[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-13473 ELEVENTH CIRCUIT
Non-Argument Calendar FEB 8, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:10-cr-00225-WTM-GRS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JACQUELINE DENISE BROWN,
a.k.a. Brown-Mikell, Jacqueline,
llllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(February 8, 2012)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Defendant-appellant Jacqueline Brown appeals her 87-month sentence on
the ground that the upward departure she received is unreasonable. After a review
of the record, we affirm.
Pursuant to a written plea agreement, Brown pleaded guilty to mail fraud, in
violation of 18 U.S.C. § 1341, and aggravated identity theft, in violation of 18
U.S.C. § 1028A. As part of her plea, she admitted that she passed fraudulent
checks and possessed identification of another individual to commit the fraud.
The offenses involved at least 36 victims, for a total loss of $43,276.19.
The aggravated identity theft count included a mandatory 24-month term of
imprisonment to run consecutively to the sentence for mail fraud. 18 U.S.C.
§ 1028A. The probation officer calculated the total adjusted offense level for the
mail fraud count as 14. In determining Brown’s criminal history category, the
probation officer listed 19 convictions, some of which did not receive criminal
history points, for a total score of 27 and placement in category VI. The
convictions dated back to 1989 and included numerous theft, shoplifting, and
forgery convictions, possession of cocaine, assault, and giving false information to
police. She had her supervised release revoked after violating the terms of her
release in 2002, and she had committed the instant offenses while on probation for
a prior forgery charge. With a total adjusted offense level of 14 and a criminal
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history category VI, the resulting guideline range was 37 to 46 months’
imprisonment. The PSI noted that a possible upward departure would be
warranted because Brown’s criminal history category under-represented her past
conduct.
Brown made no objections to the PSI or the guideline calculations and
requested a sentence within the guideline range. At sentencing, the court found
that an upward departure under U.S.S.G. § 4A1.3 was warranted because Brown’s
criminal history score under-represented her past conduct. The court sentenced
Brown to 63 months’ imprisonment for the mail fraud, and a consecutive 24
months for the aggravated identity theft. The court explained that Brown’s
criminal history was “one of the worst records that I’ve seen for committing fraud
and committing fraud on individuals.” Finding that only an upward departure was
likely to deter future criminal conduct, the court stated that such a “harsh penalty”
was necessary. Brown objected to the departure and now appeals.
We review the district court’s interpretation of the guidelines de novo and
the extent of the upward departure for abuse of discretion. United States v. Crisp,
454 F.3d 1285, 1288 (11th Cir. 2006). The district court’s findings of fact
supporting the sentence are reviewed for clear error. United States v. Docampo,
573 F.3d 1091, 1096 (11th Cir. 2009).
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A district court may impose an upward departure based on the inadequacy
of a defendant’s criminal history category “[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 . . . .” U.S.S.G. § 4A1.3(a)(1).
When a district court departs upward from criminal history category VI,
“the court should structure the departure by moving incrementally down the
sentencing table to the next higher offense level . . . until it finds a guideline range
appropriate to the case.” U.S.S.G. § 4A1.3(a)(4)(B). But when departing above
category VI, district courts need not “explicitly discuss their reasons for bypassing
incremental offense level sentencing ranges.” United States v. Dixon, 71 F.3d
380, 383 (11th Cir. 1995). Rather, we review the extent of the departure for
reasonableness, based on findings by the district court as to (1) why the extent and
nature of the defendant’s criminal history warrants an upward departure, and
(2) why the sentencing range selected is appropriate. Id.
This court has held that a sentencing court may properly impose an upward
departure where the defendant’s criminal history score exceeds the number
necessary for a category VI designation. See United States v. Mellerson, 145 F.3d
1255, 1257 (11th Cir. 1998) (finding no abuse of discretion in the district court’s
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upward departure where the defendant’s criminal history points tripled that
necessary for a category VI designation); see also United States v. Santos, 93 F.3d
761, 763 (11th Cir. 1996) (upholding a 2-level upward departure in the offense
level where the defendant’s 21 criminal history points “far exceeded the 13 points
needed for a Criminal History Category VI” designation).
Here, the district court did not abuse its discretion in imposing an upward
departure.1 By sentencing Brown to 63 months’ imprisonment for the mail fraud,
instead of a term within the 36 to 47 month range, the court imposed a 3-level
upward departure. Brown’s criminal history score was 27, more than double the 13
points resulting in a category VI designation; thus a 3-level departure was not
unreasonable. See Santos, 93 F.3d at 763.
Although Brown argues that the district court must have improperly relied
on arrest records lacking factual detail or convictions related to the present offense
when considering Brown’s criminal history for the purpose of imposing the
upward departure, there is nothing in the record to indicate that this was the case.
The prior convictions that the court was allowed to consider date back to 1989 and
1
To the extent that Brown argues the departure was improper because she had no notice
as required under Fed. R. Crim. P. 32(h), we disagree. The PSI, to which Brown did not object,
specifically stated that an upward departure may be warranted based on Brown’s criminal history.
Brown had all the notice to which she was entitled.
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include multiple prior theft and forgery charges similar to the conduct for which
Brown was being sentenced. These portions of the PSI alone were sufficient to
support the district court’s conclusion that an upward departure was warranted.
Finally, we reject Brown’s argument that the district court should have
identified defendants with a similar criminal history and likelihood of recidivism
in order to determine the extent of its upward departure, in accordance with
§ 4A1.3(a)(4)(A), because the guidelines do not impose this requirement. See
U.S.S.G. § 4A1.3(a)(4). Instead, all § 4A1.3(a)(4) requires is that the district court
move incrementally down the sentencing table to the next higher offense level
until it identifies the appropriate guideline range. Id. § 4A1.3(a)(4)(B).
Having reviewed the record, we find no merit to Brown’s argument that the
district court did not move incrementally while selecting the appropriate offense
level. The district court was not required to explain each incremental increase, but
the court explicitly stated that it was considering Brown’s criminal history and the
goal of deterrence when determining the extent of the upward departure. See
Dixon, 71 F.3d at 383. Given the facts of this case, we cannot conclude that the
upward departure was an abuse of discretion.
AFFIRMED.
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