IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 01-40117
_______________________________
UNITED STATES of AMERICA,
Plaintiff-Appellee,
versus
JUAN ESTRADA, JR.,
Defendant-Appellant.
_________________________________________________
Appeals from the United States District Court
for the Southern District of Texas - Corpus Christi Division
(C-00-298-1)
_________________________________________________
December 17, 2001
Before DAVIS, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM*:
Defendant-Appellant Juan Estrada, Jr. appeals his sentence,
claiming that the district court erred when it departed upward from
the prescribed sentencing guideline range. Perceiving no plain
error in the district court’s decision to depart upwardly, we
affirm Estrada’s sentence.
I.
FACTS AND PROCEEDINGS
*
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this opinion should not be published and is not precedent except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.
Estrada pleaded guilty to the second count of a two-count
indictment charging him with violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B) for possession with intent to distribute 353 kilograms of
marijuana.1 Based on his scoreable criminal conduct, his
acceptance of responsibility, and his base offense level, Estrada
had a criminal history category (“CHC”) of I and a base offense
level of 25. The imprisonment range for this combination is 60 to
71 months. The district court found, however, that a CHC of I
understated the gravity of Estrada’s prior criminal conduct.
Pursuant to the discretion afforded by U.S.S.G. §§ 4A1.3, 4A1.2 n.
8, the district court took into account Estrada’s remote criminal
convictions, determined his CHC to be IV, and sentenced him to a
96-month term of imprisonment.2
In calculating a CHC of IV, the district court considered
prior convictions on four uncounted offenses included in the
Presentence Investigation Report (“PSR”). Specifically, the court
included Estrada’s 1976 conviction for marijuana possession, his
1981 conviction for being a felon in possession of a firearm, his
1983 conviction for escaping from federal custody, and his 1985
conviction for involuntary manslaughter.3 Estrada timely appealed,
1
As part of the plea bargain, the first count of possession
of marijuana with intent to distribute was dropped.
2
A CHC of IV along with a base offense level of 25 requires
imprisonment in the range of 84 to 105 months.
3
These convictions had not been initially counted for CHC
purposes because they were too remote in time to qualify under the
2
arguing that the district court erred in considering his conviction
for escaping from federal custody when it calculated his CHC.
II.
ANALYSIS
A. Standard of Review
In general, we review the district court’s decision to depart
upward from the sentencing guidelines range for abuse of
discretion.4 In this instance, however, our review is further
circumscribed. Although Estrada lodged a universal objection to
the upward departure, he failed to object specifically to the
district court’s determination that his remote convictions
constituted “serious dissimilar” conduct. Estrada raises this
discrete objection to the inclusion of his remote convictions for
the first time in his brief to this court. Hence, in this case, we
are limited to plain error review.5
B. No Plain Error in the District Court’s Ruling
Estrada’s 1983 conviction for escape from a federal half-way
house was not initially counted in determining his CHC because the
Sentencing Guidelines. See U.S.S.G. § 4A1.2(e).
4
United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994)
(en banc) (further stating, “[w]e affirm a departure from the
Guidelines if the district court offers acceptable reasons for the
departure and the departure is reasonable.”) (internal quotations
omitted) (citations omitted).
5
Fed. R. Crim. P. 52(b); United States v. Ravitch, 128 F.3d
865, 869-70 (5th Cir. 1997).
3
conviction involved a six-month sentence and the term of
incarceration for that offense was imposed more than ten years
before his commission of the instant offense. U.S.S.G § 4A1.3
provides, however, that “[i]f 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.” U.S.S.G. § 4A1.2 n. 8 further
clarifies that “[i]f the court finds that a sentence imposed
outside [the time period established by §§ 4A1.2(d)(2) and (e)] is
evidence of [1] similar, or [2] serious dissimilar, criminal
conduct, the court may consider this information in determining
whether an upward departure is warranted under 4A1.3.”
Undoubtedly, Estrada’s escape from federal custody is dissimilar to
his federal drug violation in the instant case. Thus, the only
issue on appeal is whether escaping from federal custody is a
“serious” crime.
The Sentencing Guidelines do not define “serious” crimes and
“serious” is not a legal category generally used to distinguish
between different types of crimes. Additionally, this court has
never addressed the question of what constitutes “serious
dissimilar” conduct. In the absence of any precedent or other
guidance, the district court could not possibly have committed
plain error.
4
III.
CONCLUSION
For the foregoing reasons, the district court’s upward
departure in its sentencing of Estrada is
AFFIRMED.
5
WIENER, Circuit Judge, specially concurring:
Although I agree with the result reached by the panel, I write
separately to note my disagreement with the standard of review
employed in arriving at this result. My review of the sentencing
record convinces me that counsel for Estrada adequately objected to
the district court’s upward departure in sentencing, and thereby
preserved his appeal. Rather than review the imposition of the
enhanced sentence for plain error, I would affirm Estrada’s
sentence by holding that the district court did not abuse its
discretion.
Counsel for Estrada twice objected to the court’s upward
departure and —— more importantly —— did so during the court’s
discussion of its basis for increasing Estrada’s CHC. Indeed, the
only factor being discussed by the court in support of its decision
to depart upwardly was the inclusion of Estrada’s remote
convictions. Thus, Estrada’s admittedly terse objection to the
upward departure could only relate to the inclusion of his remote
convictions under the “serious dissimilar” clause of the relevant
sentencing guideline. I am convinced that the district court could
not have failed to understand the basis for counsel’s objection.
Under such circumstances, we should not require counsel to perform
the redundant act of incanting talismanic words; all that is
6
required is that counsel’s words be sufficient for the court to
comprehend the objection. In this instance, counsel’s objections
adequately encompassed the issue herein appealed and properly
preserved the issue for our review.
With the objection thus properly preserved, our review would
not be for plain error; rather, we would review the district
court’s decision to depart upwardly from the sentencing guidelines
range for abuse of discretion.6 When the sentencing court
exercises the discretion afforded by U.S.S.G § 4A1.3 to depart
upwardly, we require the court to articulate expressly its reasons
for the departure.7 Reasons thus articulated by the district court
are findings of fact, which we review for clear error.8
As the per curiam opinion notes, the term “serious” is not
defined by the Sentencing Guidelines or by other federal criminal
statutes. Thus, the district court’s determination whether the
crime of escape is serious is a factual one made in light of all
the attendant circumstances. The question, therefore, is whether
the district court abused its discretion by including Estrada’s
6
United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994)
(en banc) (further stating, “[w]e affirm a departure from the
Guidelines if the district court offers acceptable reasons for the
departure and the departure is reasonable.”) (internal quotations
omitted) (citations omitted).
7
Id.; United States v. Martinez-Perez, 916 F.2d 1020, 1024
(5th Cir. 1990).
8
United States v. Pennington, 9 F.3d 1116, 1118 (5th Cir.
1993).
7
remote convictions as “serious dissimilar” conduct.
My review of the record supports the district court’s
conclusion that when Estrada was convicted of escape from a federal
half-way house, he was convicted of a serious crime, justifying
inclusion in his CHC calculation. I reach this determination with
some guidance from other federal courts that have addressed the
issue.9 The opinions cited by Estrada to advocate the opposite
view are either inapposite or have been superceded.10 Moreover,
9
See United States v. Connelly, 156 F.3d 978, 984 (9thCir.
1998) (reviewing 9th Circuit case law determining that shoplifting,
simple marijuana possession, and misdemeanor assault and battery
were not serious, whereas assault with a deadly weapon,
impersonating a military officer, first degree robbery, immigration
violations, marijuana trafficking, prison fights, and public
transportation fare evasion were serious) (citing cases); United
States v. Lowe, 106 F.3d 1498, 1503 (10th Cir. 1997) (affirming the
trial court’s decision to depart upward where one of the reasons
for the upward departure was a remote conviction for escape);
United States v. Pratt, 940 F.Supp. 424, 427 (D.N.H. 1996) (finding
that the defendant’s prior convictions for criminal liability for
the conduct of another and DWI were serious dissimilar conduct to
the defendant’s conviction for mailing threatening communications);
cf. United States v. Cooper, 1996 WL 346953 *6-7 (D.D.C. 1996)
(although declining to exercise its discretion to depart, noting
that the defendant’s remote convictions, including one for escape,
were serious).
10
Although I acknowledge counsel’s service to this court as
Estrada’s court-appointed attorney, counsel must remain mindful
that he is an officer of the court with the concomitant duty of
complete candor. In his vigorous efforts to persuade this court,
counsel has cited cases from other jurisdictions that address
versions of the Sentencing Guidelines that are no longer in force
and are thus irrelevant to the instant case. See e.g., United
States v. Donaghe, 50 F.3d 608, 612 (9th Cir. 1995) (applying the
pre-1992 version of the Sentencing Guidelines which did not
expressly provide for inclusion of “serious dissimilar” conduct);
United States v. Smallwood, 35 F.3d 414, 417 (9th Cir. 1994)
(same); United States v. Stephenson, 887 F.2d 57 (5th Cir. 1989)
(addressing only the time period for calculating the initial CHC
8
even if we were to assume that the district court erred in
considering Estrada’s escape to be serious, such error would be
harmless. I do not quarrel with the district court’s conclusion
that when Estrada’s remote convictions are not considered, his
resulting CHC score does not adequately reflect the recurrent and
sustained nature of his criminal past. The district court’s
thorough articulation of its reasons for the upward departure
referenced but a few of the many criminal violations detailed in
Estrada’s PSR. Even though it was entitled to include other
serious violations detailed in the PSR, such as Estrada’s
conviction for assault on a police officer for which he served 30
days in jail,11 the district court expressly declined to do so. My
point is that even if we were to reject the escape conviction as
not serious, a surfeit of other criminal history matters remain to
support an upward departure. Reviewing the record as a whole, I am
convinced that the district court did not abuse its discretion by
upwardly departing.
In summary, I respectfully concur with the panel’s affirmance
of Estrada’s sentence, albeit my concurrence is grounded in the
score under § 4A1.2(e) and not discussing discretionary inclusion
of convictions under § 4A1.3; abrogation on other Sentencing
Guideline matters recognized by United States v. Johnson, 961 F.2d
1188, 1189 (5th Cir. 1992)). I would caution counsel henceforth to
exercise greater care to avoid citing obviously inapplicable
authority to this court.
11
Coincidentally, this assault conviction occurred during the
time of his absence from the federal half-way house following his
escape.
9
belief that the court properly exercised its discretion after
considering the substance of Estrada’s objection. Because I
believe that counsel’s objection left the court no doubt about the
basis, I find the application of plain error review inapposite
here.
10