United States v. Ashburn

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-1067

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

PHILIP SCOTT ASHBURN,
Defendant-Appellant.

Appeal from the United States District Court for the
Northern District of Texas

November 15, 1994

Before POLITZ, Chief Judge, GOLDBERG, KING, GARWOOD, JOLLY,
HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE,
E. GARZA, DeMOSS, BENAVIDES, STEWART, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

This case requires us to examine again the subject of

departures under Section 4A1.3 of the Federal Sentencing

Guidelines. Specifically, we must address whether conduct that

formed the basis for counts of an indictment dismissed pursuant

to a plea agreement may be considered in departing upward from

the Guidelines, and we must revisit the issue of the

justification required for such a departure under United States

v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en banc).

Pursuant to a plea agreement, Philip Scott Ashburn pled

guilty to two counts of bank robbery in violation of 18 U.S.C. §
2113(a). The district court determined that the appropriate

range for Ashburn's offense under the Sentencing Guidelines was

63 to 78 months. However, the court also determined that this

range did not adequately reflect Ashburn's criminal history or

likelihood of recidivism and thus departed upward, sentencing

Ashburn to 180 months imprisonment.

Ashburn appealed his sentence. A panel of this court

affirmed in part, but held that remand was required because the

district court improperly considered the dismissed counts of the

indictment as a basis for the upward departure and had not

offered sufficient justification for a departure under Section

4A1.3.1 On reconsideration en banc, we conclude that the

departure was not improper, and we affirm the sentence imposed by

the district court.

I. BACKGROUND

On August 26, 1992, Ashburn, along with a co-defendant, was

indicted for a single-count of bank robbery in violation of 18

U.S.C. § 2113(a). A superseding indictment charged Ashburn with

three additional counts of bank robbery. Ashburn pled guilty to

Counts 3 and 4. In return for the guilty plea, the government

agreed to dismiss counts 1 and 2 and to forego prosecution of two

additional attempted robberies.

Count 3 charged Ashburn with a bank robbery which occurred

on July 3, 1992 in which $4,167 was stolen from the Bank of

1. United States v. Ashburn, 20 F.3d 1336 (5th Cir. 1994).

2
America in Fort Worth, Texas. Count 4 charged Ashburn with a

robbery in which approximately $32,000 in cash was stolen from

the American Bank of Hurst, Texas on July 31, 1992. The

dismissed counts charged Ashburn with robbing Arlington National

Bank in Arlington, Texas on December 27, 1991 and Sunbelt Savings

in Fort Worth, Texas on January 17, 1992.

The presentence investigation report (PSR) prepared prior to

Ashburn's sentencing revealed that in 1984 he had pled guilty to

armed bank robbery in Portland, Oregon. For this offense,

Ashburn served a six year sentence in the custody of the Attorney

General under the Federal Youth Corrections Act, formerly

codified at 18 U.S.C. § 5010(b). The PSR assessed three criminal

history points against Ashburn for this prior conviction,

producing a Criminal History Category of II.2 The defendant's

presentence report from the District of Oregon indicates that in

addition to the offense to which Ashburn pled guilty, he had

committed four other bank robberies in Oregon and one in Salt

Lake City, Utah.3

After appropriate enhancements and a three level reduction

for Acceptance of Responsibility, Ashburn's Total Offense Level

2. The Guidelines include only prior sentences, not prior
offenses or prior conduct, in calculating the criminal history
category. U.S.S.G. § 4A1.1.

3. The report also notes that "Ashburn was unquestionably
the ringleader in these bank robberies. He planned them,
recruited accomplices to assist him and was in charge of dividing
the proceeds afterwards." In addition, the report indicates that
a loaded revolver was used in three of the robberies.

3
was determined to be 25.4 With this offense level and a Criminal

History Category of II, the Guidelines provided for a sentencing

range of 63 to 78 months. The court, dissatisfied with this

range, notified the parties of its provisional intention to

depart upward from the guideline range.

To support the upward departure, the government called

Federal Bureau of Investigation (FBI) agent, Deborah Eckert, who

testified at the sentencing hearing about her investigation into

several robberies and attempted robberies for which Ashburn was

believed to be responsible. Agent Eckert described an interview

she conducted with Ashburn's co-defendant, April Jeanette

English. In that interview, English asserted that Ashburn

admitted to her that he had committed two earlier robberies in

December of 1991 and January of 1992. These two robberies had

been confirmed in detail and were charged in counts 1 and 2 of

Ashburn's indictment.

English also told Eckert that on April 17, 1992, Ashburn

called English from Key West, Florida and told her "I just did a

job." Eckert confirmed that a bank robbery was reported in Key

West, Florida on the specified day.5 Eckert also testified

regarding evidence of Ashburn's involvement in attempted

robberies of the Watauga State Bank in Watauga, Texas on July 24,

4. Under the Guidelines, bank robbery is a non-groupable
offense. U.S.S.G. § 3D1.2(d). Thus, the dismissed counts could
not be considered in the offense level calculation under the
relevant conduct provision as a part of the same course of
conduct or common scheme or plan. U.S.S.G. § 1B1.3(a)(2).

5. Ashburn was not charged with this robbery.

4
1992, and the Arlington National Bank in Arlington, Texas on July

17, 1992.6

The district court concluded that Criminal History Category

II did not adequately reflect the seriousness of Ashburn's past

conduct or the likelihood that he would commit additional crimes.

The judge therefore departed upward, sentencing Ashburn to serve

concurrent 180 month terms of imprisonment on Counts 3 and 4.

The court also sentenced Ashburn to a 3 year term of supervised

release, and a mandatory $100 assessment. On appeal, Ashburn

contends that the district court erroneously calculated his

offense level and criminal history category and made various

errors in its decision to depart upward.

A panel of this court found that Ashburn's objections to the

offense level and criminal history category were without merit.7

However, the panel held that the district court failed to

adequately explain its reasons for the upward departure.8 In

addition, the panel majority held that the counts dismissed

pursuant to the plea bargain should not have been considered in

effecting an upward departure.9 The dissent argued that nothing

in the plea agreement or the Guidelines precluded the district

court from using the dismissed counts to enhance the defendant's

6. As a part of the plea bargain, the government agreed
not to prosecute Ashburn for these two attempts.

7. 20 F.3d at 1338-43.

8. 20 F.3d at 1344-46.

9. 20 F.3d at 1346-48.

5
sentence.10

We ordered that this case be reheard en banc. We reject

Ashburn's appeal with regard to the offense level and criminal

history calculations for the reasons set out in the panel

opinion.11 However, we find it necessary to reconsider the

panel's holdings with respect to the district court's departure.

II. DISCUSSION

A district court may depart upward from the Sentencing

Guidelines if the court finds that an aggravating circumstance

exists that was not adequately taken into consideration by the

Sentencing Commission. 18 U.S.C. § 3553(b). Whenever a defendant

is sentenced, the district judge is required to "state in open

court the reasons for its imposition of the particular sentence."

18 U.S.C. § 3553(c). If the court departs upward from the

Guidelines, the court must also state "the specific reason for the

imposition of the sentence different from that described." Id.

"Our review of a sentence under the guidelines is 'confined to

determining whether a sentence was imposed in violation of law or

as a result of an incorrect application of the sentencing

guidelines.'" United States v. Shipley, 963 F.2d 56, 58 (5th Cir.)

(quoting United States v. Nevarez-Arreola, 885 F.2d 243, 245 (5th

Cir. 1989)) (internal quotations omitted), cert. denied, -- U.S.

10. 20 F.3d at 1350.

11. The panel opinion was vacated in its entirety when we
granted rehearing en banc. 5th Cir. R. 41.3. Parts II.A. and B.
of the panel opinion are reinstated by this decision.

6
--, 113 S. Ct. 348, 121 L. Ed. 2d 263 (1992); 18 U.S.C. § 3742(e).

We review the district court's decision to depart upward for abuse

of discretion. United States v. McKenzie, 991 F.2d 203, 204 (5th

Cir. 1993). We affirm a departure from the Guidelines "if the

district court offers 'acceptable reasons' for the departure and

the departure is 'reasonable.'" United States v. Lambert, 984 F.2d

658, 663 (5th Cir.1993) (en banc) (quoting United States v.

Velasquez-Mercado, 872 F.2d 632, 637 (5th Cir.1989)).

A. Consideration of Dismissed Counts in Upward Departure

Ashburn contends that the sentencing court improperly

considered the December 1991 and January 1992 robberies as a basis

for upward departure because this conduct formed the basis for the

counts of Ashburn's indictment which were dismissed pursuant to his

plea bargain. We find this argument unpersuasive.

The circuits are split on this question. The Third and Ninth

Circuits12 have held that the defendant does not get the benefit of

his plea bargain when the district court departs upward based on

the dismissed counts of the indictment. The Second and Tenth

Circuits,13 on the other hand, have held that prior criminal conduct

related to dismissed counts of an indictment may be used to justify

an upward departure. We are inclined to agree with the latter

12. United States v. Thomas, 961 F.2d 1110, 1121 (3d Cir.
1992); United States v. Castro-Cervantes, 927 F.2d 1079 (9th Cir.
1990).

13. United States v. Zamarripa, 905 F.2d 337 (10th Cir.
1990); United States v. Kim, 896 F.2d 678 (2d Cir. 1990).

7
view.

United States Sentencing Commission Guidelines Manual

(U.S.S.G.) § 4A1.3 authorizes a court to depart upward "[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 . . . ." In deciding whether to depart because of the

defendant's criminal history, subsection (e) expressly authorizes

the court to consider "prior similar adult criminal conduct not

resulting in a criminal conviction." U.S.S.G. § 4A1.3 (e) (Policy

Statement).

Neither this guideline nor its commentary suggests that an

exception exists for prior similar criminal conduct that is the

subject of dismissed counts of an indictment.14 Section 1B1.4

provides that in determining "whether a departure from the

guidelines is warranted, the court may consider, without

limitation, any information concerning the background, character

and conduct of the defendant, unless otherwise prohibited by law."15

14. We do not interpret the word "prior" in subsection (e)
so narrowly as to exclude separate offenses that were part of the
series of crimes that resulted in the present arrest and
conviction. Contra United States v. Coe, 891 F.2d 405, 409-10
(2d Cir. 1989) ("where a defendant commits a series of similar
crimes, it would be elevating form over substance to regard the
early episodes in the series as "prior criminal history" simply
because the defendant pled guilty to the last in the series,
rather than the first.") Instead, we read "prior" to allow
consideration of all similar adult criminal conduct not resulting
in conviction that occurred prior to sentencing.

15. The commentary to this section provides, in part, that

[a] court is not precluded from considering information

8
We have found no statute, guidelines section, or decision of this

court that would preclude the district court's consideration of

dismissed counts of an indictment in departing upward.

The guidelines provisions on plea agreements are not to the

contrary. Section 6B1.2 provides that the court may accept a plea

agreement that includes the dismissal of charges or an agreement

not to pursue potential charges if the remaining charges

"adequately reflect the seriousness of the actual offense

behavior". U.S.S.G. § 6B1.2 (a) (Policy Statement). Ashburn

contends that acceptance of a plea agreement subject to this

standard is inconsistent with a subsequent decision to depart

upward from the applicable guideline range. We disagree.

Ashburn pled guilty to two counts of bank robbery. In all

respects, these counts were similar to the counts dismissed and the

attempted robberies not charged. The two count conviction

subjected the defendant to a maximum sentence of forty years

imprisonment. 18 U.S.C. § 2113(a). Under the circumstances, we

must agree with the district court's implicit finding that the two

count plea adequately reflected Ashburn's "actual offense

that the guidelines do not take into account. For
example, if the defendant committed two robberies, but
as part of a plea negotiation entered a guilty plea to
only one, the robbery that was not taken into account
by the guidelines would provide a reason for sentencing
at the top of the guideline range. In addition,
information that does not enter into the determination
of the applicable guideline sentencing range may be
considered in determining whether and to what extent to
depart from the guidelines.

Commentary to U.S.S.G § 1B1.4.

9
behavior".

Such a finding, however, does not guarantee that a defendant's

criminal history category will adequately reflect the defendant's

past criminal conduct or the likelihood that he will commit other

crimes. If it does not, the court is authorized to make a separate

determination on the need for departure in sentencing under section

4A1.3. We decline the defendant's invitation to hold that this

determination is precluded once a plea agreement is accepted under

section 6B1.2.

In addition, the plea agreement Ashburn accepted contained no

language that could have led him to believe that the dismissed

counts could not be used as the basis for an upward departure. The

plea agreement provided that the government would dismiss counts 1

and 2 of the indictment and would not prosecute Ashburn for the

attempted robberies occurring on July 17 and July 24, 1992. The

government has complied completely with those obligations.

Moreover, the plea agreement clearly stated that there was no

agreement as to what the sentence would be, that no one could

predict with certainty what guideline range would be applicable,

and that the defendant would not be allowed to withdraw his plea if

the court departed from the applicable guideline range. Thus, the

language of the plea agreement in no way implies a limitation on

the court's power to consider relevant information or to depart

from the guideline range. Indeed, the agreement clearly

contemplates the possibility that the court would depart upward

when all of the relevant information was considered. Therefore,

10
Ashburn could not reasonably have inferred from the plea agreement

that the district court was barred from considering the dismissed

counts in its departure determination.

B. Adequacy of Departure Justification

Under section 4A1.3, an upward departure "is warranted 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

(Policy Statement). In United States v. Lambert,16 we considered

the procedure a district court must follow when departing upward

under this provision. We held that the district court should

consider each intermediate criminal history category, and should

state for the record that it has done so. In addition, the court

should explain why the criminal history category as calculated

under the guidelines is inappropriate, and why the category it

chooses is appropriate. Id. at 662-63.

At the same time, we made it clear that

we do not . . . require the district court to go through
a ritualistic exercise in which it mechanically discusses
each criminal history category it rejects en route to the
category that it selects. Ordinarily the district
court's reasons for rejecting intermediate categories
will clearly be implicit, if not explicit, in the court's
explanation for its departure from the category
calculated under the guidelines and its explanation for
the category it has chosen as appropriate.

Id. at 663. Using this reasoning, we find that the district court

offered adequate justification for the sentence it imposed.

16. 984 F.2d 658 (5th Cir. 1993) (en banc).

11
 At the sentencing hearing, the district judge indicated on the

record that his concern was caused by the fact that the defendant

committed a series of bank robberies in 1983 and then another

series of robberies beginning in 1991, less than two years after

his release from supervision following the 1984 conviction. Since

Ashburn's criminal history calculation was based solely on the

guilty plea to one count of robbery in 1984, the court felt that

the indicated guideline range did "not adequately reflect the

seriousness of this defendant's past criminal conduct and, perhaps

more importantly, the likelihood that he will commit other crimes."

The district judge determined that had the defendant

previously been convicted of the robbery offenses committed in

December of 1991, January of 1992, and April 1992, he would have

had nine additional criminal history points. Under the court's

calculations, Ashburn then would have a total of twelve criminal

history points and a corresponding Criminal History Category of V.

Using this criminal history category and Ashburn's offense level of

25, the judge determined a hypothetical guideline range of 100 to

125 months.

The court then cited the robberies committed in the early

1980s that did not result in conviction and concluded that "if they

were to be taken into account, the Criminal History Category VI

would not be sufficient to take into account his past criminal

conduct." The court also referred to the attempted robberies that

the government agreed not to prosecute. The court stated that

given the "likelihood the defendant will commit other crimes . . .

12
as well as the seriousness of his past criminal conduct" the court

would impose a "rather drastic upward departure from what the

guideline range contemplates." The judge then sentenced Ashburn to

a term of imprisonment of 180 months, found by indexing the

Criminal History Category of VI with an offense level of 29.

The justification offered by the district court clearly

indicates why the sentencing range recommended by the Guidelines

was inappropriate and why the court found the sentence imposed to

be appropriate. The district court did not expressly examine each

intervening criminal history category. However, we do not require

the district court to go through such a "ritualistic exercise"

where, as here, it is evident from the stated grounds for departure

why the bypassed criminal history categories were inadequate.

Lambert, 984 F.2d at 663.

In Lambert, we indicated that we could conceive of a "very

narrow class of cases" in which the district court's departure was

so great that we would require "explanation in careful detail" of

the district court's reasons for finding lesser adjustments in the

defendant's criminal history score inadequate. Id. Although the

sentence imposed in this case was more than twice the recommended

guideline range, it was not the sort of drastic departure we

referred to in Lambert. In fact, we note that the instant

departure is not significantly greater than departures previously

approved by this court. See United States v. McKenzie, 991 F.2d

203, 205 n.7 (5th Cir. 1993); Lambert, 984 F.2d 658 (affirming

departure sentence that was twice guideline range).

13
 C. Reasonableness of the Departure

The final question we must address is whether the district

court's departure from the Sentencing Guidelines was reasonable in

light of the court's articulated justification. We hold that it

was. Although the ultimate sentence rose from a potential 78

months under the guidelines to 180 months, this result is not

unreasonable in light of the evidence of numerous instances of past

criminal conduct, which were not considered in the criminal history

calculation, and the overwhelming indication that the defendant was

inclined to return to a similar course of behavior.

III. CONCLUSION

Parts II.A. and B. of the panel opinion are REINSTATED, all

other parts of the panel opinion remain VACATED, and the sentence

imposed by the district court is, therefore, AFFIRMED.

GOLDBERG, Circuit Judge, with whom DeMOSS, Circuit Judge, joins,
dissenting:

This case calls for us to examine the range of information a

sentencing court may consider in upwardly departing from the

sentencing guidelines. The majority opinion takes a skyward view

of the information a sentencing court may consider; I would

prefer to keep the informational vistas of sentencing courts a

little closer to the horizon.

Thousands of pages and countless words have been written in

connection with the sentencing guidelines. The issues in this

case require that we add a few more pages to the existing wisdom

14
of this most dynamic area of law. In this case the sentencing

guidelines indicated a nadir sentence of 63 months, and the

sentencing court took some astronomical route to attain an

apogeic sentence of 180 months. Believing that the course taken

by the sentencing court was both uncharted and out of bounds, I

would reverse. So, let us put on the habiliments of an astronaut

as we journey into the world of the sentencing guidelines.

I

The controversy presented to this en banc court is whether a

sentencing court can consider dismissed charges in upwardly

departing from the sentencing guidelines, and the degree to which

a sentencing court must explain its actions when it decides to

depart from the guidelines. The defendant in this case, Philip

Scott Ashburn, was charged with four counts of armed bank

robbery. Pursuant to a plea bargain, Ashburn pleaded guilty to

two counts of armed bank robbery in return for a dismissal of the

remaining two counts and a promise not to prosecute other crimes

which he was suspected of committing. After the sentencing court

accepted the guilty plea, it decided that Ashburn's Criminal

History Category did not adequately reflect the seriousness of

his criminal conduct or his likelihood of recidivism. The court

noted that if Ashburn had been convicted of the crimes he had

been charged with, as well as other crimes he was suspected of

committing, he would have a Criminal History Category of VI. The

court then sentenced Ashburn as if he had been convicted of those

crimes that were either dismissed or never charged in the first

15
15
place. This resulted in a sentence of 180 months, or 230 percent

of the maximum guideline range for the crimes for which Ashburn

was actually convicted.

The sentence imposed by the sentencing court was not

permitted by the guidelines, and was lacking in the full and

adequate justification required by the guidelines for a

departure. Each issue will be addressed in turn.

II

The majority argues that dismissed charges may be taken into

account by a sentencing court in augmenting a defendant's

Criminal History Category. To support this conclusion, the

majority makes a three-step argument. First, it cites U.S.S.G. §

4A1.3 for the proposition that a sentencing court may upwardly

depart from the sentencing guidelines if it finds aggravating or

mitigating factors the sentencing commission did not consider in

formulating the guidelines. The majority points to this as proof

of the wide latitude sentencing courts have in evaluating data

which their sentencing decisions will be based upon. The

majority's argument also implies that, in developing the

guidelines, the sentencing commission did not consider the use of

dismissed charges to augment a defendant's Criminal History

Category. Second, the majority cites U.S.S.G. § 1B1.4 to support

the proposition that the sentencing court may consider any

information concerning the background, character and conduct of

the defendant when determining whether a departure is permitted,

unless the use of that information is prohibited by law. The

16
16
thrust of this argument is similar to that of the first argument,

i.e., sentencing courts may select from a wide range of

information in determining whether to depart from the guidelines.

Finally, the majority claims that considering dismissed charges

does not affect Ashburn's settled expectations with regard to his

plea bargain agreement. The majority asserts that the plea

bargain agreement made no guarantees about the length of the

sentence, and as such, the departure did not violate the letter

of the agreement. The majority's argument will now be reviewed

more thoroughly with the hope of showing that each strand of this

triad is weak and unsupportable.

A. Has The Sentencing Commission Considered Dismissed Charges
In Connection With The Criminal History Category?

The majority believes that § 4A1.3 creates an aperture for

considering dismissed charges in augmenting the Criminal History

Category because that section sanctions consideration of any

factor not contemplated by the sentencing commission. The issue

then turns on whether the sentencing commission contemplated

using dismissed charges in connection with departures in the

Criminal History Category. There are indications that the

sentencing commission did consider the issue, and did not intend

to permit the consideration of dismissed charges in augmenting

the Criminal History Category.

Control over the information a sentencing court may consider

in applying the guidelines is the sentencing commission's main

tool in imposing order in the criminal sentencing process. In

17
17
response to this need for limiting the information sentencing

courts may rely upon, some courts have adopted the doctrine of

negative implication in determining whether the sentencing

commission has considered a matter. In other words, if the

sentencing commission has adequately considered the relevance of

a factor to the sentencing process, then that factor, as well as

related circumstances, shall not be a proper basis for departure.

United States v. Mason, 966 F.2d 1488 (D.C. Cir. 1992) (the

guidelines' consideration of related factors precludes

defendant's mode of apprehension from being a suitable basis for

departure); see also, Robert H. Smith, Departure Under the

Federal Sentencing Guidelines: Should a Mitigating or

Aggravating Circumstance be Deemed "Adequately Considered"

Through "Negative Implication?", 36 Ariz. L. Rev. 265 (1994).

This doctrine is particularly important here because the

sentencing commission amended U.S.S.G. § 6B1.2 in 1992 to allow

sentencing courts to augment the defendant's Relevant Conduct

Category based on charges dismissed pursuant to a plea bargain.17

It would seem that in passing this amendment, the sentencing

commission considered the impact of charges dismissed pursuant to

a plea bargain, and did not find it necessary to extend

17 It is clear from that record that the sentencing court's
departure was based on the inadequacy of the Criminal History
Category (U.S.S.G. § 4A1.3(e)), and not the Relevant Conduct
Category (U.S.S.G. § 1B1.3(b)). Nor could such a departure have
been made, since the conviction in this case was for a non-
groupable offense; namely robbery (U.S.S.G. § 2B3.1). Non-
groupable offenses are specifically exempted from inclusion
within the Relevant Conduct Category.

18
18
consideration of this information to the Criminal History

Category. As such, the majority's reliance on U.S.S.G. § 4A1.3

is misplaced, as it appears that the sentencing commission must

have considered the role of dismissed charges in relation to the

Criminal History Category and, by omission, has prohibited their

combination.

B. Does Consideration Of Dismissed Charges In The Augmen-
tation Of The Criminal History Category Violate Any Law?

The majority finds further support for its argument in

U.S.S.G. § 1B1.4 and the commentary thereto. This section

provides that a court may consider "any information concerning

the background, character and conduct of the defendant, unless

otherwise prohibited by law." U.S.S.G. § 1B1.4. Furthermore,

the commentary to this section specifically states that, "[f]or

example, if [a] defendant commit[s] two robberies, but as part of

a plea negotiation entered a guilty plea to only one, the robbery

that was not taken into account by the guidelines would provide a

reason for sentencing at the top of the guideline range." The

majority believes that this section and its accompanying

commentary explicitly permit a sentencing court to consider

dismissed charges in augmenting a defendant's Criminal History

Category. In fact, the effect of U.S.S.G. § 1B1.4 and its

commentary lead me to a contrary conclusion.

Section 1B1.4 of the U.S.S.G. permits sentencing courts to

rely on any information not prohibited by law in departing from

the guidelines. The majority stated that it could find "no

19
19
statute, guidelines section, or decision of this court that would

preclude the district court's consideration of dismissed counts

of an indictment in departing upward." However, U.S.S.G. §

6B1.2(a), comment., which implies that sentencing courts should

only accept plea agreements that adequately reflect the

seriousness of the actual offense behavior, seems to prohibit the

consideration of counts dismissed pursuant to a plea agreement.

The language in this section closely tracks that of Fed.R.Crim.P.

11(e), which requires that, if a sentencing court has accepted a

plea bargain, then the sentence promulgated should embody the

disposition agreed to in the plea bargain agreement. Then Chief

Judge Breyer of the First Circuit relied on both U.S.S.G. § 6B1.2

and Fed.R.Crim.P. 11(e) in querying why a guilty plea should be

accepted if the agreement that brought the plea about did not

call for an adequate sentence. He stated:

The court seems to have departed from the guidelines so
that defendant's sentence would reflect the conduct
charged in the remaining eleven counts of the
indictment (counts that were dismissed in exchange for
his guilty plea). But if the court believed that
defendant's punishment should reflect that conduct, why
did it accept the plea bargain in the first place?

Unites States v. Plaza-Garcia, 914 F.2d 345, 348 (1st Cir. 1990);

Cf. United States v. Greener, 979 F.2d 517, 521 (7th Cir. 1992)

(upholding a district court's rejection of a plea bargain because

it did not adequately reflect the defendant's actual offense

conduct). The majority, however, is not persuaded by the

argument that U.S.S.G. § 6B1.2 and Fed.R.Crim.P. 11(e) prevent

the augmentation of the Criminal History Category based on

20
20
charges dismissed pursuant to a plea bargain. Instead, the

majority states that the sentencing court was permitted to accept

Ashburn's guilty plea, and still disavow the sentence agreed to

in the plea bargain agreement upon a determination that the

suggested sentence did not adequately reflect the seriousness of

Ashburn's criminal conduct or his likelihood of recidivism. The

majority's construction will eviscerate Rule 11(e) of the Federal

Rules of Criminal Procedure.

The majority opinion's reliance on the commentary

accompanying U.S.S.G. § 1B1.4 also calls for a response. That

commentary speaks to how a sentencing court would be justified in

sentencing a defendant at the upper limits of the guideline range

in reliance on charges dismissed pursuant to a plea bargain. The

majority quotes this language in footnote 15 of its opinion,

ostensibly to demonstrate that this commentary justifies the

result in this case. In fact, the precise language of this

commentary speaks only to a sentence at the upper limits of the

guideline range. For instance, if the hypothetical guideline

range were 63 to 78 months, then the fact that certain charges

were dismissed would justify the sentencing court to choose a

sentence closer to the ceiling than the floor of the appropriate

guideline range. The command of the commentary to U.S.S.G. §

1B1.4 is that sentencing courts have discretion within the

guideline range, but cannot substitute one range for another.

There is nothing in the commentary to U.S.S.G. § 1B1.4 to justify

a departure beyond the guideline range. On the contrary, this

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21
commentary's implication is that departures from the guideline

range based on dismissed charges are actually prohibited.

C. Does Considering Dismissed Charges Violate A Defendant's
Reasonable Expectation Of The Plea Bargaining
Agreement?

As a final measure in justifying the departure by the

sentencing court, the majority argues that the plea bargain did

not contain any language that would lead Ashburn to believe that

the dismissed counts would not be used against him in sentencing.

The reason the majority urges this view is that a defendant's

reasonable expectation from the plea bargaining agreement is

constitutionally protected, and that if the prosecution breaches

its agreement with the defendant, then the defendant may demand

specific performance of the agreement or withdraw his plea

altogether. Santobello v. New York, 404 U.S. 257, 263 (1971).

To avoid this difficulty the majority parses the language of the

plea bargain agreement to find that it "contained no language

that could have led him to believe that the dismissed counts

could not be used as a basis for an upward departure." In the

plea bargain agreement, the prosecution stated that it would not

prosecute the charges that were dismissed. Based on this

reading, the majority argues that Ashburn's expectations were met

since it was the sentencing court, and not the prosecution, that

employed the dismissed charges in making a departure.

Since the government promised in the plea bargain agreement

that the robberies that took place on July 17 and 24, 1992 would

not be pursued, the prosecution violated the plea bargain

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22
agreement by presenting Agent Deborah Lynn Eckert's testimony

concerning those bank robberies. However, the majority's

argument goes further than whether the prosecution crossed a line

forbidden by a plea bargain agreement in the testimony of one of

its witnesses. More significantly, the majority implies that

when a defendant accepts the dismissal of certain charges in

return for his guilty plea, he has not bargained for any

reduction in prison exposure. Addressing this argument requires

a determination of what it means to have a criminal charge

"dismissed," or what constructions of the word "dismissed" are

reasonable. To answer these questions one must first consider,

in broad strokes, what are the consequences of being charged with

a crime.

For most persons, being charged with a crime has many

consequences: shame, remorse, a reduction in life-chances, loss

of freedom, and other associated difficulties. As such, having a

criminal charge dismissed brings several benefits to the one

charged, not least of which is the avoidance of prison. However,

for a defendant facing a multiple count indictment, each

additional charge loses its stigmatic quality and simply amounts

to the possibility of a lengthier sentence. Once a defendant is

at the point were he is poised to admit his guilt, there is

little, if any, moral uplift in knowing that two of the four

counts that he has been charged with are being dropped. Clearly,

a defendant in these circumstances accepts a plea bargain that

dismisses certain charges for only one reason: to spend less

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23
time in the penitentiary by not having the dismissed charges

counted against him at sentencing.

The majority's argument concerning a defendant's

expectations of the consequences of dismissing certain charges in

a plea bargain is simply not plausible in light of a realistic

awareness and understanding of a defendant's perspective on the

effect of dismissing charges. Neither Ashburn, nor any other

defendant, would ever agree to a guilty plea if he did not

believe, quite reasonably, that the charges being dismissed would

not be counted against him at sentencing. The result the

majority urges results in the counterintuitive effects apparent

in the case of Ashburn's sentencing. For instance, the guideline

range for the counts Ashburn actually plead guilty to resulted in

an intermediate range of a little under six years. Had he

instead been tried and convicted of all four counts, the upper

limit of the guideline range he would have been exposed to would

have been less than nine years. See, U.S.S.G. § 3D1.1 et. seq.

(relating to the guideline's treatment of multiple count

offenses). However, the sentence actually imposed on Ashburn,

and affirmed by the majority today, is 180 months, or fifteen

years. The result, which the majority finds reasonable, is that

by entering a plea bargain agreement, Ashburn was given a

sentence that was almost twice as long as if he had gone to trial

and been convicted on all four counts.

Furthermore, upwardly departing based on the Criminal

History Category and dismissed counts is not necessary to achieve

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24
the objectives of the sentencing court in Ashburn's sentence.

The sentencing court departed from the guidelines because it

believed that Ashburn's Criminal History Category did not

accurately reflect the extent of his experience with committing

robberies. However, the proper way to address the inadequacy of

the sentence was not to factor in the dismissed charges.

Instead, the sentencing court should have exercised its powers

under Fed.R.Crim.P. 11(e) and rejected the plea bargain if it

felt that the agreement was too lenient. If the leniency of the

agreement did not become apparent until after the presentence

investigation, which very often occurs in the period between the

submission of a guilty plea and sentencing, then the sentencing

court should have offered Ashburn the opportunity to withdraw his

plea.

By rejecting the plea bargaining agreement, the sentencing

court could have forced further negotiation between Ashburn and

the prosecution, and the parties could possibly have come to an

agreement that more accurately reflected the realistic sentencing

possibilities Ashburn faced. If Ashburn was to be exposed to

additional prison time based on the "dismissed" charges, he

should have been so informed, and without this knowledge he could

not have knowingly waived his rights in pleading guilty. Trial

courts must ascertain that a defendant's guilty plea is made in a

knowing and informed manner, Boykin v. Alabama, 395 U.S. 238

(1969); North Carolina v. Alford, 400 U.S. 25 (1970), and with

the confusion the majority invites in its opinion by allowing

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25
dismissed charges to creep back in at the sentencing stage, such

a knowing and informed waiver is nearly impossible to achieve.

Apart from the patent unfairness of the majority's argument,

there are several negative consequences that will flow from it.

The most significant of these is the impact it will have on the

plea bargaining process. The plea bargain is an essential

component of our criminal justice system, by which all involved

benefit. In exchange for a guilty plea, the government promises

the defendant that it will either drop certain charges or down-

grade the offense charged. In return, the defendant pays for

whatever benefit he receives with his cooperation. By agreeing

to a plea bargain, the defendant waives several rights, most

prominent of which is the right to trial by jury. Plea bargains

also benefit society as a whole, since guilty pleas reduce the

number of cases on our overburdened court dockets. Our system of

criminal justice has come to depend on defendants foregoing their

right to a jury trial; if each criminal defendant, regardless of

the merits of his case, were to insist on his right to a jury

trial, our courts would not be able to function. Studies have

supported the efficacy and centrality of the plea bargaining

process to our criminal courts. See, Milton Heumann, Plea

Bargaining 24-35 (1977) (setting forth empirical evidence that

plea bargaining is less a response to case pressure than a

rational method for the resolution of criminal innocence or

guilt).

It is indisputable that the plea bargain benefits all

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26
involved, and is vital to the maintenance of order in our

criminal justice system. However, the majority's reasoning will

make plea bargaining a much more unstable and haphazard process.

Defendants and their counsel will be unable to properly evaluate

the consequences of a plea bargaining agreement, for they will

never know if the sentencing court will disregard the parties'

compact by considering charges that both the prosecution and

defense agreed would not be a factor at sentencing. Obviously,

when faced with such a decision, many defendants who would

otherwise admit their guilt and accept their sentence will find

it more attractive to test the prosecution's case at trial.

III

The majority's conclusion that the departure justifications

were adequate is also unsupportable. This court has previously

outlined the procedure for making such a determination in United

States v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en banc). In

Lambert, this court held that a departure will be affirmed if the

sentencing court offers acceptable reasons for its departure and

if said departure is reasonable. Id. at 663. In order to depart

under U.S.S.G. § 4A1.3, a sentencing court should first consider

increasing the defendant's Criminal History Category to the next

level, and if that is not satisfactory, then each subsequent

level should be considered. Id. at 661. Also, Lambert called on

a sentencing court to state for the record why the criminal

history category provided by the guidelines was inappropriate,

and why the category it chooses is appropriate. Id. at 663.

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27
However, recognizing the complexities inherent in setting a

sentence appropriate to every defendant, "we do not … require the

district court to go through a ritualistic exercise in which it

mechanically discusses each criminal history category it rejects

en route to the category it selects." Id.

A. Were The Sentencing Court's Departure Justifications
Adequate?

The sentencing guidelines are an ambitious attempt to impose

order on a process that many felt was too chaotic. Sentencing a

fellow human being is a demanding process that requires

evaluating deeds, demeanor and circumstances that elude

quantification. Nevertheless, the guidelines are an effort to

achieve that ideal for the sake of equity, and wisely, the

guidelines recognize that it is not possible to envision all of

the factors that go into a criminal sentence. As such, they

permit departures where these extraordinary and unforeseen

factors are present. However, in order to avoid making a sham of

the noble goal of the guidelines, some degree of articulation is

required for a departure to be considered reasonable. The

threshold of reasonableness required by the guidelines was not

met by the sentencing court in this case.

In justifying its decision to depart, the sentencing court

used an economy of speech that left much to the imagination. The

actual transcript of the rationale provided by the sentencing

court occupies approximately one and one-half, double-spaced,

typed pages. The sentencing court first announced that it was

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28
going to depart, and then stated that if the defendant had been

convicted of the two dismissed counts, his Criminal History

Category would be V instead of II. Then the sentencing court

stated that if the robberies the defendant committed "in the

early 1980s" were taken into account, Ashburn's Criminal History

Category would increase to level VI. The sentencing court also

made a cryptic allusion to several "attempted robberies" that it

was also taking into consideration. Since the sentencing court

felt that the defendant's current Criminal History Category did

not adequately reflect these aspects of Ashburn's background, it

decided that a "rather drastic upward departure" was in order.

It is true that Lambert does not require the sentencing

court to "go through a ritualistic exercise in which it

mechanically discusses each Criminal History Category it rejects

en route to the category that it selects." Id. at 663. Yet what

the sentencing court provided here barely amounts to a recitation

of the obvious. Striped of what little preamble the sentencing

court provided, the departure amounted to a mention of the

defendant's previous criminal activity and a conclusion that

these past acts demonstrate that it should upwardly depart from

the guidelines due to the "likelihood the defendant will commit

other crimes" and "the seriousness of his past criminal conduct."

These phrases are, almost verbatim, the ones found in the policy

statement to U.S.S.G. § 4A1.3: an upward departure "is warranted

when the Criminal History Category significantly under-represents

the seriousness of the defendant's criminal history or the

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29
likelihood that the defendant will commit further crimes,"

(emphasis provided). Essentially, the sentencing court repeated

the exact phrases found in the guidelines. I think that the

reasonableness requirement for departure justifications requires

more that a mere recital of the same words that authorize a

departure. If that is all that is required, then any explanation

for departures is a meaningless exercise, and a noble goal of the

sentencing guidelines is in jeopardy.

It is inherent in the exercise of reviewing the adequacy of

departure justifications that reasonable minds will differ.

However, if the explanations provided by the sentencing court

here are reasonable, then virtually nothing can be characterized

as unreasonable. The cursory justifications provided by the

sentencing court in this case are particularly problematic when

one considers the degree of the departure. As the majority

noted, Lambert anticipated a narrow class of cases where the

departure is so great as to require a detailed explanation of the

reasons for the departure. The majority then blithely states

that the departure here was not of the magnitude required to

invoke the additional Lambert scrutiny. However, Ashburn was

given a sentence that was practically triple that which he would

have been subjected to under the guidelines. Again, if the

departure here was not sufficiently marked to justify a careful

accounting of the reasons for the deviation, then I fail to see

what kind of departure does justify a Lambert elaboration.

B. Propriety Of The Grounds For The Departure

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 Not only are the explanations provided by the sentencing

court insufficient to justify a departure of such magnitude, but

there are also difficulties with the explanations themselves.

For example, the sentencing court relied on the "robberies that

occurred back in the early 1980s" in raising Ashburn's already

augmented Criminal History Category from level V to level VI. It

is assumed that these "early 1980s" robberies the sentencing

court referred to were the crimes Ashburn was charged with in his

1984 conviction for armed bank robbery. Ultimately he was

convicted of one count of armed bank robbery, and the other

charges were dismissed. It is unclear from the sentencing

court's explanation whether it relied on the robbery Ashburn was

ultimately convicted on in 1984. If this were the case, that

conviction would have been counted twice, as Ashburn's

presentence report already gave him three criminal history points

for this 1984 conviction. Such double counting would be

improper, yet one cannot deduce whether the sentencing court

relied on the 1984 conviction due to the paucity of its

explanations.

There is one other difficulty with the propriety of the

reasons asserted by the sentencing court in justifying its upward

departure. The sentencing court relied, in part, on the two

charges that the plea bargain dismissed, and one other unindicted

robbery Ashburn allegedly committed. For each of these items,

the sentencing court added three criminal history points.

However, by assessing three criminal history points for each of

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31
these items, they are being treated as if they were full-fledged

convictions. The problem with this approach is that it fails to

distinguish between previous convictions (which also merit three

criminal history points) and other events ranging from dismissed

counts to conduct the prosecution may never have intended to be a

basis for an indictment. It is not clear that U.S.S.G. §

4A1.3(e) permits ascribing the same number of criminal history

points to past criminal conduct as to prior convictions. If this

were the case, then what would be the point in defining what a

prior conviction is and basing the Criminal History Category on

prior convictions.

IV

In closing, I would like to point out that some of the

issues in this case have caused a circuit split. The circuits

have split over whether dismissed charges may be used to augment

the Criminal History Category. The Second and Tenth Circuits

have held that dismissed charges may be so used. See, United

States v. Kim, 896 F.2d 678 (2nd Cir. 1990); United States v.

Zamarripa, 905 F.2d 337 (10th Cir. 1990). Conversely, the Third

and Ninth Circuits have held that such a use is not permitted.

See, United States v. Thomas, 961 F.2d 1110 (3rd Cir. 1992);

United States v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990).

Hard cases make bad law. All would admit that this case is hard

because the defendant is not a sympathetic character. However,

the nature of the defendant's acts seem to overshadow the

consideration of sections, commentaries and policy statements of

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32
the sentencing guidelines, and the circumvention of this body of

rules leads the majority to create bad law. For these reasons, I

respectfully dissent.

HAROLD R. DeMOSS, Jr., Circuit Judge, with whom, GOLDBERG,

Circuit Judge, joins, dissenting:

I join in all that Judge Goldberg has stated in his

comprehensive dissent, and add these additional words of dissent

because I feel so strongly that the district judge, and my

colleagues in the majority opinion, are in error in their

justification of the basis for, and quantum of, the upward

departure by the district judge in this case.

On page 8 of the government's supplemental en banc brief,

there is a verbatim quotation of the transcription of the

district judge's explanation at the sentencing hearing for why he

was departing upward. As I read that text, it seems clear that

the district judge relied on two sets of circumstances:

A. The robbery in December 1991 (count 1 of the indictment
which was dismissed), the robbery in January 1992
(count 2 of the indictment which was dismissed), and
the robbery in 1993 (un-indicted and the government
agreed not to indict), which would add three criminal
history points each "if he [Ashburn] had earlier been
convicted of these robberies" [emphasis added]; and

B. The robberies "that occurred back in the early 1980's"
which "if taken into account" would push Ashburn's
criminal history past category VI.

In approving the upward departure, the majority opinion relies

primarily on Section 4A1.3(e) which permits consideration of

"prior similar adult criminal conduct not resulting in a criminal

conviction" in making such an upward departure.

I have serious doubts as to the propriety of the district
judge's reliance on the three robberies described in sub-

paragraph "A" above. First of all, the robberies in 1991 and

1992 constituted counts 1 and 2 of the same indictment under

which Ashburn is being sentenced. The plea agreement expressly

provided that those two counts be dismissed, and to assume

convictions on those counts as the district judge did, violates

the express terms of the plea agreement. Secondly, if a

sentencing judge assumes conviction on dismissed counts, you no

longer have "conduct not resulting in a criminal conviction" as

defined in sub-part (e). Rather you have additional convictions

under a multi-count indictment which would necessitate processing

under Section 3D1.1 et seq. relating to multiple counts; and the

effects of those additional convictions would show up, not in the

criminal history table, but in the determination of "combined

offense level" (see example 1 on page 246 of the 1993 Guidelines

Manual). In this case, the net result of including counts 1 and

2 in the determination of combined offense level would be to move

the offense level up two steps from 25 to 27; with no change in

the criminal history category of II, the guideline range would be

78 to 97.

Finally, to assume conviction as to the dismissed counts and

then attribute three criminal history points for each assumed

conviction, just as you would for an actual prior conviction,

renders the point structure as defined by the guidelines for

determining criminal history utterly meaningless. In short, if

"prior similar adult conduct not resulting in a conviction" can

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34
be ascribed the same number of points as assigned to an actual

prior conviction, there is no distinction between the two.

Under Rule 11(e) of the Federal Rules of Criminal Procedure,

the district judge may accept or reject a plea agreement which

provides for dismissal of counts or charges. That Rule further

gives the judge the right to "defer his decision as to the

acceptance or rejection until there has been an opportunity to

consider the presentence report." It is apparent in this case

that after reading the presentence report, the district judge

felt the defendant was getting off too light. In my view, the

district judge's remedy then is to reject the plea agreement and

force the defendant to plead guilty to all counts of the

indictment or stand trial and risk conviction on all counts. In

either of those alternative events, the multiple count analysis

under section 3D1.1 et seq. would have been required to determine

the resulting sentence, and that analysis focuses on the combined

offense level and not criminal history. Instead, the district

judge decided to upwardly depart on the basis of "assumptions,"

which I find clearly erroneous, and to an extent that produces a

sentence which is double what would have been the guideline

sentence had the defendant in fact pleaded guilty to all four

counts.

These same criticisms are equally applicable to the district

judge's use of the "robberies back in the early 1980s" described

in Subparagraph B. above as justification for taking Ashburn's

criminal history "past Category VI." As in the instant

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35
prosecution, Ashburn pled guilty in 1984 to one count of a multi-

count indictment charging various events of bank robbery and the

remaining counts were dismissed. So, not only do we have

dismissed counts of the current indictment but also dismissed

counts of a prior indictment, which was the source of a prior

conviction, being used as the basis for determination of "prior

adult similar conduct." Given the proclivity of prosecutors to

file multi-count indictments and the frequency with which some of

those counts get dismissed pursuant to plea bargains, there is a

veritable "mother lode" of upward adjustments awaiting to be

mined out of Section 4A1.3(e) if the district judge's application

is correct. The majority seeks to bless its affirmance of the

district judge's interpretation in this case by stating that it

is joining the Tenth Circuit and the Second Circuit in holding

that prior criminal conduct related to dismiss counts of an

indictment may be used to justify an upward departure. That

blessing is misplaced in this case for nothing in Zamarripa

(Tenth Circuit) nor Kim (Second Circuit) dealt with dismissed

counts of prior indictments in the criminal history; and our

court therefore is making completely new law as to the "robberies

in the early 1980s" in this case. I respectfully suggest that

such new law is not contemplated by the guidelines and will turn

Section 4A1.3(e) into a Pandora's box, the opening of which we

will come to regret.

Furthermore, as indicated in Subparagraph B. above, the

district judge was even more cryptic in articulating his thought

36
process as to the "early 1980s robberies" than he was as to the

counts described in Subparagraph A. He simply said "If taken

into account", these 1980s robberies would push the criminal

history category past Category VI. He gave no indication of the

number of robberies he "took into account" nor did he indicate

the points per robbery he allocated as he did in describing the

other robberies in Subparagraph A. above. He made no attempt to

articulate any special circumstances about the "early 1980s

robberies" which persuaded him to make an adjustment. So, simply

by stating he took these early 1980 robberies into account, the

district judge departed further upward from the guideline range

of 100 - 125 months (O.L. 25 - C.H. V) to 151 - 188 months (O.L.

29 - C.H. VI) to reach the ultimate sentence of 180 months. The

majority opinion rationalizes its approval of the district

judge's articulation of his reasons by citing portions of Lambert

abjuring "ritualistic exercises" and by pointing out that on a

percentage basis the upward departure in this case is not that

different from the upward departure approved in Lambert. But in

the real terms of months and years to be served in prison, the

departure in this case from an initial guideline range of 63 - 78

months (5 - 6-1/2 years) to a final sentence of 180 months (15

years) is the very kind of departure we had in mind when we

stated in Lambert:

"In a very narrow class of cases, we can conceive that
the district court's departure will be so great that,
in order to survive our review, it will need to explain
in careful detail, why lesser adjustments in the
defendant's criminal history score would be

wjl\opin\93-1056d.opn
hrd 37
 inadequate." Page 663.

I respectfully dissent from the conclusion that the district

judge satisfied Lambert.

wjl\opin\93-1056d.opn
hrd 38