United States v. Fahm

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-2215
UNITED STATES OF AMERICA,

Appellee,

v.

HAKEEM FAHM,

Defendant, Appellant.

No. 93-1012
UNITED STATES OF AMERICA,

Appellee,

v.

HAKEEM FAHM,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Cyr, Circuit Judge.

Randy Olsen, with whom David N. Cicilline was on brief for

appellant.
Edwin J. Gale, United States Attorney, for appellee.

January 5, 1994

CYR, Circuit Judge. After failing to appear for sen-
CYR, Circuit Judge.

tencing on credit-fraud charges in January 1991 before the United

States District Court for the District of Rhode Island, appellant

Hakeem Fahm was sentenced to a twenty-month prison term in

September 1992. Three months later, the district court recon-

sidered the original sentence sua sponte and imposed a twenty-one

month prison term. We deny Fahm's appeal from the original

sentence and conclude that the district court was without juris-

diction to "correct" it under Fed. R. Crim. P. 35(c).

I

BACKGROUND

Fahm pled guilty in Rhode Island federal district court

on November 29, 1990, to credit card fraud and conspiracy. See

18 U.S.C. 1029(a)(2) (fraudulent use of unauthorized access

devices) and (b)(2) (conspiracy to violate 1029(a)(2)). Fahm

was twenty-one years of age at the time. Less than one month

later, while released pending sentencing, he was arrested for

obstructing a Rhode Island police officer in connection with a

motor vehicle violation, whereupon he fled, failed to report to

his pretrial services officer, and violated bail by absenting

himself from the federal sentencing hearing scheduled for January

1991. Shortly thereafter Fahm committed the crime of attempted

credit card fraud, for which he was convicted and sentenced in

the United States District Court for the District of Delaware.

2

After serving a five-month sentence on the latter charge, Fahm

was returned to the District of Rhode Island for sentencing on

the offenses of conviction.

II

DISCUSSION

A. The Appeal from the Original Sentence.

1. Reduction for Acceptance of Responsibility
Reduction for Acceptance of Responsibility

3E1.1(a) (Nov. 1990).

Notwithstanding his abscondence and subsequent federal

conviction while awaiting sentencing on the offenses of convic-

tion, Fahm frivolously asserts that the district court committed

clear error, see United States v. Royer, 895 F.2d 28, 29 (1st

Cir. 1990), by denying him a two-level reduction for "acceptance

of responsibility" pursuant to U.S.S.G. 3E1.1(a) (Nov. 1990).

We find it quite unremarkable that Fahm's belated protestations

of remorse fell on deaf ears in the district court ("I frankly

don't believe . . . that [the defendant is] sorry. . . .). See

United States v. O'Neil, 936 F.2d 599, 600 (1st Cir. 1991)

(district court may look to later conduct to determine sincerity

of defendant's claimed acceptance of responsibility).

2. Upward Departure for Underrepresented Criminal History

4A1.3 (Nov. 1991).

Next, Fahm challenges the upward departure imposed

3

pursuant to U.S.S.G. 4A1.3,1 which provides in relevant part:

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 de-
parting from the otherwise applicable guide-
line range . . . .

(Emphasis added.) Ignoring the overburden, Fahm argues that no

unusual circumstances distinguish his case from the "mine-run for

th[e] offense[s]" of conviction. United States v. Aguilar-Pena,

887 F.2d 347, 350 (1st Cir. 1989).

a. The Decision to Depart.

The original presentence report (PSR) recommended a

six-to-twelve month guideline sentencing range (GSR), based on an

adjusted base offense level (ABOL) of ten and a level I criminal

history category (CHC). The PSR addendum prepared prior to the

sentencing hearing held on September 30, 1992 ("first hearing"),

proposed a level II CHC based on Fahm's intervening Delaware sen-

tence. See U.S.S.G. 4A1.2 cmt. 1. At the first hearing, the

district court advised Fahm that it intended to depart to CHC IV,

because (i) Fahm committed the Delaware offense while on bail,

see id. at 4A1.3; United States v. Calderon, 935 F.2d 9, 12

(1st Cir. 1991) (commission of offense while on release repre-

sents breach of commitment to court), (ii) CHC II underre-

1The revised presentence report recommended criminal history
category II, based on Fahm's similar Rhode Island state convic-
tion for fraudulent use of credit cards and his "prior sentence"
on the federal credit-fraud offense in Delaware. See U.S.S.G.

4A1.1(b), 4A1.2(a)(1),(4), cmt. 1.

4

presented his actual criminal conduct, and (iii) the CHC would be

higher were any of several pending state and federal charges

later to result in conviction, see U.S.S.G. 4A1.3(e); United

States v. Figaro, 935 F.2d 4, 7 (1st Cir. 1991).2

The decision to depart is subject to bifurcated review.

First, all "quintessentially legal" rulings underlying the

decision to depart, such as whether the guideline language

permits or forbids departure for the kinds of reasons relied on

by the sentencing court, are subject to plenary review. United

States v. Rivera, 994 F.2d 942, 951 (1st Cir. 1993). Second, in

reviewing its "judgment call" as to whether the particular

circumstances warrant departure, id. at 951-52, "appropriate

respect" is due the sentencing court's "superior 'feel' for the .

. . case." United States v. Ramirez, No. 93-1403, slip. op at 7

(1st Cir. Dec. 9, 1993).

2Fahm does not argue that the original sentence contravened
U.S.S.G. 4A1.3, which instructs the sentencing court to consid-
er the adequacy of the next higher (or lower) CHC, rather than
leapfrogging. See United States v. Aymelek, 926 F.2d 64, 70 (1st

Cir. 1991) (noting that sentencing court is "specifically in-
structed to use 'as a reference, the guideline range for a
defendant with a higher or lower criminal history category, as
applicable'" (quoting U.S.S.G. 4A1.3, p.s.)); United States v.

Polanco-Reynoso, 924 F.2d 23, 25 (1st Cir. 1991) (approving

4A1.3 departure to next CHC). Since Fahm's one oblique allusion
to the leapfrogging methodology appears in a parenthetical to a
case citation, unaccompanied by argumentation, we adhere to our
settled rule that "issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st

Cir.), cert. denied, 494 U.S. 1082 (1990) (citations omitted).

See also United States v. Emery, 991 F.2d 907, 913 n.9 (1st Cir.

1993) ( 4A1.3 departure above CHC VI).

5

(i) Legal Rationale for Departure.

The guidelines explicitly countenance upward departures

pursuant to U.S.S.G. 4A1.3, based on the rationale adopted by

the district court in this case: "[T]he criminal history score

is unlikely to take into account all the variations in the

seriousness of criminal history that may occur . . . . particu-

larly . . . in the case of younger defendants (e.g., defendants

in their early twenties or younger) who are more likely to have

received repeated lenient treatment, yet who may actually pose a

greater risk of serious recidivism than older defendants."

U.S.S.G. 4A1.3, backg'd. (emphasis added). Given Fahm's youth,

the similarity and contemporaneity of his criminal conduct, and

the fact that he had but one countable "prior sentence," see

U.S.S.G. 4A1.2 cmt. 1, the district court correctly determined

that departure was permissible pursuant to 4A1.3(d),(e),

provided reliable information demonstrated that CHC II signifi-

cantly underrepresented the seriousness of Fahm's actual criminal

history and the risk of recidivism. Id.

(ii) Factual Grounds for Departure.

Were we called upon to do so, we would review the

sentencing court's findings of fact for clear error, Rivera, 994

F.2d at 950, but Fahm challenges neither the reliability of the

criminal history evidence nor the factual findings on which the

6

departure decision was based.3

Nor can we fault the district court's "judgment call,"

see United States v. Diaz-Villafane, 874 F.2d 43, 49-50 (1st

Cir.), cert. denied, 493 U.S. 862 (1989), that Fahm's criminal

history warranted an upward departure pursuant to U.S.S.G.

4A1.3(d),(e), a ruling we review with the considerable deference

due the sentencing court's "special competence" and superior

"feel" in the circumstances of the particular case, Ramirez, slip

op. at 7; Rivera, 994 F.2d at 951-52. In far less egregious

circumstances we have sustained an upward departure where the

offenses of conviction were committed while the defendant was

awaiting final disposition of a similar state charge. See

Calderon, 935 F.2d at 12. Fahm committed these offenses while

awaiting disposition of similar Massachusetts charges (larceny of

an automobile and obtaining property under false pretenses) which

had yet to result in conviction. See U.S.S.G. 4A1.3(e).

Furthermore, while awaiting sentencing on the instant offenses,

he committed a similar credit-fraud felony in Delaware. See

United States v. Moore, 931 F.2d 3, 4 (1st Cir. 1991) (offenses

3The district court grounded its decision to depart on
information contained in the PSR and its addenda, derived primar-
ily from public records, that Fahm recently engaged in similar
adult criminal conduct that had not resulted in conviction, see

4A1.3; Ramirez, slip op. at 8, and that he had committed offenses

while released pending the disposition of other charges. As for
the evidence that Fahm absconded before sentencing on the instant
charges, the public record is irrefutable. See United States v.

Garcia, 978 F.2d 746, 749 (1st Cir. 1992) (upholding 4A1.3

departure where there was no dispute that defendant committed
offenses after absconding on another charge). There was no clear
error in the factual findings underlying the decision to depart.

7

involving "the same sort of dishonesty and misappropriation of

other people's property" are "similar"). Thus, the district

court reasonably concluded that CHC II underrepresented Fahm's

actual criminal history, a finding well supported, inter alia, by

the similar credit-fraud related charges committed within two

years of the instant offenses, evidencing a serious pattern of

recidivism not reflected in the conventional CHC calculation

under U.S.S.G. 4A1.1 and 4A1.2. See Figaro, 935 F.2d at 7

("the recency of a prior offense may be considered an indicator

of increased likelihood of recidivism, exacerbating the serious-

ness of a defendant's criminal history."); United States v.

Aymelek, 926 F.2d 64, 70 (1st Cir. 1991).

b. The Degree of Departure.

The reasonableness of the degree of departure is

reviewed with "appropriate respect" for the sentencing court's

"special competence," Rivera, 994 F.2d at 952, and substantial

deference to its weighting of departure factors properly consid-

ered under the guidelines. See Williams v. United States,

U.S. , , 112 S. Ct. 1112, 1121 (1992).

The criminal conduct alleged in the four cases pending

against Fahm in Massachusetts and Rhode Island, as well as the

federal charge pending in the District of Rhode Island, see 18

U.S.C. 3146(a)(1) (failure to appear for sentencing), which

were not reflected in the CHC calculation, constituted grounds

which, by analogy, see Aymelek, 926 F.2d at 70 (using analogies

for 4A1.3(e) departures), plainly indicated that neither CHC II

8

nor III adequately reflected the seriousness of Fahm's criminal

conduct. See U.S.S.G. 4A1.3(e) ("prior," "similar" criminal

conduct not yet resulting in conviction appropriate for consider-

ation in departure decision); Diaz-Villafane, 874 F.2d at 50

(pending charges not used in CHC calculation may be considered in

departure decision); United States v. Brown, 899 F.2d 94, 98 (1st

Cir. 1990) (nature of conduct involved in pending charges, based

on record documentation, supports 4A1.3 departure). But cf.

U.S.S.G. 4A1.3, p.s. (prior arrest record alone not to be

considered under 4A1.3); Rivera, 994 F.2d at 949 (citing

Williams, U.S. at , 112 S. Ct. at 1117).4

4Although "mechanistic bean counting" is an inadequate guide
to the reasonableness of departure rulings, see United States v.

Emery, 991 F.2d 907, 913-14 (1st Cir. 1993) (where "the sentenc-

ing court[] [has] articulated grounds for departing [which]
permit us adequately to assess the reasonableness of the depar-
ture. . . . [n]o more is exigible."), we note that the reason-
ableness of the district court's decision to depart to CHC IV is
strongly supported by the unadjudicated state and federal charges
pending against Fahm, and by analogous criminal conduct not
reflected in the original CHC calculation. There are two felony
charges pending against Fahm in Massachusetts, dating from 1988,
for larceny of an automobile and obtaining property under false
pretenses, see Mass. Gen. L. ch. 266 27A(a), 30, 34. Further,

after Fahm defaulted on these two charges, a warrant issued; this
default conduct is analogous to a federal charge of flight from
prosecution, see 18 U.S.C. 1073(1); see also Aymelek, 926 F.2d

at 71 (federal law governs classification of criminal conduct for
guideline sentencing purposes). Moreover, there is a felony
charge outstanding against Fahm for violating Rhode Island
banking laws in 1990, see R.I. Gen. L. 19-19-2 (issuing fraudu-

lent check), and another 1990 Rhode Island state charge for
obstructing a police officer with the use of an alias, see R.I.

Gen. L. 11-32-1 (up to one year in prison), see also Moore, 931

F.2d at 5 n.3 (minor convictions, in aggregate, can show pattern
of conduct supporting finding of recidivism).
Yet pending as well is a federal felony charge for failure
to appear at the sentencing hearing originally scheduled for
January, 1991. See 18 U.S.C. 3146(a)(1). Finally, the CHC

calculation in the PSR did not reflect that Fahm committed the

9

The grave signs of recidivism relied on by the district

court likewise weighed heavily in favor of a substantial upward

departure as well.5 The pending Massachusetts false pretenses

and larceny charges and the Rhode Island banking law charge

involved alleged conduct similar to the instant credit card fraud

offense, and Fahm's flight to avoid prosecution in this case is a

carbon copy of his uncharged conduct of failing to answer to the

Massachusetts charges following release pending prosecution. See

U.S.S.G. 4A1.3(e), p.s. The Rhode Island obstruction charge,

based on Fahm's alleged use of an alias to mislead a police

offenses of conviction after having defaulted (i.e., failed to

appear) on the Massachusetts charges, which would warrant two
additional CH points. See U.S.S.G. 4A1.1(d) (add two points if

instant offense committed while on bail).
These pending state and federal charges, combined with the
two-point 4A1.1(d) increase and the analogous uncharged crimi-
nal conduct, would aggregate eight additional criminal points at
a minimum. Ascribing even a single criminal history point to
each pending state charge, and one to the pending federal charge,
would result in five points. See U.S.S.G. 4A1.1(a),(b),(c)

(assigning, respectively, three points for sentence above thir-
teen months, two points for sentences between three and thirteen
months, and one point for under three months). Neither these
pending charges, nor the analogous conduct (amounting to an
additional one point), nor the two-point 4A1.1(d) increase,
were taken into account in the CHC calculation, which totalled
three criminal history points. Thus, at its lowest range (8
points), the pending charges, analogous conduct, and the 4A1-
.1(d) increase, combined with the three points originally as-
signed, would indicate a level V CHC. See U.S.S.G. 5A (sen-

tencing table).

5At the first hearing, the district court found:

You haven't spent much time in jail in spite of the
number of brushes you've had with the law, and maybe
that's the problem . . . but at age [21] . . . it's
about time . . . for you to accept responsibility for
what you did and pay the penalty . . . I'm going to
make an upward departure in this case.

10

officer, occurred while he was awaiting sentencing on the instant

offense as well, see U.S.S.G. 4A1.3(d) (committing crime while

awaiting sentencing is a factor to be weighed under 4A1.3), as

did the pending charge for failing to appear for sentencing in

Rhode Island federal district court. These charges and the

uncharged analogous conduct all involved criminal activity within

two years of the offenses of conviction. See U.S.S.G. 4A1.1(e)

(two-point criminal history increase to reflect recency of

offense); Figaro, 935 F.2d at 7 (treating recency of offense as

evidence of recidivism) ( 4A1.3 departure). The district court

further found that Fahm had been treated leniently in the past,

and had persisted before and since the offenses of conviction

in the same pattern of credit fraud.

Given Fahm's significantly underrepresented criminal

history and his serious recidivism, as evidenced by the recency

of his criminal conduct and his commission of criminal offenses

while released awaiting prosecution on other charges, the degree

of the departure imposed by the district court was reasonable.

See generally United States v. Joan, 883 F.2d 491, 496 (6th Cir.

1989) (adopting Diaz-Villafane three-step analysis and assigning

as factors in determining reasonableness of departure: the

seriousness of the past conduct, recidivism risk, conduct not

resulting in convictions, previous lenient treatment, and deter-

rent effect) (combined 4A1.3 and 5K2.0 departure).

B. Reconsideration of Original Sentence.

At the September 30 sentencing, after overruling Fahm's

11

objection to the 4A1.3 departure ruling and denying his request

to stay "imposition" of sentence, the court immediately proceeded

to impose the twenty-month prison sentence but nonetheless

allowed defense counsel two weeks within which to submit written

opposition to the departure ruling. At the second sentencing

hearing, on December 22, the district court declined to reconsid-

er its 4A1.3 departure ruling, then indicated that it intended

to correct an earlier oversight by increasing Fahm's ABOL by two

levels for unlawful flight from prosecution. Defense counsel

objected that the court lacked jurisdiction to reconsider under

Fed. R. Crim. P. 35 but made no explicit reference to the seven-

day limitation period in Rule 35(c). See Fed. R. Crim. P. 35(c);

infra at p. 15. The court then increased the original prison

sentence to twenty-one months, bringing it within the revised 21-

to-27 month GSR.

On appeal, Fahm claims that the district court lacked

jurisdiction to increase the sentence originally imposed on

September 30. See Fed. R. Crim. P. 35(c). The government, on

the other hand, characterizes the December 22 hearing as a mere

continuation of the first hearing, and accordingly contends that

the seven-day limitation period in Rule 35(c) was not implicated.

Alternatively, the government argues that the district court

possessed inherent power to reconsider the original sentence

notwithstanding the limitation period in Rule 35(c). We conclude

that neither government theory is tenable.

12

1. Fed. R. Crim. P. 35(c)(1991).

The district court judgment and docket entry plainly

reflect that the twenty-month prison sentence was "imposed" on

September 30. See United States v. Morillo, F.3d , No.

93-1388, slip op. at 11 n.8 (1st Cir. Nov. 8, 1993) (noting

likelihood that "imposition of sentence," within meaning of Rule

35(c), occurs on date judgment entered) (dictum) (citing United

States v. Zuleta-Molina, 840 F.2d 157, 158 n.1 (1st Cir. 1988));

United States v. Carr, 932 F.2d 67, 69 (1st Cir.), cert. denied,

112 S. Ct. 112 (1991); see also Fed. R. Crim. P. 32(b)(1) ("The

judgment shall be signed by the judge and entered by the

clerk."). Moreover, the September 30 hearing transcript reflects

that the court pronounced the original sentence after overruling

Fahm's objection to the 4A1.3 departure. Later in the hearing,

defense counsel sought to stay imposition of sentence pending

submission of opposition to the 4A1.3 departure. Although the

court categorically denied a stay leaving its twenty-month

sentence in place it allowed defense counsel time to submit

written opposition. The district court record thus belies any

interpretation that sentence was not imposed on September 30.

Consequently, we must decide whether the original sentence was

subject to reconsideration by the district court on December 22,

well beyond the time allowed under Rule 35(c).

Rule 35(c) states:

(c) Correction of Sentence by Sentencing
Court. The court, acting within 7 days after
Court
the imposition of sentence, may correct a

sentence that was imposed as a result of

13

arithmetical, technical, or other clear
error.

(Emphasis added.) The advisory committee note explains that new

Rule 35(c) recognizes the power of a sentencing court to correct

certain types of sentencing errors "discovered shortly after the

sentence is imposed." Fed. R. Crim. P. 35(c) advisory commit-

tee's note (1991 amendment). Compare Carr, 932 F.2d at 71 n.5

(pre-Rule 35(c) case). The relevant case law likewise compels

the conclusion that the district court lacked jurisdiction to

correct its original sentence beyond the limitation period

prescribed in Rule 35(c). Morillo, slip op. at 10 ("[Rule

35(c)'s] interval constitutes a limitation . . . and the limita-

tion is absolute") (dictum); United States v. Turner, 998 F.2d

534, 536 (7th Cir.), cert. denied, 62 U.S.L.W. 3409 (1993).

2. Inherent Power.

The government alternatively contends, Rule 35(c)

notwithstanding, that the district court possessed the inherent

power to reconsider Fahm's ABOL to correct an obvious oversight.

The government relies on United States v. Rico, 902 F.2d 1065 (2d

Cir.), cert. denied, 498 U.S. 943 (1990), and United States v.

Cook, 890 F.2d 672 (4th Cir. 1989).6 Upon careful consideration

of the rule, the advisory committee's note, and relevant case

law, we conclude that the court had no inherent power to increase

its original sentence.

6See also Carr, 932 F.2d at 71 (pre-Rule 35(c) case recog-

nizing limited "inherent power" to reconsider sentence during
appeal period).

14

The 1991 amendment to Rule 35(c) was intended to codify

the result reached in Rico and Cook but requires as well that the

sentencing court act within the time frame prescribed in the

rule, see Morillo, slip op. at 11 n.8, so as to: (i) "reduce the

likelihood of jurisdictional questions in the event of an appeal"

from the original judgment; (ii) "provide the parties . . . an

opportunity to address [on appeal] the court's correction of the

sentence, or lack thereof"; and (iii) "reduce the likelihood of

abuse of the rule by limiting its application to acknowledged and

obvious errors in sentencing," Fed. R. Crim. P. 35(c) advisory

committee's note (1991 amendment).7 See United States v. Ross,

F.3d , 1993 WL 452716 at *5 (7th Cir. 1993); United States

v. Daddino, 5 F.3d 262, 265 (7th Cir. 1993) (per curiam) (exclu-

sive authority for correction of obvious judicial errors and

omissions derives from Rule 35(c)).8

Since the narrow window of opportunity allowed under

Rule 35(c) closed long before the district court reconsidered its

7Therefore, for example, even though Fahm's oral request for
reconsideration of the 4A1.3 departure ruling on September 30
was made within the limitation period, the court would have been
required to act on the request within the seven-day period

(properly calculated) following entry of the judgment of convic-
tion on October 2, 1992. See Morillo, slip op. at 10. Accord-

ingly, on December 22 the district court was without jurisdiction
under Rule 35(c) to "correct," in any way, its original sentence.
See also Fed. R. Crim. P. 45(a),(b) (rules governing computation

and enlargement of time).

8There is no suggestion, either by the parties or in the
appellate record, that the twenty-one month sentence was imposed
pursuant to Fed. R. Crim. P. 36. In any event, Rule 36 is
considered generally inapplicable to judicial errors and omis-

sions. Daddino, 5 F.3d at 264-65. See generally 3 Charles A.

Wright, Federal Practice and Procedure 611 (2d ed. Supp. 1993).

15

original sentence, and the court lacked inherent power to do so,

the original sentence must be reinstated. See Turner, 998 F.2d

at 536 ("The district court's inaction had the same effect as

denying the motion, making the judgment final on the date the

district judge's power to alter the sentence expired.").

The twenty-one month prison sentence imposed on

December 22, 1992, is to be vacated; the original twenty-month

prison sentence imposed on September 30, 1992, is to be reinstat-

ed. So ordered.

16