United States Court of Appeals
For the First Circuit
Nos. 00-1675
00-1676
UNITED STATES,
Appellee,
v.
SCOTT R. CHAPMAN,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr, Senior Circuit Judge,
and Stahl, Circuit Judge.
Neal K. Stillman for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
with whom Jay P. McCloskey, United States Attorney, was on
brief, for appellee.
February 27, 2001
STAHL, Circuit Judge. These consolidated appeals
result from two sentences imposed upon Scott R. Chapman by the
United States District Court for the District of Maine (Carter,
J.). On appeal, Chapman raises three issues. First, he argues
that it was error to impose his sentences consecutively rather
than concurrently. Second, he disputes the two-level
enhancement to his offense level for more than minimal planning.
Finally, he contends that the imposition of a five-month upward
departure from the sentencing guideline range, levied on the
basis of his excessive criminal history, was unreasonable.
Finding no error in any of these decisions, we affirm.
I. BACKGROUND
At the time of the events relevant to this appeal,
Chapman, a career criminal, was on supervised release following
his most recent incarceration. Among the conditions to which he
was subject were: 1) that he not leave the judicial district
without permission; 2) that he not commit another federal,
state, or local crime; and 3) that he abstain from all drug and
alcohol use and participate in a drug and alcohol therapy
program.1 Chapman violated all three of these conditions within
his first few months of freedom.
1
These numbers differ from the original numbering of the
conditions, as they reflect only those conditions relevant here.
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On June 9, 1999, as a result of an error on the part
of the Bureau of Prisons which kept Chapman incarcerated 104
days longer than required, he was released from prison suddenly
and without notice.2 Using the $69 given to him as "gate money"
upon release, he purchased a bus ticket that eventually brought
him to Portland, Maine. After arriving there without funds and
with no place to live, Chapman fortuitously found employment and
housing with John Jollatta, a contractor who gave him work and
allowed him to live at his home.
Shortly after he began work, Chapman, on two separate
occasions, suffered work-related injuries. After his second
injury Chapman was hospitalized. Jollatta visited him at the
hospital and asked him not to file a worker's compensation
claim, offering instead to cover his medical expenses in
exchange. Chapman agreed and, after he was released from the
hospital, moved back in with Jollatta. Thereafter, when
Jollatta did not immediately pay the medical bills, Chapman
became angry and departed Jollatta’s employment and home, taking
with him the company’s business checkbook.
2 This extra time served, however, is not relevant to the
determination of his sentences in this case. The Bureau of
Prisons will automatically deduct it from the time he now must
serve for revocation of his supervised release.
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Chapman had a savings account at People's Heritage
Bank, which he had opened when he first became employed. This
was also Jollatta's bank. On August 2 and 3, 1999, Chapman
engaged in a check kiting scheme using the checks he had stolen
from Jollatta by writing several checks to himself for varying
amounts, and then depositing them to his account. Subsequently,
during the two-day period and at four different branches of the
bank, he either cashed the checks and/or made withdrawals from
the amounts previously deposited into his account at the bank.
He also wrote one check to a retail store. In this way, over
the two-day period, Chapman defrauded People's Heritage of
$11,405.96 before it discovered the scheme.
Chapman was arrested on August 26, 1999, in Montpelier,
Vermont. He attempted to escape from the arresting officers,
but was caught. Subsequently, during a search of his residence,
cocaine and illegal mushrooms were found. On January 18, 2000,
Chapman pled guilty to violating the terms of his supervised
release by committing a new federal crime and was sentenced to
serve an additional 24 months as a result. Chapman does not
appeal this sentence.
On the same day, Chapman also pled guilty to a charge
of bank fraud. The base offense level for this crime was 6.
Three levels were added pursuant to U.S.S.G. § 2F1.1(b)(1)(D)
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for the amount of the bank's loss, two levels were added
pursuant to U.S.S.G. § 2F1.1(b)(2) for more than minimal
planning. Finally, and despite Chapman's demonstrated lack of
remorse,3 two levels were subtracted pursuant to U.S.S.G. §
3E1.1(a) for acceptance of responsibility because Chapman had
confessed to the bank fraud charge. This resulted in a final
offense level of 9.
Chapman had an extremely long, continuous, and
sometimes violent criminal history, including burglary while
armed with a .25 caliber handgun. Thirty-three criminal history
points were applied to Chapman as a result of his 13
convictions, as well as two points for committing the instant
offense while on supervised release, and one point because the
offense occurred within two years of his release from custody.
U.S.S.G. § 4A1.1. Chapman's total of 36 criminal history points
was well beyond (nearly triple) the 13 points needed to place
him in Criminal History Category VI, the highest category
reflected in the Guidelines.
The combination of an offense level of 9 and a Criminal
History Category VI resulted in a guideline sentencing range of
21 to 27 months. U.S.S.G. § 5A (Sentencing Table). Pursuant to
3
Chapman still appears to believe that he was entitled to
do what he did because Jollatta had not paid his medical bills.
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U.S.S.G. § 4A1.3, however, a sentencing judge may depart upward
from a guideline sentencing range where the criminal history
category inadequately reflects "the seriousness of the
defendant's past criminal conduct or the likelihood that the
defendant will commit other crimes." U.S.S.G. § 4A1.3. Because
of Chapman's egregious criminal record, as well as his notable
recidivist tendencies, the district court sentenced him to 32
months for the bank fraud, only a five-month, or 18-19 percent,
upward departure.
Finally, the district court required that Chapman's 24-
month sentence for revocation of supervised release and his 32-
month sentence for bank fraud run consecutively rather than
concurrently, resulting in a total prison term of 56 months.
Chapman appeals the decision to run his sentences consecutively,
the two-level adjustment for more than minimal planning, and the
upward departure from the sentencing guideline range because of
his underrepresented criminal history. None of the other
sentencing determinations is challenged here.
II. CONSECUTIVE SENTENCES
Chapman argues that his sentences for bank fraud and
for revocation of supervised release should have been imposed to
run concurrently and not consecutively. However, Chapman not
only fails to address the relevant guideline, but the argument
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he does make is without merit. He contends that, pursuant to 18
U.S.C. § 3584(a), the district court has the discretion to
impose either concurrent or consecutive sentences, and that in
this case that discretion was abused when the district court did
not consider the mitigating fact that his crime was a result of
his sudden release from prison. We do not agree.
Section 5G1.3 of the Sentencing Guidelines governs
whether a new sentence imposed upon a defendant already subject
to an undischarged term of imprisonment should run concurrently
or consecutively to the existing term. Application Note 6 deals
with revocations:
If the defendant was on federal or state
probation, parole, or supervised release at
the time of the instant offense, and has had
such probation, parole, or supervised
release revoked, the sentence for the
instant offense should be imposed to run
consecutively to the term imposed for the
violation of probation, parole, or
supervised release in order to provide an
incremental penalty for the violation of
probation, parole, or supervised release.
We have held that this application note,4 despite its use of
"should," is mandatory. United States v. Gondek, 65 F.3d 1, 3
(1st cir. 1995); see also United States v. McCarthy, 77 F.3d
522, 539-40 (1st Cir. 1996) ("In cases where a defendant has
4 At the time of our holdings in Gondek and McCarthy, this
identical note was identified as Application Note 4.
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committed a federal offense while on probation, Note 4 expressly
limits a district court's discretion in determining a reasonable
incremental punishment by providing that the court must order
the entire federal sentence to run consecutively to any sentence
imposed upon revocation of probation."). Several other
circuits--nearly all of those addressing the issue--have agreed
with this interpretation. See, e.g., United States v.
Alexander, 100 F.3d 24, 26 (5th Cir. 1996) (holding that
Application Note 6 is "binding on the courts"); United States v.
Bernard, 48 F.3d 427, 430-32 (9th Cir. 1995).
Moreover, and as the district court aptly noted, "as
a matter of fact or policy, the only way to effectively enforce
supervised release is to require that time in addition to
whatever else he is sentenced for is imposed." Otherwise, there
effectively would be no punishment at all for violating the
conditions of his supervised release. We can conceive of no
reason to upset the district court's imposition of consecutive
sentences for the revocation of supervised release and the bank
fraud itself.
III. MORE THAN MINIMAL PLANNING
Chapman next argues that the district court erred in
adjusting his offense level upward for more than minimal
planning pursuant to U.S.S.G. § 2F1.1(b)(2). He contends that
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his actions were impulsive and opportunistic, and thus do not
lend themselves to this enhancement. Even if we grant that his
decision to abscond with the checks and run was spontaneous,
however, the complicated process through which he negotiated the
checks belies his contention of impulsiveness.
We review a district court’s finding of more than
minimal planning for clear error, reversing it only if "we are
left with 'the definite and firm conviction that a mistake has
been committed." United States v. Rust, 976 F.2d 55, 57 (1st
Cir. 1992) (quoting United States v. Vega-Encarnacion, 914 F.2d
20, 24 (1st Cir. 1990)) (vacating a sentence, despite this
standard, where the district judge should have made the upward
adjustment and did not do so); United States v. Gregorio, 956
F.2d 341, 343 (1st Cir. 1992) (upholding the two-level
enhancement).
Application Note 1(f) of § 1B1.1 describes three
circumstances to which the "more than minimal planning"
enhancement applies: 1) where the amount of planning involved
exceeded that which "is typical for commission of the offense in
a simple form;" 2) where the defendant has taken significant
affirmative steps to conceal the offense; and 3) where the
offense involved "repeated acts over a period of time, unless it
is clear that each instance was purely opportune." The
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government argues, and the district court appears to have
determined, that any one of these three justifications for the
enhancement applies to Chapman's actions because of the
complexity of the scheme.5 While we are not convinced that the
facts here suggest more planning than is typical for bank fraud,
which by its nature requires some sophistication, United States
v. Bean, 18 F.3d 1367, 1370 (7th Cir. 1994), it seems quite
evident that Chapman’s repeated transactions at different bank
branches were not "purely opportune."
"Conduct is 'purely opportune' only if it is spur of
the moment conduct, intended to take advantage of a sudden
opportunity." Rust, 976 F.2d at 57. Webster's Third New
International Dictionary (1986) defines "sudden" as something
that "occur[s] unexpectedly" and "without previous notice," and
which was thus "not foreseen or prepared for," such as a
thundershower on a clear day. Although Chapman obviously took
advantage of having recently obtained his employer's checks, and
5 Chapman deposited bad checks in different locations in
order to support his withdrawals from the various branches of
amounts that were only briefly supported by these phantom
deposits. Determining the right amounts to deposit and withdraw
as he went along required both planning and basic math. The
government argues that this qualifies as more than minimal
planning. It also reasons that efforts to conceal are
demonstrated by the use of different bank branches (to avoid
calling attention to himself), and finally that the series of
transactions was not "purely opportune."
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it may seem unlikely that it occurred to him to engage in this
scheme at any time prior to his taking the checks and leaving,
it nonetheless took two days for him to complete the process of
deposits and withdrawals that were the basis of his bank fraud
charge. These acts were not "sudden" in any sense.
Because of the myriad criminal opportunities that can
arise and the differing ways individuals might act upon them, we
need not set forth an exact period of time, after an opportunity
presents itself, within which one must act in order to have
actions defined as "purely opportune." Chapman's actions were
not "purely opportune," and the enhancement for more than
minimal planning was not clearly erroneous.
IV. UPWARD DEPARTURE
Chapman next argues that it was error for the district
court to depart upward from the guideline sentencing range on
the basis of his long criminal history. U.S.S.G. § 4A1.3. He
contends that the district court did not supply an adequate
rationale for its decision to do so, but rather made a
mechanical leap through the sentencing grid on the basis of
numbers alone. Having reviewed the sentencing transcript, we
find this contention to be without merit.
Section 4A1.3 provides, in pertinent part: "If reliable
information indicates that the criminal history category does
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not adequately reflect the seriousness of the defendant's past
criminal conduct or the likelihood that the defendant will
commit other crimes, the court may consider imposing a sentence
departing from the otherwise applicable guideline range." In
most cases, this means that the court should apply the
sentencing guideline range that would result from the next
higher criminal history category, or from whichever category the
defendant best fits after considering the seriousness of his
cumulative offenses. U.S.S.G. § 4A1.3. Because Category VI is
the highest contemplated by the grid, the Commission addressed
this problem in the following way:
[T]here 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. In determining whether an
upward departure from Criminal History
Category VI is warranted, 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. . . .
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 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
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History Category VI until it finds a
guideline range appropriate to the case.
U.S.S.G. § 4A1.3. In other words, when the court cannot
increase the criminal history category (because there is none
higher), but would otherwise be justified in so doing, it may
instead adjust upward the offense level in order to arrive at an
appropriate sentence.
Although Chapman devotes barely over one page in his
brief to this entire issue, and does not cite to the guideline
language, his arguments appear to be based primarily on the
above quoted text. In essence, he contends that the court
should have considered the nature and context of his crimes, and
not just their number.
We have consistently followed a tripartite methodology
for analyzing upward departures originally chiseled in United
States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir. 1989). That
methodology requires that we apply a different standard of
review to each step in the process. We look first at the legal
justification for departure, in the abstract, using a de novo
standard. Id. Secondly, and assuming that we are satisfied
with the district court's interpretation of the law as
considered in step one, we look at the factual record to
ascertain whether there are circumstances sufficient to warrant
the departure in the case at hand. Id. Because this is a
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question of fact, we leave the district court's determination of
the matter untouched absent clear error. Id. Assuming, after
the first two steps, that we are still satisfied with the
conclusions reached below, we look finally at the extent of the
departure. Id. The standard we use at this stage is one of
reasonableness. Id.
The first two prongs of the test are quite simple in
the present case, and thus may be dispensed with quickly. Based
on the section of the Sentencing Guidelines discussed above,
there is no question that an egregious criminal history, not
properly accounted for under the Guideline structure, is a
proper legal ground for an upward departure. It is also quite
clear from the record that Chapman's criminal history is indeed
overwhelming. Not only did he have 36 criminal history points
(which, on a scale that goes up to 13, certainly is extreme),
but his recidivism was nearly always immediate, and some of his
crimes were violent (burglary, which is deemed a violent crime
by the Guidelines because of the potential for injury if there
is an encounter with the resident). The district court noted
that Chapman's was "amazingly one of the worst record[s] I have
seen in recent years," and we defer to that assessment in light
of the district court's more direct experience with this
defendant and those with whom he is now compared.
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Chapman’s real point of contention in this appeal goes
to the third Diaz-Villafane prong. Under the Guidelines, a
sentencing judge is expected to articulate some rationale for
both the departure itself and the extent of that departure.
United States v. Ocasio, 914 F.2d 330, 336 (1st Cir. 1990). As
discussed above, Chapman's sentence of 32 months reflects a
five-month departure from the 21-27 month guideline range.
Chapman contends that the district court made a mechanical move
through the guideline grid based purely on his criminal history
score, but without considering the context of his past behavior
and without providing adequate reasoning for its decision to add
five months specifically.
"Reasonableness is a concept, not a constant," id., and
"[t]here is no scientifically precise litmus test by which the
reasonableness of departure decisions can be resolved," id. at
337. Because we cannot create bright-line rules for this aspect
of the sentencing process, we give substantial leeway to
district courts in their efforts to determine the proper
sentence for a particular defendant. See Diaz-Villafane, 874
F.2d at 49-50 ("This third step involves what is
quintessentially a judgment call . . . . We will not lightly
disturb decisions to depart, or not, or related decisions
implicating degrees of departure."). Although some
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justification is required, "[w]e do not think that a district
court must dissect its departure decision, explaining in
mathematical or pseudo-mathematical terms each microscopic
choice made in arriving at the precise sentence." United States
v. Emery, 991 F.2d 907, 913 (1st Cir. 1993). Indeed, the
district court's reasoning for whether to depart often can be
applied, without further discussion, to the determination of the
extent of that departure, at least in § 4A1.3 cases. Id.
("[W]hen the court has provided a reasoned justification for its
decision to depart, and that statement constitutes an adequate
summary from which an appellate tribunal can gauge the
reasonableness of the departure's extent, it has no obligation
to go further and attempt to quantify the impact of each
incremental factor on the departure sentence.").
This case is similar, on this particular issue, to
United States v. Black, 78 F.3d 1, 8-9 (1st Cir. 1996), in which
we dealt with the following circumstances:
Black says that the district court acted
mechanically, imposing the departure
basically because Black had far more points
than the minimum for category VI. This is
not a complete description of what happened:
the district judge mentioned the point
differential but followed this with a
lengthy recitation of Black's actual
criminal history, which we have already
quoted.
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This is precisely what happened in the instant case. The
district court noted the excessive criminal history points, but
also expressed concern about the violent nature of burglaries,
as well as Chapman's consistent recidivism. As we stated in
Black, "we will not remand for an explanation that is so clearly
implicit in what the district court found." Id. at 9. Thus,
the district court provided adequate reasoning for us to
consider in determining the reasonableness of the departure's
extent.
The extent of the departure in this case is relatively
minor. Chapman's sentence was increased by 5 months, or
approximately eighteen percent. Compared with our prior cases
affirming upward departures, the upward departure was modest.
See, e.g., United States v. Brewster, 127 F.3d 22, 31 (1st Cir.
1997) (affirming an upward departure of 22 months, or about 50%,
on the basis of uncounted prior convictions and uncharged
domestic violence); United States v. Hardy, 99 F.3d 1242, 1253
(1st Cir. 1996) (affirming a 300% upward departure); Black, 78
F.3d at 7-8 (affirming an upward departure of 16 months, or
about 30%, on the basis of a criminal history score of 21);
United States v. Doe, 18 F.3d 41, 48-49 (1st Cir. 1994)
(affirming an upward departure of 45 months, or about 167%);
Emery, 991 F.2d at 914 (affirming an upward departure of 21
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months, or about 41%, on the basis of a criminal history score
of 20); United States v. Brown, 899 F.2d 94, 96 (1st Cir. 1990)
(affirming an upward departure of 12 months, or about 133%, on
the basis of a criminal history score of 20); Diaz-Villafane,
874 F.2d at 51-52 (affirming an upward departure of 87 months,
or 264%).
We find no error in the court’s upward departure
determination.
V. CONCLUSION
For the foregoing reasons, the district court's
sentencing decisions are affirmed.
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