United States v. Philip Scott Ashburn

ROBERT M. PARKER, Circuit Judge:

This ease 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 Ashbum’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 Ash-burn 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 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 *806Act, formerly codified at 18 U.S.C. § 5010(b). The PSR assessed three criminal history points against Ashbum 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, Ashbum’s Total Offense Level 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 testi.fied 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 Ashbum 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, 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 Ashbum 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 *807sentence.10

We ordered that this case be reheard en banc. We reject Ashbum’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. -, 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 coiirt 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 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 IB 1.4 provides that in deter*808mining “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 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 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, 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 crim*809inal 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.

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 ... 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 *810significantly 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).

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.

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

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

. 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.

. Under the Guidelines, bank robbeiy is a non-groupable offense. U.S.S.G. § 3D 1.2(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).

. Ashbum was not charged with this robbery.

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

. 20 F.3d at 1338-43.

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

. 20 F.3d at 1346-48.

. 20 F.3d at 1350.

. 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.

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

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

. 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 *808series 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.

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

[a] court is not precluded from considering information 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.

Commentaiy to U.S.S.G § 1B1.4.

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