United States v. Richmond

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 11, 2003
FOR THE FIFTH CIRCUIT
_____________________________________ Charles R. Fulbruge III
Clerk
No. 01-31099 consolidated with No. 01-31101
_____________________________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

KENNETH RICHMOND

Defendant - Appellant

_______________________________________________

_____________________________________

consolidated with No. 02-30236
_____________________________________

UNITED STATES OF AMERICA

Plaintiff - Appellee
v.

KENNETH RICHMOND; ARMSTEAD L. KIEFFER

Defendants -Appellants

__________________________________________________

Appeals from the United States District Court
For the Eastern District of Louisiana, New Orleans
__________________________________________________

Before DAVIS, HALL* and EMILIO M. GARZA, Circuit Judges.

*
Circuit Judge of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
W. EUGENE DAVIS, Circuit Judge:**

I.

Appellants, Kenneth Richmond and Armstead Kieffer raise a

number of issues in their challenge of their convictions and

sentences relating to a mail theft scheme. Richmond also appeals

his two sentences for violations of supervised release imposed

for earlier convictions. For the reasons that follow, we affirm

Richmond and Kieffer’s convictions and sentences for the current

offenses. We vacate Richmond’s sentences for violations of his

supervised release imposed as part of his sentence on an earlier

conviction and remand for re-sentencing consistent with this

opinion.

II.

In 1999, while serving the last few months of an earlier

sentence in a halfway house, Richmond recruited Postal Service

Employee Yvette Jones to steal mail from the United States Post

Office on Loyola Avenue in New Orleans. Jones testified that she

regularly hid mail in her lunch pail beginning in early 2000.

The stolen mail included personal checks, Treasury checks, and

credit card bills. Jones testified that she delivered mail to

Richmond two to three times a week over an eight or nine month

period in return for payment. She delivered the mail to Richmond

**
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this opinion should not be published and is not precedent except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.

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either at a designated place outside the post office, at his

liquor store, or at his home.

Richmond used the stolen mail to counterfeit Louisiana

driver’s licenses. Honey Marie Carey (“Carey”), a member of

Richmond’s “inner circle,” testified that she sorted the stolen

mail and telephoned banks and credit card companies to verify

balances. Carey further testified that she made fake credit

cards with an embossing machine using the credit card statement

information and blank credit cards supplied by Richmond.

Richmond recruited, trained and paid a number of “runners”

to negotiate the forged checks, using counterfeit identification

bearing their likenesses, and to obtain cash advances or make

actual purchases using the stolen credit cards. These runners

reported to work regularly, adhered to a prescribed dress code,

and were assigned pre-bundled packages of checks and fake

licenses two to three times a week to obtain cash and return it

to Richmond. The runners used Richmond’s fleet of fraudulently

leased vehicles to travel the state cashing the checks. Richmond

paid one-third of the profits of his operation to Jones and one-

third of the profits to the runners.

Kieffer cashed several stolen checks as a part of Richmond’s

scheme. Kieffer admitted to cashing five stolen personal checks

on July 11 and 12, 2000, in a combined amount of $12,100.00.

Kieffer also admits to cashing several other checks around this

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time for which he was not indicted. At trial, Carey and another

co-conspirator testified that Kieffer traveled to Texas with

Richmond to target check-cashing machines, and while there went

on a shopping spree with other members of the conspiracy using a

counterfeit credit card.

Postal Inspectors eventually suspected Jones was stealing

mail. On September 29, 2000, Postal Inspectors observed Jones

placing mail in her lunch pail, leaving the Post Office, getting

into her car and exiting the parking garage. Postal Inspectors

stopped Jones and she consented to a search. Her lunch pail

contained 161 Treasury checks and 124 credit card statements.

Jones implicated Richmond during interrogation and explained that

she was planning to deliver the mail to Richmond’s liquor store.

At the request of the Postal Inspectors, Jones telephoned

Richmond and asked him to meet her outside the Post Office to

pick up the mail. Richmond arrived and parked outside the Post

Office in the designated spot. Another co-conspirator

accompanied Richmond in the front seat, and Kieffer rode in the

back seat. Jones entered the car and left the lunch pail on the

seat next to Kieffer. Postal Inspectors taped Jones’s telephone

conversation and videotaped the encounter with Richmond. All

three men were arrested.

Prior to trial, Richmond filed a motion to exclude evidence

of his past convictions under Fed. R. Evid. 403(b). The district

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court denied the motion and allowed the government to introduce

Richmond’s two prior convictions to show knowledge and intent.

Appellants were charged with various offenses related to

this scheme which included charges for conspiracy to possess

stolen mail and commit bank fraud, attempted possession of stolen

mail, possession of identification documents for an unlawful

purpose and possession of counterfeit access devices. A jury

convicted both defendants on all counts.

Before Richmond was sentenced, the government provided

Richmond with a letter written by Carey, a key government witness

at trial. Carey wrote to a friend that she had lied on the

stand. Richmond moved for a new trial based on the letter, and

the district court denied the motion without an evidentiary

hearing. The district court sentenced Richmond in February

2002, and departed upward from the 110-137 month Sentencing

Guideline range to impose a 240-month term of imprisonment.

The district court sentenced Kieffer to 72 months’

imprisonment. This sentence reflects an upward departure from

the 24 to 30 month Sentencing Guideline range.

At the time of his arrest, Richmond had two prior

convictions involving identity theft. In 1997, Richmond pled

guilty to possession of counterfeit securities, and the district

court sentenced him to thirty months’ imprisonment to be followed

by three years of supervised release. In 1998, the district

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court sentenced Richmond to thirty-five months’ imprisonment and

three years of supervised release after he pled guilty to

possession and transfer of false identification documents and

possession of forged securities. The district court ordered

Richmond to serve these sentences concurrently.

In August, 2001, the government filed a rule to show cause

why these two terms of supervised release should not be revoked.

The charges in the current case formed the basis of the

government’s motion. The district court held a consolidated

hearing and revoked the terms of Richmond’s supervised release.

Richmond received consecutive sentences of 24 months’

imprisonment to be followed by one year of supervised release in

each case to run concurrently. The district court ordered the

two 24-month terms to run consecutively to his new 240-month

sentence. We consider appellants’ arguments below.

III.

Richmond argues first that the district court erred in

denying his motion for a new trial without conducting an

evidentiary hearing. Following Richmond’s conviction, the

government intercepted a letter from an incarcerated co-

defendant, Carey, in which she admitted to lying on the stand at

Richmond’s trial.1 Richmond filed his motion for a new trial

1
Carey’S letter reads in part:

I testified on Tuesday. I know I f***ed up
the government’s case. I LIED my ass off on

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based on Carey’s recantation.

We review a district court’s denial of a motion for new

trial for abuse of discretion. United States v. Metz, 652 F.2d

478, 479 (5th Cir. 1981). We also review a district court’s

decision to rule on a motion for new trial without an evidentiary

hearing for abuse of discretion. See United States v. Blackburn,

9 F.3d 353, 358 (5th Cir. 1993).

Richmond did not request an evidentiary hearing.

Additionally, Richmond did not argue to the district court that

the meaning of Carey’s letter was unclear. In fact, he argues

for the first time on appeal that an evidentiary hearing was

necessary to determine the exact nature and extent of Carey’s

admitted perjury. Thus, Richmond waived his argument that an

evidentiary hearing was necessary by not presenting it to the

district court.

A new trial may be granted on defendant’s motion “if the

interests of justice so require.” Fed. R. Crim. P. 33. However,

a new trial is warranted “only where there would be a miscarriage

of justice or where the evidence preponderates against the

verdict.” United States v. O’Keefe, 128 F.3d 885, 898 (5th Cir.

1997) (internal quotations and citations omitted). To obtain a

new trial based on newly discovered evidence, a defendant must

show:

the stand.

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 (1) that the evidence was newly discovered
and unknown to the defendant at the time of
trial, (2) that his failure to discover the
evidence was not the result of a lack of due
diligence, (3) the evidence is material and
not merely cumulative or impeaching, and (4)
the evidence will probably produce an
acquittal.

United States v. Mulderig, 120 F.3d 534, 545 (5th Cir. 1997).

The district court denied the motion for new trial because

Richmond did not demonstrate that the alleged admissions in

Carey’s letter “would probably produce an acquittal.” Further,

the court found that Carey’s statements were exculpatory and that

evidence other than Carey’s testimony strongly supported the

verdict.2

Richmond contends that he would not have been convicted of

possession of fifteen or more counterfeit or unauthorized access

devices in violation of 18 U.S.C. § 1029(a)(3) without Carey’s

perjured testimony at trial. Carey was the only government

2
It is also significant that Carey’s letter makes it clear
that she lied to help Richmond, not hurt him. Carey explained:

I took total responsibility for everything
between July and September. I told them I
made everything, everything was at my house,
etc. (I’ve never made a D in my life)[sic] I
knew the bulk of the case was built around the
events that took place between 7/00 & 9/00.
[sic] and them trying to put it all off on
him. Maybe now he’ll have a ½ way decent
chance at giving back some of the charges. If
not, he’ll definitely have a good chance with
his appeal. I couldn’t just get up there and
just let shit happen like that.

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witness to testify that Richmond possessed fifteen or more

counterfeit credit cards at one time. At trial, the government

questioned Carey regarding the number and type of blank credit

cards Richmond possessed for counterfeiting purposes. Carey

stated, “The most I’ve ever seen at one time were like 25 of

each, so maybe 100, altogether.” Other witnesses testified that

they saw Richmond in possession of counterfeit credit cards at

different times, but no other witness testified that Richmond

possessed more than fifteen cards at one time. Richmond argues

if Carey’s testimony is properly disregarded, the government

failed to offer sufficient evidence to support his conviction on

this count because § 1029(a)(3) does not allow aggregation of

access devices possessed at different times to meet the requisite

fifteen-card threshold.

Richmond relies on the Eighth Circuit’s holding in United

States v. Russell, 908 F.2d 405 (8th Cir. 1990), that access

devices may not be aggregated for purposes of § 1029(a)(3).

However, the next year the Eighth Circuit held in Unites States

v. Farkas, 935 F.2d 962 (8th Cir. 1991), that access devices may

be aggregated to satisfy the fifteen-card threshold of §

1029(a)(3) based on evidence that the defendant possessed

different cards on different occasions as part of an ongoing

scheme. The Eighth Circuit distinguished its earlier decision in

Russell because the record contained evidence that Russell sold

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his counterfeited credit cards as he made them and never

possessed more than twelve at a time. The defendant in Farkas

did not sell the cards or dispose of them after he used them to

make purchases. Thus, the court held that it was appropriate to

aggregate the total number of access devices because Farkas could

not claim that his possession of the cards ended at any specific

point. Id. at 967. We agree with this reasoning.

Richmond’s case is similar to that of the defendant in

Farkas. The record contains no evidence to suggest that Richmond

sold the counterfeit cards or disposed of them in any other way.

Therefore, we agree that the government was not required to

present a witness to testify that Richmond possessed fifteen or

more cards on a single occasion, and the district court properly

determined that the access devices in this case could be

aggregated. In addition to the testimony by several witnesses

that Richmond possessed counterfeit credit cards at various

times, Jones delivered to Richmond 126 credit card statements

which were in his possession at the time of his arrest. Under 18

U.S.C. § 1029(e)(1), credit card account numbers are included in

the definition of “access devices.” Because Richmond cannot show

that he would probably have been acquitted on this charge without

Carey’s testimony, the district court did not abuse its

discretion in denying his motion for a new trial.

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 IV.

Richmond argues next that the district court erred in

admitting evidence of his two prior criminal convictions at his

trial. “The district court’s decision to admit Rule 404(b)

evidence is reviewed for abuse of discretion. This review is

necessarily heightened in criminal cases.” United States v.

Peterson, 244 F.3d 385, 392 (5th Cir. 2001) citing United States

v. Richards, 204 F.3d 177, 199 (5th Cir. 2000).

Federal Rule of Evidence 404(b) provides:

Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident, provided that upon request by the
accused, the prosecution in a criminal case
shall provide reasonable notice in advance of
trial, or during trial if the court excuses
pretrial notice on good cause shown, of the
general nature of any such evidence it
intends to introduce at trial.

In United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en

banc), this circuit established a two-prong test for the

admissibility of offenses extrinsic to a defendant’s indictment

to prove criminal intent:

First, it must be determined that the
extrinsic offense evidence is relevant to an
issue other than the defendant’s character.
Second, the evidence must possess probative
value that is not substantially outweighed by
its undue prejudice and must meet the other
requirements of rule 403.

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 Id. at 911.

Richmond contends that the district court erred in denying

his motion to exclude evidence of his prior convictions without

specifically articulating on the record why the court concluded

that the probative value of the evidence outweighed its

prejudicial effect. Richmond argues that this requires us to

vacate his convictions and remand.

“Upon the request by a party, the district court determining

the admissibility of 404(b) evidence must make an on-the-record

articulation of its Beechum probative value/prejudice inquiry.”

United States v. Elwood, 993 F.2d 1146, 1153 (5th Cir. 1993). In

the absence of such a request, a remand is not required “if the

trial court expressly states that it has made the Beechum

probative value/prejudice weighing and finds that prejudice does

not substantially outweigh the probative value [and] there is

nothing to indicate that the trial court misunderstood or

misapplied the Beechum test.” United States v. Olsum, 943 F.2d

1394, 1403 (5th Cir. 1991).

Richmond did not request that the trial court make its

Beechum analysis on the record. The trial court clearly refers

to the Beechum test in its Order and Reasons, and found that the

probative value was strong enough to allow admission of the

evidence. For the reasons below, we are satisfied that the

trial court correctly applied the Beechum test.

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 Richmond argues that he did not place his intent at issue,

and even if he did, the government had alternative evidence of

his intent. Richmond suggests that the government used the

evidence in its opening statement to prove character propensity,

and the trial court’s limiting instructions could not cure the

prejudice.

Every defendant on trial for conspiracy places his intent

and knowledge at issue and justifies the introduction of

extrinsic offense evidence unless the defendant “affirmatively

take[s] the issue of intent out of the case.” United States v.

Mergist, 738 F.2d 645, 650 (5th Cir. 1984) (internal citations

omitted). This court stated: “Because of the unique nature of

conspiracy charges, we cannot apply to them the policy suggested

in Beechum of uniformly excluding extrinsic offense evidence when

the defendant does not actively contest intent.” Id. Every not

guilty plea in a conspiracy case puts the defendant’s intent at

issue, and the only way the defendant can “affirmatively take the

issue out of the case” is to stipulate that if his participation

is proved, he does not contest intent. Id. Richmond did not

stipulate to knowledge, and Richmond’s answers to defense

counsel’s questions apparently were aimed at proving he had no

knowledge of the conspiracy. Thus, Richmond’s intent was at

issue, and the district court did not err in admitting the

evidence of his past convictions to show intent.

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 Richmond’s recent prior convictions were similar to the

charged offenses. Richmond started each new scheme before

completing his sentence for his previous conviction, and the

schemes became more elaborate. These earlier offenses have a

tendency to show that Richmond had knowledge and intent to commit

fraud in this case. The trial court gave limiting instructions

to the jury, during and after trial, explaining the limited

purposes of the Rule 404(b) evidence. The prosecutor emphasized

the instructions at closing. Although the evidence of his prior

convictions was clearly prejudicial, the district court did not

abuse its discretion in finding that their probative value

outweighed the potential for prejudice.

V.

Kieffer argues that the evidence was insufficient to support

his conviction for attempted mail theft in violation of 18 U.S.C.

§ 1708. In reviewing sufficiency claims, we “must determine

‘whether viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001)

(citations omitted). The “jury is ‘free to choose among all

reasonable constructions of the evidence,’ and ‘it is not

necessary that the evidence exclude every reasonable hypothesis

of innocence or be wholly inconsistent with every conclusion

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except that of guilt.’” Id. Our “review is limited to whether the

jury’s verdict was reasonable, not whether we believe it to be

correct.” Id.

To obtain a conviction under 18 U.S.C. § 1708, the

government must prove beyond a reasonable doubt that (1) the

defendant possessed the item described in the indictment, (2) the

item had been stolen from the mail, (3) the defendant knew the

item was stolen, and (4) the defendant had the specific intent to

possess the item unlawfully. U.S. v. Osunegbu, 822 F.2d 472, 475

(5th Cir. 1987).

Mail theft was an object of the conspiracy. The jury was

properly instructed on aiding and abetting and a co-conspirator’s

liability for substantive offenses committed by a co-conspirator

in furtherance of the conspiracy. To find Kieffer guilty of

aiding and abetting, the jury was required to find: (1) that the

offense of attempted possession of stolen mail was committed by

some person; (2) that the defendant associated with the criminal

venture; (3) that the defendant purposefully participated in the

criminal venture; and (4) that the defendant sought by action to

make that venture successful. United States v. Garcia, 242 F.3d

593, 596 (5th Cir. 2001). Additionally, a conspirator is

responsible for the offenses committed by other conspirators if

he was a member of the conspiracy when the offense was committed

and if the offense was committed in furtherance of, or as a

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foreseeable consequence of, the conspiracy. Pinkerton v. United

States, 328 U.S. 640 (1946).

Kieffer argues that he was merely present at the time Jones

made the last delivery of mail to Richmond. Kieffer admits that

he knew Richmond was receiving stolen mail from Jones. However,

Kieffer argues that the evidence was insufficient to convict him

on this count because “mere knowing presence” at the scene of

criminal activity is insufficient to support a criminal

conviction.

We are satisfied that the evidence was sufficient to allow

the jury to convict Kieffer for attempted possession of stolen

mail. Our review of the record reveals that there was clear

evidence that Jones stole mail from the U.S. Post Office and

delivered it to Richmond for use in his scheme. Jones testified

that Kieffer accompanied Richmond to retrieve stolen mail from

her on at least two occasions before the day of his arrest. In

addition to Kieffer’s presence at the scene on September 29,

2000, the government presented evidence of Kieffer’s intentional

involvement in the conspiracy. First, Kieffer admitted cashing

stolen checks for Richmond in July of 2001 in various parts of

Louisiana. Kieffer also admitted to possessing various

counterfeit Louisiana driver’s licenses which he used to cash the

checks. The government also produced testimony from Carey that

Kieffer came to her home to retrieve the laptop computer that the

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conspirators used to make the counterfeit ID’s. Two co-

conspirators testified that Kieffer was involved in the attempt

to cash checks in Texas using check-cashing machines, and one

witness testified that Richmond and Kieffer shopped together

using the counterfeit credit cards. A co-conspirator testified

that Kieffer drove a black Expedition, and his family had a

Lexus. Another co-conspirator testified that Richmond

fraudulently leased six Ford vehicles, including the Expedition

that Kieffer drove, from a dealership in Jackson, Mississippi.

This evidence is sufficient to allow a jury to find that Kieffer

actively participated in the conspiracy at the time Jones

delivered the last bundle of stolen mail and that the jury was

entitled to hold him accountable for the criminal conduct that

furthered the aims of the conspiracy. Thus, we conclude that the

evidence was sufficient to support Kieffer’s conviction on this

count.

VI.

Both Kieffer and Richmond argue that the trial court’s

upward departure from the Sentencing Guidelines was improper.

This court reviews an upward departure for an abuse of

discretion. United States v. Winters, 174 F.3d 478, 482 (5th

Cir. 1999); see also United States v. Ashburn, 38 F.3d 803, 807

(5th Cir. 1994) (en banc). “A district court has wide discretion

in determining the extent of the departure, and [this court] will

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affirm an upward departure if (1) the court gives acceptable

reasons for departing and (2) the extent of the departure is

reasonable. United States v. Route, 104 F.3d 59, 64 (5th Cir.

1997). The reasonableness of the extent of a departure is to be

determined in light of the reasons for departure. See United

States v. Hawkins, 87 F.3d 722, 730-31 (5th Cir. 1996).

A.

The district court departed upwardly from the Sentencing

Guideline range of 24 to 30 months when it imposed a 72-month

sentence on Kieffer. The district court based its departure on

disruption to governmental function, losses uncaptured by the

Guidelines and Kieffer’s prior criminal record. Kieffer argues

that his sentence must be vacated and his case remanded for re-

sentencing because the district court failed to adequately

explain the departure, the reasons offered cannot properly

support the departure, and the extent of the departure was

unreasonable. We disagree and affirm his sentence.

First, Kieffer argues that disruption to governmental

function cannot support an upward departure in this case because

the disruption is inherent in the offense.

United States Sentencing Guideline § 5K2.7 allows a district

court to base an upward departure on disruption to governmental

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function if the circumstances are unusual.3 In departing in this

case, the district court explained that this court upheld an

upward departure on the basis of disruption to governmental

function in United States v. Garcia, 900 F.2d 45 (5th Cir. 1990),

because of the amount of mail stolen, a total of 950 pieces. The

district court reasoned that although the amount of mail stolen

in Garcia was greater in quantity, the “quality of the mail

stolen by these Defendants in this case is an unusual

circumstance that’s not taken into account by the guidelines.”

The court pointed out that the mail stolen in this case included

a large number of personal checks, Treasury checks and credit

card statements. The Treasury checks that were stolen had been

issued by various federal agencies including the Internal Revenue

Service, Social Security and the Veterans Administration. As a

3
The Sentencing Guidelines provide:

If the defendant’s conduct resulted in a
significant disruption of a governmental
function, the court may increase the sentence
above the authorized guideline range to
reflect the nature and extent of the
disruption and the importance of the
governmental function affected. Departure
from the guidelines ordinarily would not be
justified when the offense of conviction is an
offense such as bribery or obstruction of
justice; in such cases interference with
governmental function is inherent in the
offense, and unless the circumstances are
unusual the guidelines will reflect the
appropriate punishment for such interference.

U.S.S.G. § 5K2.7 (2001).

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result of the thefts, these agencies had to contact beneficiaries

and reissue checks. The district court did not abuse its

discretion in concluding that the theft of these items caused

substantial disruption in governmental function to these

agencies.

Second, Kieffer argues that the district court improperly

based its upward departure on losses uncaptured by the

Guidelines. Kieffer argues that he cashed a discreet number of

personal checks in mid-July, and should not be held accountable

for losses that occurred as a result of the entire conspiracy.

The district court specifically rejected Kieffer’s claim

that he should only be held responsible for the stolen checks he

cashed in July, a total of $25,000. The district court pointed

to the value of the stolen mail retrieved when Kieffer and

Richmond were arrested, approximately $300,000, and the

sophistication of the scheme as a whole in deciding that the

actual losses were uncaptured by the Guidelines. Kieffer’s

argument that he should not be held responsible for the losses

related to the conspiracy fails for the same reason his

sufficiency of the evidence claim fails.

Third, Kieffer argues that the district court’s departure

based on U.S.S.G. § 4A1.3 (2002) was improper. Kieffer contends

that the district court gave his criminal history undue and

unexplained weight. A district court may depart from an

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otherwise applicable guideline range “when the criminal history

category significantly under-represents the seriousness of the

defendant’s criminal history or the likelihood that the defendant

will commit further crimes.” U.S.S.G. § 4A1.3, p.s.

In United States v. Lambert, 984 F.2d 658, 663 (5th Cir.

1993) (en banc), this court rejected the notion that a district

court, when departing on the basis of § 4A1.3, must “go through a

ritualistic exercise in which it mechanically discusses each

criminal history category it rejects en route to the category

that it selects.”

At the sentencing hearing, the district court specifically

addressed the circumstances under which an upward departure is

allowed based on the inadequacy of the defendant’s criminal

history category under USSG § 4A1.3 (2002). A sentencing court

may upwardly depart from the Guideline range “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.” Id. Noting that a prior arrest record, by itself,

does not warrant a departure, the court in considering the

totality of the evidence pointed to Kieffer’s fifteen prior

arrests in determining that Kieffer was a serious career

recidivist. Consideration of Kieffer’s past criminal history

resulted in zero points being added to his base offense category

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of I because the convictions were outside the time frame for

consideration under the Guidelines. Kieffer had three juvenile

convictions for simple robbery, simple burglary, armed robbery

and possession of stolen property. Kieffer also had a conviction

for simple battery as an adult. Although Kieffer has not been

arrested as an adult for any other fraud-based crime, he has been

repeatedly arrested for fighting and drug crimes. The district

court did not err in departing on this ground.

Lastly, Kieffer argues that the extent of the departure is

unreasonable. The district court has wide discretion in

determining the extent of departure. Hawkins, 87 F.3d 730-31.

The reviewing court generally defers to the sentencing court in

making this determination. United States v. Lara, 975 F.2d 1120,

1125 n.3 (5th Cir. 1992). After hearing all of the evidence in a

case and observing the defendants and the witnesses, the trial

court has a much better feel for the case than we can ever get

from the cold record. We have upheld departures of greater

magnitude than that assessed to Kieffer. See United States v.

Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995) (upholding a

departure from a range of 57 to 71 months to 240 months); United

States v. Ashburn, 38 F.3d 803, 809 (5th Cir. 1994)(en

banc)(upholding an increase from a range of 63 to 78 months to

180 months). Thus, the district court did not abuse its

discretion in departing upwardly from the Sentencing Guideline

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Range to impose upon Kieffer a sentence of 72 months.

B.

In sentencing Richmond, the district court imposed a 240-

month prison sentence which reflected an upward departure from

the guideline range of 110 to 137 months. The district court

based its upward departure on disruption of governmental function

and the inadequacy of Richmond’s criminal history category.

Richmond objects to the upward departure based on disruption

to governmental function for the same reasons Kieffer objected.

The district judge adopted the reasons for the departure given

during Kieffer’s sentencing, which occurred as part of the same

proceeding. For the reasons given above, the district court did

not abuse its discretion by departing on this basis.

Richmond also argues that the district court abused its

discretion in increasing his sentence based on his past criminal

history. As noted by the district court, Richmond has a history

of arrests and convictions for two earlier mail fraud schemes

similar to the instant case. Richmond continued to commit the

same type of offenses, despite arrests and prosecution. In fact,

Richmond began each new scheme before he completed his sentence

for the prior conviction. Additionally, Richmond had sixteen

prior arrests for various offenses. A criminal history category

of VI requires 13 or more criminal history points. Richmond’s

Presentence Investigation Report assigned him 17 criminal history

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points. No abuse of discretion has been shown.

VII.

Richmond argues last that his sentence for violation of

supervised release must be vacated and remanded for re-sentencing

because the district court did not allow him the opportunity to

allocute. Additionally, Richmond contends that the imposition of

the two one-year periods of supervised release in addition to

prison time violates 18 U.S.C. § 3583(e)(3) and must be vacated.

We agree and vacate Richmond’s sentences and remand for re-

sentencing with instructions to the district court to allow

Richmond to allocute prior to sentencing.

Because there are no applicable guidelines for sentencing

after revocation of supervised release, this court upholds a

defendant’s sentence unless it is in violation of law or plainly

unreasonable. see U.S.S.G. Chapter 7 Part A 1 ("At this time, the

Commission has chosen to promulgate policy statements only.");

United States v. Headrick, 963 F.2d 777, 779 (5th Cir. 1992). "A

sentence is imposed in an illegal manner if the court fails to

comply with the procedural rules in imposing sentences." United

States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984). "Once it

is found that the district court failed to comply with a

procedural rule of sentencing, a new sentencing hearing should be

ordered." Id.

The court is required by Federal Rule of Criminal Procedure

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32(c)(3)(C) to personally address the defendant, inquiring

whether the defendant wishes to speak for himself.4 A district

court’s failure to comply with Rule 32(c)(3)(C) is not subject to

the harmless or plain error provision of Fed. R. Crim. P. 52.

United States v. Dabeit, 231 F.3d 979, 981 (5th Cir. 2000). This

court reviews whether the district court complied with this Rule

de novo. Id.

We have consistently held that a sentencing court’s failure

to ask whether a defendant wishes to speak in his own behalf

requires automatic reversal. See Dabeit, 231 F.3d at 981. We

have applied this rule to sentencing after revocation of

supervised release. United States v. Rodriguez, 23 F.3d 919 (5th

Cir. 1994). Although the district court gave Richmond the

opportunity to explain what he would have said at allocution

during sentencing for his most recent conviction, this was not

enough. See United States v. Dominguez-Hernandez, 934 F.2d 598,

599 (5th Cir. 1991) (vacating sentence and remanding for re-

sentencing for failure of court to allow defendant to allocute

prior to sentencing).

4
Fed. R. Crim. P. 32 (c)(3) states:

Before imposing a sentence, the court must:
C: address the defendant personally and
determine whether the defendant wishes to
make a statement and to present any
information in mitigation of the sentence

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 Upon revocation of Richmond’s supervised release, the

district court sentenced him to two consecutive 24-month terms of

imprisonment followed by one year of supervised release in each

case. Richmond argues that the two 24-month sentences were the

maximum permitted by 18 U.S.C. § 3583(e)(3), and this court must

vacate the one year terms of supervised release. This court

reviews issues of statutory construction de novo. See Kemp v. G.

D. Searle & Co., 103 F.3d 405, 407 (5th Cir. 1997).

Both of Richmond’s earlier convictions were for Class C

felonies that carried a maximum term of imprisonment of more than

ten years but less than 25 years. The maximum sentence of

imprisonment authorized under 18 U.S.C. § 3583(e)(3) following

revocation of supervised release is two years in each case. 18

U.S.C. § 3583(h) addresses imposition of supervised release

following revocation. It provides:

When a term of supervised release is revoked
and the defendant is required to serve a term
of imprisonment that is less than the maximum
term of imprisonment authorized under
subsection (e)(3), the court may include a
requirement that the defendant be placed on a
term of supervised release after
imprisonment.5

5
Section 3583(h) was recently amended to read:

When a term of supervised release is revoked
and the defendant is required to serve a term
of imprisonment, the court may include a
requirement that the defendant be placed on a
term of supervised release after imprisonment.
The length of such a term of supervised

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The district court imposed the maximum 24-month term of

imprisonment on each count, so it was unauthorized to also impose

a term of supervised release.

We vacate Richmond’s sentences for violation of his terms of

supervised release and remand to the district court for re-

sentencing. The district court is instructed to allow Richmond

an opportunity to allocute prior to sentencing.

VIII.

For the foregoing reasons, we affirm Kieffer’s conviction

and sentence. We also affirm Richmond’s conviction and sentence

for the present offenses, and we vacate his two sentences for

violation of supervised release imposed as part of his sentence

on an earlier conviction and remand for re-sentencing in

accordance with this opinion.

release shall not exceed the term of
supervised release authorized by statute for
the offense that resulted in the original term
of supervised release, less any term of
imprisonment that was imposed upon revocation
of supervised release.

18 U.S.C. § 3583(h) (2003).

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