United States Court of Appeals,
Eleventh Circuit.
No. 94-8543.
UNITED STATES of America, Plaintiff-Appellee,
v.
Larry Armstead DIXON, Defendant-Appellant.
Dec. 27, 1995.
Appeal from the United States District Court for the Middle
District of Georgia. (No. 5:93-00077-CR-MAC(WDO), Wilbur D. Owens,
Jr., District Judge.
Before KRAVITCH and COX, Circuit Judges, and CLARK, Senior Circuit
Judge.
KRAVITCH, Circuit Judge:
This case presents the issue of the procedure sentencing
courts must follow when imposing an upward criminal history
departure above category VI, pursuant to U.S.S.G. § 4A1.3. We hold
that sentencing courts need not make step-by-step findings en route
to the ultimate sentencing range; rather, criminal history
departures above category VI will be reviewed for reasonableness,
based on findings as to why an upward departure is warranted and
why the particular sentencing range chosen is appropriate.
I.
Larry Armstead Dixon pled guilty to possession of a stolen
firearm by a convicted felon, in violation of 18 U.S.C. §
922(g)(1). Included in the plea agreement was Dixon's stipulation
to six prior armed robbery and burglary offenses, qualifying him
for an enhanced sentence as an "armed career criminal" under 18
U.S.C. § 924(e) (carrying a mandatory minimum sentence of fifteen
years).
Dixon has a prolific criminal history, including convictions
for numerous violent felonies and drug offenses. The presentence
investigation report ("PSI") calculated that Dixon had accumulated
28 criminal history points, placing him in category VI (the highest
category, for those with thirteen or more points), and that his
1
total offense level was 30. At sentencing, the district court
found, pursuant to U.S.S.G. § 4A1.3, p.s., that category VI did not
adequately reflect the seriousness of Dixon's past criminal conduct
or the likelihood of recidivism and decided to depart upward.2 The
court then determined Dixon's sentence, as follows:
[W]hat the Court's going to do, pursuant to 4A1.3, is
structure a departure by moving incrementally down the
sentencing table to find a guideline range which is
appropriate in your case. In doing that, the Court determines
that a three-level increase is warranted and that will create
an offense level of 33 and a criminal history category of VI
which will give you a sentencing range of 235 to 293 months.
R2-9. The court proceeded to impose a 250 month sentence.
II.
Dixon contends that the district court erred in upwardly
departing to a sentencing range three offense levels higher than
Dixon's without first explicitly considering whether the ranges
corresponding to offense levels one and two higher than Dixon's
would have been appropriate. Dixon does not challenge the
reasonableness of the district court's decision to depart upward
pursuant to § 4A1.3 in a situation such as this, where the number
of criminal history points far exceeds the category VI range, nor
1
Sentencing took place on April 26, 1994.
2
The court noted that Dixon's 28 criminal history points
would, extrapolating beyond category VI, place him in a
hypothetical category XI.
does he dispute his extensive criminal history as described in the
PSI. Rather, Dixon argues that the district court's procedure for
determining the extent of the departure was flawed because it did
not include step-by-step findings for each rejected sentencing
range.
Section 4A1.3 of the Guidelines was amended in 1992 to include
a procedure for upwardly departing beyond criminal history category
VI:
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 History Category VI until it finds
a guideline range appropriate to the case.
U.S.S.G. § 4A1.3, p.s. Prior to the addition of this language,
courts in this circuit had reviewed departures above category VI
only for reasonableness, not requiring the sentencing court to
provide explicit justification for rejecting intervening sentencing
ranges before settling on an appropriate range within which to
sentence. See United States v. Brown, 9 F.3d 907 (11th Cir.1993),
cert. denied, --- U.S. ----, 115 S.Ct. 152, 130 L.Ed.2d 91 (1994);3
United States v. Simmons, 924 F.2d 187 (11th Cir.1991). This is in
contrast to the established procedure for upwardly departing from
a criminal history category below IV, which requires the sentencing
court to discuss each category it passes over en route to the
3
Although Brown at one point quotes the amended version of §
4A1.3, 9 F.3d at 909 n. 2, the opinion does not provide the date
on which sentencing occurred, nor does it specify which version
of § 4A1.3 is being applied. Because the opinion does not
mention the 1992 amendment to § 4A1.3, we assume that the
criminal history departure above category VI in Brown was imposed
pursuant to the pre-amendment guideline.
category that adequately reflects the defendant's past criminal
conduct. See United States v. Williams, 989 F.2d 1137, 1142 (11th
Cir.1993); United States v. Johnson, 934 F.2d 1237, 1239-40 (11th
Cir.1991).
This case presents an issue of first impression in this
circuit: whether the 1992 amendment to § 4A1.3 should require
sentencing courts to follow a procedure analogous to the one
mandated by Johnson and Williams when imposing criminal history
departures above category VI.4 Such a procedure would necessitate
findings by the sentencing court as to the appropriateness of the
sentencing range corresponding to each incremental offense level
considered in moving vertically down category VI of the sentencing
table, as described in the amended § 4A1.3.
Other circuits to have considered the issue of departures
above category VI in light of the 1992 amendment have declined to
require step-by-step findings. See United States v. Daughenbaugh,
49 F.3d 171, 174-75 (5th Cir.) (requiring "only that the district
court consider each intermediate adjustment and state that it has
done so, and explain why the guideline category is inappropriate
and why the category chosen is appropriate; stating that such an
explanation will ordinarily make sufficiently clear why the
intermediate adjustments are inadequate"), cert. denied, --- U.S.
----, 116 S.Ct. 258, --- L.Ed.2d ---- (1995); United States v.
Thomas, 24 F.3d 829, 834-36 (6th Cir.) (rejecting the requirement
that a district court "provide a mechanistic recitation of its
4
This issue recently was noted, but not decided, in United
States v. Maurice, 69 F.3d 1553, 1558-59 (11th Cir.1995).
rejection of the intervening, lower guideline ranges"), cert.
denied, --- U.S. ----, 115 S.Ct. 453, 130 L.Ed.2d 362 (1994);
United States v. Harris, 13 F.3d 555, 558-59 (2d Cir.1994) (reading
the amended § 4A1.3 "as merely suggesting an approach, rather than
mandating a step-by-step analysis").
As these other circuits have recognized, there is an important
distinction between upwardly departing from criminal history
categories below VI and above VI. When departing from a category
below VI, courts can juxtapose the defendant's past conduct with
the guideline criteria for each criminal history category; this
allows for incremental findings based on the objective criminal
history criteria explicated in the guidelines, and thereby for
meaningful appellate review. On the other hand, a court following
the amended § 4A1.3 procedures for departing above category VI
increases the defendant's offense level only as a proxy for
increasing the effect of the defendant's criminal history on his or
her ultimate sentence. The guidelines provide no objective
criteria for determining how far down the offense level axis the
sentencing court need travel in order to reflect accurately the
defendant's criminal history. Instead, the sentencing court must
use its discretion in determining which offense level corresponds
to the appropriate sentencing range for a given defendant.
This does not mean that the sentencing court is free to ignore
the procedure described in amended § 4A1.3. The 1992 amendment was
designed to clarify the proper approach to criminal history
departures above category VI and to disapprove alternative
approaches courts had taken, for instance moving horizontally on
the criminal history axis of the sentencing table to fictitious
categories above VI. See, e.g., United States v. Cash, 983 F.2d
558, 561 (4th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct.
2380, 124 L.Ed.2d 284 (1993); United States v. Streit, 962 F.2d
894, 905-06 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 431,
121 L.Ed.2d 352 (1992); United States v. Glas, 957 F.2d 497 (7th
Cir.1992); United States v. Jackson, 921 F.2d 985, 993 (10th
Cir.1990) (en banc). We hold that district courts, in following
the methodology described in amended § 4A1.3 for imposing criminal
history departures above category VI, need not explicitly discuss
their reasons for bypassing incremental offense level sentencing
ranges. Rather, the magnitude of these upward departures will be
reviewed for reasonableness, based on findings by the district
court as to (1) why the extent and nature of the defendant's
criminal history warrants an upward departure from category VI, and
(2) why the sentencing range within which the defendant is
sentenced is appropriate to the case.
In this case, the district court stated that it had moved
incrementally down category VI until it found a guideline range
appropriate to Dixon's case. Prior to making this determination,
the court referenced the detailed catalogue of Dixon's extensive
criminal history contained in the PSI and noted his total of 28
criminal history points. Dixon does not dispute the reasonableness
of the departure. On these facts, we conclude that the district
court provided adequate findings in support of its decision to
depart upward from criminal history category VI to impose a
sentence of 250 months.
III.
Dixon also contends that he was not given adequate notice of
the possibility of an upward departure. Before imposing an upward
departure "on a ground not identified as a ground for upward
departure either in the presentence report or in a prehearing
submission by the Government," a district court must give
"reasonable notice that it is contemplating such a ruling." Burns
v. United States, 501 U.S. 129, 137-39, 111 S.Ct. 2182, 2187, 115
L.Ed.2d 123 (1991); e.g., United States v. Valentine, 21 F.3d 395,
397 (11th Cir.1994). This requirement of reasonable notice follows
from the mandate of Fed.R.Crim.P. 32(c)(1) that the parties be
given "an opportunity to comment upon the probation officer's
determination and on other matters relating to the appropriate
sentence."
Dixon's PSI included the following language relevant to upward
departure:
Part E. FACTORS THAT MAY WARRANT UPWARD DEPARTURE
Pursuant to U.S.S.G. § 4A1.3, adequacy of criminal
history category, states that if reliable information
indicates the criminal history category does not adequately
reflect the seriousness of the defendant's past criminal
conduct, or the likelihood that the defendant would commit
future crimes, the Court may consider imposing a sentence
departing from the otherwise applicable guideline range. In
this case, the defendant has 28 criminal history points,
making him a criminal history category of VI. Defendant's
extensive history of crime involves mostly burglaries, armed
robberies and firearm charges. The seriousness of his
criminal actions is reflected in the large number of criminal
history points that he has acquired.
Dixon argues that although this language may have given notice that
his criminal history could warrant a sentencing departure, it
failed to inform him that this departure might be upward. We find
it impossible to believe that the probation officer's focus on
Dixon's 28 criminal history points, his "extensive history of
crime," and the "seriousness of his criminal actions" could have
been interpreted as harbingers of a downward departure, however.
Indeed, Dixon objected to Part E of the PSI in his Objections to
the Pre-Sentencing Investigation Report, specifically arguing
against an upward departure. And he again raised the possibility
of, and argued against, upward departure at the sentencing hearing.
We thus conclude that the PSI gave Dixon reasonable notice that his
criminal history might serve as a ground for upward departure.
We AFFIRM Dixon's sentence.