[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 23, 2009
No. 08-13832 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 94-00032-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS SYLVESTER HAYMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 23, 2009)
Before MARCUS, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Thomas Hayman appeals his sentence of 289 months, which was imposed
after the district court granted Hayman’s motion to reduce his original sentence of
imprisonment of 360 months for his drug crimes. 18 U.S.C. § 3582(c)(2).
Hayman challenges the reimposition of an upward departure. We affirm.
I. BACKGROUND
In 1995, Hayman was convicted of conspiracy to possess with intent to
distribute cocaine, 21 U.S.C. § 841(a)(1), and using or carrying a firearm during
and in relation to trafficking drugs, 18 U.S.C. § 924(c). The presentence
investigation report listed for the conspiracy crime a base offense level of 34,
United States Sentencing Guidelines § 2D1.1, and increased it by two points
because Hayman possessed a firearm during the offense, id. § 2D1.1(b)(1). With a
criminal history of IV, the report provided a sentencing range between 262 and 327
months of imprisonment. The government moved for an upward departure to a
criminal history of V because the presentence report did not account for Hayman’s
uncharged conduct in September 1993 when he participated in a robbery and rape.
At a hearing on the motion to depart, the government submitted evidence of
Hayman’s guilt through testimony from the rape victim, depositions of two of
Hayman’s cohorts in the robbery, and excerpts from a recorded statement provided
by a third cohort. Hayman testified and denied that he had been involved in the
incident. The district court found that Hayman had participated in the crimes,
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granted the motion of the government for an upward departure, and ruled that
Hayman had obstructed justice by denying involvement in the robbery and rape.
At the sentencing hearing, the district court increased Hayman’s criminal
history to V and increased Hayman’s base offense level from 36 to 38 for his
obstruction of justice. Based on these increases, Hayman’s sentencing range for
his conspiracy charge was between 360 months and imprisonment for life. The
district court sentenced Hayman to 360 months of imprisonment.
Hayman appealed and challenged the upward departure. Hayman argued
that the “magnitude of the departure was unreasonable under the circumstances.”
We affirmed Hayman’s convictions and sentences summarily. United States v.
Hayman, No. 96-4135 (11th Cir. Apr. 6, 1998).
In 2008, Hayman moved pro se to reduce his sentence. 18 U.S.C. §
3582(c)(2). Hayman argued that he had a total offense level of 36 that should be
reduced to 34 because he was convicted of a firearms offense and that offense was
used to enhance his sentence for conspiracy. See U.S.S.G. App. C, Amend. 599.
After the district court appointed counsel, Hayman argued that he had a base
offense level of 34, a criminal history of IV, and he was entitled to a reduced
sentence between 210 and 262 months of imprisonment.
The government conceded that Amendment 599 applied to Hayman, but
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challenged his request to reduce his sentence. The government stated that Hayman
had an offense level of 36 and a criminal history of IV, but the district court had
granted an upward departure based on Hayman’s criminal history and had imposed
a two-level enhancement for obstruction of justice, for a total offense level of 38
and a criminal history of V. The government argued that the district court should
not reduce Hayman’s sentence because of his previous uncharged crimes, his false
testimony about those crimes, and his criminal history category of V.
The district court granted Hayman’s motion and reduced his sentence to 289
months of imprisonment. The district court calculated Hayman’s reduced sentence
by departing upward based on the same percentage it deduced had been applied to
Hayman’s original sentence. The court explained that it had computed Hayman’s
original sentence as follows: Hayman had a total offense level of 36 and a criminal
history of IV that provided a sentencing range between 262 and 327 months of
imprisonment, and after the court departed upward 37.4 percent from the low end
of that range, it imposed a sentence of 360 months of imprisonment. After the
district court determined that Hayman had a reduced base offense of 34, a criminal
history of IV, and an amended guideline range between 210 and 262 months of
imprisonment, the court again departed upward 37.4 percent from the low end of
the range and computed a reduced sentence of 289 months of imprisonment.
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Hayman moved for reconsideration and argued that the district court
violated the Fifth Amendment when it increased his sentence based on crimes for
which he had never been charged or convicted. The district court denied the
motion summarily.
II. STANDARDS OF REVIEW
“In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), we
review de novo the district court’s legal conclusions regarding the scope of its
authority under the Sentencing Guidelines.” United States v. White, 305 F.3d
1264, 1267 (11th Cir. 2002) (citing United States v. Pelaez, 196 F.3d 1203, 1205
(11th Cir. 1999)). Objections or arguments that are not raised in the district court
are reviewed for plain error. United States v. Bennett, 472 F.3d 825, 831 (11th Cir.
2006).
III. DISCUSSION
Hayman argues for the first time on appeal that the district court erred by
reapplying the same upward departure that was applied to Hayman’s original
sentence. Hayman contends that the robbery and rape were not part of the relevant
conduct of his charged offense; he was never charged for the crimes; and no
evidence supported the finding that he committed the crimes. We disagree.
The district court did not plainly err when it reimposed the upward
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departure. We have ruled that a district court has the discretion to reapply a
downward departure, United States v. Vautier, 144 F.3d 756, 761 (11th Cir. 1998),
and nothing in our caselaw suggests a different conclusion about an upward
departure, United States v. Bravo, 203 F.3d 778, 781 n.5 (11th Cir. 2000). We
upheld the application of the upward departure in Hayman’s direct appeal.
Hayman, No. 96-4135. The district court was entitled to consider evidence of
Hayman’s uncharged crimes to fashion a reduced sentence. See United States v.
Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006) (“district courts [may] consider
not merely the charged conduct, but rather all ‘relevant conduct,’ in calculating a
defendant’s offense level”).
IV. CONCLUSION
Hayman’s amended sentence is AFFIRMED.
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