United States v. Quincey Lemond Jones

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 26, 2005
No. 05-10556
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________

D. C. Docket No. 04-00034-CR-CG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

QUINCEY LEMOND JONES,
a.k.a. Dettic Lee Whittic,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Alabama
_________________________

(September 26, 2005)

Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
 Quincey Lemond Jones was sentenced to 235 months imprisonment for

armed bank robbery and abduction during a bank robbery, in violation of 18

U.S.C. § 2113(a), (d), and (e). On appeal, Jones contends that the district court

erred in departing upward from criminal history category V to category VI

pursuant to United States Sentencing Guidelines § 4A1.3 because (1) the court

failed to compare Jones’ criminal history with the criminal history of other

defendants in category VI, and (2) the court did not properly take into account the

nature and circumstances of the offense or consider Jones’ history and

characteristics.

U.S.S.G. § 4A1.3 allows a district court to depart upward during sentencing

“[i]f reliable information indicates that the defendant’s criminal history category

substantially under-represents the seriousness of the defendant’s criminal history

or the likelihood that the defendant will commit other crimes.” When departing

upward under U.S.S.G. § 4A1.3, the district court must first look to the next

highest criminal history category. United States v. Williams, 989 F.2d 1137, 1142

(11th Cir. 1993). If the court finds that the higher category adequately reflects the

defendant’s past conduct, the court must state its finding and sentence the

defendant within that higher criminal history range. Id.

We review “de novo the district court’s application of the guidelines to the

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facts to decide whether the departure is based on a factor that (a) advances the

objectives of federal sentencing policy, (b) is authorized under 18 U.S.C. §

3553(b), and (c) is justified by the facts of the case.” United States v. Pressley,

345 F.3d 1205, 1209 n.1 (11th Cir. 2003).

We have held that “[t]he amount by which a district court departs from the

Guidelines need only be reasonable.” United States v. Kimball, 291 F.3d 726, 734

(11th Cir. 2002). Even if the defendant’s prior offenses do not meet the definition

of “career offender,” the defendant’s criminal record can justify an upward

departure if his prior crimes were substantial in number and serious in character.

See United States v. Campbell, 888 F.2d 76, 78–79 (11th Cir. 1989).

We conclude that the district court’s upward departure was reasonable.

The court properly took the guidelines into account in determining the degree of

departure. The district court explained that Jones had repeatedly committed

criminal offenses since he was fourteen years old and found that criminal history

category VI more adequately reflected Jones’ criminal history than category V.

Specifically, the court found that category V inadequately represented the

likelihood that Jones would commit other offenses when he was released from

custody. Furthermore, the district court properly considered the sentencing factors

found in § 3553(a)(2), stating that she based the sentence on the seriousness of the

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offense, deterrence, and incapacitation. The district court did not err by imposing

the upward departure under U.S.S.G. § 4A1.3. The amount of the upward

departure was appropriate under the circumstances.

For the same reasons that the district court’s upward departure pursuant to

the guidelines and the amount of that departure were appropriate, the resulting

sentence was not unreasonable under United States v. Booker, 125 S. Ct. 738

(2005).

AFFIRMED.

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