UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-51227
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERIC BOURDIN, a.k.a. Nicholas Patrick Barclay, a.k.a.
Frederic Pierre Bourdin, a.k.a. Shedgin Guteyere, a.k.a. Benjamin
Kent, a.k.a. Jimmy Peter Manfred Morins, a.k.a. Shadjan Raskovic,
a.k.a. Marc Selopin, a.k.a. Thomas Wilson, a.k.a. Robin Morins,
a.k.a. Arnaud Orions,
Defendant-Appellant.
________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-98-CR-128-ALL)
_________________________________________________________________
November 19, 1999
Before DAVIS, JONES, and Magill*, Circuit Judges.
EDITH H. JONES, Circuit Judge:**
On September 9, 1998, Appellant Frederic Bourdin pled
guilty to: 1) fraudulently obtaining a passport, in violation of 18
U.S.C. §1542; 2) perjury, in violation of 18 U.S.C. §1621; and 3)
possession of a fraudulent document, in violation of 18 U.S.C.
§1546(a). On December 17, 1998, the district court departed upward
from the Sentencing Guidelines and sentenced him to 71 months of
*
Circuit Judge of the Eighth Circuit, sitting by designation.
**
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should not be published and is not precedent except under the limited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.
imprisonment.1 Because the district court’s upward departure was
reasonable in light of the facts of the case, this Court affirms.
FACTS
In 1997 in Madrid, Spain, Frederic Bourdin began
representing himself as Nicholas Barclay, an American boy missing
since 1994. In the fall of 1997, Carrie Gibson, Nicholas Barclay’s
sister, flew to Spain to meet him. In October, Bourdin obtained a
United States passport under the name Nicholas Barclay, so that he
could accompany Gibson to the United States. For the next five
months, Bourdin lived with Gibson and her family in San Antonio,
Texas as Nicholas Barclay.
During the same period, FBI Special Agent Nancy Fisher
began an investigation as to whether Frederic Bourdin, as “Nicholas
Barclay,” was actually Nicholas Barclay. During the course of that
investigation, Bourdin stated that he had been rescued by a man
named Jonathan Duran. Agent Fisher then spent numerous hours
trying to locate Duran. When she eventually asked Bourdin to do so
for her, Bourdin pretended to call Duran and then informed Agent
Fisher that Duran did not want to talk to her. In addition,
Bourdin agreed to provide a blood sample only then to refuse after
arriving at the doctor’s office with Agent Fisher.
On February 24, 1998, FBI employees obtained Bourdin’s
fingerprints in San Antonio and confirmed with Interpol records
that he was not Nicholas Barclay, but Frederic Bourdin. The
documents provided by Interpol officials indicated that Bourdin
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The district court also imposed a three-year term of supervised release,
a $10,000 fine and a $300 special assessment.
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used numerous aliases and had a foreign criminal history of
behavior similar to the behavior exhibited in this case. Bourdin
was arrested on March 6, 1998.
At sentencing, the district court determined that
Bourdin’s offense level was 15 and his criminal history category
was I, producing a guideline sentence range of 18 to 24 months’
imprisonment. The court then departed upward 10 levels and imposed
a sentence of 71 months’ imprisonment. In doing so, the judge
stated clearly that the departure was based on the nature and
extent of Bourdin’s continued obstructive behavior and the harm he
inflicted on various victims, particularly the family of Nicholas
Barclay. It also stated that it viewed all the reasons in the
Government’s motion for upward departure, which included the
argument that a criminal history category of I did not adequately
reflect the criminal history that Bourdin deserved as a result of
his criminal history in Europe, as reasons to depart upwards.
On appeal, Bourdin argues that the court’s 10-level
increase was unreasonable. Bourdin interprets the district court’s
departure as based only on Bourdin’s obstructive behavior and the
harm to vulnerable victims. Because the departure was greater than
the increase afforded those factors under the guidelines the
district court analogized to, Bourdin argues that the increase was
unreasonable. Bourdin further argues that, because the district
court did not clearly include the inadequacy of his criminal
history category in its oral statement describing its reasons for
upwardly departing, this Court cannot interpret the upward
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departure as based also on the inadequacy of his criminal history
category.
STANDARD OF REVIEW
This Court reviews a district court’s decision to depart
from the Sentencing Guidelines for abuse of discretion. See United
States v. McKenzie, 991 F.2d 203, 204 (5th Cir. 1993).
DISCUSSION
The district court may depart from the Sentencing
Guidelines due to aggravating or mitigating circumstances not
considered or inadequately considered by the guidelines. See 18
U.S.C. §3553(b); U.S.S.G. §5K2.0. A departure from the guidelines
will be affirmed if the district court offers acceptable reasons
for the departure and the departure is reasonable. See United
States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993). This Court
has upheld as reasonable departures that were over several times as
much as the initial guideline range, and has stated that “the mere
fact that a departure sentence exceeds by several times the maximum
recommended under the Guidelines is of no independent consequence
in determining whether the sentence is reasonable.” United States
v. Roberson, 872 F.2d 597, 606 n.7 (5th Cir.), cert. denied, 493
U.S. 861, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989).
In this case, appellant does not contest that the
district court fulfilled prong one of the Lambert test. In any
case, the district court clearly articulated at least two
acceptable reasons for an upward departure – Bourdin’s obstructive
behavior and the harm he inflicted on vulnerable victims. These
reasons are analogous to U.S.S.G. §3A1.1 and §3C1.1 and are thus
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based on the policies underlying the Guidelines. See United States
v. Moore, 997 F.2d 30, 36 (5th Cir. 1993) (stating that a district
court’s justification for departure from the initial guideline
range must be based on the policies underlying the Guidelines).
Appellant focuses on prong two of the above test.
Bourdin argues that the district court acted unreasonably in
imposing a sentence commensurate with a 10-level increase, rather
than the 4-level increase that the unavailable, but analogous,
guidelines provide.
Although the use of analogous guidelines indicates that
the district court has articulated acceptable reasons for
departure, the district court is not constrained to impose an
increase commensurate with that of the guideline. Bourdin’s
behavior was both egregious and well outside the heartland cases
covered by the guidelines. Thus, the district court acted within
its discretion in departing upward 10 levels and imposing a 71-
month sentence of imprisonment.
Because we find that the district court could reasonably
have based its upward departure on Bourdin’s obstructive behavior
and the harm he inflicted on vulnerable victims, we do not reach
the question whether the district court also based its departure on
the inadequacy of Bourdin’s criminal history category.
AFFIRMED.
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