United States v. Maurice

United States Court of Appeals,

Eleventh Circuit.

No. 94-4485.

UNITED STATES of America, Plaintiff-Appellee,

v.

Frantz MAURICE, Defendant-Appellant.

Dec. 5, 1995.

Appeal from the United States District Court for the Southern
District of Florida. (No. 93-376-CR-SH), Shelby Highsmith, Judge.
*
Before COX, Circuit Judge, HILL and REYNALDO G. GARZA , Senior
Circuit Judges.

PER CURIAM:

Frantz Maurice appeals the district court's upward departure

from the sentence prescribed by the United States Sentencing

Guidelines. We affirm.

I. FACTS AND PROCEDURAL HISTORY

From February 1992 through about June 1993, Maurice

represented himself as an attorney licensed to practice law in

three states, including Florida. Maurice advertised his services,

listing these bar memberships and other credentials, in several

foreign newspapers. From his "law office" in Miami, Florida, he

charged numerous undocumented aliens between $500 to $1500 per case

for representation before the Immigration and Naturalization

Service (INS). On his clients' requests for political asylum and

for work privileges filed with the INS, he certified that he was

licensed to practice law in the state of Florida. In fact, Maurice

*
Honorable Reynaldo G. Garza, Senior U.S. Circuit Judge for
the Fifth Circuit, sitting by designation.
is neither a law school graduate nor a member of the bar of any

state. The INS discovered Maurice's activities, and he was

indicted on thirty-three counts of mail fraud, in violation of 18

U.S.C. § 1341 (1994), and eighteen counts of making false

statements regarding a matter within the jurisdiction of a federal

agency, in violation of 18 U.S.C. § 1001 (1994). He pled guilty to

all but two counts of mail fraud and one count of making false

statements.

The district court used the sentencing guidelines to calculate

Maurice's sentence. Under U.S.S.G. § 2F1.1, the court found the

total adjusted offense level to be 13. See United States

Sentencing Commission, Guidelines Manual (Nov. 1994). The

Presentence Investigation Report (PSI) counted one prior adult

criminal conviction for attempted possession of stolen property to

yield two criminal history points, placing the appellant in

criminal history category II. See U.S.S.G. §§ 4A1.1(b); 5A. The

PSI also listed nine prior adult criminal convictions, but did not

count them in calculating appellant's criminal history score

because the convictions were more than ten years old. See U.S.S.G.

§ 4A1.2(e)(2). Finally, the PSI listed several factors, including

the older convictions, as bases that might warrant an upward

departure from the sentence set by the guidelines.

The district court departed from the guidelines sentence under

U.S.S.G. § 4A1.31 because the appellant's criminal history score

1
U.S.S.G. § 4A1.3 provides in part:

If reliable information indicates that the criminal
history category does not adequately reflect the
seriousness of the defendant's past criminal conduct or
did not adequately reflect the seriousness of his past criminal

record or the likelihood of his recidivism. Noting that the nine

older convictions would yield an additional 17 criminal history

points if counted, the court elevated Maurice's criminal history

points to 19. Using the sentencing table found at § 5A of the

Guidelines, the court began at offense level 13, moved horizontally

across from criminal history category II to category VI, and then

moved vertically down two offense levels (to offense level 15) to

arrive at a sentence range of 41-51 months. The court sentenced

appellant to a 51-month term of imprisonment and a period of

supervised release. Maurice appeals, contesting the validity of

the upward departure.

II. STANDARD OF REVIEW

The Sentencing Reform Act, 18 U.S.C. § 3551 et seq., 28

U.S.C. §§ 991-998 (1994), which established the Sentencing

Commission and vested it with the authority to promulgate the

guidelines, provides for limited appellate review of guideline
2
sentences. 18 U.S.C. § 3742(f). We review departures from the

the likelihood that the defendant will commit other
crimes, the court may consider imposing a sentence
departing from the otherwise applicable guideline
range.

A departure under this provision 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.
2
See, Williams v. United States, 503 U.S. 193, 198-99, 112
S.Ct. 1112, 1118-19, 117 L.Ed.2d 341 (1992). In Williams, the
Supreme Court addressed the scope of appellate review of
departures from the sentencing guidelines. Our three-step
analysis for sentencing departures is consistent with Williams.
See United States v. Brown, 9 F.3d 907, 912 (11th Cir.1993),
sentencing guidelines in three analytical steps. First, the legal

question of the district court's interpretation of the guidelines

is reviewed de novo. United States v. Weaver, 920 F.2d 1570, 1573

(11th Cir.1991). Second, the factual basis for a departure is

reviewed for sufficiency under a clear error standard. Id.

Finally, the direction and scope of a departure are reviewed for

reasonableness. Id. However, if a party fails to make a specific

objection at the sentencing hearing after being given an

opportunity to do so by the district court, we will only hear a

challenge to the upward departure under a plain error standard.

United States v. Jones, 899 F.2d 1097, 1102-03 (11th Cir.1990);

cert. denied, 498 U.S. 906, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990),

overruled on other grounds, United States v. Morrill, 984 F.2d 1136

(11th Cir.1993).

III. CONTENTIONS OF THE PARTIES

Maurice contends that the district court erred in upwardly

departing under U.S.S.G. § 4A1.3 from the sentence otherwise set by

the Guidelines.3 On appeal he asserts three grounds for this

objection. First, he argues that departures under U.S.S.G. § 4A1.3

are calculated by going vertically down the sentencing table by

increasing offense levels, rather than by going horizontally across

the table by increasing criminal history categories. Second,

Maurice argues that the district court erred by failing to consider

cert. denied, --- U.S. ----, 115 S.Ct. 152, 130 L.Ed.2d 91
(1994).
3
Had the district court not added an additional 17 criminal
history points to the appellant's score under § 4A1.3, an offense
level of 13 and criminal history category of II would yield a
sentence range of 15 to 21 months. See U.S.S.G. § 5A.
the nature as well as the number of his prior offenses when

departing above criminal history category VI. Third, Maurice

contends that the departure is unreasonable because the district

court failed to consider the appropriateness of intervening

criminal history categories and offense levels when calculating the

upward departure. The Government contends that Maurice failed to

preserve an objection to the upward departure at the sentencing

hearing.

IV. DISCUSSION

If Maurice failed to comply with Jones, we will review the

upward departure under a plain error standard. See 899 F.2d at

1102-03. Therefore, we must first decide whether appellant

preserved the grounds of objection to the upward departure that he

now asserts.

A. Preservation of the Objection

The general rule that an appellate court will not hear

arguments advanced for the first time on appeal applies to

sentencing proceedings. United States v. Prichett, 898 F.2d 130,

131 (11th Cir.1990). In an effort to ensure that objections to

sentencing are made and the grounds for those objections clearly

stated at the sentencing hearing, in Jones we instructed district

courts to elicit objections and clearly articulated grounds for

those objections following the imposition of a sentence. 899 F.2d

at 1102. If the district court complies with our instruction in

Jones and "a party is silent or fails to state the grounds for

objections," the objections are waived. Id. (emphasis added). An

objection that has been waived will only be entertained on appeal
under the plain error doctrine to avoid manifest injustice. United

States v. Neely, 979 F.2d 1522, 1523 (11th Cir.1992).

The district court complied with Jones by asking for

objections after imposition of the sentence. The appellant

responded: "[W]e would reserve an objection as to the departure."

(R. 2 at 102.) This statement, taken alone, is not sufficient to

preserve the issue for appeal because Jones requires a clear

explanation of the basis for the objection.

Appellant contends that the argument in support of his

objection was stated prior to the imposition of sentence. Jones

gave several reasons for requiring counsel to state the grounds for

objections to sentencing: "Clear articulation will aid the

district court in correcting any error, tell the appellate court

precisely which objections have been preserved and which have been

waived, and enable the appellate court to apply the proper standard

of review to those preserved." Jones, 899 F.2d at 1102-03. These

rationales are served so long as the objection to be preserved and

the grounds for the objection are clear to the sentencing court at

the conclusion of the hearing. Jones does not necessarily require

a party to repeat objections made during the course of sentencing

proceedings following the imposition of sentence.4 Similarly, a

party is not required to reargue a general objection made after

sentencing if the argument in support of that objection has

previously been presented to the sentencing court and the reasons

4
We noted in Jones that an appeal could have been avoided in
that case if "the court, after pronouncing sentence, had asked
counsel whether there were any objections ... other than those
previously stated for the record." 899 F.2d at 1102 (emphasis
added).
for the objection remain clear after the sentence is pronounced.

Therefore, if an argument for appellant's objection was made prior

to imposition of the sentence, we will hear the objection on those

grounds.

Appellant claims that the grounds for his objection were

stated after the court's decision to depart under § 4A1.3:

Mr. Korchin [counsel for the appellant]: Your Honor, at
the appropriate time may I be heard on something?

The Court: Yes, sir, you may.

Mr. Korchin: Judge, I am not absolutely certain about
the formula used in departing due to the inadequacy of the
criminal history. I know that under a previous guideline
manual the procedure was, as outlined here, to move
horizontally across the criminal history category, but, I may
be incorrect, but I believe the new procedure under this
guideline manual is to move vertically down.

(R. 2 at 98.) On this appeal appellant makes three arguments in

support of his objection; only one of these arguments can be

deciphered from the above passage. We hold that appellant

preserved an objection to the upward departure only as to whether

the departure should be calculated by moving across or down the

sentencing table. Appellant did not ask the district court to

consider the nature of his prior convictions, nor did he challenge

the reasonableness of the departure by requesting that the court

consider intervening criminal history categories or offense levels.

The purposes of the rule in Jones are to give the district court an

opportunity to correct errors and to produce a record that will

guide appellate review. Jones, 899 F.2d at 1102. Neither of these

purposes is served with respect to a particular argument if it is

not made first to the district court. Appellant waived these

arguments by not presenting them at the sentencing hearing and we
will only consider them under a plain error standard.

B. Calculation of the Upward Departure

Determining whether an upward departure under U.S.S.G. §

4A1.3 is calculated by going horizontally across or vertically down

the sentencing table requires an interpretation of the Guidelines.

It is therefore a legal question subject to de novo review. See

United States v. Dukovich, 11 F.3d 140, 141 (11th Cir.1994), cert.

denied, --- U.S. ----, 114 S.Ct. 2112, 128 L.Ed.2d 671 (1994).

Section 4A1.3 of the Sentencing Guidelines authorizes a

departure "when the criminal history category significantly

underrepresents the seriousness of the defendant's criminal history

or the likelihood that the defendant will commit further crimes."

U.S.S.G. § 4A1.3, p.s. Although § 4A1.3 expressly contemplates

departures beyond criminal history category VI (the highest

category on the sentencing table), there was once little guidance

on how to calculate a departure above category VI. See U.S.S.G. §

4A1.3 (Nov. 1991). In 1992, § 4A1.3 was amended to explain that

departures beyond category VI are calculated by moving vertically

down from category VI by increasing offense levels.5

5
U.S.S.G.App. C (amend. 460) (effective November 1, 1992).
Section 4A1.3 now provides:

The Commission contemplates that there may, on
occasion, be a case of an egregious, serious criminal
record in which even the guideline range for Criminal
History Category VI is not adequate to reflect the
seriousness of the defendant's criminal history. In
such a case, a departure above the guideline range for
a defendant with Criminal History Category VI may be
warranted.

Where the court determines that the extent and nature
of the defendant's criminal history, taken together,
are sufficient to warrant an upward departure from
 At appellant's sentencing hearing, the probation officer

suggested that a departure under § 4A1.3 could be calculated by

adding 17 additional criminal history points to the appellant's

score, placing him into what she called a "criminal history

category of VIII". (R. 2 at 98.) The probation officer further

explained to the court that the departure was calculated by

beginning at offense level 13, criminal history category II, then

moving horizontally across four columns to category VI, then moving

vertically down two offense levels to level 15. (R. 2 at 98-99.);

see U.S.S.G. § 5A. This process resulted in a sentence range of

41-51 months. The court adopted the suggested departure. Id.

Appellant argues that the district court erred by moving

horizontally across the sentencing table rather than vertically

down and by creating a criminal history category that does not

exist.

The record is clear that the district court used the method

suggested in the policy statement in calculating the departure.

The calculation explained by the probation officer and adopted by

the court follows the procedure described in § 4A1.3. Appellant's

argument that the court used a flawed procedure to calculate the

guideline range is without merit.

Because the appellant waived his remaining arguments by

failing to raise them in the district court, we review them only

Criminal History Category VI, the court should
structure the departure by moving incrementally down
the sentencing table to the next higher offense level
in Criminal History Category VI until it finds a
guideline range appropriate to the case.

U.S.S.G. § 4A1.3, p.s.
for plain error. Appellant argues that the court failed to

consider the nature as well as the number of his prior offenses.

When departing above criminal history category VI pursuant to §

4A1.3, the policy statement indicates that "the court should

consider that the nature of the prior offenses rather than simply

their number is often more indicative of the seriousness of the

defendant's criminal record." At the sentencing hearing, the judge

stated that the appellant "has been, throughout most of his life at

least, bound upon a course of deceit and fraud." (R. 2 at 99.)

This statement reflects that the court did consider the nature of

appellant's prior offenses. There is no error here, plain or

otherwise.6

Appellant also argues that the departure was unreasonable

because the district court failed to consider intervening criminal

history categories and offense levels. When departing upward under

§ 4A1.3, the sentencing court generally is required to compare the

defendant to other defendants in the next highest criminal history

category until an appropriate category is reached.7 However, where

6
The sentencing judge made other statements indicating that
he considered the nature as well as the number of appellant's
older convictions. Before sentencing, the court stated that
"[t]his was an instance of someone who calculatingly over a
course of a long period of time passed himself off as something
he was not for lucre, money." (R. 2 at 95.) Because it is clear
in this case that the court did consider the nature of
appellant's prior offenses, we need not decide whether the quoted
language from § 4A1.3 requires the court to consider the nature
of prior offenses on the record or merely suggests a factor for
the court to consider.
7
United States v. Williams, 989 F.2d 1137, 1142 (11th
Cir.1993); United States v. Huang, 977 F.2d 540, 543-44 (11th
Cir.1992); United States v. Johnson, 934 F.2d 1237, 1239 (11th
Cir.1991). This requirement is based on the following portion of
§ 4A1.3:
a sentencing court selects a higher criminal history category under

§ 4A1.3 by adding point totals for remote convictions, we have held

that an explanation of this calculation serves as an adequate

explanation for the inappropriateness of the intervening criminal

history categories. See United States v. Brown, 51 F.3d 233, 234

(11th Cir.1995). Because the departure in this case was calculated

in the same manner as the departure in Brown, 51 F.3d 233, and that

calculation was explained at the hearing, the district court

adequately explained the departure from category II to category VI.

Appellant also argues that the district court failed to consider

the next offense level when departing above criminal history

category VI. Before the 1992 amendment to § 4A1.3, the district

court was not required to conduct such a step-by-step inquiry when

departing above criminal history category VI. United States v.

Simmons, 924 F.2d 187, 191 (11th Cir.1991). Arguably, under United

States v. Brown, 9 F.3d 907, 913 (11th Cir.1993), the rule in

Simmons is unchanged by the 1992 amendment. However, it is unclear

In considering a departure under this provision, the
Commission intends that the court use, as a reference,
the guideline range for a defendant with a higher or
lower criminal history category, as applicable. For
example, if the court concludes that the defendant's
criminal history category of III significantly
under-represents the seriousness of the defendant's
criminal history, and that the seriousness of the
defendant's criminal history most closely resembles
that of most defendants with Criminal History Category
IV, the court should look to the guideline range
specified for a defendant with Criminal History
Category IV to guide its departure.

U.S.S.G. § 4A1.3, p.s.
whether Brown applied § 4A1.3 as amended in 1992.8 We do not

decide the question because we find the departure above category VI

reasonable, which forecloses any possibility of plain error.

V. CONCLUSION

Because the only objection that Maurice preserved is

meritless, and because appellant cannot show plain error on the

part of the district court, we affirm appellant's sentence.

AFFIRMED.

. . . . .

. . . . .

8
Brown quotes an amended version of § 4A1.3, but the opinion
does not give the date on which Brown was sentenced. 9 F.3d at
909. When sentencing a defendant under the Guidelines, a
district court generally is required to use the Guidelines in
effect at the time of the sentencing hearing. 18 U.S.C. §
3553(a)(4) (1994); United States v. Marin, 916 F.2d 1536, 1538
(11th Cir.1990).