United States v. Bridges, Furman

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 3, 1998 Decided May 18, 1999

No. 97-3144

United States of America,

Appellee

v.

Furman Bridges,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 97cr00184-01)

Carmen D. Hernandez, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A.J. Kramer, Federal Public Defender. Tony W. Miles,
Assistant Federal Public Defender, entered an appearance.

Thomas P. Swanton, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.

Lewis, U.S. Attorney, John R. Fisher, Mary-Patrice Brown
and S. Elisa Poteat, Assistant U.S. Attorneys.

Before: Sentelle, Henderson and Garland, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Defendant Furman Bridges pled
guilty to one count of mail fraud in violation of 18 U.S.C.
s 1341. The district court departed upward from the sen-
tence Bridges would otherwise have received under the Unit-
ed States Sentencing Guidelines ("U.S.S.G.") by increasing
his criminal history category from II to V. Bridges appeals
his sentence on two grounds. First, he contends that in
explaining why it chose Category V, the court erred by not
first pausing and explaining why Categories III and IV were
inadequate. Second, he contends that the departure was
unlawful because it was based on a consideration of prior
convictions that were not similar to mail fraud. In particular,
defendant argues that in determining the similarity of of-
fenses, a sentencing court is limited to comparing their facial
elements and may not consider the conduct underlying any of
the offenses--even the offense for which the defendant is
currently being sentenced. For the reasons set forth below,
we reject defendant's contentions and affirm the judgment of
the district court.

I

Bridges was charged in a five-count information with using
the mail to execute a scheme to defraud "numerous busi-
nesses and credit card companies" between 1994 and 1996.
Appendix ("App.") at 4. Pursuant to a plea agreement,
Bridges pled guilty to one of the mail fraud counts charged in
the information. The mail element of the crime was satisfied
when Bridges mailed a check to "Frederick's of Hollywood"
for the purchase of certain unspecified merchandise. The
fraud element was satisfied because the check belonged to
Louis A. Robinson, Sr., rather than to Bridges, and because
Bridges forged Mr. Robinson's signature on the check. Un-
fortunately for Robinson, he had the same street address as

Bridges--except that Robinson's address was in the North-
east quadrant of Washington, D.C., while Bridges' was in the
Southeast. The Postal Service apparently misdelivered a box
of Robinson's checks to Bridges--who forged Robinson's
signature and sent a check off to California.

Although Bridges pled guilty to mailing a single forged
check, he accepted responsibility for a broader scheme, which
was exposed during the investigation and which constituted
part of the "relevant conduct" of his offense for purposes of
the Sentencing Guidelines. See U.S.S.G. s 1B1.3 (relevant
conduct). In addition to the check he forged and sent to
Frederick's of Hollywood, Bridges forged numerous other
checks belonging not only to Mr. Robinson, but also to his
wife, whose checks had been misdelivered to Bridges' address
as well. Nor were the Robinsons the only victims of the
overall scheme. Bridges obtained (by an unspecified method)
checks that had been stolen from several other individuals,
and used them to purchase merchandise through the mail.
He also obtained a credit card stolen from a tourist, and
submitted a fraudulent application for another credit card in
the name of yet another innocent victim. Bridges used the
checks and credit cards to purchase a total of $26,597.42
worth of merchandise for himself and his girlfriend. Presen-
tence Investigation Report ("PSR") pp 4-14.

Under the Sentencing Guidelines, an offender's sentencing
range is generally determined by the intersection of his
offense level, which depends upon the characteristics of the
offense for which he was convicted, and his criminal history
category, which depends upon his prior criminal conduct.
Bridges' PSR, prepared for the district court by the U.S.
Probation Office, calculated his offense level as 10 (on a scale
of 1-43) and his criminal history category as II (on a scale of
I-VI). Id. pp 28, 35. The latter was based on Bridges' 1987
sentence for unauthorized use of an access device (a credit
card). In addition to that conviction, Bridges had five more
sentences on his record for offenses spanning the period
1966-75, including unauthorized use of a motor vehicle, for-
gery, petty larceny, unlawful possession of stolen property,

and false pretenses. Those sentences were not counted in
the calculation of Bridges' criminal history category because
the Sentencing Guidelines limit the calculation to sentences
imposed within ten or fifteen years of the instant offense.
U.S.S.G. s 4A1.2(e).

Based on an offense level of 10 and a criminal history
category of II, the PSR calculated a guideline sentencing
range of 8 to 14 months imprisonment. PSR p 57. Under
U.S.S.G. s 4A1.3, p.s., however, a court may impose a sen-
tence departing from the otherwise applicable guideline range
if the defendant's "criminal history category does not ade-
quately reflect the seriousness of the defendant's past crimi-
nal conduct or the likelihood that the defendant will commit
other crimes." In this case, the PSR concluded that due to
the large number of uncounted prior convictions, "an upward
departure may be warranted" for just that reason. PSR p 70.
The Report noted that had Bridges' older convictions been
counted, his criminal history category would have been V
rather than II, and the resulting sentencing range would have
been 21 to 27 months. Id.

At the sentencing hearing, the district court accepted the
PSR's findings and recommendations, concluding that Crimi-
nal History Category II "significantly under represents the
seriousness of [the defendant's] criminal history or the likeli-
hood that he will commit further crimes." Sentencing Tr. at
16. Quoting from the PSR, the court reviewed some of the
defendant's five prior convictions in support of that conclu-
sion. Id. at 16-19. The court then departed upward by
placing the defendant in Category V and sentencing him to 24
months imprisonment, the mid-point of the enhanced range.
Id. at 19. The court's written Judgment stated that it
adopted the factual findings of the PSR, listed all of defen-
dant's prior convictions, and indicated that those convictions
justified a departure to Category V under U.S.S.G. s 4A1.3.
App. at 18-24.

II

We review a district court's decision to depart from the
Guidelines under the unitary abuse of discretion standard set

forth in Koon v. United States, 518 U.S. 81 (1996). Under
that standard, "substantial deference" is required "in most
cases." Id. at 98. We must uphold a district court's findings
of fact unless clearly erroneous, and must give due deference
to its application of the Guidelines to the facts. See Koon,
518 U.S. at 97 (citing 18 U.S.C. s 3742(e)); United States v.
Dozier, 162 F.3d 120, 123 (D.C. Cir. 1998). "A district court
by definition abuses its discretion when it makes an error of
law," however, and the "court of appeals need not defer to the
district court's resolution" of such legal issues. Koon, 518
U.S. at 100. Hence, our review of questions of law is de novo.
See United States v. Becraft, 117 F.3d 1450, 1451 (D.C. Cir.
1997).

Bridges does not dispute the appropriateness of some
upward departure in his case, but contends that the sentenc-
ing court erred by departing from Category II to Category V
without expressly explaining why each intervening category
was inadequate--a process defendant styles as a "step-by-
step methodology." Def. Br. at 13. Although the extent of a
departure is reviewable only for its reasonableness, see
Williams v. United States, 503 U.S. 193, 202-03 (1992); 18
U.S.C. s 3742(e)(3), Bridges contends that the step-by-step
requirement is compelled by the text of U.S.S.G. s 4A1.3.
Because Bridges' contention is that the step-by-step method-
ology is required as a matter of law, we review the issue de
novo.

A

Guidelines s 4A1.3, which governs departures based on the
inadequacy of a defendant's criminal history category, states
in pertinent part:

In considering a departure under this provision, the
Commission intends that the court use, as a reference,
the guideline range for a defendant with a higher or
lower criminal history category, as applicable. For ex-
ample, if the court concludes that the defendant's crimi-
nal history category of III significantly under-represents
the seriousness of the defendant's criminal history, and
that the seriousness of the defendant's criminal history
most closely resembles that of most defendants with

Criminal History Category IV, the court should look to
the guideline range specified for a defendant with Crimi-
nal History Category IV to guide its departure.

U.S.S.G. s 4A1.3, p.s. We do not read this text to mandate a
process of step-by-step consideration or explanation. The
first sentence requires the court to use as a reference the
guideline range for a defendant with a higher (or lower)
criminal history category; it does not say the court must use
the range of a defendant with the next higher category. It is
true that the example the Guideline provides is one in which a
court, finding Category III to be inadequate, is directed to
look to Category IV for guidance. But the text directs the
court to Category IV not because it is the next higher
category, but because, in the example, the seriousness of the
defendant's criminal history "most closely resembles" that of
most defendants in Category IV. The Guideline's require-
ment, then, is to look to the category that "most closely
resembles" the seriousness of defendant's criminal history,
rather than to perform any particular mental gymnastics in
the process of concluding which category that might be.

Our conclusion that the text of s 4A1.3 does not require a
step-by-step procedure for departing from one criminal histo-
ry category to another is strengthened by the fact that the
same Guideline does expressly require such a procedure when
departing above the highest criminal history category. When
a court determines that not even Category VI adequately
reflects the defendant's past criminal conduct, there is no
higher criminal history category to which it can refer: Cate-
gory VI already yields the highest sentencing range for a
given offense level. In such circumstances, s 4A1.3 directs
the court to look instead to the "next" higher offense level,
until it finds one that yields a guideline range appropriate to
the case. Moreover, it expressly directs the court to under-
take that task "incrementally":

Where the court determines that the extent and nature
of the defendant's criminal history, taken together, are
sufficient to warrant an upward departure from Criminal
History Category VI, the court should structure 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.

Id. (emphasis added). This plainly indicates that the Com-
mission knew how to require step-by-step consideration when
it wanted to.1 The absence of any such direction to "struc-
ture ... incrementally" a departure within the existing crimi-
nal history categories confirms our view that such an ap-
proach is not required.

Of course, the statutes and Guidelines do impose some
limits on the decision-making process undertaken by the
sentencing court. As noted above, s 4A1.3 directs the court
to use "as a reference" the criminal history category that
"most closely resembles" the seriousness of the defendant's
criminal history. The statute further mandates that the court
state "the reasons for its imposition of the particular sen-
tence," as well as "the specific reason for the imposition of a
sentence different from that" prescribed by the Guidelines.
18 U.S.C. s 3553(c), (c)(2).2 But if the sentencing court has
done these things, we cannot find an abuse of discretion
simply because we would have preferred that it employ a
different procedural approach. See generally Williams, 503
U.S. at 205 ("[E]xcept to the extent specifically directed by
statute, it is not the role of an appellate court to substitute its
judgment for that of the sentencing court as to the appropri-
ateness of a particular sentence.") (internal quotation omit-
ted); cf. Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, Inc., 435 U.S. 519 (1978) (holding
that court may not impose procedural requirements on agen-

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1 We need not decide today whether the step-by-step methodol-
ogy for departures above Category VI requires a court to discuss
each higher offense level seriatim, or whether it is satisfied if the
reasons for rejecting intervening levels are implicit in the level
ultimately chosen. See infra pp. 10-11 & note 6.

2 The statute also requires that the extent of the departure be
reasonable. 18 U.S.C. s 3742(e)(3).

cy decision-making that go beyond those of the Administra-
tive Procedure Act).

The sentencing court satisfied the necessary requirements
in Bridges' case. The court's explanation makes clear that it
used Category V as a reference because it was the category
that most closely resembled the seriousness of Bridges' crimi-
nal history; it was the category Bridges would have been
assigned had his older prior convictions been counted in the
PSR's calculation. (As discussed in Part III below, it was
appropriate for the court to count those convictions in consid-
ering a departure.) Under those circumstances, a separate
explanation of the court's decision not to choose Categories
III and IV would have been superfluous. We see no reason,
and have no warrant, to overturn the district court simply
because it did not go through the exercise of explaining the
rejection of choices implicit in the choice it did make.

B

Bridges points to two cases from this Circuit that he
contends support his step-by-step requirement. In the first,
United States v. Allen, 898 F.2d 203 (D.C. Cir. 1990), the
district court had imposed a sentence above the range dic-
tated by Criminal History Category VI without explaining
why Category VI itself was inadequate. Id. at 205. Al-
though we vacated the sentence, we did not impose a step-
by-step requirement for departures within the criminal his-
tory categories. Rather, we held that "the sentencing judge
must consider upward adjustment to a higher criminal histo-
ry category before imposing a sentence that moves beyond
the Guidelines categories" altogether. Id. at 203 (emphasis
added). As noted above, departures beyond the criminal
history categories present different issues than departures
within the categories, and Allen is thus inapplicable to
Bridges' within-the-categories departure.3

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3 Guideline s 4A1.3's specific language, requiring a court to
"mov[e] incrementally down the sentencing table to the next higher
offense level" when departing above the criminal history categories,
was not added until after Allen was decided. See U.S.S.G. App. C,

The second case cited by defendant, United States v.
Taylor, 937 F.2d 676 (D.C. Cir. 1991), did involve a within-
the-categories departure, from Category III to Category V.
And in remanding the sentence, we did state that "the district
court should have first explained why a departure of one level
would be inadequate." Id. at 683. We did not intend by that
statement, however, to impose a step-by-step methodology for
all criminal history departures. The problem in Taylor was
that the district court had left its rationale for the extent of
the departure wholly unexplained. Id. Our underlying con-
cern was "that the district court's two-level departure may
have been inadvertent," and that it may have intended to
depart only one level. Id. Under those circumstances, an
explanation of why a one-level departure was inadequate was
the minimum necessary to assuage our concern that the court
had simply made a mistake in its calculations. Accordingly,
we limited our holding as follows: "The only point on which
we hold the district court erred is its unexplained, two-level
departure in [the defendant's] criminal history category." Id.
at 684 (emphasis added).

Bridges also seeks support in the decisions of other cir-
cuits. He first directs our attention to the Tenth Circuit's en
banc opinion in United States v. Jackson, 921 F.2d 985 (10th
Cir. 1990). Jackson, however, is directly contrary to Bridges'
position. The court did hold, as we have above, that in
departing on the basis of criminal history a court should use a
higher category "as a reference." But it stressed that "[t]he
reference should not be mechanical. A district court need not
exhaust in sequence each higher criminal history category.
Rather, the court may use any reasonable methodology
hitched to the Sentencing Guidelines...." 921 F.2d at 991

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amend. 460 (effective Nov. 1, 1992). Allen relied instead on the
language requiring the sentencing court to "use, as a reference, the
guideline range for a defendant with a higher ... criminal history
category." See 898 F.2d at 204 (quoting U.S.S.G. s 4A1.3, p.s.). In
that case, the sentencing court had departed above the criminal
history categories without referring to a higher category or explain-
ing why departing to a higher category would have been inade-
quate.

(internal quotation and citations omitted).4 To similar effect
is a First Circuit opinion cited by defendant, see United
States v. Ocasio, 914 F.2d 330, 336 (1st Cir. 1990) (holding
that sentencing judge must "offer a rationale for the degree
of departure," but "reject[ing] any bright-line rule that re-
quires a sentencing judge ... to subrogate his or her residual
discretion to some explicit or external criteria"),5 as well as
the Seventh Circuit's opinion in United States v. Tai, 41 F.3d
1170, 1178 n.7 (7th Cir. 1994) ("[Circuit precedent] does not
require that a district court consider and reject each interme-
diate criminal history category. The most that [precedent]
requires is an examination of 'the higher categories [to]
determine if the defendant closely resembles other defen-
dants who belong in some other category.' ") (citation omit-
ted).

A number of circuits do require a sentencing court to
consider higher criminal history categories sequentially, but
do not regard a failure to discuss intervening categories as
error so long as the basis for the court's final choice is clear
from the record.6 In practice, this approach will seldom if

__________
4 Bridges also cites the Tenth Circuit's opinion in United States
v. Okane, 52 F.3d 828 (10th Cir. 1995), but there, too, the court held
no more than what we have held above: that a sentencing court
must explain the "reasoning it utilized in selecting a particular
criminal history category in upwardly departing." Id. at 837. In
Okane, the sentencing court had departed from Category I to
Category III without "address[ing] the critical question of why ...
category III was a more appropriate category." Id. The Tenth
Circuit did not suggest that the sentencing court's error was its
failure to discuss Category II.

5 See also United States v. Aymelek, 926 F.2d 64, 70 (1st Cir.
1991) ("Nor should a sentencing court feel constrained to examine
the parameters of every [criminal history category] when departing
under section 4A1.3. Under those circumstances where a departure
is warranted, the emphasis should be on ascertaining a fair and
reasonable sentence, not on subscribing slavishly to a particular
formula.") (citation omitted).

6 See United States v. Boe, 117 F.3d 830, 833 (5th Cir. 1997)
(although "the district court should consider each intermediate

ever yield results different from our own. See United States
v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc)
("Ordinarily the district court's reasons for rejecting interme-
diate categories will clearly be implicit, if not explicit, in the
court's explanation for its departure from the category calcu-
lated under the guidelines and its explanation for the catego-
ry it has chosen as appropriate."). That is particularly so
where, as here, the sentencing court simply selects the crimi-
nal history category that results from counting remote convic-
tions as if they had occurred within the applicable time
period. See United States v. Maurice, 69 F.3d 1553, 1559
(11th Cir. 1995) ("[W]here a sentencing court selects a higher
criminal history category under s 4A1.3 by adding point
totals for remote convictions, we have held that an explana-
tion of this calculation serves as an adequate explanation for
the inappropriateness of the intervening criminal history cate-
gories.") (citation omitted); United States v. Starr, 971 F.2d
357, 363 & n.7 (9th Cir. 1992) (holding that where court
considered remote prior convictions that if counted would
have put defendant in Category IV rather than II, the
rejection of Category III was "implicit[ ]" and "an explicit
statement of the reasons" was not required).

__________
criminal history category before arriving at the sentence it settles
upon[,]... the district court need not mechanically discuss each
intermediate criminal history category" where the "reasons for
rejecting the intermediate categories will clearly be implicit") (inter-
nal quotation omitted); United States v. Collins, 104 F.3d 143, 145
(8th Cir. 1997) ("Although the district court did not specifically
mention that it had considered each intermediate criminal history
category, its findings were adequate to explain and support the
departure in this particular case."); United States v. Maurice, 69
F.3d 1553, 1559 (11th Cir. 1995) (quoted in text below); United
States v. Harris, 44 F.3d 1206, 1212 (3d Cir. 1995) (holding that
Circuit "does not require the district court to go through a ritualis-
tic exercise in which it mechanically discusses each criminal history
category it rejects en route to the category that it selects," as long
as the "reasons for rejecting each lesser category [are] clear from
the record as a whole") (internal quotation and citation omitted);
United States v. Starr, 971 F.2d 357, 363 & n.7 (9th Cir. 1992)
(quoted in text below).

The strongest case the defendant cites in support of his
position is the Second Circuit's decision in United States v.
Tropiano, 50 F.3d 157, 162 (2d Cir. 1995), which, following
Circuit precedent, enforced a step-by-step requirement. In
doing so, however, the court noted that other Second Circuit
panels had "criticized this procedure as rigid and mechanis-
tic." Id. at 162 (citing United States v. Thomas, 6 F.3d 960,
964-65 (2d Cir. 1993); United States v. Rodriguez, 968 F.2d
130, 140 (2d Cir. 1992)). Tropiano nonetheless adhered to
the requirement because it was "too late in the day in this
Circuit for a panel" to hold otherwise. Id. at 163.7

Fortunately, it is still early in the day in the District of
Columbia Circuit. In fact, it may not be too late even in the
Second Circuit. In a decision announced nine days after oral
argument in Bridges' case, the Second Circuit upheld a
district court's departure from Category II to Category IV
without pausing at Category III. In United States v. Frank-
lyn, 157 F.3d 90 (2d Cir. 1998), the court noted the defen-
dant's complaint that the district court had violated "our
advice to 'pause at each category to consider whether that
category adequately reflects the seriousness of the defen-

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7 The Fourth Circuit announced a step-by-step requirement in
United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992)); see id.
at 890 (Luttig, J., dissenting). Although the Circuit has character-
ized the requirement as "the proper approach," it has also charac-
terized it as "dicta." United States v. Walker, 112 F.3d 163, 166 n.8
(4th Cir. 1997). In Walker, the Fourth Circuit held that a sentenc-
ing court "adequately considered" an intervening category, based on
the fact that it heard the government's argument against applying
it, notwithstanding that the court did not state its own reasons for
rejecting the category. Id. at 166. The Sixth Circuit has also
adopted a step-by-step requirement, although it has applied the
methodology inconsistently. Compare United States v. Medved,
905 F.2d 935, 941-42 (6th Cir. 1990) (affirming departure from
Category III to VI, on the rationale that uncounted criminal activity
would have made defendant a career offender subject to Category
VI, although district court did not expressly reject intervening
categories), with United States v. Schultz, 14 F.3d 1093, 1099-1101
(6th Cir. 1994) (vacating sentence in similar circumstances).

dant's record.' " Id. at 100 (quoting Tropiano, 50 F.3d at
162). Notwithstanding the violation, the Second Circuit af-
firmed the sentence, stating that "so long as the reasons
supporting a departure are fully explained, a mechanistic,
step-by-step procedure is not required." Id. (internal quota-
tion omitted). That is our view as well.

III

Bridges' second contention is that it was improper for the
sentencing court to base its departure on a consideration of
his five prior, remote-in-time convictions.8 Under the Guide-
lines, prior sentences imposed more than fifteen years (or, in
some circumstances, ten years) before the commencement of
the defendant's current offense are not counted in his crimi-
nal history score. U.S.S.G. s 4A1.2(e). However, "[i]f the
court finds that a sentence imposed outside this time period is
evidence of similar, or serious dissimilar, criminal conduct,
the court may consider this information in determining
whether an upward departure is warranted under s 4A1.3."
Id. s 4A1.2, comment. (n.8). Bridges contends that the five
offenses at issue here were neither similar to the instant
offense of mail fraud, nor evidence of serious dissimilar

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8 Bridges also asserts that the district court actually based its
departure on only three of his prior convictions, and that according-
ly a category lower than V was required under any circumstances.
It is plain, however, that the court relied on all five of the prior
convictions. The court expressly referred to the PSR at the
sentencing hearing, Sentencing Tr. at 16, and the PSR in turn listed
all five, PSR pp 29-34. Although the court specifically mentioned
only three of the five convictions at the sentencing hearing, Sen-
tencing Tr. at 16, that discussion was meant only to exemplify the
defendant's prior criminal history. See id. at 20 (stating that the
court was "considering the entire career of this man"). This was
confirmed by the court's written Judgment, which adopted the PSR
and expressly discussed all five convictions. See App. at 24. We
have considered and rejected the additional arguments raised by
defendant regarding the calculation and explanation of his sentence,
and conclude that they do not merit further discussion.

criminal conduct. As the government does not contest the
latter point, we turn to a consideration of the former. The
district court's determination of whether prior offenses are
similar to the instant offense is an application of the Guide-
lines to the facts, which we accord due deference and review
only for abuse of discretion.

The five convictions considered by the court were for: (1)
unauthorized use of a motor vehicle; (2) forgery; (3) petty
larceny; (4) unlawful possession of stolen property; and (5)
false pretenses. PSR pp 29-34. Bridges contends that we
should use a "categorical approach" in determining whether
offenses are similar, comparing the general characteristics of
the crimes rather than their particular facts. Def. Br. at 20.
Under this approach, defendant contemplates a comparison of
both the names and elements of the offenses, but not of the
underlying conduct.

Even if we were to restrict district courts to a categorical
approach, we might still conclude that Bridges' past offenses
were similar to his present offense of mail fraud. Such a
conclusion is clear with respect to the false pretenses and
forgery offenses. Mail fraud may be proven by establishing,
as was expressly charged in Bridges' information, that defen-
dant used the mail to execute a scheme for obtaining money
or property by means of "false or fraudulent pretenses." 18
U.S.C. s 1341; App. at 4 (Information p 3). Hence, if false
pretenses were a federal crime, it would be a lesser included
offense of mail fraud. As for forgery, both that crime and
mail fraud involve the central element of fraudulent intent,
compare D.C. Code s 22-1401 (1967) (forgery), and 18 U.S.C.
s 471 (forgery of obligations of the United States), with 18
U.S.C. s 1341 (mail fraud), and the same Part of the Sentenc-
ing Guidelines applies to both, see U.S.S.G. Ch.2, Part F
(applicable to offenses involving "Fraud and Deceit; For-
gery"). These common elements are sufficient to establish
the similarity of the crimes.9 To require more would be to

__________
9 Cf. United States v. Jones, 948 F.2d 732, 736-37 (D.C. Cir.
1991) (holding that, under U.S.S.G. s 4A1.3(e), which permits up-
ward departures based on "prior similar adult criminal conduct" not

require that the crimes be the same rather than merely
similar.

The somewhat more difficult question is whether the re-
maining three prior offenses--unauthorized use of a motor
vehicle, petty larceny, and unlawful possession of stolen prop-
erty--are in the same category as mail fraud. On the one
hand, the absence of an element of fraud or deceit in these
prior offenses might be said to render them different from
mail fraud.10 The Guidelines, for example, treat them under
different Parts. Compare U.S.S.G. Ch.2, Part B (covering
"offenses involving property," including "theft, embezzlement,
transactions in stolen goods, and simple property damage or
destruction"), with id. Ch.2, Part F (covering "offenses involv-
ing fraud or deceit"). On the other hand, all of the offenses
ultimately involve the wrongful obtaining and use of the
property of another, and it may not be an abuse of discretion
for a district court to conclude that treating such convictions
as a single category provides useful insight into the question
underlying a s 4A3.1 departure: namely, whether such con-
victions constitute "reliable information indicat[ing] that the
criminal history category does not adequately reflect the ...
likelihood that the defendant will commit other crimes." Id.
Cf. Starr, 971 F.2d at 361 (indicating that uttering counterfeit
obligations may be similar to theft for purposes of s 4A1.3).

The District of Columbia, where all of defendant's crimes
were committed, now effectively treats the three prior of-
fenses at issue here as similar to the crime of false pre-

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resulting in a criminal conviction, prior act of embezzlement was
"similar" to present offenses of credit card and wire fraud because
they all "involved fraud").

10 We are uncertain precisely which offense the PSR was
referring to in describing one of Bridges' offenses as "unlawful
possession of stolen property." Although the then-effective District
of Columbia Code did not contain an offense so named, neither
party raised this issue. The closest offense appears to have been
"receiving stolen goods." D.C. Code s 22-2205 (1967). That of-
fense does include the element of "intent to defraud," see id., which
would justify a conclusion of similarity without further analysis.

tenses--which we already have concluded is itself similar to
the instant offense of mail fraud. In 1982, in an effort to
"remov[e] anachronistic and unnecessary technical statutory
and common law distinctions," Driver v. United States, 521
A.2d 254, 258 (D.C. 1987) (citation and quotation omitted), the
District created a single statute consolidating the various
forms of larceny, false pretenses and embezzlement into a
single offense called "theft." D.C. Code s 22-3811. The
new crime punishes one who "wrongfully obtains or uses the
property of another" with the requisite intent, D.C. Code
s 22-3811(b), and defines the just-quoted phrase as "(1)
[t]aking or exercising control over property; (2) making an
unauthorized use, disposition ... or possession of property;
or (3) obtaining property by trick, false pretense ... or
deception." D.C. Code s 22-3811(a); see also Galberth v.
United States, 590 A.2d 990, 991 n.1 (D.C. 1991) (holding that
conviction for unauthorized use of vehicle merges with convic-
tion for theft of same vehicle). Although the District's 1982
categorization is not binding on us, it offers logical support
for the conclusion that the crimes at issue belong in the same
category.

We need not, however, rest our conclusion of similarity on
the facial elements of the offenses. As the government notes,
if we look at the relevant conduct underlying the instant
offense, any doubt regarding the similarity of the offenses is
removed. The details of that relevant conduct are set forth
in Part I above, and are uncontested by the defendant. See
PSR pp 4-14. They constitute a scheme in which Bridges not
only made unauthorized use of checks that were misdelivered
to him, but also obtained, possessed and used "stolen checks
or credit cards belonging to five other persons." Def. Br. at
10; see also id. at 21 ("Mr. Bridges' mail fraud ... consisted
mainly of stolen blank checks sent through the mail....").
The scheme also involved elements of forgery, false pretenses
and fraud. Bridges does not seriously dispute that if these
underlying acts were considered, it would not be an abuse of
discretion to find that the instant offense and the five prior,
remote convictions are similar.

Bridges contends, however, that a sentencing court may
not look behind the statutory elements of either the instant or
prior offenses. We have no need to consider whether a court
may look at conduct behind prior offenses, as examining the
conduct behind Bridges' instant offense is sufficient to resolve
the similarity question in this case.11 We review the legality
of undertaking such an examination de novo.

The relevant Guidelines commentary, portions of which
have already been recited, states as follows:

Applicable Time Period. Section 4A1.2(d)(2) and (e)
establishes the time period within which prior sentences
are counted. As used in s 4A1.2(d)(2) and (e), the term
"commencement of the instant offense" includes any
relevant conduct. See s 1B1.3 (Relevant Conduct). If
the court finds that a sentence imposed outside this time
period is evidence of similar, or serious dissimilar,
criminal conduct, the court may consider this informa-
tion in determining whether an upward departure is
warranted under s 4A1.3 (Adequacy of Criminal Histo-
ry Category).

U.S.S.G. s 4A1.2, comment. (n.8) (emphasis added). Nothing
in the text of this commentary bars a court from looking
behind an offense to examine a defendant's conduct. Quite
the contrary, the language of the italicized sentence directs
the court to determine not whether the defendant's "offenses"
are similar but whether his "conduct" is. Moreover, the
preceding sentence directs that in determining whether a
prior offense is within the time period within which criminal
history is calculated, the court is to look to whether "any
relevant conduct" of the instant offense took place within that
period. An examination of the defendant's relevant conduct,
therefore, is perfectly consistent with the commentary's text.

__________
11 Were a court to examine the prior conduct here, it would
only confirm the conclusion of similarity. For example, the checks
at issue in Bridges' prior conviction for forgery were ones he had
stolen by breaking into a building. His prior conviction for false
pretenses grew out of his involvement in a check cashing ring. See
PSR pp 30, 33.

An examination of relevant conduct is also consistent with
the reason for the inquiry into similarity. The purpose of
that inquiry, the commentary states, is to "determin[e] wheth-
er an upward departure is warranted under s 4A1.3." Id.
Such a departure is warranted when "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." Id. s 4A1.3 (emphasis
added). The accuracy of such a prediction about future
behavior can only be enhanced by permitting the court to
compare past offenses to exactly what it is the defendant has
just done, and not simply to the name or formal elements of
that crime. Cf. Taylor, 937 F.2d at 683 ("The nature of
present conduct is relevant ... to assess a tendency toward
recidivism."). A judge with such license is surely more likely
to be able to discern a pattern in a defendant's behavior than
one who must peer with blinders on.12

Bridges contends that the Supreme Court's decision in
Taylor v. United States, 495 U.S. 575 (1990), bars a court
from determining similarity by looking into the facts behind
convictions. In Taylor, the defendant pled guilty to being a
felon in possession of a firearm in violation of 18 U.S.C.
s 922(g)(1). The government sought to enhance his sentence,
not as an upward departure under s 4A1.3, but rather under
a specific statutory provision, 18 U.S.C. s 924(e). That provi-
sion imposes a mandatory 15-year sentence on a felon-in-
possession with three prior convictions for a "violent felony,"
defined as a crime that "has as an element the use ... or
threatened use of physical force" or is a specified type of
offense, including "burglary." The Court held that in deter-
mining whether prior offenses were burglaries, a court must
follow a "formal categorical approach, looking only to the
statutory definitions of the prior offenses, and not to the

__________
12 Of course, this goes both ways. A judge who looks behind
the name of the instant offense may also be better able to deter-
mine that what appears on its face to represent a pattern is not one
at all, and thus that a departure is not warranted.

particular facts underlying those convictions." 495 U.S. at
600.
Although Taylor mandates a categorical approach for en-
hancements under 18 U.S.C. s 924(e), the reasons for the
Court's conclusion counsel a different rule for departures
under U.S.S.G. ss 4A1.2, comment. (n.8) and 4A1.3. First,
the Court considered the language of s 924(e) which, it
emphasized, refers to " 'a person who ... has three prior
convictions' for--not a person who has committed--three
previous violent felonies." 495 U.S. at 600 (quoting 18 U.S.C.
s 924(e)(1)) (emphasis added). As the Court also noted,
s 924(e) "defines 'violent felony' as any crime ... that 'has as
an element'--not any crime that, in a particular case, in-
volves--the use or threat of force." Id. (quoting 18 U.S.C.
s 924(e)(2)(B)(i)) (emphasis added). This language, the Court
said, implied that the term "burglary ... most likely refers to
the elements of the statute of conviction, not to the facts of
each defendant's conduct." Id. at 600-01 (quotation omitted).
As noted above, however, the language of the Sentencing
Guidelines is almost precisely the opposite: It uses the word
"conduct"--not "conviction" or "element." See U.S.S.G.
s 4A1.2, comment. (n.8).

Second, the Taylor Court looked to the legislative history
of s 924(e) which, it concluded, "shows that Congress gener-
ally took a categorical approach to predicate offenses." 495
U.S. at 601. "No one suggested," the Court noted, "that a
particular crime might sometimes count towards enhance-
ment and sometimes not." Id. Here, again, the Sentencing
Guidelines and their commentary (there is no other "legisla-
tive history") counsel the opposite conclusion. Unlike en-
hancements under s 924(e), departures under s 4A1.3 are
discretionary rather than mandatory, and a particular crime
may well "sometimes count towards" a departure and some-
times not. A judge who finds that prior offenses are similar
under the Guidelines is not required to increase a defendant's
sentence, as is a judge who finds that prior offenses are
burglaries under s 924(e). Compare U.S.S.G. s 4A1.3 ("the
court may consider imposing a sentence departing from the
otherwise applicable guideline range") (emphasis added), with
18 U.S.C. s 924(e)(1) ("such a person shall be ... imprisoned

not less than fifteen years") (emphasis added). Rather, a
judge who finds offenses similar under the Guidelines "may
consider this information," U.S.S.G. s 4A1.2, comment. (n.8),
in making the predictive judgment required for departures
under s 4A1.3. And as discussed above, an examination of
underlying conduct is quite consistent with the making of
such a judgment.

Finally, Taylor focused on the "practical difficulties and
potential unfairness of a factual approach" to determining
whether a defendant's prior crimes truly were "burglaries."
495 U.S. at 601. "In all cases where the Government alleges
that the defendant's actual conduct would fit the generic
definition of burglary," the Court noted, "the trial court would
have to determine what that conduct was." Id. Such a trial-
within-a-trial would, the Court feared, raise the unpleasant
and potentially unfair specter of retrying past crimes as part
of the sentencing of the instant offense, which would in turn
present a host of practical problems.13

But examining the relevant conduct behind a defendant's
instant offense does not add to the practical or equitable
problems involved in sentencing under the Guidelines. Even
when not contemplating a departure, a sentencing court must
determine the scope of such conduct in order to calculate the
guideline sentencing range. See U.S.S.G. s 1B1.3. A defen-
dant has an opportunity to object to the PSR's characteriza-
tion of his relevant conduct, and the Guidelines and Federal
Rules contain a procedure for resolving such disputes. See
U.S.S.G. s 6A1.3; Fed. R. Crim. P. 32(b), (c). In this case,
Bridges did not object to the PSR's description of the conduct
underlying his mail fraud conviction, and there is thus neither
difficulty nor unfairness in using that conduct to determine

__________
13 See Taylor, 495 U.S. at 601 ("Would the Government be
permitted to introduce the trial transcript before the sentencing
court, or if no transcript is available, present the testimony of
witnesses? Could the defense present witnesses of its own ... ?
Also, in cases where the defendant pleaded guilty, there often is no
record of the underlying facts.").

whether his prior offenses are part of a pattern that indicates
the likelihood of recidivism.14

In sum, we conclude that a court may lawfully examine the
relevant conduct underlying a defendant's instant offense in
order to determine whether it is similar to his prior offenses.
Applying that rule in this case, we find no abuse of discretion
in the conclusion that Bridges' offenses were similar, and
hence no abuse of discretion in the sentencing court's upward
departure.

IV

The judgment of the district court is affirmed.

__________
14 Bridges correctly points out that in United States v. Do-
naghe, 50 F.3d 608 (9th Cir. 1995), the Ninth Circuit declined to
examine "the specific circumstances of this case" in concluding that
the defendant's instant crime of passport fraud was not similar to
his prior convictions for child molestation. Id. at 612. But the
government did not contend that the underlying facts of those
crimes were similar; it contended only that their motives were
similar because the passport fraud was committed to escape an
investigation into a new charge of child molestation. To resolve
Bridges' case, we need not decide whether similarity can be based
solely on motive. Compare Donaghe, supra, with United States v.
Dzielinski, 914 F.2d 98, 101-02 (7th Cir. 1990) (holding that instant
offense of bank robbery was similar to prior conviction for fraud
because robbery's motive was to repay victim of another of defen-
dant's fraudulent schemes).