jaw, and assaulted his
girlfriend while his son was present. The district court concluded that these offenses
showed a "longstanding pattern of violence" warranting an upward departure.
In deciding on an appropriate amount to depart upward, the court considered
United States v. Jones, 596 F.3d 881, 883-84 (8th Cir. 2010). Jones had affirmed an
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upward departure of two offense levels because the defendant's guideline range had
not adequately reflected his criminal history despite his designation as an armed career
criminal. Id. Noting that King's criminal history was comparatively less egregious
than that of the defendant in Jones, the district court decided to depart upward by one
offense level. The resulting offense level of 35 and category VI criminal history
produced a guideline range of 292–365 months.
After settling on 365 months, the high end of the guideline range, the district
court addressed King's motion for a downward variance. Based on King's alcohol and
drug problems the court varied down to 320 months. Finally the court granted the
government's motion for a downward departure based on substantial assistance King
had provided. The court then sentenced King to 200 months.
On appeal King challenges only the district court's decision to depart upward
to 35 from an offense level of 34, under U.S.S.G. § 4A1.3. We review that decision
for an abuse of discretion. Jones, 596 F.3d at 883. Section 4A1.3(a)(1) provides that
a court may depart upward "[i]f reliable information indicates that the defendant's
criminal history category substantially under-represents the seriousness of the
defendant's criminal history or the likelihood that the defendant will commit other
crimes." If a defendant has already met the qualifications for a category VI criminal
history, "the court should structure the departure by moving incrementally down the
sentencing table to the next higher offense level . . . until it finds a guideline range
appropriate to the case." U.S.S.G. § 4A1.3(a)(4)(B). When deciding whether to
depart based on the inadequacy of a category VI criminal history, "the court should
consider that the nature of the prior offenses rather than simply their number is often
more indicative of the seriousness of the defendant's criminal record." U.S.S.G. §
4A1.3, comment. (n.2(B)).
King argues that the district court's departure in this case is not warranted by
the text of U.S.S.G. § 4A1.3(a)(2), which lists a number of circumstances where an
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upward departure may be appropriate. Our review of the record reveals that King's
case fits squarely within U.S.S.G. § 4A1.3(a)(2)(A), however. That section provides
that an upward departure may be based on information concerning "[p]rior sentence(s)
not used in computing the criminal history category (e.g., sentences for foreign and
tribal offenses)." King's category VI criminal history resulted from his status as a
career offender, and that status was based on two of his prior convictions—one for
attempted burglary and one for kidnapping. The district court decided that it would
not base any upward departure on those two offenses. Its departure instead rested on
King's convictions for serious assault, assault causing bodily injury, and domestic
assault causing bodily injury. None of these offenses had been used for computing
his career offender status.
King further asserts that the district court's upward departure was unwarranted
because his career offender status "already punished him." The government responds
that the added upward departure was appropriate because "only two of [King's]
convictions served as the basis [for his] classification as a career offender." The
government's brief argues that King's longstanding pattern of violence, as evidenced
by the three assault convictions not otherwise accounted for in King's sentence, called
for the upward departure.
A career offender is not immune from an upward departure under U.S.S.G. §
4A1.3. We rejected a similar argument in Jones, where the defendant argued that his
status as an armed career criminal made the district court's further upward departure
"unnecessary." 596 F.3d at 883-84. An upward departure is appropriate where a
category VI criminal history does not adequately reflect the defendant's criminal past.
See U.S.S.G. § 4A1.3, comment. (n.2(B)). This principle is no less applicable where
the defendant is a career offender. As we noted in United States v. Greger, 339 F.3d
666, 672 (8th Cir. 2003), "[a]ll careers are not same. The length and scope of the
career that lands the criminal under the career-offender guideline are appropriate
grounds for departure, either upward or downward, in an unusual case." Relying on
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convictions unrelated to King's designation as a career offender but which
demonstrated his longstanding propensity towards violence, the court did not abuse
its discretion by deciding that this was such an unusual case.
King finally argues that the district court abused its discretion by departing
upward because his criminal history is distinguishable from that of the Jones
defendant. The district court acknowledged that Jones "was a stronger case for an
upward departure" than King's. We agree that the circumstances in Jones warranted
a larger departure, for that defendant had an even longer and more violent criminal
history. The district court expressly addressed those differences, stating: "I think I'd
be well within my discretion to depart upward much higher than I'm departing now.
But to try and have some consistency with [Jones], I'm simply going to depart up one
level." As the district court noted, "Jones sets neither the ceiling nor the floor" for
upward departures.
For the foregoing reasons we conclude that the district court did not commit
procedural error nor abuse its discretion in sentencing King. Accordingly, we affirm
the judgment of the district court.
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