United States v. Dexter O'Bryant Bond

ALAN E. NORRIS, J., delivered the opinion of the court, in which GILMAN, J., joined. MERRITT, J. (pp. 1050-52), delivered a separate dissenting opinion.

OPINION

ALAN E. NORRIS, Circuit Judge.

This appeal requires us to focus upon the latitude afforded to the district court when re-sentencing a defendant after remand. In accordance with earlier decisions of this court, we reiterate that there is “no prohibition in the guidelines, or in the case law interpreting the guidelines, keeping a district judge from revisiting the entire sentencing procedure unless restricted by the remand order.” United States v. Duso, 42 F.3d 365, 368 (6th Cir.1994). Because the remand order in this case did not restrict the district court from reassessing its decision with respect to defendant’s criminal history, it remained free to rely upon any legitimate factors when making that determination as long as its motivation remained free of vindictiveness. Not only do we find no hint of any improper motivation on the part of the district court, we also conclude that the reasons supporting its decision to sentence defendant based upon an enhanced criminal history category fell well within its discretion. Accox-dingly, we affirm the sentence imposed after remand.

A jury convicted defendant and others of conspiracy, 18 U.S.C. § 371, and armed bank robbery, 18 U.S.C. § 2113(d). On appeal, this court affirmed defendant’s conviction but vacated his sentence and remanded for further proceedings. Unit*1049ed States v. Bond, 22 F.3d 662, 673 (6th Cir.1994).

After remand, the district court issued an opinion explaining the manner in which it re-sentenced defendant. Op. on Re-sentencing, April 25, 1996. After chronicling defendant’s past criminal activity at great length, the opinion provided the following rationale for sentencing defendant as a Criminal History Category V offender, which represented an upward departure of two categories:

[T]his court concludes that the sentence thus far calculated ... does not adequately reflect either the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes. The court therefore believes that Criminal History Category IV does not provide a range within which to properly sentence this defendant, who has devoted so much of his time to the pursuit of his goals by violence and gunplay, and who has directly threatened the lives of at least three other people in addition to the many who were threatened at the Savings and Loan robbed in the instant offense. The court concludes that a further departure, at least to Criminal History Category V with its range of 151-188 months, is the minimum needed to locate a proper sentence. Even this range strikes the court as insubstantial under the circumstances....
Consistent with the court of appeals opinion, it appears that no upward departure is available for this defendant beyond the foregoing calculations made in connection with the inadequate criminal history. The court believes itself without further discretionary ability to depart and believes the sentencing is to be confined to the range expressed herein. Were a higher range properly considered, it would unquestionably be used.

Op. at 7-8.

U.S.S.G. § 4A1.3, p.s. (Nov.1991),1 permits the sentencing court to increase a defendant’s criminal history category when rehable information indicates that the seriousness of defendant’s past criminal conduct is not adequately reflected by the criminal history category which would otherwise apply. Moreover, the policy statement gives as an example of an appropriate upward departure the case of an individual “with an extensive record of serious, assaultive conduct who had received what might now be considered extremely lenient treatment in the past....” U.S.S.G. § 4A1.3, comment (backg’d.). This situation may arise “in the case of younger defendants (e.g, defendants in their early twenties or younger) who are more likely to have received repeated lenient treatment, yet who may actually pose a greater risk of serious recidivism than older defendants.” Id. This example tracks the reasoning provided by the district court in its opinion: defendant Bond was nineteen years old when arrested; he had received lenient sentences due in part to his youth; and he had a record of serious, assaultive conduct.

As the Supreme Court has observed, “A district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). This court has recently applied the abuse of discretion standard to a trial court’s decision to depart upward with respect to a defendant’s criminal history category. United States v. Koeberlein, 161 F.3d 946 (6th Cir.1998) (citing Koon).

*1050Under the circumstances of this case, we find no abuse of discretion in the decision of the district court. First, as reflected in its opinion on re-sentencing, the trial court closely adhered to the parameters of this court’s remand order. See United States v. Moore, 131 F.3d 595, 597-98 (6th Cir.1997) (citing Duso for proposition that extent of sentencing court’s latitude when re-sentencing tied directly to breadth of remand order). Second, the district court properly considered, and rejected, the next higher criminal history category before electing to sentence defendant as a Category V offender. Third, the court took pains to provide detailed reasons for its decision that closely tracked the policy underlying U.S.S.G. § 4A1.3.

The sentence of defendant Bond is affirmed.

. In this case, defendant was sentenced under the Guidelines Manual in effect as of November 1991.