United States v. Concha

F I L E D
United States Court of Appeals
Tenth Circuit

JUN 25 2002

PUBLISH PATRICK FISHER
Clerk

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 01-2248

JOSEPH SANTANA CONCHA,

Defendant-Appellant,

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-98-183-BB)

Thomas B. Jameson, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Defendant-Appellant.

Robert D. Kimball, Assistant U.S. Attorney (David C. Iglesias, United States
Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-
Appellee.

Before SEYMOUR, BALDOCK and HARTZ, Circuit Judges.

SEYMOUR, Circuit Judge.
 Joseph Santana Concha appeals the district court’s upward departure from

the sentencing guidelines. We affirm.

I.

Mr. Concha was convicted by a jury on two counts of misdemeanor simple

assault in violation of 18 U.S.C. § 113(a)(5) 1 and one count of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court

originally enhanced his sentence under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e), on the basis of four predicate convictions, three of which took place in

Great Britain. On appeal, Mr. Concha challenged the use of those foreign

convictions for sentencing enhancement purposes. We agreed with Mr. Concha

that foreign convictions may not be so used, vacated his sentence, and remanded

for resentencing. See United States v. Concha, 233 F.3d 1249 (10th Cir. 2000).

In so doing, we pointed out that the sentencing court remained “free to consider

the foreign convictions for the purposes of a departure under § 4A1.3 of the

Sentencing Guidelines.” Id. at 1257.

Upon resentencing the district court departed upward one criminal history

1
These counts originally charged Mr. Concha with assault with intent to
commit murder and assault with a dangerous weapon. The jury acquitted him on
these charges, convicting him instead on two counts of the lesser included offense
of simple assault.

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level on the basis of seven instances of criminal conduct that occurred in Great

Britain from 1970 to 1977. Mr. Concha again appeals, raising several objections

to the court’s use of this evidence to support an upward departure.

II.

The Sentencing Guidelines permit a sentencing court to depart from the

otherwise applicable guideline range if “the court finds ‘that there exists an

aggravating or mitigating circumstance of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission in formulating the

guidelines . . . .’” U.S.S.G. § 5K2.0 (Nov. 1998) (quoting 18 U.S.C. § 3553(b)).

The guidelines intend

the sentencing courts to treat each guideline as carving out a
“heartland,” a set of typical cases embodying the conduct that each
guideline describes. When a court finds an atypical case, one to
which a particular guideline linguistically applies but where conduct
significantly differs from the norm, the court may consider whether a
departure is warranted.

Id. ch.1, pt. A, intro. comment. 4(b).

The guidelines set out a limited number of forbidden factors that may not

support a departure, 2 those that are encouraged as a basis for departure, and those

2
The forbidden factors are race, sex, national origin, creed, religion, and
socioeconomic status, see U.S.S.G. § 5H1.10; lack of guidance as a youth, id. §
5H1.12; drug or alcohol dependence, id. § 5H1.4; and economic duress, id. §
(continued...)

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that are discouraged.

If the special factor is an encouraged factor, the court is authorized
to depart if the applicable Guideline does not already take it into
account. If the special factor is a discouraged factor, or an
encouraged factor already taken into account by the applicable
Guideline, the court should depart only if the factor is present to an
exceptional degree or in some other way makes the case different
from the ordinary case where the factor is present.

Koon v. United States, 518 U.S. 81, 96 (1996).

We review departures from the guidelines under a unitary abuse-of-

discretion standard, giving deference to essentially factual questions and plenary

review to those that are essentially legal. See United States v. Hannah, 268 F.3d

937, 940 (10th Cir. 2001). In determining whether a sentencing court abused its

discretion in deciding to depart we must evaluate:

(1) whether the factual circumstances supporting a departure are
permissible departure factors; (2) whether the departure factors relied
upon by the district court remove the defendant from the applicable
Guideline heartland thus warranting a departure; (3) whether the
record sufficiently supports the factual basis underlying the
departure; and (4) whether the degree of departure is reasonable.

Id. at 940-41 (quoting United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.

1997)). Only the fact of departure is at issue here, not the degree.

The district court in this case departed upward upon concluding that Mr.

Concha’s criminal history category under-represented the seriousness of his past

(...continued)
2

5K2.12.

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conduct. The failure of a defendant’s criminal history category to “adequately

reflect the seriousness of the defendant’s past criminal conduct or the likelihood

that the defendant will commit other crimes” is an encouraged departure factor.

U.S.S.G. § 4A1.3. However, we must also assess whether the factual bases upon

which the court here relied in finding under-representation are themselves

permissible grounds for departure. See Collins, 122 F.3d at 1304-05.

The district court expressly grounded its departure decision upon seven

instances of foreign criminal conduct that occurred between 1970 and 1977, when

Mr. Concha was between twenty-one and twenty-seven years of age. Six of these

instances resulted in convictions and periods of imprisonment, while one, a

charge of attempted murder, resulted in Mr. Concha’s hospital commitment under

Great Britain’s Mental Health Act of 1959. 3

3
The court relied on the following information set out in paragraphs 32
through 38 of the presentence report: (1) a charge of assault occasioning actual
bodily harm in March 1970 for which Mr. Concha was given six months in prison
and a three-year suspended sentence; (2) charges in November 1970 of burglary
and theft from a dwelling and assault occasioning actual bodily harm for which he
was given a sentence of two years in prison and a consecutive sentence of six
months in prison; (3) two charges in December 1970 of assault occasioning actual
bodily harm for which he was sentenced to three months in prison consecutively
to the sentences imposed previously; (4) charges in November 1975 of property
damage, arson and drunk driving for which he was given a sentence of 12 months
in prison, and concurrent sentences of two years in prison, 12 months in prison
and four months in prison; (5) charges in January 1976 of auto theft, burglary and
theft, and driving while disqualified for which he was given concurrent sentences
of 18 months and 12 months; (6) charges in November 1977 of criminal damage
(continued...)

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 When, as here, a defendant’s prior sentences fall outside the applicable

time periods for purposes of calculating his criminal history category, see

U.S.S.G. § 4A1.2(e), such sentences may nonetheless support an upward

departure. “If the court finds that a sentence imposed outside this time period is

evidence of similar, or serious dissimilar, criminal conduct, the court may

consider this information in determining whether an upward departure is

warranted under § 4A1.3 (Adequacy of Criminal History Category).” U.S.S.G. §

4A1.2, comment. (n.8). The Guidelines do not apply to Mr. Concha’s instant

convictions under Counts I and III for simple assault because those crimes are

Class B misdemeanors. See U.S.S.G. § 1B1.9. Accordingly, the convictions that

are too old to be included in Mr. Concha’s criminal history calculation may

support an upward departure if they are either evidence of conduct that is similar

to his conviction for being a felon in possession of a firearm, or evidence of

serious, dissimilar criminal conduct.

In relying on Mr. Concha’s foreign convictions from the 1970s, the district

court determined they were serious, dissimilar conduct, pointing out that “all were

offenses causing harms to individuals or property. These offenses all resulted in

3
(...continued)
and dangerous driving for which he was given a sentence of 12 months in prison
and a concurrent sentence of six months; and (7) a charge in December 1977 of
attempted murder for which he was given a hospital commitment order under the
Mental Health Act. See rec. vol. II, at 7-9.

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periods of imprisonment, with the exception of . . . attempted murder, which

resulted in a period of hospitalization under the Mental Health Act of Great

Britain.” 4 Rec. supp. vol. 1, at 20. The court also observed that Mr. Concha has

“been in counseling most of his life. He’s been in prison a substantial period of

time over the last 30 years. His continued pattern of criminal behavior seems to

me to be a likelihood of recidivism. We’ve been ineffective in the past keeping

him from criminal behavior.” Id. at 10.

Mr. Concha contends that the court erred in holding these convictions were

serious enough to support an upward departure. In making this argument, Mr.

Concha attempts to analogize his circumstances to those at issue in United States

v. Wyne, 41 F.3d 1405 (10th Cir. 1994), in which we concluded that the

defendant’s record did not support an upward departure under U.S.S.G. § 4A1.3.

4
Mr. Concha contends in particular that the sentencing court erred in
relying on the charge of attempted murder, arguing that it cannot support a
departure because it neither resulted in a criminal conviction and sentence nor
was similar to the instant crime of conviction. We disagree. Section 4A1.3 lists
five categories of information that may indicate a defendant’s criminal history
category does not adequately reflect his past criminal conduct or his likelihood of
recidivism. One category includes prior similar adult criminal conduct not
resulting in a criminal conviction. See U.S.S.G. § 4A1.3(e). Even accepting Mr.
Concha’s argument that the attempted murder charge is not similar to his
conviction for being a felon in possession of a firearm, section 4A1.3 expressly
states that the court is “not limited to” the information described in the five
categories set out therein. See id. § 4A1.3. The district court therefore did not
err in taking into account the attempted murder charge in deciding whether
departure was warranted under section 4A1.3.

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In that case, the defendant had never received a sentence of imprisonment

exceeding one year and one month. His uncounted convictions consisted of eight

misdemeanors, for which he was sentenced in total to about thirty-three months,

one assault which the government failed to show involved actual bodily harm and

for which he received four years probation, and four DUI convictions, for which

he received sentences ranging from five weekends to six months in jail. Id. at

1406 n.1. Here, to the contrary, all of Mr. Concha’s assaults resulted in actual

bodily harm and most of his sentences of imprisonment exceeded one year and

involved additional concurrent sentences. In our view, Mr. Concha’s uncounted

criminal history is significantly more serious than that described in Wyne.

A sentencing court has “great latitude to determine the use of information

presented for sentencing. That latitude certainly extends to its assessment of the

significance of foreign criminal convictions.” United States v. Korno, 986 F.2d

166, 169 n.3 (7th Cir. 1993). The court did not err in determining that Mr.

Concha’s foreign convictions warranted an upward departure both because they

were sufficiently serious and because they evidenced a risk of recidivism. See

United States v. Levi, 229 F.3d 677, 679 (8th Cir. 2000) (even foreign “offenses

which are minor and dissimilar to the offense of conviction may be considered as

evidence of a risk of recidivism if they evince a defendant’s obvious

incorrigibility.” (citation and quotation omitted)).

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 Mr. Concha also argues the foreign convictions could not support an

upward departure because the government did not establish they were fairly

obtained. In particular, Mr. Concha contends the government failed to show he

was represented by counsel with respect to five of them. The guidelines

specifically provide that, in calculating a defendant’s criminal history score,

sentences resulting from convictions that “have been ruled constitutionally invalid

in a prior case are not to be counted.” U.S.S.G. § 4A1.2, comment. (n.6).

Significantly, however, the application note further provides that “[n]onetheless,

the criminal conduct underlying any conviction that is not counted in the criminal

history score may be considered pursuant to § 4A1.3 (Adequacy of Criminal

History Category).” 5 Id. Here, of course, Mr. Concha’s foreign convictions have

not been ruled constitutionally invalid. Moreover, even assuming they are subject

to challenge on Sixth Amendment grounds, the comment to the guideline indicates

it is proper to consider the underlying conduct in assessing the propriety of an

upward departure. While Mr. Concha contends the district court relied on the

convictions themselves rather than the underlying conduct, our review of the

5
This guideline renders misplaced Mr. Concha’s reliance upon Strachan v.
Army Clemency & Parole Bd. 151 F.3d 1308 (10th Cir. 1998). In that case, we
held an invalid conviction could not support the forfeiture of street time upon
revocation of parole, a matter not subject to the sentencing guidelines. Here, to
the contrary, the use of conduct underlying an invalid conviction is specifically
permitted during sentencing in determining whether to depart on the basis of
inadequate criminal history.

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record convinces us otherwise. The court specifically noted that “all were

offenses causing harms to individuals or property.” Rec. supp. vol. I, at 20.

In sum, the district court properly considered Mr. Concha’s foreign

offenses in assessing the propriety of an upward departure under section 4A1.3.

His foreign convictions, while outside the applicable time period, are sufficiently

serious to be considered and may be considered notwithstanding the possibility

that they were obtained without the assistance of counsel. The attempted murder

charge is likewise not excluded from consideration even though it arguably did

not involve conduct similar to the offense of conviction. 6

Mr. Concha also contends the district court abused its discretion in

determining that his foreign offenses placed him outside the applicable guideline

heartland. In addressing the court’s determination that “the case is ‘so unusual’

as to remove it from the ‘heartland’ of cases, our review is most deferential.”

United States v. Caldwell, 219 F.3d 1186, 1192 (10th Cir. 2000).

Before a departure is permitted, certain aspects of the case must be

6
As the district court and the government observed, Mr. Concha’s felony
possession of a firearm occurred when, during an altercation with a police officer,
Mr. Concha wrested the officer’s weapon away from him and attempted to shoot
him with it. The officer prevented Mr. Concha from firing the gun by inserting
his finger behind the trigger. The attempted murder charge arose from an
altercation between Mr. Concha and his step-brother during which Mr. Concha hit
the victim “over the head and body with a bar threatening to kill him and stabbed
him with a sword causing serious internal injuries requiring emergency surgery.”
Rec. vol. II, at 9.

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 found unusual enough for it to fall outside the heartland of cases in
the Guideline. To resolve this question, the district court must make
a refined assessment of the many facts bearing on the outcome,
informed by its vantage point and day-to-day experience in criminal
sentencing. . . . District courts have an institutional advantage over
appellate courts in making these sorts of determinations, especially
as they see so many more Guidelines cases than appellate courts do.

Koon, 518 U.S. at 98.

Mr. Concha had eight criminal history points, placing him in category IV.

In making this calculation, the presentence report assigned three points under

U.S.S.G. § 4A1.1(a) for a 1979 California state court conviction on two counts of

crimes against children, for which Mr. Concha was sentenced to five years in

prison, 7 one point each for two drunk driving convictions for which Mr. Concha

was given terms of two years and three years probation respectively, one point for

a misdemeanor domestic battery conviction for which Mr. Concha was given

twenty-four days incarceration and thirty-six months probation, and two points

under U.S.S.G. § 4A1.1(d) because he committed the offense while on probation

for the battery conviction.

In determining that an upward departure was warranted, the district court

made the following observations.

7
According to the felony complaint, Mr. Concha was charged with one
count of sexual intercourse with a twelve year-old female “where she was
prevented from resisting by threats of great and immediate bodily harm,” and one
count of committing a lewd and lascivious act upon a child under the age of
fourteen. Rec. vol. II, at 10.

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 The Court notes defendant’s criminal history spans a period of
30 years, beginning at age 18. And the present offense was
committed when he was the age of 48. Based on these factors, the
Court finds defendant’s criminal history category underrepresents the
seriousness of defendant’s criminal history, and the seriousness of
defendant’s criminal history resembles that of at least a criminal
history of category 5.
The Court notes that had one point been assessed to each of
the five prior foreign convictions, defendant’s criminal history
category would be beyond the minimum of 13 points required for a
criminal history of category 6. However, the Court of Appeals has
indicated that these previous foreign convictions should not be
considered, as they would as if they were domestic convictions. But
I don’t think they can be ignored, and I don’t believe the Court of
Appeals has indicated they should be ignored.
The Court finds these foreign convictions occurred between
1970 and ‘77, and while they would be time barred from
consideration in some matters in our legal system, it’s clear they did
not deter the defendant from further criminal conduct, since once he
arrived in the United States, he was convicted in California for a
crime against a child, a serious crime. Defendant also has
convictions for driving under the influence, and two for battery.

Rec. supp. vol. I, at 20-21. Giving appropriate deference to the district court’s

view of the matter, we find no abuse of discretion in the court’s conclusion that

Mr. Concha’s history of uncounted past offenses places him outside the heartland

of defendants with a criminal history of category IV, both with respect to the

seriousness of his criminal history and his likelihood of recidivism.

Mr. Concha also contends the record does not support the factual basis

underlying the departure, arguing that the material describing the foreign offenses

does not establish either that they were serious or fairly obtained. We reject Mr.

Concha’s challenge to the sufficiency of the record summarily. As the

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government points out, Mr. Concha does not assert that the information

concerning the foreign offenses is inaccurate; he merely argues that it is

inadequate to show either seriousness or procedural fairness. We have carefully

reviewed the record and, under our deferential standard of review, we are

convinced the evidentiary basis for the court’s use of this information is

sufficient. As discussed above, the convictions can be considered even if they

were obtained absent counsel. The descriptions of the offenses contained in the

Great Britain records and the undisputed sentences imposed are more than

sufficient to establish the requisite seriousness. Mr. Concha’s argument in this

regard is therefore without merit.

Finally, we turn to Mr. Concha’s assertion that he did not receive sufficient

notice the court would rely on the 1977 criminal damage conviction as a ground

for upward departure. In so arguing, Mr. Concha attempts to bring this case

within the holding of Burns v. United States, 501 U.S. 129 (1991). In Burns, the

plea agreement and the presentence report both embodied the parties’ expectation

that the defendant would be sentenced within the applicable guideline range.

Nonetheless, at the conclusion of the sentencing hearing, the court announced its

sua sponte decision to depart upward. Burns thus

involves one aspect of the procedures surrounding Guidelines
sentencing: whether the defendant is entitled to notice before the
district court departs sua sponte from the Guidelines sentencing
range. In the ordinary case, the presentence report or the

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 Government’s own recommendation will notify the defendant that an
upward departure will be at issue and of the facts that allegedly
support such a departure.

Id. at 135 (footnotes omitted).

The instant case is clearly distinguishable from Burns in that Mr. Concha

had notice, beginning with our circuit opinion remanding his case for

resentencing, that an upward departure was possible on the basis of inadequate

criminal history under section 4A1.3. See Concha, 233 F.3d at 1257. Moreover,

our first opinion and the amendment to the presentence report on resentencing

provided notice that such a departure would be supported by his foreign

convictions. Id. Thus Mr. Concha was significantly more aware than was the

defendant in Burns that the court might depart and of the grounds for that

departure. See, e.g., United States v. Lopreato, 83 F.3d 571, 577 (2d Cir. 1996).

Even assuming Burns governs the lack of notice with respect to the one

conviction not previously mentioned by the government or the probation office as

among those foreign convictions supporting an upward departure, we find no

grounds for reversal. Mr. Concha has not identified on appeal any argument he

would have made against the use of this particular conviction that he did not make

with respect to the other six convictions specifically listed as bases for departure.

Indeed, Mr. Concha has failed to articulate any prejudice whatsoever flowing

from his lack of notice regarding the use of that conviction. Accordingly, any

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error was harmless beyond a reasonable doubt. See id. Moreover, when, as here,

“the sentencing decision rested on other permissible factors in addition to the

improper factor, and we determine the district court would have imposed the same

sentence even in the absence of the improper factor, then we will not disturb the

decision.” United States v. Whiteskunk, 162 F.3d 1244, 1250 (10th Cir. 1998)

(citing Koon, 518 U.S. at 113). Our review of the proceedings convinces us the

district court would have imposed the same sentence even absent consideration of

the challenged foreign conviction.

We AFFIRM the sentence of the district court.

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