[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 28, 2007
No. 06-13223 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00265-CR-JTC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE EDWARD HILL,
a.k.a. Willie Hill,
a.k.a. Ed Hill,
a.k.a. Edd Hill
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 28, 2007)
Before TJOFLAT, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Willie Edward Hill was sentenced to 36 months of imprisonment and six
years of supervised release after he pled guilty to six separate counts of knowingly
and wilfully distributing less than one gram of heroin, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)©) and § 851. Hill appeals his sentence, arguing that the
district court erred by adjusting his offense level upward by two levels, pursuant to
U.S.S.G. § 4A1.3, after finding that Criminal History Category VI of the
Sentencing Guidelines did not adequately take into account Hill’s criminal history.
Upon review, we discern no error in the district court’s decision to depart upward,
and, therefore, we AFFIRM.
I. BACKGROUND
In May 2004 a grand jury charged Hill with six counts of knowingly and
wilfully distributing heroin in violation of 21 U.S.C. § 841. The charges stemmed
from six separate occasions between July 2003 and September 2003 in which Hill
sold heroin to an undercover officer in Atlanta. Citing 21 U.S.C. § 851, the
indictment also alleged that Hill had a previous conviction for possession of
cocaine. Hill initially entered a plea of not guilty to the charges contained in the
indictment.
In September 2004, Hill moved to continue his trial, pending a hearing on
his competency. That motion was granted, and the question of Hill’s competency
to stand trial was referred to a magistrate judge. Both parties submitted evidence
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concerning Hill’s mental health. After a full competency hearing was held, the
magistrate judge issued a report and recommendation in which he concluded that
Hill was competent to stand trial. After weighing Hill’s objections to that report
and recommendation, the district court adopted the report and recommendation in
full, agreeing that Hill was competent. Thereafter, Hill pled guilty, without a plea
agreement, to all six counts contained in the indictment.
Prior to the sentencing hearing, a pre-sentence investigation (“PSI”) report
was prepared in Hill’s case. The PSI assigned Hill a base offense level of 12, as
his crime involved the distribution of less than five grams of heroin. See U.S.S.G.
§ 2D1.1(c)(14). The PSI subtracted two levels from the offense level for Hill’s
acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a). Hill’s resulting
offense level was 10.
In reviewing Hill’s criminal history for purposes of assigning him a
Criminal History Category, the PSI listed approximately 50 prior adult criminal
convictions, for a range of offenses, including, among others: larceny; car theft;
assault; battery; criminal trespass; driving under the influence; aggravated assault
(two convictions); burglary (four convictions); and possession of cocaine (six
convictions). The first conviction, for larceny, occurred in 1959, when Hill was 17
years old, and the final conviction, for possession of cocaine, occurred in 2002,
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when Hill was 60 years old. For those convictions occurring between 1973 and
2002, the PSI set forth the particular facts and circumstances surrounding the
conviction.
In assessing this criminal history, the PSI recommended a total of 14
criminal history points for Hill’s five cocaine possession convictions that occurred
between 1991 and 2002, pursuant to U.S.S.G. § 4A1.1(a)-(b). The PSI also
recommended an additional three points for a 1996 car theft conviction, also
pursuant to U.S.S.G. § 4A1.1(a), and an additional one point for a 1997 conviction
for theft by taking, pursuant to § 4A1.1©). Finally, because Hill committed the
present offense within two years following his release from prison on the 2002
cocaine conviction and while still on probation, the PSI added three additional
points. See U.S.S.G. §§ 4A1.1(d) and (e). Accordingly, the PSI determined that
Hill had a total of 21 criminal history points. Because Hill had more than 13
points, the PSI calculated his Criminal History Category as Category VI. See
U.S.S.G. Ch. 5 Pt. A.
With an offense level of 10 and a criminal history category of VI, Hill’s
recommended sentencing range was 24 to 30 months of imprisonment. The PSI
also noted that Hill was subject to a statutory minimum supervised release period
of six years. See 21 U.S.C. § 841(b)(1)©). In addition, the PSI indicated that an
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upward departure under U.S.S.G. § 4A1.3 might be warranted, due to Hill’s serious
criminal history and the likelihood of recidivism.
Prior to the sentencing hearing, the government moved for an upward
departure pursuant to U.S.S.G. § 4A1.3. See R1-44. The government noted that
the PSI’s criminal history included an additional 43 prior convictions–including
serious and violent felonies such as aggravated assault and burglary–for which no
criminal history points had been assessed. The government thus argued that the
sentencing range prescribed by the Guidelines “[did] not adequately take into
account the Defendant’s lifelong and extensive prior criminal history involving
violent crimes,” nor did it “take into account the high likelihood that the Defendant
will commit these same crimes again when released.” R1-44 at 2.
At the sentencing hearing, the district court agreed with the government’s
argument that Hill’s Criminal History Category of VI was “understated” in light of
his “extensive record.” R5 at 9. In light of the court’s finding that Hill’s criminal
history was “extensive” and was not adequately reflected in the recommended
prison sentence of 24 to 30 months, id., as well as the court’s finding that the
likelihood of recidivism was high in Hill’s case, the court granted the
government’s motion for an upward departure pursuant to U.S.S.G. § 4A1.3.
Accordingly, the court chose to make an upward adjustment of two levels, from
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offense level 10 to offense level 12, which placed Hill’s sentencing range at 30 to
37 months of imprisonment. The court then imposed a sentence of 36 months of
imprisonment, followed by a term of supervised release of six years. Hill now
appeals, arguing that the district court committed error in making an upward
departure of two levels in imposing his sentence.1
II. DISCUSSION
Section 4A1.3(a)(1) of the Sentencing Guidelines permits a district court to
make an upward departure in imposing a sentence on a defendant “[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.” In determining whether
such a departure is warranted, the court may rely, among other things, on prior
criminal sentences that were “not used in computing the criminal history category.”
See U.S.S.G. § 4A1.3(a)(2)(A).
1
Hill has since completed his 36 month sentence; according to the Bureau of Prisons, he was
released in December 2006. That does not render his appeal moot, however, because a decrease in
Hill’s sentence on remand could affect the term of his supervised release. The term of Hill’s
supervised release would have begun to run upon his release from prison. If Hill were to receive
a lesser sentence on remand, the beginning date for the term of supervised release would have to be
pushed back to the date Hill should have been released. See United States v. Huang, 977 F.2d 540,
542 n.1 (11th Cir. 1992) (per curiam). Accord United States v. Cottman, 142 F.3d 160, 165 (3d Cir.
1998) (“[I]f we were to find an error in the application of the [] enhancement, the appropriate
sentencing range would be reduced . . . . This reduction would likely merit a credit against [the
defendant]’s period of supervised release for the excess period of imprisonment to which [the
defendant] was subjected.”).
6
There are two types of upward departures under the Sentencing Guidelines:
a horizontal departure, in which a defendant’s Criminal History Category is
increased or decreased; and a vertical departure, in which a defendant’s criminal
offense level is increased or decreased. See United States v. Taylor, 88 F.3d 938,
947 (11th Cir. 1996). Hill’s case involves the latter type, in that the sentencing
judge increased his offense level from level 10 to level 12. Moreover, Hill’s case
presents the type of scenario in which the district court’s vertical departure was
made after Hill had already been determined to be subject to the maximum
Criminal History Category of VI. These types of upward adjustments are
expressly permitted under the Guidelines. See U.S.S.G. § 4A1.3, cmt. n.2(B) (“In
the case of an egregious, serious criminal record in which even the guideline range
for Criminal History Category VI is not adequate to reflect the seriousness of the
defendant’s criminal history, a departure above the guideline range for a defendant
with Criminal History Category VI may be warranted.”). We have held that, in
such circumstances, the district court is not bound to make step-by-step findings as
it travels up the vertical offense level axis, so long as its upward departure is
reasonable under the circumstances. See United States v. Smith, 289 F.3d 696, 711
(11th Cir. 2002); United States v. Dixon, 71 F.3d 380, 382-83 (11th Cir. 1995).
Hill contends that the district court erred in making its upward departure, in
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that a large number of the crimes indicated in his criminal history were old and the
majority of the offenses in his record were not violent and not particularly serious
in nature.2 He also argues that he is over 60 years old and suffers from mental
handicaps, such that the court erred in concluding that he bore a high likelihood of
criminal recidivism.
Appellate review of sentencing departure cases generally consists of three
steps. First, we must “determine whether the guidelines . . . preclude a district
court from relying upon [a particular factor] as a basis for [its] departure.” United
States v. Simmons, 924 F.2d 187, 191 (11th Cir. 1991). As this inquiry involves
the district court’s interpretation of the Guidelines, it is a question of law that we
review de novo. Id. “Second, we must determine whether there exists sufficient
factual support for the departure.” Id. Because this review implicates the district
court’s role as a fact-finder, we will not reverse its factual findings unless clearly
erroneous. United States v. Ellis, 419 F.3d 1189, 1191 (11th Cir. 2005) (quoting
United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005)). Finally, we must
ask: “if the circumstance was properly taken into account [in deciding to depart],
2
The Comment to § 4A1.3 states that an assessment of the “seriousness” of a defendant’s
criminal record involves an evaluation of the “nature of the prior offenses,” rather than their number.
U.S.S.G. § 4A1.3, cmt. n.2(B). Hill contends that many of the crimes set forth in his record were
“nuisance-type offenses like criminal trespass, small time property offenses. . . and low-level street
drugs offenses,” Appellant’s Br. at 19, such that his criminal history was not so “serious” as to
warrant a § 4A1.3 enhancement.
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was the extent of the departure from the guideline range reasonable?” Simmons,
924 F.2d at 191 (citation, alteration, and internal quotations omitted). See also
United States v. Simmons, 368 F.3d 1335, 1341-42 (11th Cir. 2004).
Applying the first step of that analysis, the Sentencing Guidelines expressly
permit a district court to consider prior criminal sentences that were “not used in
computing the criminal history category” in assessing whether an upward departure
is warranted. See U.S.S.G. § 4A1.3(a)(2)(A). Thus, the district court did not err in
considering Hill’s 43 prior convictions and sentences–crimes for which no
Criminal History Category points had been assessed–and in opting to depart
upward based on those crimes, due to the court’s determination that Hill’s Criminal
History Category (VI) under-represented his actual criminal history. Because
nothing in the record indicates that the district court “relied on any impermissible
factors in departing from the guidelines . . . , [w]e conclude that the first prong of
the departure analysis is satisfied.” Simmons, 924 F.2d at 192.3
Hill argues that the district court’s reliance on the prior convictions set forth
3
Although it is true that the PSI also included a lengthy list of prior arrests with no actual
charges or convictions described therein, there is no evidence that the district court improperly relied
upon those arrests in opting to depart upward. While the court did not expressly differentiate
between Hill’s actual convictions and his other (non-convicted) arrests when it stated that Hill had
an “extensive” criminal record, R5 at 9, the court’s statement was likely referring to Hill’s 43
convictions–which were undisputed–rather than to Hill’s other, non-convicted arrests. In any event,
there is no evidence that the district court improperly based its § 4A1.3 upward departure on these
non-convicted arrests rather than on the prior criminal convictions.
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in the PSI was analogous to the court’s relying on an arrest record. We have
previously held that a district court may not consider an arrest record alone in
opting to depart upward under U.S.S.G. § 4A1.3. See U.S.S.G. § 4A1.3(3); United
States v. Adudu, 993 F.3d 821, 824 (11th Cir. 1993). However, the PSI’s listing
of Hill’s prior convictions was more thorough than a standard arrest record; indeed,
of the convictions listed in the PSI, 16 of them contained detailed summaries,
culled from police reports, of the facts and circumstances of these crimes.
Therefore, as in United States v. Williams, the criminal history in the PSI–on
which the court relied–was “far more in depth than mere arrest records,” as it
“provide[d] a summary of the facts surrounding most of the incidents.” 989 F.2d
1137, 1142 (11th Cir. 1993) (per curiam) (citation and internal quotations omitted).
Because this was not a stand-alone arrest record but was rather reliable information
containing the facts relative to Hill’s prior criminal conduct, the district court
properly considered it in contemplating a departure. Id.
In short, we discern no error in the court’s consideration of these prior
crimes, crimes which otherwise played no role in the calculation of Hill’s Criminal
History Category. There is no evidence that the district court’s decision was based
on factors that had already been fully considered in establishing the applicable
guideline range. See United States v. Santos, 93 F.3d 761, 763 (11th Cir. 1996)
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(per curiam). The court’s consideration of these earlier criminal sentences was
consistent with § 4A1.3.
As to the second prong–whether there exists sufficient factual support for the
departure–we must inquire whether the district committed clear error in finding
that Hill’s particular criminal history was “extensive”; that the crimes contained
therein were of a violent and serious nature; and that Hill’s particular case bore a
likelihood of recidivism. R5 at 9. We conclude that these determinations were
proper.
Hill’s criminal history–which was set forth in the PSI and was undisputed–
reflected approximately 50 separate adult criminal convictions for a range of
offenses, including, among others: larceny; assault; battery; criminal trespass;
driving under the influence; burglary; and aggravated assault (two separate
convictions, including one that involved the infliction of a gunshot wound and one
that involved an alleged sexual assault). Contrary to Hill’s contentions, these were
not merely nuisance-type crimes, and, moreover, a number of them were violent in
nature. While Hill points out that some of these convictions were rather old, there
is no prohibition against a court’s considering convictions that are remote in time
in deciding whether to depart upward under 4A1.3. See Williams, 989 F.2d at
1141.
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In sum, we cannot find that the district court committed clear error in
concluding that Hill’s history was “extensive,” R5 at 9, and in thus determining
that the seriousness of this criminal history was not reflected in Hill’s Criminal
History Category of VI. See Santos, 93 F.3d at 763 (affirming upward departure of
two levels where the defendant’s Category VI score “did not reflect several other
prior convictions or conduct, including a burglary and conduct in connection with
an aggravated burglary”); see also United States v. Mellerson, 145 F.3d 1255, 1257
(11th Cir. 1998) (per curiam) (affirming three-level upward departure where the
defendant’s criminal history points tripled the number necessary for a Criminal
History VI). Nor can we conclude that the district court committed factual error in
concluding that Hill’s particular case bore a high likelihood of recidivism. To be
sure, Hill’s extensive history of criminality supports the district court’s ultimate
finding of a likelihood “that he would commit crimes in the future.” See Williams,
989 F.2d at 1141 (citation and internal quotations omitted).
Finally, we must assess whether the extent of the court’s upward departure
under U.S.S.G. § 4A1.3 was reasonable. We conclude that it was. In this case, the
court assigned Hill an additional two offense levels, from level 10 to level 12,
explaining it was doing so to reach a resulting sentence of 36 months (rather than
24 to 30 months), as the court believed that a 36 month sentence was more
12
“appropriate” and “reasonable,” “given all the facts and circumstances” in Hill’s
case. R5 at 9. Those unique circumstances included an extensive, nearly fifty-year
criminal history, one which was not adequately reflected in the resulting
Sentencing Guidelines range of 24 to 30 months. In light of the evidence, a district
court could quite reasonably have concluded that, based on Hill’s sordid criminal
history, he needed to be incarcerated for a period of time longer than that
recommended for a typical criminal with a total offense level of 10 and a Criminal
History of VI. We cannot say that the district court’ s decision to increase Hill’s
offense level by two additional levels, pursuant to § 4A1.3, was unreasonable
based on the facts of his case. This is especially so given the fact that, in upward
departures above Category VI, a district court is entitled to “use its discretion in
determining which offense level corresponds to the appropriate sentencing range
for a given defendant.” Dixon, 71 F.3d at 383. Finally, it bears pointing out that
Hill’s sentence of 36 months was well below the statutory maximum provided for
the offense,4 thereby bolstering our conclusion that the departure was reasonable.
See Taylor, 88 F.3d at 948 (noting that “[t]he sentence imposed . . . was well under
the statutory maximum” and affirming the sentencing departure as reasonable).
4
The statutory maximum as to each of Hill’s offenses is 30 years of imprisonment. 21
U.S.C. § 841(b)(1)(C).
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III. CONCLUSION
In conclusion, having reviewed the record, we discern no error in the district
court’s decision to depart upward by an additional two levels pursuant to § 4A1.3,
based on its determination that the seriousness of Hill’s criminal history and his
likelihood of recidivism were not adequately reflected in his Criminal History
Category of VI. Accordingly, Hill’s sentence is AFFIRMED.
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